Salmon, Hatcheries, and the Endangered Species Act: Alsea Valley Alliance v. Evans and its Implications
By Kristin A. Gaston
INTRODUCTION
Salmon have been a symbol of Pacific Northwest culture, recreation, and industry for thousands of years. However, select one salmon at random to tell the story of its unique life, and it probably was born in a hatchery. The difference between wild and hatchery fish may not be important to many people, including property rights advocates and some commercial fishermen who claim that “a salmon is a salmon.” Yet the National Marine Fisheries Service (hereinafter NOAA Fisheries) believes the Endangered Species Act (ESA) instructs the agency to focus restoration efforts on naturally-spawned wild salmon. Conservation groups and native fish advocates also maintain there are legal, scientific, and economic reasons to focus on wild salmon recovery. As a result of an Oregon District Court ruling in September 2001, Alsea Valley Alliance v. Evans, NOAA Fisheries faces difficult legal and scientific questions concerning how to balance artificial salmon production with wild salmon conservation goals and how and when to distinguish hatchery fish from wild fish under the Endangered Species Act.
Since the late 1880s, fishery managers have thought hatcheries were necessary to preserve salmon for the Pacific Northwest fishing industry. Despite the steady decline of salmon populations for over a century, the region has continued to rely primarily on hatcheries to produce salmon. In recent years, however, the region's reliance on hatcheries has become the focus of scientific and philosophical debate. This increasing scrutiny of hatcheries is in part due to widespread listing of salmon under the ESA, beginning with the 1991 listing of the Snake River sockeye. Those listings prompted a series of scientific studies examining the adverse effects on wild salmon when hatchery salmon populations interact and spawn with wild salmon. For more than one hundred years, fishery managers relied on artificial propagation to manage salmon harvests subject to few environmental laws. The ESA listing changed this by requiring NOAA Fisheries to address hatcheries and hatchery fish through a new legal framework. Interpreting the ESA, NOAA Fisheries viewed traditional hatcheries as consistent with the statute's purposes because the statutory language expressly permitted the use of artificial propagation as a conservation method.
The Endangered Species Act provides protection to a species once NOAA Fisheries lists it as endangered or threatened. The Act defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species . . . .” In 1990, NOAA Fisheries received petitions to list five salmon stocks on the endangered species list. One year later the agency adopted an evolutionarily significant unit (ESU) policy (hereinafter 1991 ESU Policy) to determine when a Pacific salmon stock would qualify as a “distinct population segment” (DPS). NOAA Fisheries explained that a Pacific salmon stock would be a DPS if it were an “evolutionarily significant unit.” The stock would qualify as an ESU if it met two criteria: (1) if it were “substantially reproductively isolated from other conspecific population units” and (2) if it represented “an important component in the evolutionary legacy of the species.”
NOAA Fisheries' 1991 ESU Policy raised more questions than it provided answers regarding salmon listings. Specifically, NOAA Fisheries failed to explain how it would treat hatchery fish under the ESA. Thus, two years later, NOAA Fisheries implemented a hatchery policy to define how and when the agency would account for hatchery fish when faced with a petition to list an ESU. In its 1993 Hatchery Policy, NOAA Fisheries interpreted the goals of the Endangered Species Act for Pacific salmon to focus on “natural populations--the progeny of naturally spawning fish--and the ecosystems upon which they depend.” As a result, the 1993 Hatchery Policy established that when NOAA Fisheries considered a petition to list a salmon population, the agency would first identify an ESU of naturally-spawned fish and determine if the ESU qualified for threatened or endangered status, and then decide if any hatchery fish also should be included in the same ESU. By incorporating hatchery populations into the ESU, the agency considered such hatchery fish as “candidates for use in recovery programs,” but only when the genetic and biological traits of wild and hatchery salmon were similar. The policy stated that, generally, even when the hatchery populations were similar enough to be included in an ESU, NOAA Fisheries would list the hatchery fish only when they were “essential for recovery.” For most ESUs, NOAA Fisheries*128 included only the wild fish on the endangered species list, even when the ESUs had associated hatchery populations.
In 1999, in Alsea Valley Alliance v. Evans, a group of private property advocates challenged NOAA Fisheries' 1991 ESU Policy and 1993 Hatchery Policy as inconsistent with the Endangered Species Act, arguing that the ESA did not allow a partial listing of an ESU. The plaintiffs alleged that because NOAA Fisheries had identified the ESU to include both hatchery and naturally-spawned coho, NOAA Fisheries' 1998 rule listing only the naturally-spawned Oregon Coast coho as threatened violated the Endangered Species Act. The district court agreed with the plaintiffs, holding that NOAA Fisheries' decision to list only naturally-spawned salmon was arbitrary and capricious because it made “improper distinctions, below that of an [ESU], by excluding hatchery coho populations from listing protection.” Although the plaintiffs challenged only the Oregon Coast coho listing, the ruling affected many other Pacific salmon stocks because the Oregon Coast coho listing pattern was characteristic of NOAA Fisheries' salmon listings: most ESUs include both naturally-spawned and hatchery populations, but NOAA Fisheries listed only the naturally-spawned populations.
