Kitzhaber Urges Appeal of Coho Delisting Decisionby Barry Espenson
Columbia Basin Bulletin - September 21, 2001
A recent U.S. District Court decision ordering a reconsideration of an Oregon coastal coho Endangered Species Act listing could have implications beyond the fish world -- affecting the health of Columbia Basin communities and their economies, according to Oregon Gov. John Kitzhaber.
In a Wednesday letter to Commerce Secretary Donald L. Evans, Kitzhaber urged that the decision be appealed.
In a Sept. 10 order, Eugene, Ore.,-based federal judge Michael Hogan declared the Aug. 10, 1998, listing "unlawful and set aside as arbitrary and capricious." He remanded the matter to the National Marine Fisheries Service for further consideration consistent with his opinion. NMFS and the Justice Department are considering whether to appeal the decision.
Hogan's order said NMFS was mistaken to identify both hatchery-produced fish and "wild" naturally spawning coastal coho as part of the same "evolutionarily significant unit," then exclude the hatchery fish from the listing decision.
"The distinction between members of the same ESU/DPS (designated population segment) is arbitrary and capricious because NMFS may consider listing only an entire species, subspecies or distinct population segment of any species," according to Hogan's order. "Once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinction between members of the same DPS/ESU."
The Alsea Valley Alliance filed the lawsuit. NMFS is the federal agency within the Department of Commerce charged with determining whether salmonid populations warrant federal protections and developing recovery plans for listed stocks.
Kitzhaber's letter said the court decision "raises questions and creates confusion about the treatment of hatchery produced fish within the context of the ESA."
He also suggested that NMFS "conduct a rulemaking process that makes clear that because hatchery fish are not essential to recovery they are not part of the distinct population segments under the ESA."
In excluding the hatchery fish from the ESA listing, NMFS deemed them not essential to recovery -- a term Hogan said is not specifically defined. He cited NMFS policy that says hatchery populations will not be considered as part of an ESU if they are of different genetic lineage than the wild fish, if hatchery processes have produced appreciable changes in the fish or if there is substantial uncertainty about the relationship between existing hatchery and wild fish.
"I am concerned about the potential social, economic and ecological consequences of this decision," Kitzhaber wrote. "If NMFS reconsiders its listing decision and lists Oregon Coast Coho, including the hatchery component of the ESU, this could have devastating effects on fisheries and result in increased regulation for landowners of the Oregon Coast."
Louise Solliday said the attendant prohibitions on the taking of listed fish could prevent the sport and commercial harvest of hatchery fish. If Hogan's rationale is applied to other listed stocks across the basin as well, it could bring that increased regulation to protect the fish.
The governor's senior policy adviser did acknowledge that the effect, if wild and hatchery populations were combined, could be a delisting of the coastal coho. She emphasized, however, that it has been the state's policy to avoid the intermingling of hatchery and wild stocks, carefully charting hatchery releases to protect the native stock's genetic province.
"I am very concerned that in the absence of these actions by NMFS there will be a call for increasing hatchery fish production to avoid ESA listings," Kitzhaber wrote. "I am also concerned about the implications this ruling has for maintaining and recovering wild runs of salmon, steelhead and trout.
"Much research has been done that indicates adverse impacts on wild salmonids from hatchery introduction in the same streams and rivers.
"One purpose of the ESA as stated in Section 2(b) is 'to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.' ESA listings represent a significant warning to all of us that we are stretching watersheds beyond their capacity to support a healthy distribution and abundance of species and beyond the capacity to sustain healthy communities, a healthy economy and a healthy environment," Kitzhaber wrote.
"Simply relying on artificial production to support the populations of a species is contrary to the intent of Section 2(b) and to the spirit of the ESA itself," Kitzhaber concluded.
A wide range of opinion exists about how Judge Hogan's decision could, or should, affect NMFS listing decisions if the order stands and effectively sets a legal precedent.
Regardless of the legal outcome, the Public Power Council's Rob Walton said that NMFS should be pushed to report to the region on "how many other ESUs are analogous to the coastal coho" -- ESUs that include hatchery fish but only list the wild populations. He suggested workshops to explain the pertinent issues, such as the implications of the decision for artificial production and harvest.
If the decision stands, NMFS may be faced with addressing the issue in each ESU, either removing the hatchery fish from the ESU or counting them as part of the listed species, said Walton, the PPC's assistant manager.
"There are a lot of people that have an interest in this," Walton said. The PPC has members, such as the Chelan, Douglas and Grant PUDs that have developed "state of the art" hatcheries that employ supplementation.
"This could open the door toward increased use of supplementation strategies," Walton said of the practice of outplanting hatchery fish with the intent of bolstering weak populations. Though he emphasized that it is not an official PPC position, Walton said he feels that supplementation is a key tool in meeting societal goals of both providing significant harvests and recovering weak populations to the point of delisting.
Walton said that the process can't ignore scientific concerns about the potential negative impacts of mixing hatchery and wild stock.
"But I don't think that should preclude supplementation," Walton said.
"I'm cautiously optimistic about the decision," Walton said. He said it could be a "catalyst for more aggressive supplementation" that could take advantage of favorable ocean conditions in building populations of naturally spawning stocks.
The Native Fish Society's Bill Bakke sees the decision, potentially, as "a double-edged sword."
"It could lead to other ESUs in the Columbia Basin being forced to list hatchery fish, regardless if they're essential to recovery," Bakke said.
Such aggregations also "could result in the delisting of all the salmon under the Endangered Species Act," Bakke said. "That's not going to do the region any good."
"From my perspective, the hatchery fish shouldn't be listed," Bakke said. "Science shows that these hatchery fish are different from wild fish" in their ability to survive in the wild. Studies too have shown that hatchery-wild hybrids produce juveniles with lesser fitness and survival ability and returning adults with lesser productivity than that wild fish.
Bakke said it is essential to maintain the wild populations' biological diversity, an evolution that has allowed them to persevere.
Columbia River Inter-Tribal Fish Commission biologist Doug Dompier sees Hogan's decision as a potential awakening.
"The judge was right on" to chide NMFS, Dompier said. "All the judge said was, 'NMFS, you listed them and now you can't treat them differently."
He said the time may be right for the "new administration" to review the policies, and the politics, of the past administration. Bob Lohn was appointed earlier this month as NMFS' new regional administrator. The previous administrator, Will Stelle, resigned last year and his deputy, Donna Darm, has been serving as acting administrator.
"Let's re-examine this," Dompier said of what CRITFC considers over-restrictive NMFS policies for the utilization of hatchery fish to rebuild natural populations.
"We want to use the hatchery tool to restore the populations. The real issue is to use the tool properly," Dompier said. If used in the appropriate watersheds with the appropriate stock, supplementation can be used to rebuild populations without jeopardizing genuinely wild stocks.
"We are not going to run around and put hatchery fish everywhere. That's not going to happen," Dompier said. The court decision could prompt a different reaction -- even stricter rule definitions to segregate wild and hatchery stock.
"Is it possible that they'll overreact and do even more damage to the salmon? Yes. I'm even more worried about that," Dompier said.
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