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Ninth Circuit, Once Again, Upholds Decision Ordering Federal Fisheries Agency to Treat Hatchery Fish Equally

Portland,OR; June 09, 2004: The U.S. Ninth Circuit Court of Appeals has rejected a petition for rehearing en banc by environmentalist groups seeking to overturn Pacific Legal Foundation’s landmark victory in Alsea Valley Alliance v. Evans. The environmentalists requested a rehearing by the full Ninth Circuit Court after a three-judge panel denied their attempt to appeal the federal trial court decision in February. The Ninth Circuit's decision once again upholds Judge Hogan's 2001 ruling that Oregon Coast coho salmon had been illegally listed as threatened under the federal Endangered Species Act.

"We welcome the news that the Ninth Circuit has rejected this latest attempt by activists to overturn Judge Hogan’s correct decision setting aside the listing of the Oregon Coast coho," said PLF attorney Russ Brooks. "The court’s latest rejection of the environmentalists’ position should make it loud and clear that the federal government must fully comply with Judge Hogan’s ruling and that anything less will not pass legal muster."

Alsea Valley Alliance v. Evans is one of the most groundbreaking environmental decisions of the last decade. U.S. District Court Judge Michael Hogan ruled that the National Marine Fisheries Service (now "NOAA Fisheries") acted illegally by counting only naturally spawned salmon, and disregarding hatchery spawned salmon, when deciding whether or not to list the Oregon Coast coho as a protected species. Rather than appeal the district court’s decision, NOAA Fisheries chose to comply with the order and instituted status reviews of 26 salmon and steelhead listings across the Western states. Several environmentalist groups, however, appealed the decision.

In February, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the appeal, holding that the appellate court did not have jurisdiction to hear the environmentalists’ appeal. The court explained that the groups could participate like any other concerned individuals in the status reviews through the public commenting process. Although the court theorized that the groups could get what they want—consideration for hatchery and naturally spawning coho as though they are different populations—it concluded that "the district court legitimately doubts this is possible."

Earlier this month, the Bush administration—through NOAA Fisheries—published a proposed new policy purporting to comply with the Alsea decision that will require NOAA to count hatchery spawned fish when deciding whether to list a population under the ESA. Surprisingly, the agency announced it would nevertheless base its listing determinations to a large extent on whether the current ecosystems for various fish populations could presently support the naturally spawning fish without the hatchery fish. Based on this alarming and illegal listing model, the agency also announced that it would be proposing to retain all 26 salmon and steelhead listings, including the Oregon Coast coho listing, and adding another listing. The policy is currently open for public comment.

"We’re very concerned about the proposed policy, but we remain hopeful the Administration will take a hard look at these court decisions before they issue the final policy," said Brooks. "Otherwise, if they go forward with their new policy and relisting decisions, they’ll have to explain to the court why they’re going to such great lengths to avoid complying with the ESA."

The Ninth Circuit Court of Appeals dismissed the petition for rehearing en banc on Monday.

About Pacific Legal Foundation
Founded in 1973, Pacific Legal Foundation is a national leader in the effort to reform the Endangered Species Act and raise awareness of the Act’s impact on people. PLF’s Pacific Northwest Center is located in Bellevue, Washington.