The Salmon and Steelhead
Listings – Learning to Count All Over Again
Patti Goldman
Managing Attorney, Earthjustice
Seattle, Washington
January 2006
The district court decision in Alsea Valley Alliance v. Evans, 161 F. Supp.2d 1154 (D. Or. 2001), appeal dismissed, 358 F.3d 1181 (9th Cir. 2004), unleashed tremendous confusion and uncertainty over the fate of the salmon and steelhead listings in the Pacific Northwest. As Jack de Yonge, former Seattle Post Intelligencer reporter, summarized the situation: it “reminded me of a cottontail racing through the briars: First this way, then that way, and back around and finally, where in the hell are we?” He made this observation four years ago when Alsea first came out of the district court. After an indecisive appeal, a new hatchery policy, new salmon listing decisions, and proposed listings for steelhead, we are still racing through the briar patch, wondering where we are heading, although it is remarkably close to where we started, albeit via a circuitous path.
Four years ago, I made the following prediction in a piece on Alsea:
Because the hatchery populations that may be added to the equation are not self-sustaining in the wild, and because of continuing threats to coho survival, the most likely (and only legally defensible) outcome is the continued listing of wild salmon and steelhead that have previously been found to warrant the protection of the Endangered Species Act (“ESA”). As a result, the Alsea Valley decision, even if upheld on appeal, will produce few, if any, changes in the ultimate protection afforded wild salmon in the region.
So far, this prediction has proven to be true. NOAA Fisheries (also known as National Marine Fisheries Service or NMFS) has either listed or proposed to list all salmon and steelhead that were previously listed or considered for listing since Alsea. This stability on the surface belies continuing controversy over the appropriate treatment of hatchery fish in listing decisions, which will be translated into continued legal challenges to both the new hatchery policy and most likely the listings.
To understand the nature and implications of the current controversy, it is helpful to review: (1) the pertinent ESA framework; (2) NMFS’ ESA listing policies for defining Pacific salmon “species” and treatment of hatchery populations; (3) the Alsea Valley litigation; (4) the new hatchery policy and listings based on it; (5) the upcoming Oregon coast coho salmon listing decision; and (6) the upcoming steelhead listing decisions.
Congress enacted the ESA “to provide a means whereby ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). As the Senate Report explained, “many [imperiled species] perform vital biological services to maintain a ‘balance of nature’ within their environments.” S. Rep. No. 307, 93d Cong., 1st Sess. 2 (1973). The House of Representatives underscored the need to conserve threatened and endangered species because of “the critical nature of the interrelationships of plants and animals between themselves and with their environment.” H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973).
Under Section 7 of the ESA, federal agencies must ensure that their actions will not “jeopardize the continued existence of any endangered species or threatened species . . . .” 16 U.S.C. § 1536(a)(2). Implementing regulations issued jointly by NMFS and the Fish and Wildlife Service define the phrase “jeopardize the continued existence” to mean “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild . . . .” 50 C.F.R. § 402.02 (emphasis added). In 1982, Congress expressly endorsed this regulation by incorporating this language into the jeopardy criteria for the Services’ approval of habitat conservation plans and issuance of incidental take permits. 16 U.S.C. § 1539(a)(2)(B)(iv).
The ESA’s “species” definitions support a flexible configuration of species to afford them the protection that they need to survive and recover. Two phrases, “distinct population segment” and “in danger of extinction throughout all or a significant portion of its range,” are relevant to the treatment of hatchery populations.
The ESA defines “species” to include “any subspecies” and “any distinct population segment of any species . . . .” 16 U.S.C. § 1532(16). The original ESA defined species to include “smaller taxa in common spatial arrangement that interbreed when mature.” Pub. L. No. 93-205, § 3(11), 87 Stat. 884 (1973). In 1978, Congress substituted the current phrase, “distinct population segment” for vertebrate fish and wildlife species. H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 2 (1978). During the House floor debate, Representative Duncan of Oregon offered a biological definition of species: “a group of fish, wildlife, or plants, consisting of physically similar organisms capable of interbreeding but generally incapable of producing fertile offspring through breeding with organisms outside this group.” Legislative History of the ESA of 1973, as amended in 1976, 1977, 1978, 1979 & 1980, 97th Cong., 2d Sess. at 881 (Serial No. 97-6, 1982). The final 1978 amendments rejected this species definition in lieu of the broader definition in the Act today.
The Act contains no definition of “distinct population segment.” Nor is that phrase a scientifically used term. In 1996, NMFS and the Fish and Wildlife Service adopted a joint policy interpreting the phrase distinct population segment. Under the joint distinct population segment policy, the agencies would identify distinct population segments based on the population’s: (1) discreteness, i.e., whether “it is markedly separate from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors”; and (2) significance, which may be shown by its persistence in a unique ecological setting, the gap that would result from its loss, its survival as the only natural occurrence of a taxon introduced elsewhere, or marked differences in genetic characteristics. 61 Fed. Reg. 4722 (Feb. 7, 1996).
