The hatchery vs. wild debate continues on several fronts with legal arguments concluded in at least two lawsuits that challenge the NOAA Fisheries Service's new method for listing salmon and steelhead under the deserve Endangered Species Act.

A Justice Department response filed Feb. 2 in one of the challenges says that NOAA's new Hatchery Listing Policy "is based on a reasonable interpretation of the ESA" and deserves deference under that law.

The policy, which defines how hatchery-produced fish will be considered when NOAA makes its ESA listing determinations, is also scientifically defensible, according to federal briefs filed in at least six lawsuits in California, Oregon and Washington.

On June 16, 2005, NOAA released to the public the new hatchery listing policy and announced that it would reaffirm previous listing decisions for 15 West Coast salmon stocks and add the Lower Columbia River coho to the ESA list.

Six months later the agency reaffirmed nine West Coast steelhead listings and said it would downgrade one listing, for Upper Columbia steelhead, from endangered to threatened.

Most of the West Coast listings included hatchery produced stocks in the same "evolutionarily significant unit" as wild fish, a departure from most previous listings that included only naturally produced stocks.

The policy allows the inclusion of hatchery stocks with "no more than moderate genetic divergence" from wild stocks.

"As a result, NMFS included in the Upper Columbia steelhead DPS hatcheries that produce large numbers of fish that pose a threat to long-term steelhead survival in various ways, such as by competing for scarce habitat," according to a Trout Unlimited brief filed Dec. 19.

An Evolutionary Significant Unit (ESU) is NOAA's definition of "designated population segment." The ESA term includes "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

The complaints want the policy, and/or listing determinations that applied the policy, to be rethought.

Two such arguments are being waged before Judge John C. Coughenour in Seattle's U.S. District Court. Briefing concluded Jan. 19 in one and last Friday in the other, with federal attorneys filing their defense of the policy and listings.

Both pit Trout Unlimited v D. Robert Lohn, with the Building Industry Association of Washington (BIAW) as plaintiff intervenor. Lohn is regional administrator for NOAA's Northwest Region.

In one lawsuit plaintiffs challenge the legality of the hatchery listing policy. Trout Unlimited and aligned fishing and conservation groups say hatchery fish should not be considered at all in listing determinations.

In contrast, the BIAW says the policy still judges hatchery fish unfairly, that all salmon returning to an area should be counted in determining whether a particular stock is imperiled.

In the other, Trout Unlimited challenges the policy and its application in the downlisting of Upper Columbia steelhead.

The court has also been asked to overturn NOAA's denial of the groups' petition asking NOAA to evaluate "wild-only" and "hatchery-only" ESUs in making listing determinations.

The BIAW says the policy is illegal because the ESA doesn't allow NOAA to consider hatchery and naturally spawning fish differently when assessing the status of a population, or make Section 4(d) regulations that allow for take of hatchery fish that NMFS determines to be "surplus to the conservation and recovery needs" of the population.

The ESA "does not specify how NMFS must consider hatchery fish when making a listing determination" and previous court rulings have held that NOAA's interpretations of ambiguous statutory language should be given deference, as the expert federal agency, according to the Feb. 2 federal response.

The hatchery policy is an expansion NMFS' earlier ESU Policy that "sets out the agency's interpretation of the ESA's term 'distinct population segment' in the context of listing determinations for West Coast salmon. There can be no dispute that the ESA's term 'distinct population segment' is ambiguous….," the federal response says.

Trout Unlimited has argued that the language is not ambiguous, that the law requires NOAA to protect species' ability to sustain themselves in the wild, leaving hatchery production as a potential short-term tool but not a means to an end.

Under the ESU policy a salmon or steelhead population is considered an ESU if it is substantially reproductively isolated from other population units of the same species; and represents an important component in the evolutionary legacy of the species.

"It would be inconsistent with the ESU Policy to exclude hatchery populations from an ESU, where, as in this case, the naturally spawning and hatchery salmon populations in a given stream are not substantially reproductively isolated from each other and where both populations contain common genetic resources that represent the evolutionary legacy of the species," federal attorneys say.

The federal response cited a technical memorandum published by a group of NMFS scientists that reviewed the "best available scientific information to assess the effects of hatchery programs on the viability and extinction risk of the DPS as a whole."

"With respect to the Upper Columbia steelhead ESU, it concluded that 'the six artificial propagation programs in the ESU collectively provide beneficial effects to the ESU's abundance and spatial structure, but neutral or uncertain effects to the ESU's productivity and diversity.' In light of these findings, it was entirely reasonable for NMFS to conclude that fish from hatchery programs within the ESU 'collectively mitigate the immediacy of extinction risk for the Upper Columbia River steelhead DPS in the short term, but that the contribution of these programs in the foreseeable future is uncertain'" the federal response said.

The BIAW argues that the ESA doesn't allow NOAA to assess the status of the wild populations and look only at the effect hatchery fish have on that status. It cites a 2001 decision by U.S. District Court Judge Michel R. Hogan that said NOAA could not designate both naturally and hatchery spawned Oregon Coast coho in the same ESU and then list only the wild fish. That decision prompted NOAA's review of the existing listings, and development of the new hatchery policy.

The Feb. 2 federal response said, however, that "Contrary to BIAW's arguments, NMFS cannot make listing determinations based on the fiction that hatchery and naturally spawning fish will always have identical effects on the population's viability.

"Despite BIAW's arguments, natural and hatchery fish are not biologically equivalent, nor do they contribute to species viability in the same way. Numerous scientific panels have concluded that artificial propagation can potentially benefit or decrease the viability of salmonid populations," according to federal attorneys.