The court also set aside the listing decision for the Upper Columbia steelhead, which was treated with a lower level of endangered species protections due to the abundance of hatchery salmon in its habitat. The ruling came in twin decisions in related cases that were released today.
In setting aside the policy, the court held "in evaluating any policy or listing determination under the ESA, [the court's] polestar must be the viability of naturally self-sustaining populations in their naturally occurring habitat." The court also focused on statements by federal experts and biologists declaring that the policy was biologically indefensible. "Nothing . . . provides a scientific justification for basing status determinations" on both hatchery and wild fish together.
"Salmon and people need clean water, swimmable streams, and healthy habitat. We all win when we protect and recover wild salmon and their habitat," said Jan Hasselman, an attorney with Earthjustice. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams."
NMFS's scientific advisors and experts unanimously concluded that it would be "biologically indefensible" to eliminate ESA protection for endangered salmon based on the abundance of hatchery fish. Scientists emphasized that salmon need habitat to sustain themselves into the future while hatcheries rely on an artificial environment that doesn't produce salmon that survive well in the wild. Documents uncovered in the lawsuit showed that political appointees sought to muzzle the agency's scientific experts, forcing some to independently publish their views in scientific journals.
"People in the Northwest want salmon in their rivers and streams for generations to come. We should strengthen legal protections and accountability for wild salmon, not weaken them," said Kaitlin Lovell, salmon policy coordinator for Trout Unlimited. TU has worked to improve the operation of hatcheries while keeping attention focused on reducing the need for them by recovering wild salmon to self-sustaining numbers.
The policy originally arose out of a 2001 court decision in which anti-protection groups successfully sued to eliminate ESA protections for the Oregon coast coho salmon. NMFS had included hatchery fish in the definition of the coho's population, but listed only the wild component under the ESA. Based on a strict reading of the law, the judge ruled that the ESA did not allow NMFS to list only a portion of a designated species.
The problem identified by the court could have been solved easily by designating separate populations for wild and hatchery components. However, the Bush administration seized the opportunity to push through a policy designed to remove endangered species protections for salmon by counting hatchery fish in their population estimates. That policy triggered a nationwide outcry when it was leaked in 2004.
"The presence of hatchery fish should never be an excuse to reduce protections for wild salmon and their habitat. Both wild and hatchery salmon need healthy rivers to survive. Our ultimate goal must be the return of healthy wild fish stocks so we eventually can eliminate our dependence on hatcheries," said Jim Lichatowich, scientist and author of the book Salmon Without Rivers.
The court noted that counting hatchery fish alongside wild fish can reduce protections for the wild fish. This was the case when the administration downlisted Upper Columbia River steelhead from endangered to threatened, which the court also set aside.
The groups filing the lawsuits included Trout Unlimited, National Wildlife Federation, Pacific Coast Federation of Fishermens' Associations, Institute for Fisheries Resources, Oregon Wild, Klamath Forest Alliance, Pacific Rivers Council, Wild Steelhead Coalition, Native Fish Society, and Federation of Fly Fishers. They were represented by attorneys Jan Hasselman, Kristen Boyles, and Patti Goldman of Earthjustice.