The ESA defines “endangered species” as any species that is “in danger of extinction throughout all or a significant portion of its range,” 16 U.S.C. § 1532(6), and “threatened species” as “any species likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). Since “species” is defined to include “any distinct population segment,” the definition of endangered species extends to any distinct population segment that is in danger of extinction throughout all or a significant portion of its range and threatened species includes any distinct population segment likely to become endangered throughout all or a significant portion of its range.
The ESA’s species definitions are silent with respect to hatcheries. Artificial propagation surfaces in the ESA not in the definition of “species,” but rather as a tool that can be used to conserve listed species. The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). The definition goes on to list propagation, along with live trapping and transplantation, among the authorized conservation methods and procedures. Id.
In 1991, NMFS adopted its “evolutionarily significant unit” or “ESU” policy. Policy on Applying the Definition of Species Under the ESA to Pacific Salmon, 56 Fed. Reg. 58,612 (Nov. 20, 1991). NMFS has described the ESU policy as an extension of the distinct population segment policy formulated specifically to address salmon biology. 61 Fed. Reg. 4722 (1996).
Under the ESU policy, two criteria must be satisfied for a stock of Pacific salmon to be considered a distinct population, called an ESU:
(1) It must be substantially reproductively isolated from other conspecific population units; and
(2) It must represent an important component of the evolutionary legacy of the species.
56 Fed. Reg. 58,612, 58,618 (1991). For the first criterion, reproductive isolation need not be absolute, but it “must be strong enough to permit evolutionarily important differences to accrue in different population units.” Id. The policy further provides:
The second criterion would be met if the population contributed substantially to the ecological/genetic diversity of the species as a whole. In other words, if this population became extinct, would this event represent a significant loss to the ecological/genetic diversity of the species? In making this determination, the following questions are relevant:
1.
Is the population genetically distinct from other conspecific
populations?
2. Does the population occupy unusual or distinctive habitat?
3. Does the population show evidence of unusual or distinctive adaptation to its environment?
Prior to Alsea, NMFS based listing determinations solely on the status of wild Pacific salmon and steelhead because of the ESA’s focus on a species’ ability to sustain itself in its natural habitat without the Act’s protections. Accordingly, NMFS would define the ESUs and assess its viability by focusing on the naturally spawning salmon populations.
Beginning in the late 1800s, hatcheries came to be seen as the solution to diminishing abundance of salmon stocks from overfishing, dams, and destruction of habitat. Rather than address these causes of declining salmon populations, it was believed that hatcheries would increase the supply through artificial propagation. Most hatcheries operate to produce fish for commercial and recreational fishing. See Jim Lichatowich, Salmon Without Rivers: A History of the Pacific Salmon Crisis (1999). It is only in recent years that there has been some effort to operate what are called conservation hatcheries designed to increase natural production, conserve the last remaining broodstock, or otherwise restore native salmon runs.
In the early 1990s, NMFS produced a technical paper and issued an interim policy on Pacific salmon and artificial propagation under the ESA. Both the technical paper and the policy reviewed the role that hatchery fish play in diminishing the genetic diversity and the fitness of salmon populations to survive in their native streams, as well as in competing for territory and spreading disease. 58 Fed. Reg. 17,573, 17,574 (1993). In the hatchery policy, NMFS found that hatchery populations diminish genetic diversity, reduce the fitness of salmon populations to survive in their native streams, and harm wild salmon by competing for territory and mates and by spreading disease. Id. at 17,574. Ultimately, NMFS concluded that “[t]hese genetic and ecological risks of artificial propagation can pose serious threats to natural salmon populations.” Id.
The hatchery policy prescribed how hatchery populations should be treated in listing determinations, reiterating that NMFS will define the ESU based on wild salmon and determine whether naturally spawning salmon in that ESU are threatened or endangered. Id. at 17,573. Only after determining whether a listing was warranted would NMFS ask whether hatchery populations that had been introduced into the area should be included in the ESA and listed.
The goal of the hatchery policy was to jump start a new vintage of hatcheries – conservation hatcheries that would be operated to restore native salmon runs by colonizing vacant streams or increasing natural production in the wild. The 1993 hatchery policy included in the ESU only those hatcheries that could be used for conservation purposes. Thus, hatchery populations were not included in the ESU if (1) the hatchery population was of a different genetic lineage than the natural populations; (2) artificial propagation has produced appreciable changes in genetically based characteristics of the hatchery fish; or (3) substantial uncertainty exists as to the relationship between the hatchery fish and the natural fish. Id. at 17,575.
