Status of Endangered Salmon Challenged in Northwest
Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001).

Kristen M. Fletcher, J.D., LL.M.

See Salmon Timeline

In September of 2001, Judge Michael Hogan of the U.S. District Court of Oregon, issued a controversial decision in Alsea Valley Alliance v. Evans declaring the National Marine Fisheries Service’s (NMFS) listing of coho salmon as arbitrary and capricious. According to Hogan, the NMFS violated federal law when the agency counted hatchery-born fish for the purpose of designating populations of salmon that needed protection but failed to extend federal protection to those hatchery fish. While the ruling has been stayed by the Ninth Circuit until an appeal can be heard, the decision has potentially wide-ranging application and complicates a struggle between improving the condition of wild salmon stocks and providing hatchery-bred fish for severely depleted salmon runs.

The NMFS Listing & Policies
When the Endangered Species Act (ESA) was adopted in 1973, it provided a program for the conservation of endangered and threatened species, recognizing that conservation of listed species may be facilitated by artificial means such as hatchery-spawned or hatchery-raised fish.1 When Congress amended the ESA in 1978, it redefined “species” as “any subspecies of fish . . . and any distinct population segment of any species . . . which interbreeds when mature.”2 Because Congress did not define distinct population segment (DPS), the NMFS introduced the term “evolutionary significant unit” (ESU) to interpret DPS under the statute. The agency guidance, issued in 1991, explained that “a stock of pacific salmon will be considered a distinct population, and hence a ‘species’ under the ESA, if it represents an Evolutionary Significant Unit of the biological species.”3 For a stock to be considered an ESU, it must (1) be substantially reproductively isolated from other conspecific population units; and (2) represent an important component in the evolutionary legacy of the species.4

Two years after the ESU policy, the agency issued its “Hatchery Policy” stating that the ESA requires the agency to focus its recovery efforts on “natural populations” and that “although hatchery populations may be included as part of a listed species, [the] NMFS policy is that it should be done sparingly because artificial propagation could pose risks to natural populations.”5 The NMFS includes hatchery fish in the listed species if they are “essential for recovery.”6

Though the agency initially decided to list six ESUs of coho salmon as threatened, it rescinded this decision based upon conservation measures proposed in the Oregon Coastal Salmon Restoration Initiative, a state sponsored plan based on coordinated federal and state agency programs, community-based action and monitoring. An environmental group, the Oregon Natural Resources Council, challenged the failure to list and the agency ultimately listed the Oregon Coast coho ESU as threatened pursuant to court order.7 Within this ESU, the NMFS listed all “naturally spawned” coho inhabiting streams between Cape Blanco and the Columbia River. Even though nine Oregon hatchery populations were part of this ESU as natural populations, the NMFS did not include the hatchery coho because they were not deemed “essential to recovery.”8
The plaintiff property rights group, Alsea Valley Alliance, challenged this action as illegal because the ESA does not permit listing distinctions below that of species, subspecies or a distinct population segment of a species. While acknowledging that the agency was entitled to deference, the court found that the NMFS acted arbitrarily because “the NMFS decision defines the ESU and thus DPS, but then takes an additional step, beyond its definition of an ESU, to eliminate hatchery coho from its listing decision.”9 The court upheld the agency’s authority to create the ESU concept and establish the factors used to define it (geography and genetics) but held that “once [the] NMFS determined that hatchery-spawned coho and naturally-spawned coho were part of the same [ESU], the listing decision should have been made without further distinctions between members of the same ESU.”10 The court seemed uneasy that the NMFS listing decision would create the situation of two genetically identical coho salmon swimming side by side in the same stream, but only one receiving ESA protection11 and found that “genetics cannot, by itself, justify a listing distinction that runs contrary to the definition of a distinct population segment.”12

Statute of Limitations Challenge
The agency also lost on its claim that the plaintiff’s challenges were time barred by federal law which requires cases to be filed within six years after the right of action exists.13 The NMFS claimed that the challenges are to the ESU policy, adopted in 1991, and the Hatchery Policy, adopted in April 1993, and therefore time barred by the six year statute of limitations. The court responded that the challenges were to the more recent listing decision, not the earlier 1991 and 1993 policies, because the earlier policies did not provide a final agency decision regarding specific salmon in specific geographic regions.14

Response to the Hogan Decision
As one commentator noted, Judge Hogan’s ruling “complicates an already-complex issue.”15 The potential ramifications of the case are to change a popular federal policy of protecting wild fish while allowing harvest of hatchery fish. Because the majority of adult coho that return to Oregon coastal rivers spawn in hatcheries (a situation mirrored by most of the twelve threatened and endangered runs in the Columbia basin), counting hatchery fish could also compel the government to delist twenty of twenty-six endangered West Coast salmon species, even though the wild population may be on the brink of extinction. Government biologists worry that the biological differences between wild and hatchery fish, such as reproductive success, the likelihood of returning as a spawning adult, ability to avoid predation, and ability to deal with environmental changes, of which wild fish are better adapted, will threaten the long-term survival of West Coast salmon.

