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Feds Ask for More Time to Review Fish De-Listings by Bill Rudolph NW Fishletter, April 2, 2004

NOAA Fisheries asked a Spokane District Court last week for a 90-day extension to come up with delisting decisions for most salmon and steelhead stocks listed for protection under the Endangered Species Act. Under a previous settlement, the agency was to have made the decision by March 31.

Bob Lohn, NOAA Fisheries regional administrator, said in an affidavit filed by the Justice Department that the extra 90 days would give the agency enough time to come up with listing proposals for all 27 West Coast stocks under review, instead of dealing only with the eight stocks in the legal action (BIAW v. NOAA Fisheries) that led to his affidavit.

Lohn said federal agencies are still developing a coherent hatchery policy in the wake of the Hogan ruling (Alsea Valley Alliance v. Evans) recently upheld by the 9th U.S. Circuit Court of Appeals. U.S. District Judge Michael Hogan ruled in 2001 that the ESA listing of Oregon coastal coho ESU [Evolutionarily Significant Unit] was illegal because it failed to offer the same protection for hatchery stocks as the wild component of that ESU.

Lohn's affidavit came after the Building Industry Association of Washington sued to expedite decisions on eight ESUs in the Columbia Basin. "We vehemently oppose this motion," said BIAW attorney Tim Harris, who filed the de-listing petitions in Oct. 2001, shortly after the Hogan ruling.

Harris called the latest federal action "outrageous," saying that NOAA Fisheries doesn't have to complete its hatchery policy to make the de-listing decisions.

Last August, Lohn sent a letter to Harris and other petitioners apologizing for the delay, saying that he expected the listing decisions to be completed by this March.

Lohn's affidavit says a new hatchery policy would be out for public review by March 31. A joint task force from the Commerce and Interior Departments has been working to come up with the new policy, he said "Many segments of the public hold very strong and divergent views on the subject," Lohn said. "NOAA Fisheries has encountered unexpected difficulty and complexity in developing a new hatchery policy to be applied in making the new listing determinations."

Lohn told the judge there were several challenges, including: developing general standards for evaluating if a hatchery stock is part of the ESU in which it's located; considering the role of hatchery fish in assuring an ESU's survival; analyzing up-to-date information on hatchery effects, both good and bad; and obtaining information on historical and current operations on hundreds of hatchery programs, along with recent changes to various hatchery management plans and purposes.

Also, NOAA Fisheries and the U.S. Department of Fish and Wildlife, which operates some of the largest salmon and steelhead hatcheries in the Northwest, have been bogged down trying to develop a joint national hatchery listing policy. NOAA spokesman Brian Gorman characterized the talks as "somewhat cumbrous."

But it's no secret there has also been plenty of internal wrangling between NOAA Fisheries scientists, who generally have a skeptical view of the effect of hatchery stocks on wild runs, and agency policymakers charged with interpreting the Hogan decision as well as satisfying tribal obligations.

Future hatchery and harvest obligations to Columbia Basin tribes are being hashed out in the secretive U.S. v. Oregon process, where all parties have been slapped with a fresh gag order by presiding judge Garr King after some positions were leaked.

In a February report to members of his Native Fish Society, Bill Bakke (a contributing editor to NW Fishletter) reported that the tribes are calling for both increased production at some hatcheries and much-reduced marking rates on fish produced at these facilities, a policy at odds with a new federal law that calls for marking all hatchery fish that originate from federal facilities. Marking hatchery fish allows non-Indian sports and commercial fishers to keep more landed fish and helps scientists to better monitor effects of hatchery fish that reach spawning grounds.

The tribes want spring chinook marking reduced from 85 percent to 18 percent, Bakke reported, and production boosted by 13 percent. They also support reducing hatchery summer chinook marking from 85 percent to 17 percent, along with boosting steelhead production by 19 percent and reducing their marked numbers from 79 percent to 47 percent.

The tribes have been vocal supporters for using hatcheries to supplement wild runs over the long-term, but they have had a hard time convincing federal scientists the strategy will work.

In the draft hatchery policy floated after the Alsea decision, the government said it couldn't answer that important question. The draft policy also called for ensuring that both hatchery and wild components for listed ESUs are afforded the same protections under the ESA. "This does not, mean, however, that these protections will apply to hatchery populations exactly as they will to natural populations," said the document, which has quietly disappeared from the policy arena.

BIAW attorney Harris is glad that draft policy is gone. He called it a "clear end run around Alsea." He and other petitioners think the feds should simply count hatchery fish and wild fish together to determine the size of an ESU, but it remains to be seen whether that will happen. If it does, some listed stocks like the Oregon coho and Snake River fall chinook will likely soon be candidates for delisting, but it's still not clear where the agency is headed, though it's probably going to be a more compromising position than in recent years.

"There's lot of confusing language in the Hogan decision," NOAA Fisheries assistant administrator Donna Darm said back in December of 2001. "People think we have to take into account hatchery populations to determine viability [of listed ESUs]." But the judge didn't say that, Darm told an audience of NMFS scientists that winter.

There is some evidence that the NMFS hard line is cracking, mainly from pressure by D.C.-based policymakers that have come aboard since the Bush Administration came to power and a product may actually appear in a couple of weeks.

Todd Ungerecht, senior policy advisor for NOAA Fisheries, said his agency hoped they would get something completed "at the department level" by March 31, but was less optimistic that the USFWS would join in by then. Nothing has yet appeared, though NOAA regional administrator Lohn told NW Fishletter that the policy will be out very soon.

BIAW attorney Harris said the government has violated the agreement and both sides were now trading pleadings before federal Judge Robert Whalen. " I gave them [the feds] the farm back in October," Harris said this week. "Now it’s up to the judge."

Therese Lamb, BPA’s vice president for the office of Environment, Fish and Wildlife has announced that she is leaving to "explore life outside the agency." Lamb has worked at BPA for nearly 13 years, serving as a fish policy advisor before taking over as acting vice president last January, and reaching full status in September.

"I've had a tremendous 12 and a half years at BPA," said Lamb. "The agency has provided me with good experiences for which I am very grateful. I have enjoyed the complexity of BPA's responsibilities, the role BPA plays in the region and the tremendous diversity of the people within BPA."

BPA administrator Steve Wright said he tried to talk her out of leaving. "She has tremendous talent that made her stand out in every position she held at BPA from the time she began a co-op student," Wright said. "She earned a reputation for being a strong leader who produced results in every position she held. I wish her the best in whatever she does next."

Greg Delwiche, vice president for Generation Supply (Power Business Line) was named interim EFW vice president.

It was also announced that Terry Larson, who was named director of BPA’s Fish and Wildlife division last September, will be moving back to her old area in the agency’s Power Business Line.