For hatchery populations included in the ESU under these factors, NMFS then would decide whether to list the populations based on whether they were “essential for recovery” of the natural populations: “This situation might occur if the natural population faces a high, short-term risk of extinction, or if the hatchery population is believed to contain a substantial portion of the genetic diversity remaining in the species. In such cases, the existing hatchery population should be included as part of the listed species, and would be protected under the ESA.” Id. However, a conservation hatchery would be managed differently than hatcheries that produce fish for commercial and sports fishing. Instead of trying to produce large numbers of surplus fish, a conservation fish would seek to buttress wild salmon spawning and survival, which would lead to the curtailment of most or all fishing of the hatchery fish.
Regardless of whether the listing encompasses hatchery populations, all progeny of naturally spawning fish received listing protection: “Under any scenario, progeny of fish from the listed species that are propagated artificially are considered part of the listed species and are protected under the ESA.” Id.
In 1995, NMFS proposed to list Oregon coast coho salmon as threatened upon finding them to be in decline based on the ESA’s statutory listing factors, including the threats posed by hatchery fish through their competition for habitat and prey and genetic threats to wild salmon. 60 Fed. Reg. 38,011, 38,019 (July 25, 1995). NMFS withdrew the proposed listing in 1997 based on the predicted effects of future and voluntary conservation measures envisioned under the newly adopted Oregon Coastal Salmon Restoration Initiative. NMFS had not changed its assessment of the species’ status or its conclusion that listing would be warranted in the absence of the changes envisioned in the initiative. In a challenge to the decision not to list, a district court held that NMFS could not refuse to list a species based on the hope that improved regulations and voluntary measures would constrain habitat degradation in the future. ONRC v. Daley, 6 F. Supp.2d 1139, 1151-55 (D. Or. 1998). NMFS then listed Oregon coast coho, reiterating its findings that such a listing is warranted under the statutory listing factors. 63 Fed. Reg. 42,587, 42,588 (Aug. 10, 1998).
NMFS included nine hatchery populations in the ESU based on its conclusion that they could be used in future recovery programs if the hatcheries were converted into conservation hatcheries. It excluded four others (including the Fall Creek hatchery at issue in Alsea) because they had used broodstock and employed practices that disqualified them for use as recovery tools. Because none of the hatchery populations was currently being used for conservation purposes and NMFS concluded that it was not essential to convert them into conservation hatcheries, it included none of the hatchery populations in the Oregon coast coho listing.
Alsea began as a challenge to the closure of the Fall Creek Hatchery, which had produced coho since the early 1950s for commercial and sports fishing. By the late 1990s, less than one percent of the hatchery run was returning to the basin as adults. Because the program was ineffective in terms of costs and returns, and it was found to be a significant factor contributing to the decline of wild coho in the basin, the Oregon Department of Fish and Wildlife (“ODFW”) decided to close the hatchery in 1997. The last release of coho juveniles occurred that year. Hatchery fish returning to the Fall Creek Hatchery in 1998 and 1999 were killed and the fish either sold to processors (with the revenue supporting future hatchery programs) or placed in streams for nutrient enrichment in the basin. http://www.dfw.state.or.us/ODFWhtml/InfoCntrfish/hatchery/facts.htm. The Fall Creek Hatchery became a cause celebre when a videotape captured the clubbing of the returning hatchery fish in 1999. (ODFW stresses that hatchery fish not used for broodstock are likewise killed and that a sharp blow to the head is the most humane method of killing fish).
After losing a state court challenge to the closure of the hatchery, Alsea Valley Alliance challenged the listing in federal court, claiming that NMFS had to list all salmon in the ESU, hatchery and wild alike, or none at all. In an order issued September 10, 2001, the district court held, based solely on the ESA definition of “species” to include subspecies and “any distinct population segment . . . which interbreeds when mature,” 16 U.S.C. § 1532(16), that “[l]isting distinctions below that of subspecies or a DPS of a species are not allowed under the ESA.” 161 F. Supp.2d at 1162. Instead, according to the court, “NMFS may consider listing only an entire species, subspecies or distinct population segment . . . . Once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU.” Id. (emphasis in original).
The court never scrutinized NMFS’ scientific findings that the hatchery populations pose genetic and ecological threats to the wild salmon. Rather, the case turned on a purely legal question: does the ESA permit NMFS to list only wild salmon populations when it has characterized certain hatchery populations as part of the same ESU as the wild fish? In the court’s view, because NMFS had explicitly found that 9 of the 13 hatchery populations should be included in the Oregon coast coho salmon ESU, it had tied its own hands and must list that unit on an all-or-nothing basis. Notably, however, the court’s opinion holds out the possibility that NMFS could have defined hatchery populations as a separate distinct population segment, in which case it could have listed only the wild salmon. Id. In dicta, the court opined that NMFS had no choice but to include the hatchery populations in the ESU considered for listing because “‘hatchery spawned’ and ‘naturally spawned’ coho within the Oregon coast ESU share the same rivers, habitat and seasonal runs.” 161 F. Supp.2d at 1162-63.
