The NOAA Fisheries Service in a 2006 decision to downlist Upper Columbia steelhead, from endangered to threatened, "contravened Congress's direction by 'counting' first-generation hatchery fish that pose a threat to the viability of wild steelhead, and diminishing ESA protection for this DPS," according to a Jan. 11 Earthjustice filing with the U.S. Court of Appeals for the Ninth Circuit. A "designated population segment" is a group, usually, of steelhead populations that NOAA determines makes up a single species.

The appellate court has been asked to overturn a district court ruling that said NOAA Fisheries erred in making the decision and also called illegal the "hatchery listing policy" on which it was based. The Upper Columbia steelhead DPS includes six hatchery stocks.

In a June 13, 2007, order, U.S. District Court Judge John C. Coughenour "concluded that the HLP is deficient for requiring that risk assessments, or status determinations, be made on the basis of the entire ESU, as opposed to the risks facing natural populations."

The plaintiffs, represented by Earthjustice, in the case heard by Coughenour had also asked the judge to force NOAA to consider a petition that natural and hatchery stocks be evaluated as separate DPSs or "evolutionarily significant units." Trout Unlimited and other fishing and conservation groups involved in the lawsuit had earlier petitioned NOAA for separate listing determinations for naturally produced and hatchery born salmon and steelhead stocks but were denied.

The judge also declined, saying the desire for distinction is "resolved by the Court's conclusion that status determinations must be made with the health and viability of natural populations as the benchmark.

The federal government and the Building Industry Association of Washington both appealed Coughenour's decision to the Ninth Circuit. The BIAW intervened in the lawsuit to defend the steelhead reclassification while at the same time also challenging the listing policy. The federal appeal asks that the Ninth Circuit overturn the district court ruling and uphold both the hatchery policy and the Upper Columbia steelhead determination.

The BIAW and other groups aligned with it say hatchery and naturally produced salmon that share the same watersheds and genes should be judged as equals and counted as one species when assessing population status. They are represented by the Pacific Legal Foundation.

Federal attorneys say NOAA Fisheries has walked a fine line, considering the status of a species that includes genetically similar hatchery fish while holding to the ESA goal of "conserving naturally sustaining populations." The federal appeal said Coughenour did not dispute NOAA's delineation of the Upper Columbia steelhead DPS or species.

The review of the status of the species followed HLP guidelines for assessing the impact of the hatchery fish, both positive and negative, on the wild fish, the federal appeal says.

"In applying the Policy, NMFS did not simply count hatchery fish and find sufficient abundance to avoid listing the Upper Columbia River steelhead as endangered," the federal appeal says. "Rather, the Hatchery Listing Policy and listing determination appropriately consider whether specific hatchery programs contribute to, or undermine, the viability of the species based on all four viability criteria -- abundance, productivity, distribution, and diversity."

Trout Unlimited's Jan. 11 brief says the strategy misses the mark.

"NMFS allowed the number of artificially propagated steelhead to mask both the declines in the natural populations and the lack of suitable habitat to support self-sustaining populations," according to the recent filing. "NMFS placed the fate of this steelhead population in the hands of hatchery operators rather than insist on quality habitat that can support the population.

"In doing so, NMFS defied the ESA's mandate to prevent extinction and conserve species in their natural ecosystems….

"The sole purpose of an ESA status review is to assess a species' viability and determine whether it warrants ESA protection to return to self-sustaining status. Since it is beyond dispute that a salmon population that depends on hatcheries to artificially prop up its abundance is far from viable, it is nonsensical to 'count' hatchery fish in status reviews of salmon viability," according to the Trout Unlimited brief.

The BIAW's claim that hatchery and naturally born steelhead must be treated equally in ESA status reviews is also flawed, Trout Unlimited says.

"BIAW appears to mean that NMFS must deliberately ignore the fact that some salmon in a DPS are born naturally and others owe their existence solely to the intervention of humans, which gives rise to differences in their fitness and survivability," according to the brief filed by Earthjustice.

"It would be contrary to both the best science and the ESA's goal of preserving natural self-sustaining populations for NMFS to give equal weight to wild and hatchery-origin salmon in conducting salmon viability assessments. Moreover, such an approach would lead to delistings of salmon populations that require perpetual infusions of hatchery outplants, which NMFS has appropriately determined would be at odds with the ESA scheme and a recipe for extinction."

The Justice Department and PLF will now have a chance to respond to Trout Unlimited's arguments. Then, potentially, oral arguments could be held before a Ninth Circuit judicial panel rules on the appeals.

The PLF is pressing its case for equal treatment in another lawsuit before the Ninth Circuit. The Alsea Valley Alliance, BIAW and other groups represented by the PLF appealed an August 2007 ruling by District Court Judge Michael R. Hogan that upheld listing decisions for 16 West Coast salmon stocks made in June 2005 by the NOAA Fisheries Service.

In its opening brief, also filed Jan. 11, the PLF says the ESA requires that "NMFS must treat equally, without distinction, all members of a species it includes in a species population."

The brief said that NMFS' listing determinations "only considered hatchery members of the population ancillary to the naturally spawning members of the same population."

The coalition of farm, building and water user groups asks the Ninth Circuit to set aside Hogan's ruling and order NMFS to issue new listing determinations based on the "plain language of the ESA."

""What NMFS must do, according to the plain language of the ESA, is determine whether any of the subpopulations within a given ESU can assist in sustaining the entire ESU since that is the only listable entity, not merely the hatchery-born or naturally spawning members of that entity," the Alsea Valley brief says.

"Once all subpopulations are given equal consideration, as required by the district court, then it is unlikely that any of the subject ESUs would be subject to listing as threatened or endangered, or merit protective regulations, under the ESA."