The ruling in Alsea Valley Alliance caused a flurry of activity among various groups interested in or affected by salmon recovery efforts. NOAA Fisheries received petitions to delist fifteen ESUs alleging that NOAA Fisheries improperly discounted the hatchery fish in the ESUs and that continued ESA listings were unnecessary given the large number of hatchery fish. In addition to several delisting petitions, conservation groups filed two petitions to redefine and relist fifteen ESUs presently listed under the Endangered Species Act, arguing that available scientific evidence supported the idea that hatchery and wild fish should be delineated in separate ESUs.
In November 2001, NOAA Fisheries announced it would not appeal the Alsea Valley Alliance ruling but instead would examine its policies and listing criteria applicable to those ESUs containing both natural and hatchery fish. The agency released a revised hatchery policy in July 2002, stating that it would consider all the naturally-spawned and hatchery populations of an ESU prior to evaluating the ESU's status as potentially threatened or endangered. NOAA Fisheries proposed to finalize and publish the 2002 Hatchery Policy as a final rule in April 2003. The agency will use the 2002 Hatchery Policy to reevaluate twenty-seven Pacific salmon ESUs containing both natural and hatchery populations to determine which of the ESUs will remain on the endangered species list.
This paper criticizes NOAA Fisheries' management and listing of hatchery populations under the ESA, focusing on the events leading up to the Alsea Valley Alliance case and the implications for listing hatchery salmon following the court's decision. Part II discusses the historic role of hatcheries in the Pacific Northwest and notes the currently unresolved questions about the effectiveness of hatcheries as a recovery method for naturally-spawned salmon stocks. Part III examines NOAA Fisheries' fulfillment of its duty to protect salmon, concentrating on the National Environmental Policy Act and salmon-specific policies under the Endangered Species Act. Part IV analyzes the Oregon District Court's ruling in Alsea Valley Alliance v. Evans, holding that NOAA Fisheries' ‘partial listing’ of the Oregon Coast coho ESU was arbitrary and capricious; this part also describes the challenges to Judge Hogan's decision. Part V discusses the ensuing petitions to list and delist Pacific salmon ESUs and illustrates the future of salmon listings under NOAA Fisheries' 2002 Hatchery Policy. The paper concludes that a more straightforward response to the court's decision in Alsea Valley Alliance would have been for NOAA Fisheries to redefine the ESU concept as a precursor to a DPS, thus rendering the court's decision insignificant.
Salmon have been a symbol of Pacific Northwest culture, recreation, and industry for thousands of years. However, select one salmon at random to tell the story of its unique life, and it probably was born in a hatchery. The difference between wild and hatchery fish may not be important to many people, including property rights advocates and some commercial fishermen who claim that “a salmon is a salmon.” Yet the National Marine Fisheries Service (hereinafter NOAA Fisheries) believes the Endangered Species Act (ESA) instructs the agency to focus restoration efforts on naturally-spawned wild salmon. Conservation groups and native fish advocates also maintain there are legal, scientific, and economic reasons to focus on wild salmon recovery. As a result of an Oregon District Court ruling in September 2001, Alsea Valley Alliance v. Evans, NOAA Fisheries faces difficult legal and scientific questions concerning how to balance artificial salmon production with wild salmon conservation goals and how and when to distinguish hatchery fish from wild fish under the Endangered Species Act.
Since the late 1880s, fishery managers have thought hatcheries were necessary to preserve salmon for the Pacific Northwest fishing industry. Despite the steady decline of salmon populations for over a century, the region has continued to rely primarily on hatcheries to produce salmon. In recent years, however, the region's reliance on hatcheries has become the focus of scientific and philosophical debate. This increasing scrutiny of hatcheries is in part due to widespread listing of salmon under the ESA, beginning with the 1991 listing of the Snake River sockeye. Those listings prompted a series of scientific studies examining the adverse effects on wild salmon when hatchery salmon populations interact and spawn with wild salmon. For more than one hundred years, fishery managers relied on artificial propagation to manage salmon harvests subject to few environmental laws. The ESA listing changed this by requiring NOAA Fisheries to address hatcheries and hatchery fish through a new legal framework. Interpreting the ESA, NOAA Fisheries viewed traditional hatcheries as consistent with the statute's purposes because the statutory language expressly permitted the use of artificial propagation as a conservation method.
The Endangered Species Act provides protection to a species once NOAA Fisheries lists it as endangered or threatened. The Act defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species . . . .” In 1990, NOAA Fisheries received petitions to list five salmon stocks on the endangered species list. One year later the agency adopted an evolutionarily significant unit (ESU) policy (hereinafter 1991 ESU Policy) to determine when a Pacific salmon stock would qualify as a “distinct population segment” (DPS). NOAA Fisheries explained that a Pacific salmon stock would be a DPS if it were an “evolutionarily significant unit.” The stock would qualify as an ESU if it met two criteria: (1) if it were “substantially reproductively isolated from other conspecific population units” and (2) if it represented “an important component in the evolutionary legacy of the species.”