Shortly after the district court issued its decision, eight conservation and fishing organizations intervened for purposes of appeal. The Ninth Circuit granted a stay pending appeal, which kept the Oregon coast coho salmon listing in place during the appeal. 358 F.3d at 1184.
On November 9, 2001, NMFS announced that it would not appeal the Alsea Valley decision to the Ninth Circuit. Instead, it announced that it would develop a new hatchery policy through notice and comment rulemaking and would apply that policy to all existing salmon and steelhead listings. See 67 Fed. Reg. 6215 (Feb. 11, 2002).
On appeal, the Ninth Circuit dismissed the appeal because remand orders are generally not considered final, appealable decisions, and the federal agency subject to the remand had not appealed. 358 F.3d at 1184-85. In the absence of a final order, the Ninth Circuit held that it lacked jurisdiction to decide the appeal. Id. at 1184-87. When the Ninth Circuit denied rehearing, the stay dissolved, resulting in the vacatur of the Oregon coast coho salmon listing in June 2004.
The Alsea Valley decision spurred a flurry of delisting petitions, 60-day notices, and look-alike cases against other salmon and steelhead listings. Some courts reached the merits, applying Alsea to other listings, but refused to vacate the listings since NMFS was applying the ruling to develop a new hatchery policy and listing decisions. Modesto Irrigation District v. Evans, No. 02-6553-OWW DLB (E.D. Cal. Apr. 12, 2004); California State Grange v. United States Department of Commerce, No. 02-6044-HO (D. Or. Jan. 11, 2005); and Common Sense Salmon Recovery v. Evans, No. 99-1093-JR (D. D.C. Aug. 10, 2004). Several stayed the look-alike challenges pending the outcome of first the Ninth Circuit appeal and subsequently the new listing decisions. California State Grange v. United States Department of Commerce, No. 02-6044-HO (D. Or. June 8, 2002); Washington State Grange v. Evans, No. 04-00086-LRS (E.D. Wash. July 13, 2005); and Modesto Irrigation District v. Evans, No. 02-6553-OWW DLB (E.D. Cal. Sept. 12, 2005).
The Alsea decision left NMFS free to redefine the ESU to exclude hatchery fish. The Governor of Oregon asked NMFS to redefine the Oregon coast coho ESU to exclude the hatchery fish because of the harm hatchery fish pose to wild salmon and their habitat. Letter from Gov. Kitzhaber to Secretary of Commerce Evans (Sept. 2001). In April 2002, commercial and recreational fishing organizations and conservation submitted petitions asking NMFS to divide wild and hatchery salmon and steelhead into separate ESUs and to list the wild ESUs. The petitions presented extensive scientific information: (1) on the differences between natural and hatchery populations in their behavior, reproductive success, genetic composition, and fitness for survival in the wild; and (2) on the adverse impacts of hatchery production on the habitat, survival, and genetic fitness of natural populations. NMFS found that the petitions presented substantial scientific information indicating that the listing may be warranted. 67 Fed. Reg. 48,601, 48,602 (July 25, 2002).
The petitions argued that splitting the wild and hatchery fish into separate ESUs would be consistent with the ESU policy. First, hatchery fish are substantially reproductively isolated since most hatchery fish do not spawn in the wild. See 56 Fed. Reg. at 58,618 (ESU must be substantially reproductively isolated). Even those hatchery fish that stray are distinct from wild salmon because of their poor reproductive performance. See id. (noting that reproductive isolation need not be absolute, but need only be strong enough to give rise to important differences). Second, hatchery fish represent a different evolutionary legacy than their wild cousins because they have been bred for traits that increase survival in the hatchery but impede their ability to survive in the wild. See id. (ESU must represent an important evolutionary legacy of the species). Hatchery fish show evidence, for example, of early run timing, impaired reproductive functioning, and susceptibility to disease, which distinguishes them from wild salmon adapted to their native streams.
The petitions also asserted that splitting hatchery fish into a separate listing unit is consistent with the distinct population segment policy. First, hatchery populations are discrete or markedly separate from wild salmon based on their behavioral, reproductive, and run-timing differences, as well as their susceptibility to disease and competition with wild salmon for territory and mates. 61 Fed. Reg. 4,722 (defining discreteness as population’s marked separateness from other populations). Second, hatchery populations lack the same significance to the persistence of salmon in the wild. Unless the hatchery population embodies the last remnants of a population, its loss will not produce a significant gap in the species’ range. Id. (defining significance in terms of the population’s role as the last remnant or the gap its loss would create).
