Salmon lawsuit given go-ahead

SEATTLE – A federal judge on Wednesday refused to dismiss a challenge to a new Bush administration policy of considering hatchery-raised salmon and steelhead when determining whether wild stocks need protection.

The policy, which took effect in June, has been controversial, with environmental groups and government-appointed scientists arguing that only wild populations of fish should be weighed in decisions about whether to list them under the Endangered Species Act. Salmon raised in hatcheries lack the long-term survival capabilities of wild fish that have evolved over millions of years, they say.

“The Hatchery Listing Policy is arbitrary, capricious, contrary to best available science,” Earthjustice lawyers Kristen Boyles and Patti Goldman wrote in a lawsuit against the National Marine Fisheries Service this summer. “It reverses the position taken by the agency in its prior policies without adequate explanation; and it is not a product of rational decisionmaking.”

The Justice Department asked U.S. District Judge John C. Coughenour to toss the lawsuit in late September, saying the environmental groups, led by Virginia-based Trout Unlimited, did not have legal grounds to challenge the policy. Coughenour rejected that request Wednesday and said the lawsuit can proceed.

The controversy over counting hatchery fish dates to 2001, when a federal judge in Oregon ruled that the government could not lump both hatchery and wild fish into one “evolutionarily significant unit,” and then provide Endangered Species Act protection to the wild fish only.

In response, the National Marine Fisheries Service decided to begin considering hatchery fish populations along with those of wild fish, if the hatchery fish are genetically similar.

The fear among environmentalists was that including hatchery numbers would artificially inflate the salmon populations, leading to their premature removal from Endangered Species Act protection. They argue that the fisheries service should have created separate “evolutionarily significant units” for hatchery and wild fish.

That position was also taken by a group of six leading scientists hired by the fisheries service at $800 each per day to review salmon-recovery efforts. In an article published in the journal Science last year, they blasted the fisheries service and the Bush administration and said hatcheries are merely masking the problems faced by salmon, which include pollution and habitat loss.

Fisheries service spokesman Brian Gorman said Wednesday that scientists still primarily evaluate the threat to wild stocks – not just the numbers of salmon in an “evolutionarily significant unit” – when considering whether a population deserves listing.

“It’s not just a numbers game our biologists are involved in,” he said. “My worry is that the ordinary citizen somehow thinks that all that’s involved … is just a matter of counting fish.”

Although that may be the government’s intent, Boyles said, that’s not what the policy says.

“They can’t say one thing and have a policy that says another,” she said.

The lawsuit challenges the policy on the grounds that the government did not prepare an environmental impact statement considering the effect it might have on endangered salmon and steelhead and on the grounds that it is not based on the best available science.

Meanwhile, property rights groups, including the Building Industry Association of Washington and the state Farm Bureau, are seeking to intervene in the lawsuit to challenge the policy from the other end of the spectrum: They argue that the Endangered Species Act demands that the government count all salmon – hatchery-raised and wild – equally when determining whether the species needs protection. The judge has not ruled on their motion to intervene.

So far, the Hatchery Listing Policy has not resulted in the removal of any salmon populations from the endangered species list.