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Bush Administration Salmon Policy Puts Politics Before Science, the Law and People

Pacific Legal Foundation

Seattle,WA; May 28, 2004: Pacific Legal Foundation criticized the Bush administration today for its proposed policy that would leave in place 26 Endangered Species Act (ESA) listings for salmon throughout the West, and add yet another listing, despite the fact that salmon are not at risk of extinction.

The National Oceanic and Atmospheric Administration’s (NOAA) newly announced policy flies in the face of PLF’s landmark 2001 court victory in Alsea Valley Alliance v. Evans, where the federal court ordered NOAA Fisheries to stop illegally excluding millions of hatchery spawned salmon in order to justify listing naturally spawned salmon as threatened under the ESA. Although NOAA agreed over two and half years ago to develop a new policy to comply with the ruling, the proposed policy attempts to skirt the court order by counting hatchery salmon, but maintaining bogus ESA listings for salmon and steelhead in Alaska, Washington, Oregon, California, and Idaho. The new policy is a purely political effort to accommodate both sides of the issue.

“We’re very concerned that NOAA’s proposed policy violates the federal court decision that we won in Alsea Valley Alliance v. Evans,” said PLF attorney Russ Brooks. “At issue is what the ESA is meant to protect, and what NOAA Fisheries is authorized to do under the ESA. There is absolutely no legal basis on which NOAA can count the millions of hatchery salmon and steelhead in fish runs throughout the West and, at the same time, somehow keep these ubiquitous fish listed as endangered. Under the ESA, the administration can’t have it both ways.”

“We will continue working with NOAA during the comment period and we hope they will recognize their serious mistake, but if they don’t, they can expect to see us right back in court,” said Brooks.

In 2001, Pacific Legal Foundation won a landmark federal court decision in Alsea Valley Alliance v. Evans, where Federal Judge Michael Hogan determined that the plain language of the Endangered Species Act did not legally authorize NOAA Fisheries to subdivide a distinct population segment of a species into smaller units such as naturally spawning and hatchery bred fish. As a result, Judge Hogan found that NOAA’s practice of excluding hatchery bred salmon from fish counts to justify ESA listings for Oregon coastal coho salmon was arbitrary and capricious, and ordered NOAA to include hatchery fish in future counts. Shortly after the decision, the Bush administration, through NOAA, agreed to review its hatchery policy for all 26 listings of salmon and steelhead. Environmental groups appealed the ruling, but Judge Hogan’s decision was upheld by the U.S. Ninth Circuit Court of Appeals in February.

“The administration is trying to straddle this issue, but legally, they don’t have a leg to stand on,” said Brooks. “Under the ESA, the federal government has the authority to protect salmon species that are at risk of extinction, but Pacific salmon are not at risk. Millions of fish from each of the five Pacific salmon species are flourishing from Alaska to California. The fact that you can buy salmon for $3.99 a pound in your local supermarket should make that pretty clear. No other ESA listed species is on the dinner menu at your local restaurant.”

Over the last several weeks, a public relations campaign by environmentalists and resulting media reports have wildly distorted the issues surrounding the anticipated policy, glossing over the court-ordered mandate to count hatchery fish, and instead attacking the quality of salmon hatcheries and hatchery fish. These reports in large part rely on a recent article, published in Science, by several scientists with no actual hatchery expertise or experience. Their criticisms are ill-founded and based on outdated information about hatchery management practices.

Fisheries scientists agree that modern hatchery practices clearly benefit salmon ecosystems. Hatchery salmon spend only the beginning of their lives in a hatchery and live the overwhelming majority of their lives in the wild. When released, the instincts Mother Nature provided them take over and they do everything naturally spawning salmon do. Hatchery salmon then live their lives side-by-side with naturally spawning salmon in the same ecosystems: They forage, feed, and avoid predators and fishermen while making their way to the ocean. Their instincts eventually instruct them to return to their native streams and spawn—just like naturally spawning salmon. They would spawn naturally if left alone and large numbers do. In fact, many hatchery salmon spawn with “wild” salmon.

“It is regrettable that the administration has decided to put politics before solid science, the rule of law, and the economic and personal hardship many people in the West are suffering as a result of these illegal listings,” said Brooks. “Under the ESA, the only questions are whether salmon are endangered and whether existing salmon ecosystems can adequately support salmon. Quite simply, millions of salmon thriving in these ecosystems mean that the ESA listings for salmon cannot be legally justified.”