Finally, the petitions presented evidence that listing of the wild salmon ESUs would be compelled under the ESA listing factors, relying on an extensive body of scientific evidence as well as NMFS’ prior findings that these wild salmon need ESA protection.
The petition found scientific support from a NMFS’ scientific review panel. In the spring of 2004, six leading marine scientists who NMFS had hired as consultants on salmon recovery published an article in the journal Science. “Hatcheries & Endangered Salmon,” Science, Vol. 303, March 26, 2004. The article concluded that “including hatchery fish in an ESU confounds the risk of extinction in the wild with ease of captive propagation and ignores important biological differences between wild and hatchery fish.” After reciting the poor survival trends of hatchery fish as well as their competition with and threats to wild salmon, the scientists added that “[t]he danger of including hatchery fish as part of any ESU is that it opens the legal door to the possibility of maintaining a stock solely through hatcheries. However, hatcheries generally reduce current fitness and inhibit future adaptation of natural populations.”
Ultimately, however, NMFS denied the petitions. 69 Fed. Reg. 33,102, 33,112 (June 14, 2004). Although NMFS recognized that hatchery fish often pose a threat to wild populations, it believed “consideration of threats faced by an ESU” is “not appropriate” when defining what constitutes a distinct population segment or ESU. Id. Instead, NMFS decided to lump wild and hatchery salmon into one ESU, based on the genetic similarities between the wild and hatchery fish.
In a draft of a new hatchery policy distributed to co-managers in 2002, NMFS envisioned lumping wild and hatchery salmon into the same ESUs, but assessing extinction risk based solely on the viability of naturally spawning salmon. The progeny of naturally spawning fish, regardless of whether the parents originated in the wild or in hatcheries, would be counted in making listing decisions. Under this approach (similar to that employed in the 1993 hatchery policy), hatchery fish would need to spawn and produce viable progeny, who would then return from the ocean as adults before they would be counted. This ensured at least one generation surviving a full life cycle in the wild.
NMFS took a new tack in the hatchery policy formally proposed in June 2004, which has since been finalized with minor modifications. 70 Fed. Reg. 37,204 (June 28, 2005). When the draft policy surfaced, Bob Lohn, the Northwest Region Administrator of NOAA Fisheries, endorsed counting hatchery fish in listing decisions and treating the hatcheries as “a kind of extension of natural habitat” in deciding whether wild salmon need protection. Oregonian, April 29, 2004. He explained the shift: “Just as natural habitat provides a place for fish to spawn and rear, also hatcheries can do that.” Id.
Under the new policy, hatchery stocks will be included in the ESU where they have “a level of genetic divergence relative to the local natural population(s) that is no more than what occurs within the ESU.” 70 Fed. Reg. at 37,215. In determining whether the ESU warrants listing, NMFS considers “four key attributes: abundance, productivity, genetic diversity, and spatial distribution.” Id. The policy describes how hatchery fish can affect these attributes:
The presence of hatchery fish within the ESU can positively affect the overall status of the ESU, and thereby affect a listing determination, by contributing to increasing abundance and productivity of the natural population in the ESU, by improving spatial distribution, by serving as a source population for repopulating unoccupied habitat, and by conserving genetic resources of depressed natural populations in the ESU. Conversely, a hatchery program managed without adequate consideration of its conservation efforts can affect a listing determination by reducing adaptive genetic diversity of the ESU, and by reducing the reproductive fitness and productivity of the ESU.
Id. Where NMFS determines that the ESU warrants listing, it will list the entire ESU, including both wild and hatchery fish. Id. The hatchery policy envisions that NMFS will adopt protective regulations pursuant to ESA § 4(d) to allow fishing of listed hatchery fish where the fish are not needed or used for conservation purposes. Id. at 37,215-16. Under Section 4(d), 16 U.S.C. § 1533(d), NMFS must adopt protective regulations as necessary to provide for the conservation of threatened species. The ESA makes the take prohibition of Section 9 applicable to endangered species, leaving it to the Services to extend such prohibitions to threatened species through 4(d) regulations.
Concurrently with issuance of the new hatchery policy, NMFS made new listing decisions for 16 salmon ESUs based on the hatchery policy. 70 Fed. Reg. 37,160 (June 28, 2005). NMFS retained ESA listings for 15 ESUs, and added a new listing for the Lower Columbia coho salmon ESU. NMFS included hatchery stocks in the ESUs and based its listing on an assessment of the abundance, productivity, genetic diversity, and spatial distribution of the ESU, including the hatchery population’s contributions to these goals or mitigation of risks to the ESU. The hatchery fish almost all contributed to greater abundance, and NMFS had often already determined that they contributed to, or at least did not detract from genetic diversity when it included them in the ESU. NMFS found that some hatchery populations contribute to spatial distribution where they are released into habitat that is not populated by wild salmon. For the most part, however, NMFS found the contribution of hatchery fish to productivity uncertain.
