Judge denies lawsuit over fish protection

GRANTS PASS, Ore. – A federal judge ruled the government does not have to count hatchery salmon along with wild fish when deciding whether to protect a species.

U.S. District Judge Michael Hogan in Eugene denied a lawsuit brought by property rights advocates, farm groups and development interests against NOAA Fisheries. It challenged all 16 listings of West Coast salmon in Washington, Oregon and California under the Endangered Species Act.

The lawsuit claimed the government was playing a “shell game” by counting only the natural population to determine listings, harming the economy by restricting development and agriculture to protect salmon habitat.

“In the absence of a challenge to (NOAA Fisheries’) scientific conclusions, the ESA does not require that protective regulations treat natural populations and hatchery stocks equally,” Hogan wrote in the ruling issued late Monday.

Scientific studies have shown that while wild and hatchery fish in a river may be genetically the same, they have deep behavioral differences, which make wild fish more successful at surviving.

Generations of misguided hatchery practices intended solely to produce more fish for harvest have weakened many wild runs, and exposed them to disease. NOAA Fisheries has been reforming hatcheries so they produce fish more like those in the wild, to be used to bolster failing runs.

Sonya Jones, an attorney for Pacific Legal Foundation, which represents plaintiffs, said they were disappointed, particularly because in 2001 Hogan ruled in favor of their argument that NOAA Fisheries could not protect wild Oregon coastal salmon as a threatened species if it did not protect hatchery fish in the same population group.

“We believe this is an unlawful interpretation of the way the hatchery policy was applied to these 16 populations,” Jones said of the latest ruling. “We will be appealing it.”

The 2001 ruling ultimately led to a new federal policy that allows for hatchery fish to be used to bolster dwindling populations of wild fish, but does not count them equally with protected wild fish. If there are surplus hatchery fish, they can be harvested, even when wild fish must be put back unharmed.

“The debate over hatchery fish should be considered conclusively over,” said Jan Hasselman, an attorney for Earthjustice, which represented conservation groups intervening on the side of the government. “This judge in 2001 gave them an inch, and they tried to take a mile. It didn’t work. So now the debate’s over.”

NOAA fisheries spokesman Brian Gorman said decisions to protect a species are much more complex biologically and politically than just counting the population. Decisions take into account the health of a run, assessments of conservation measures, and current and future threats.

“We never believed Judge Hogan said hatchery fish and wild stocks were the same,” Gorman said. “We only felt, and he reaffirmed this in the current opinion, that we were misguided in how we accounted for hatchery fish.”