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Puget Sound De-Listing Petition Filed: Enviros Go After Hogan Decision by Bill Rudolph NW Fishletter, October 19, 2001

A few days after eastern Washington irrigators filed petitions to de-list Columbia River salmon stocks, two other Washington state-based groups filed to de-list chinook stocks in Puget Sound and chum in nearby Hood Canal. Portland attorney James Buchal, who filed the earlier petitions to de-list the Columbia fish after an Oregon federal judge threw out NMFS' ESA listing for coastal coho in that state, took aim at Puget Sound in his latest effort, representing an assemblage of property owners and an agricultural group.

The latest petition uses the Sept. 10 Oregon decision (Alsea Valley Alliance v. Evans) that found fault with NMFS' listing because the agency failed to protect hatchery stocks that were part of the listed coho evolutionarily significant unit. Federal judge Michael Hogan said the ESA doesn't allow NMFS to protect part of the ESU without protecting all of it. He said NMFS made an "arbitrary and capricious" choice when it left the hatchery fish out of the listing.

The new petition, filed by the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association, says NMFS has failed to list for protection along with wild stocks at least 36 of the hatchery stocks it included in the Puget Sound ESU and also failed to assesses risks to the ESU "taking account of risks to hatchery populations."

As for the chums, which only the property owners were petitioning to de-list, NMFS included five hatchery programs in the ESU, but didn't list them for protection along with the naturally producing fish.

In a footnote to the petition, Buchal said the NMFS use of "natural" stocks was itself an arbitrary and capricious choice, and "contrary to law because salmon straying and hatchery operations have effectively eliminated any truly 'natural' stocks."

NMFS itself did not request a stay of Hogan's decision and has not decided whether to appeal his ruling. But some environmental and fishing groups have announced they will try .

Kristen Boyles of Earthjustice's Seattle office told NW Fishletter they are filing for intervenor status in the Alsea Valley lawsuit, a motion that will be contested by the Pacific Legal Foundation, which led the suit for Oregon property owners that overturned the listing. She said if Earthjustice gets status, they will file for a stay of the judge's ruling, pending appeal.

"We think NMFS made a big mistake by not filing for a stay," she said. She also expressed worry that the fish agency may not appeal the ruling at all, although Oregon state officials said protection for the wild coho would remain in place in their jurisdictions.

"The court's ruling doesn't make in-the-river sense," said Tryg Sletteland of the Pacific Rivers Council. "The Endangered Species Act protects the habitats on which fish and wildlife depend. The ruling could result in the absurd situation where wild salmon are allowed to go extinct due to habitat destruction while we 'protect' hatchery stocks and their concrete pools."

Other groups taking part in the action are the Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Association, the Institute for Fisheries Resources, the Audubon Society of Portland, the Coast Range Association and Siskiyou Regional Education Project.

In his ruling, Judge Hogan said he was not questioning the value of NMFS' genetics arguments. But the agency made distinctions between population segments that Congress had not intended the agency to rely upon.

"Finally," he wrote in his Sept. 10 decision, "NMFS argues that its listing decision does not contradict the terms of the ESA because the listing decision and relevant policies are in accordance with ESA goals that prioritize 'natural' salmon populations and 'genetic diversity' within those populations. Although I agree with the general concept that 'genetic diversity' is one factor in the long-term success of a threatened species and thus is one of many underlying goals of the ESA, genetics cannot, by itself, justify a listing decision that runs contrary to the definition of a Distinct Population Segment."

Another lawsuit that challenges the NMFS ESU definition may now get re-charged. It has been percolating slowly in DC federal court since 1999. Its main focus is Puget Sound listed chinook.

"It is our intent to enforce the court decision in Oregon for chinook listed in the Northwest," said Olympia attorney Jim Johnson, who represents Common Sense Salmon Recovery, a coalition of agricultural and business interests that are plaintiffs in the case. "We expect NMFS to follow the court's directive, and then we'll proceed with our options."

NMFS has until Nov. 9 to appeal, but conflicting rumors coming out of Washington DC have not indicated which way the agency may go. Some say that incoming regional NMFS director Bob Lohn would probably not rule against in-house attorneys if they want to appeal the decision. Others say the Bush Administration is taking a hard look at the whole situation, especially in the Columbia Basin, and discussions between the Interior and Commerce Departments have included the notion of walking away from the new hydro BiOp and starting all over again.

One legal analysis of the Hogan decision obtained by NW Fishletter suggests that NMFS could revise its hatchery policy and re-adopt it through rulemaking, with judicial review available to any dissatisfied party. It also said the agency has little chance of success winning an appeal. If it did win, NMFS could possibly be in worse shape than if it had lost because of the unpredictability of any ruling by the Ninth Circuit Court.

The analysis also said the NMFS hatchery policy has never undergone any public review or comment, and that a review would disclose "serious questions about its biological efficacy."