At the end of the day, NMFS decided all 16 salmon ESUs warrant listing. Nonetheless, the new hatchery policy establishes criteria for determining future listings and delistings. It will therefore shape not only management of hatcheries but also the extent to which hatcheries can be emphasized instead of habitat protection. The risk is that degradation of freshwater habitat will continue with hatcheries replacing the fish that perish in dams, dewatered streams, or headwater streams choked with sediment.
The decision to list Lower Columbia coho salmon as threatened instead of endangered illustrates how the hatchery policy may work in practice. NMFS had not listed Lower Columbia coho previously because it had failed to identify existing populations that derived from the historical populations in the area. A reconvened biological review team (“BRT”) found such remnant wild populations in two rivers. These two rivers constitute the only natural spawning, have less than 1,500 adults, and have poor replacement and recruitment rates. “The paucity of naturally produced spawners . . . is contrasted by the very large number of hatchery produced adults,” exceeding 1 million in 2001. 69 Fed. Reg. at 33,133. Due to the extremely high risks, “the strong majority opinion of the BRT was that the naturally spawning component of the Lower Columbia River coho ESU is ‘in danger of extinction.’” Id. NMFS acknowledges that “it is likely that the Lower Columbia River coho ESU may exist in hatcheries only within the foreseeable future.” Id. The BRT “expressed concern that the magnitude of hatchery production continues to pose significant genetic and ecological threats to the extant natural populations . . . .” Id. NMFS recognized that “the manner in which the majority of these hatchery fish are being produced does not adhere to best management practices, and may be compromising the integrity of these genetic resources.” 70 Fed. Reg. at 37,193. Nonetheless, NMFS included hatchery populations in the listing unit because most coho returning to natural streams and hatcheries were reared in hatcheries or had hatchery-reared parents, and it concluded that the hatcheries mitigated the immediacy of the extinction risk thereby justifying a threatened vs. endangered listing. At the same time, due to the risks the hatchery fish pose to the wild salmon, the hatcheries may lead to the extirpation of the remaining wild runs, in which case there would be nothing left to list under the ESA. 69 Fed. Reg. at 33,133-34.
NMFS similarly proposed to downlist Upper Columbia steelhead from endangered to threatened, although it has not finalized that listing. See § E below. The proposed listing recognizes that the large hatchery returns have strained the available spawning habitat and may be poorly adapted to local conditions. A divided biological review team had recommended an endangered listing, but NMFS proposed a threatened listing based on the inclusion and status of the hatchery fish. 69 Fed. Reg. at 33,140.
Along with the new listings, NMFS adopted new 4(d) regulations for threatened salmon, which apply the take prohibition only to hatchery fish with their adipose fin intact. The regulations exclude hatchery fish that have had their adipose fin removed, which typically occurs in hatcheries before the fish are released into the wild. 70 Fed. Reg. at 37,194. The applicability of the take prohibition depends on management of the hatchery. If the hatchery fish are surplus to recovery needs, then the fin can be clipped and the hatchery fish can be the subject of sports, tribal, or commercial fisheries.
NMFS had proposed listing of Oregon coast coho salmon based on the status of the species. It subsequently delayed making a final listing decision and has missed the extended deadline. 70 Fed. Reg. at 37,217. This ESU has been the target of a joint initiative to turn responsibility for conserving coho over to Oregon spearheaded at the federal level by NMFS’ Bob Lohn and James Connaughton, chair of the Council of Environmental Quality, and by Governor Kulongoski for Oregon. Through this initiative and a federal grant of $250,000, the state produced assessments of the viability of the ESU and the adequacy of Oregon’s programs, primarily voluntary ones, for conserving Oregon coast coho.
The viability assessment takes a new approach, contending that low abundance is not an indicator of risk because coho survived the most recent period of low numbers due to poor ocean conditions. The assessment also asserts that habitat is not a limiting factor since in periods of low abundance there is little competition for available habitat and therefore the habitat that remains is sufficient to support sparse populations. With less need for improved habitat conditions or more salmon habitat, Oregon contends that the measures it is pursuing to protect coho habitat are adequate and eliminate the need for ESA protections. This reliance on voluntary measures and state programs that have yet to produce substantial on-the-ground habitat improvements is reminiscent of NMFS’ 1997 rationale for denying Oregon coho ESA protection, which the Oregon district court soundly rejected. See ONRC v. Daley, 6 F. Supp. 2d 1139 (D. Or. 1998). If NMFS withdraws the proposed listing based on Oregon’s new viability assessment and Oregon’s nascent conservation measures, that withdrawal will likely be challenged by fishing and conservation groups.
