U.S. District Judge Michael Hogan rejected all of the arguments of the anti-environment group Pacific Legal Foundation which represents developers and farm groups. PLF argued that the National Marine Fisheries Service must make ESA salmon listing decisions based simply on the numbers of hatchery fish. PLF asked the court to remove 16 separate populations of salmon from the list of endangered species based on the prevalence of hatchery fish. The 16 stocks range from the Canadian border, through the Columbia basin, to the central California coast. Judge Hogan found nothing in the law to support the argument that wild and hatchery salmon have to be treated identically when deciding whether to protect wild salmon.
The ruling is consistent with another decision, issued in June by a U.S. district judge in Seattle, that set aside the Bush administration's policy of counting hatchery and wild fish together in Endangered Species Act assessments.
"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 Earthjustice attorney Jan Hasselman. Earthjustice represented fishing and conservation groups seeking to retain Endangered Species Act protection for vulnerable salmon and steelhead populations. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams," said Hassleman.
The ESA requires NMFS to make listing decisions on the basis of the best science. NMFS's scientific advisors and experts unanimously concluded that it would be "biologically indefensible" to eliminate ESA protection for threatened and endangered salmon because of the abundance of fish raised by humans in hatcheries.
The science revealed that hatchery and wild salmon are different in important ways and that many hatcheries have helped push wild salmon closer to extinction. PLF, however, asserted that NMFS was legally required to ignore these issues and simply count the total numbers of fish in making ESA listing decisions.
"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.
In 2001, Judge Hogan set aside the listing of Oregon coast coho salmon based on a related but different issue. In that case, NMFS had included hatchery fish in the definition of the "species" but listed only the wild component. Judge Hogan ruled that the ESA does not allow NMFS to list only a portion of a designated species.
In response, NMFS redesignated the species to include wild and closely related hatchery fish, and listed both. In this new case, PLF sought to over-extend Judge Hogan's previous, narrow legal ruling to erase the boundaries between hatchery and wild fish completely.
"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 groups intervening to protect the wild salmon are Trout Unlimited, Pacific Coast Federation of Fishermens' Associations, Institute for Fisheries Resources, American Rivers, Oregon Wild, Klamath Forest Alliance, Northcoast Environmental Center, National Center for Conservation Science and Policy, Pacific Rivers Council and Sierra Club. They were represented by attorneys Jan Hasselman and Shaun Goho of Earthjustice. The case name is Alsea Valley Alliance v. Lautenbacher, No. 06-6093-HO (D. Or.).
Read the decision (PDF)