NOAA Fisheries' 1991 ESU Policy raised more questions than it provided answers regarding salmon listings. Specifically, NOAA Fisheries failed to explain how it would treat hatchery fish under the ESA. Thus, two years later, NOAA Fisheries implemented a hatchery policy to define how and when the agency would account for hatchery fish when faced with a petition to list an ESU. In its 1993 Hatchery Policy, NOAA Fisheries interpreted the goals of the Endangered Species Act for Pacific salmon to focus on “natural populations--the progeny of naturally spawning fish--and the ecosystems upon which they depend.” As a result, the 1993 Hatchery Policy established that when NOAA Fisheries considered a petition to list a salmon population, the agency would first identify an ESU of naturally-spawned fish and determine if the ESU qualified for threatened or endangered status, and then decide if any hatchery fish also should be included in the same ESU. By incorporating hatchery populations into the ESU, the agency considered such hatchery fish as “candidates for use in recovery programs,” but only when the genetic and biological traits of wild and hatchery salmon were similar. The policy stated that, generally, even when the hatchery populations were similar enough to be included in an ESU, NOAA Fisheries would list the hatchery fish only when they were “essential for recovery.” For most ESUs, NOAA Fisheries*128 included only the wild fish on the endangered species list, even when the ESUs had associated hatchery populations.
In 1999, in Alsea Valley Alliance v. Evans, a group of private property advocates challenged NOAA Fisheries' 1991 ESU Policy and 1993 Hatchery Policy as inconsistent with the Endangered Species Act, arguing that the ESA did not allow a partial listing of an ESU. The plaintiffs alleged that because NOAA Fisheries had identified the ESU to include both hatchery and naturally-spawned coho, NOAA Fisheries' 1998 rule listing only the naturally-spawned Oregon Coast coho as threatened violated the Endangered Species Act. The district court agreed with the plaintiffs, holding that NOAA Fisheries' decision to list only naturally-spawned salmon was arbitrary and capricious because it made “improper distinctions, below that of an [ESU], by excluding hatchery coho populations from listing protection.” Although the plaintiffs challenged only the Oregon Coast coho listing, the ruling affected many other Pacific salmon stocks because the Oregon Coast coho listing pattern was characteristic of NOAA Fisheries' salmon listings: most ESUs include both naturally-spawned and hatchery populations, but NOAA Fisheries listed only the naturally-spawned populations.
The ruling in Alsea Valley Alliance caused a flurry of activity among various groups interested in or affected by salmon recovery efforts. NOAA Fisheries received petitions to delist fifteen ESUs alleging that NOAA Fisheries improperly discounted the hatchery fish in the ESUs and that continued ESA listings were unnecessary given the large number of hatchery fish. In addition to several delisting petitions, conservation groups filed two petitions to redefine and relist fifteen ESUs presently listed under the Endangered Species Act, arguing that available scientific evidence supported the idea that hatchery and wild fish should be delineated in separate ESUs.
In November 2001, NOAA Fisheries announced it would not appeal the Alsea Valley Alliance ruling but instead would examine its policies and listing criteria applicable to those ESUs containing both natural and hatchery fish. The agency released a revised hatchery policy in July 2002, stating that it would consider all the naturally-spawned and hatchery populations of an ESU prior to evaluating the ESU's status as potentially threatened or endangered. NOAA Fisheries proposed to finalize and publish the 2002 Hatchery Policy as a final rule in April 2003. The agency will use the 2002 Hatchery Policy to reevaluate twenty-seven Pacific salmon ESUs containing both natural and hatchery populations to determine which of the ESUs will remain on the endangered species list.
This paper criticizes NOAA Fisheries' management and listing of hatchery populations under the ESA, focusing on the events leading up to the Alsea Valley Alliance case and the implications for listing hatchery salmon following the court's decision. Part II discusses the historic role of hatcheries in the Pacific Northwest and notes the currently unresolved questions about the effectiveness of hatcheries as a recovery method for naturally-spawned salmon stocks. Part III examines NOAA Fisheries' fulfillment of its duty to protect salmon, concentrating on the National Environmental Policy Act and salmon-specific policies under the Endangered Species Act. Part IV analyzes the Oregon District Court's ruling in Alsea Valley Alliance v. Evans, holding that NOAA Fisheries' ‘partial listing’ of the Oregon Coast coho ESU was arbitrary and capricious; this part also describes the challenges to Judge Hogan's decision. Part V discusses the ensuing petitions to list and delist Pacific salmon ESUs and illustrates the future of salmon listings under NOAA Fisheries' 2002 Hatchery Policy. The paper concludes that a more straightforward response to the court's decision in Alsea Valley Alliance would have been for NOAA Fisheries to redefine the ESU concept as a precursor to a DPS, thus rendering the court's decision insignificant.