NMFS had proposed listings for ten
steelhead ESUs. In the proposed
listings, NMFS identified issues concerning the inclusion of rainbow trout in
the steelhead ESUs. Rainbow trout are
the resident life history and steelhead the anadromous life history of the
biological species O. mykiss.
In its earlier status reviews and
listings, NMFS considered both life forms to potentially be a part of the same
ESU where they share a common gene pool.
69 Fed. Reg. at 33,113. It made
these decisions on a case-by-case basis where there was enough information
about the relationship between the two life forms in a particular stream. NMFS excluded resident populations above
longstanding natural barriers or those resulting from reintroduction of
non-native resident trout. It evaluated
resident trout upstream of human-caused barriers on a case-specific basis
depending on their relationship with below-barrier populations. For most steelhead ESUs, NMFS did not
include resident rainbow trout within the ESU and did not list them when it
determined that the ESU warranted listing, thereby confining the listing to the
steelhead.
After Alsea, NMFS took the position that it had to list both rainbow and steelhead trout in a listed ESU. In the proposed listings, NMFS treated rainbow and steelhead trout as part of the same ESU when there is no obvious physical barrier to interbreeding. It assigned them to separate ESUs when they are separated by a longstanding natural barrier. For more recent human-imposed barriers (e.g. within the last 100 years), NMFS would not treat the rainbow trout as part of the steelhead ESU in the absence of evidence indicating that the rainbow trout continue to represent the evolutionary legacy of the steelhead ESU. Id. Where rainbow trout are part of the ESU, NMFS will assess their impact on the abundance, productivity, spatial distribution, and genetic diversity of the ESU. Id. Applying these factors:
The BRT concluded that, despite the reduced risk to abundance for certain O. mykiss ESUs due to numerically abundant residents, the collective contribution of the resident life-history form to the viability of an ESU in-total is unknown and may not substantially reduce extinction risks to an ESU in-total. Based on present scientific understanding, the BRT could not exclude the possibility that complete loss of anadromous forms from within an ESU may be irreversible.
Id. at 33,114.
NMFS extended the deadline by six months for its final steelhead listing decisions. 70 Fed. Reg. 37,219 (June 28, 2005). NMFS identified two reasons for this extension. First, because Fish and Wildlife Service has jurisdiction over freshwater species, including rainbow trout, while NMFS has jurisdiction over marine species, including anadromous fish, the extension would allow the two agencies to resolve certain issues that had arisen in connection with the treatment of rainbow trout in the steelhead listings. Second, three recent independent scientific reports address both the relationship between rainbow and steelhead trout and the impact of dual life histories in assessing viability of the ESUs.
NMFS subsequently resolved the jurisdictional issue with FWS and proposed to apply the distinct population segment (“DPS”) policy rather than the ESA policy to steelhead and rainbow trout. Under the DPS policy, NMFS proposed to divide steelhead and rainbow trout into two separate DPSs based on their unique life histories, genetic, geographic regions, and ecological characteristics and the conclusion that the steelhead constitute an important evolutionary legacy of the species. NMFS sought additional public comment on this proposal. 70 Fed. Reg. 67,130 (Nov. 4, 2005). On December 23, 2005, NMFS finalized the 10 steelhead listings (although it changed the listing status of upper Columbia River steelhead from endangered to threatened). In the listings, NMFS applied the DPS policy and placed the steelhead in a separate DPS, which formed the basis for the listings.
The steelhead listings are likely to be challenged by developers, irrigators, and agricultural interests who have sought to avoid protecting aquatic habitat, as required by the ESA. Two previous cases have already focused on the interplay between resident and anadromous fish.
First, in Modesto Irrigation District v. Evans, No. 02-6553 OWW DLB (E.D. Cal.), irrigation districts argued that rainbow trout are simply steelhead “wannabees,” who would transform into the anadromous life form and head to sea. The district court rejected this claim because NOAA Fisheries “did not classify resident steelhead as part of the DPS, [and therefore] Defendants did not err in the same way as they did in failing to account for hatchery-bred populations in the listing decisions.” Memorandum Decision and Order of Plaintiffs’ Motion for Summary Judgment, at 43-44 (E.D. Cal. Apr. 12, 2004).
