NOAA Fisheries Service methods for defining individual species that include both hatchery and naturally produced stocks, and for evaluating whether those species need ESA protections, are valid under the law, according to two decisions released by U.S. Court of Appeals for the Ninth Circuit Judges Diarmuid F. O'Scannlain, Pamela Ann Rymer and Andrew J Kleinfeld.

A March 16 Ninth Circuit opinion reversed decisions by U.S. District Court Judge John C. Coughenour that said NOAA's "hatchery listing policy" violated the ESA, as did a decision to downlist Upper Columbia River steelhead stocks from endangered to threatened. The latter decision was based in part on the hatchery listing policy.

The Ninth Circuit did affirm Coughenour's decision to deny a request that NOAA be required to consider hatchery and natural-origin fish separately during ESA status determinations. The request came from a coalition of fishing and conservation groups.

In a "memorandum" issued Monday regarding a separate appeal, the same Ninth Circuit panel affirmed an August 2007 ruling by Oregon-based District Court Judge Michael R. Hogan that said NOAA Fisheries satisfied ESA requirements in making its 2005 West Coast salmon listing determinations.

The 16 stocks range from the Canadian border, through the Columbia River basin, to the central California coast. They include the Snake River spring/summer and fall chinook stocks, the Upper Columbia spring-run chinook, the Lower Columbia chinook and Upper Willamette chinook, Snake River sockeye, Lower Columbia chum and Lower Columbia coho.

Both district court decisions were appealed to the U.S. Court of Appeals for the Ninth Circuit. Oral arguments were heard by the appellate panel during a joint hearing in September in Seattle.

"We must decide whether the National Marine Fisheries Service may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act," the March 16 opinion said of the appellate panel's task in deciding the appeals.

It concluded that that NMFS (NOAA Fisheries Service) can indeed make that distinction.

"This is a huge decision, mainly because it lifts our enormous anxieties for all of our listings" NOAA spokesman Brian Gorman said of the Ninth Circuit's validation of the policy, which describes how hatchery fish should be regarding in making ESA determinations. Of the 26 West Coast salmon and steelhead listings assessed during an intensive 2003-2005 effort, 25 involved the application of the new hatchery listings policy guidelines.

Earthjustice's Jan Hasselman said the decisions represent "the end of this 10-year campaign… to eliminate Endangered Species Act protections for salmon" by lumping wild and hatchery stocks together and thus "conflating" population numbers. Earthjustice represented the fishing and conservation groups in the lawsuits.

The wild vs. hatchery issue was triggered by NOAA's 1998 listing of Oregon coast coho salmon, and a lawsuit brought by the Alsea Valley Alliance challenging the decision. In September 2001 Hogan ruled that the ESA does not allow the agency to include both hatchery and wild fish in a species – an evolutionarily significant unit – and then list only the wild segment.

Instead of appealing that decision, NOAA Fisheries Service announced it would revise its 1993 hatchery listing policy and reconsider its listing decisions for salmon and steelhead ESUs coast-wide. The agency announced its decisions regarding 16 West Coast salmon stocks in June 2006 and followed with decisions on 10 steelhead stocks six months later.

The new policy, issued in 2005, calls for the assessment of the extinction risk of the entire species, "taking into account on a case-by-case basis both the negative and positive impact of hatchery programs on the naturally spawning fish."

The new hatchery listing policy, and the updated ESA West Coast salmon and steelhead list, drew at least five legal challenges. This week's appellate court decisions drew a mixed response.

"It's never fun to be reversed. I thought Judge Coughenour's decision was well grounded in the law," Hasselman said.

On the other hand, a saving grace is that the Ninth Circuit "did make it abundantly clear that the hatchery policy didn't have to weaken protections for wild salmon," Hasselman said.

A principle tenet of the ESA is that status determinations focus on naturally self-sustaining populations "and they were reading the policy as doing that," Hasselman said of the Ninth Circuit opinion.

The opinion said the panel was "persuaded that the Hatchery Listing Policy does not flout the statutory goal of preserving natural populations" as Earthjustice had argued.

"Rather, it mandates a more complex evaluation process that considers both the positive and the negative effects of hatchery fish on the viability of natural populations.

"We are also convinced that the Hatchery Listing Policy's method of assessing the status of an entire ESU, and NMFS's corresponding downlisting of the Upper Columbia River steelhead, were decisions based upon the best scientific evidence available" as the ESA requires, the opinion says.

"On remand, the district court should grant NMFS's motion for summary judgment" by dismissing the lawsuit, the Ninth Circuit Court opinion said. Once that's done, the Upper Columbia steelhead would again be designated a threatened species, rather than an endangered one.

The decisions likely spell the end to long-running legal debate over the treatment of hatchery stocks in evaluations of whether salmon deserve ESA protections. One camp has argued that wild and hatchery stocks must be judged separately; another says genetically akin hatchery and naturally born salmon must all be counted in judging their ESA status.

"I think it is fairly safe to say that this is not an issue the Supreme Court would be interested in," said the Pacific Legal Foundation's Damian Schiff. PLF represented the Alsea Valley Alliance in Hogan's Court and a number of farm, building and water user groups before Coughenour. They argued for the all-inclusive approach, which they said would show none of the stocks is truly imperiled.

A second potential course of action would be to ask the Ninth Circuit for a rehearing before a larger panel of judges. Schiff said he had yet to consult with his clients regarding a rehearing request but felt it is also unlikely.

A panel of judges with a relatively conservative track record on environmental issues ruled that NOAA Fisheries' scientific expertise must be given deference. One of the judges was appointed to the appeals court by Republican President Ronald Reagan, the other two by George H.W. Bush.

The panel's decisions "naturally bodes ill" for success before a broader Ninth Circuit panel, Schiff said.

Lawsuits filed in the U.S. District Court's Eastern California District that challenged five steelhead listings were also turned aside, on Oct. 31. The lawsuits used the same strategy, arguing that natural-origin and hatchery fish with the same genetic background must be viewed as one-in-the-same in ESA determinations.

That court ruled that "Plaintiffs' attempts to discredit NMFS's listing decision by identifying shortcomings in the agency's rationale fail under the totality of the circumstances, in a case rife with complex and uncertain scientific information, where judicial deference is owed to the agency's expert knowledge of the subject matter."

Schiff said PLF's clients chose not to pursue an appeal of that decision.

For more information see “Ninth Circuit Hears Arguments On NOAA's Wild/ Hatchery ESA Listings Policy” (CBB, Oct. 24, 2008) at http://www.cbbulletin.com/300494.aspx