The Ninth Circuit Court of Appeals today dismissed all appeals over the treatment of wild and hatchery coho salmon under the Endangered Species Act. The court determined it lacked jurisdiction to rule on the issue and left it to the Bush administration to review the salmon's status. That review is already underway.
The appeal in question was filed by conservation and commercial fishing groups in response to a 2001 district court ruling that the National Marine Fisheries Service (NMFS) should have counted hatchery-bred salmon along with wild populations when determining whether the coho deserves Endangered Species Act protection. Because the Bush administration refused to defend NMFS decision before the Ninth Circuit, the appellate court held today it did not have jurisdiction to decide the case.
"The Court's non-decision hands the fate of threatened salmon back to government scientists, who have always recognized the differences between hatchery and wild salmon," said Kristen Boyles, an attorney with Earthjustice. "Salmon still need habitat, and this fight will continue until wild salmon return and thrive up and down the west coast."
"The undercurrents in this decision highlight the power and responsibility the Bush administration holds over the future of our salmon," said Patti Goldman with Earthjustice. "If the Bush administration had appealed, the appellate court would have been able to rule on this issue."
While the destruction of coho habitat by logging and other development has caused much of the species' decline, the introduction of artificially raised hatchery salmon actually harms wild salmon by introducing disease, changing their genetic make-up, and competing for food in their rivers and streams. Today's ruling leaves it to NMFS to examine the science behind the interaction of hatchery-bred and wild salmon populations.
"It's now up to NMFS to follow the science and continue to protect wild salmon," said Glen Spain of Pacific Coast Federation of Fishermen's Associations. "Coho populations on the Oregon coast are now less than 5 percent what they were in 1900, when more than a million salmon returned each year to spawn, and they continue to face threats from clearcut logging and polluted rivers. The bottom line is this: without adequate ESA protection, salmon recovery simply won't stand a chance."
After the 2001 district court decision, anti-salmon groups raced to force the government to remove protections from salmon stocks from Washington to California. Today's ruling leaves those efforts unresolved. For Oregon coast coho salmon, the district court had set aside that listing but the court of appeals stated that "The [district court] order does not compel the Service to remove Oregon coast coho salmon from the threatened species list or take any other actions."
"NMFS promised its review over a year and a half ago, and the majority of Northwesterners have been waiting for wild fish to be protected," said David Bayles of Pacific Rivers Council. "It's now up to NMFS to do its job and do it quickly."
Oregon Natural Resources Council, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Association, Institute for Fisheries Resources, Audubon Society of Portland, Coast Range Association, Siskiyou Regional Education Project, and the Sierra Club, represented in court by Earthjustice, have worked for wild coho protection for over a decade; many were involved in filing the initial petitions that led to the threatened species listing for coho salmon in Oregon.
Patti Goldman/Kristen Boyles, Earthjustice: 206-343-7340
Doug Heiken, ONRC: 541-344-0675
David Bayles, PRC: 541-345-0119
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.