Second, in Center for Biological Diversity v. U.S. Fish and Wildlife Serv., No. 05-0165 KI (D. Or.), fishing and conservation groups challenged the Fish and Wildlife Service’s (“FWS’s”) withdrawal of a proposal to list coastal cutthroat trout in southwestern Washington and the Lower Columbia River. A Biological Review Team convened by NMFS determined that the documented declines in the anadromous form necessitated listing because of the crucial role the anadromous life form plays in the health of the overall populations, and NMFS and FWS jointly proposed a threatened listing. 64 Fed. Reg. 16,397 (Apr. 1999). Subsequently, FWS assumed sole jurisdiction over cutthroat trout, and in 2002, it withdrew the proposed listing based primarily on the numbers of resident cutthroat trout and on the theory based on an unpublished study that resident cutthroat trout can become anadromous. 67 Fed. Reg. 44,934 (July 5, 2002). The conservation groups challenged the withdrawal as running contrary to the best science embodied in the record and because FWS never addressed whether the coastal cutthroat trout are threatened over a significant portion of their range due to declines and habitat degradation in the anadromous portion of the range and in the Lower Columbia River. In November 2005, the district court rejected the challenge to the withdrawal of the proposed listing, finding sufficient evidence to support the determination.
Shortly after issuance of the new hatchery policy, fishing and conservation groups challenged the policy in court. Trout Unlimited v. Lohn, C05-1128JCC (W.D. Wash.). First, the lawsuit challenges NMFS’ failure to prepare an adequate environmental impact statement or environmental assessment on the hatchery policy, as required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. Such an environmental analysis would have considered other alternatives to lumping the wild and hatchery salmon into a single listing unit, as well as the impacts on long-term protection of salmon and their habitat from the hatchery policy and other alternatives.
Second, the lawsuit argues NMFS failed to use the best science and violated the ESA in adopting the hatchery policy. In terms of the science, NMFS never reconciled its hatchery policy with the best science highlighting the differences between the hatchery and wild salmon and the threat the hatchery fish pose to the wild. The fishing and conservation groups also contend that hatchery fish are ineligible for ESA listing in their own right because the ESA protects species in their natural habitat and the new hatchery policy could lead to the anomaly of predicating ESA listing decisions on the well-being of populations that can survive only through human intervention and can never achieve recovery within the meaning of the ESA. This rationale might lead to the anomalous scenario in which farm fish comprised of the same broodstock as wild salmon receive ESA protection, even though they spend their entire lives in net pens. In contrast, the Act expressly identifies and regulates artificial propagation as a conservation measure without suggesting a role for artificially propagated animals in listing decisions. 16 U.S.C. § 1532(3). By focusing on protecting the genetic material residing in hatchery fish, the new policy denigrates the ESA’s goals and provisions that seek to protect and recover species in the wild and use artificial propagation in service of that goal.
NMFS moved to dismiss the case, claiming that the hatchery policy did not constitute final agency action that could be challenged under the Administrative Procedure Act. The district court disagreed and denied that motion and established a schedule for briefing the merits of the case over the next several months. Various developer and agricultural interests, represented by Pacific Legal Foundation, have intervened as plaintiffs mounting their own challenge to the policy for not counting all fish equally.
In late November 2005, Alsea Valley Alliance, joined by developers, agricultural interests, logging associations, and a politician, challenged the 16 salmon listings. While Pacific Legal Foundation had sent an anticipatory 60-day notice based on the proposed hatchery policy and proposed listings in October 2004 on behalf of many of the same groups, it brought the 2005 case without sending such a notice. It is, therefore, unclear whether the case, as presented, is justiciable, since the ESA’s 60-day notice requirement has not been met, and actions to compel NMFS to comply with the ESA’s listing mandates must be brought as ESA citizen suits. See 16 U.S.C. § 1540(g)(1)(C); Bennett v. Spear, 520 U.S. 154 (1997) (Administrative Procedure Act provides cause of action to challenge NMFS actions implementing the ESA, where no ESA citizen suit applies).
On the merits, the lawsuit makes two claims. First, it contends that the Alsea decision mandates that equal weight be given to each member of a species or ESU. Its argument is akin to a one-fish, one-vote right for salmon, no matter the role each fish plays in the species’ survival and recovery.
Second, the lawsuit challenges the 4(d) rule, which applies the take prohibition to naturally spawning salmon and hatchery salmon that have an intact adipose fin. Hatchery fish with clipped fins may be taken without running afoul of the ESA. Under ESA section 4(d), the Secretary of Commerce or Interior may issue regulations applying the take prohibition “as he deems necessary and advisable to provide for the conservation of such species.” As a predicate for the 4(d) rule, NMFS found that hatchery fish with clipped fins are “surplus to conservation and recovery needs.” The complaint contends that the 4(d) rule cannot distinguish between members of a listed species and that all salmon included within a listing must be treated the same in a 4(d) rule, even if they play different roles in conserving the species.
Salmon and steelhead listing developments over the past four years truly have resembled a cottontail racing through the briars and this errant racing promises to continue for several years to come. Despite the various overlays of policy, the plight of salmon has unfortunately not improved to the point where ESA protections are no longer necessary. Yet special interests that want to continue business as usual even if the activities degrade salmon habitat are looking for loopholes that might make the ESA safeguards evaporate even if that means salmon declines will continue.