A few weeks after the decision, the NMFS received its first petition to remove salmon and steelhead populations from the endangered and threatened species lists. In the following months, land use practices, previously unauthorized or postponed because of ESA listings, were resumed. The agency was urged to appeal the decision but the agency and Bush administration declined. Instead, the agency began a review of its policy of including hatchery-bred salmon as part of listing populations and a review of the status of 25 ESUs currently listed as threatened or endangered.16

Environmental and fishing groups took up where the NMFS left off and filed an appeal with the Ninth Circuit Court of Appeals.17 The Ninth Circuit stayed the decision, effectively replacing the listings and land use protections, until it can hear the case this winter. Water Log will report on the decision in an upcoming issue.

ENDNOTES
1. 16 U.S.C. § 1531 (b) (2002).
2. 16 U.S.C. § 1532 (16) (2002).
3. 56 Fed. Reg. 58,613, at 58,618 (Nov. 20, 1991).
4. Id.
5. 58 Fed. Reg. 17,573, at 17, 575 (Apr. 5, 1993).
6. The NMFS does not define “essential to recovery” but gives examples of what is essential including a natural population facing a “high, short-term risk of extinction, or [a] hatchery population [that] is believed to contain a substantial proportion of the genetic diversity remaining in the species.” Id.
7. 63 Fed. Reg. 42,587 (Aug. 10, 1998).
8. 63 Fed. Reg. at 42,589.
9. 161 F. Supp. 2d at 1161.
10. Id. at 1162.
11. Id. at 1163.
12. Id.
13. 28 U.S.C. § 2401 (a) (2002) (providing that “every civil action against the U.S. shall be barred unless the complaint is filed within six years after the right of action first accrues”).
14. 161 F. Supp. 2d at 1161.
15. Erik Robinson, Ruling on Hatchery Fish Classification Draws Strong Reactions, The Columbian, Oct. 4, 2001, at A1.
16. 67 Fed. Reg. 6,215 (Feb. 11, 2002).
17. These groups include the Oregon Natural Resources Council, Pacific Rivers Council, Pacific Coast Federation of Fishermen’s Ass’n, Audubon Society of Portland, Coast Range Ass’n, Institute for Fisheries Resources and the Sierra Club. Visit
http://www.earthjustice.org/urgent/display.html?ID=87 .

Salmon Timeline

November 20, 1991
NMFS issues "Policy on Applying the Definition of Species Under the ESA to Pacific Salmon," introducing the term Evolutionary Significant Unit.

April 5, 1993
NMFS issues "Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act," known as the "Hatchery Policy," stating that hatchery populations may be included as part of a listed species, but sparingly because it could pose risks to natural populations.

August 10, 1998
NMFS lists the Oregon Coast ESU coho salmon as threatened under the ESA.
September 10, 2001
Judge Hogan decides Alsea Valley Alliance v. Evans, determining that NMFS improperly excluded hatchery salmon from its listing decision.

September 10, 2001
Judge Hogan decides Alsea Valley Alliance v. Evans, determining that NMFS improperly excluded hatchery salmon from its listing decision.

September 28, 2001
NMFS receives its first post-Hogan petition to remove seven populations of Columbia Basin salmon and steelhead from endangered and threatened species lists.

September/October/November 2001
After the Hogan decision, actions previously postponed due to coho's protected status resume such as federal timber sales, road-building, and culvert repairs, without having to consider effects on salmon. However, state protections in Oregon remain in place.

November 9, 2001
NMFS announces that it will not appeal Hogan's decision but will undertake a 10-month review of its policy of including hatchery-bred salmon as part of listed populations.

December 14, 2001
Ninth Circuit stays decision pending appeal by fisheries and environmental groups, effectively reapplying federal land use protections.

University of Mississippi