9th Circuit upholds NOAA's salmon hatchery policies in Trout Unlimited v. Lohn
Trout Unlimited v. Lohn, No. 07-35623 (9th Circuit, Mar. 16, 2009)
BACKGROUND: 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... These appeals primarily involve NMFS’s decision, in accordance with the 2005 Hatchery Listing Policy, to downlist a population of Upper Columbia River steelhead from endangered to threatened... the Hatchery Listing Policy provides that hatchery fish that are part of the same ESU as natural fish “will be included in any listing of the Evolutionarily Significant Unit.” Id. at 37,215. In addition, the Hatchery Listing Policy requires NMFS to consider the status of the ESU as a whole... but a listing determination still places primary importance on the viability of natural, self-sustaining populations, providing that “hatchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations.” ... Noting that hatchery fish can be both helpful and harmful to natural fish, the policy also allows NMFS to use its discretionary authority via § 4(d) regulations to provide for the take of certain hatchery fish, even if the ESU to which they belong is listed as threatened.
NOTEWORTHY EXCERPTS: We defer to the informed exercise of agency discretion, especially where that discretion is exercised in an area where the agency has special “technical expertise.” ... 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... Moreover, the Hatchery Listing Policy complies with the express purpose of the ESA to preserve “the ecosystems upon which endangered and threatened species depend,” id. § 1531(b), and to restore any such “species to the point at which the measures provided pursuant to this act are no longer necessary,” id. § 1532(3)... The record shows that NMFS approached the listing decision in a thoughtful, comprehensive manner that balanced the agency’s concerns and goals. Because the downlisting occurred as a result of “substantial—though not dispositive— scientific data, and not on mere speculation,” Greenpeace Action, 14 F.3d at 1333, we are satisfied that the downlisting was not “arbitrary and capricious.” NMFS is entitled to decide between conflicting scientific evidence. See id. (“To set aside the Service’s determination in this case would require us to decide that the views of Greenpeace’s experts have more merit than those of the Service’s experts, a position we are unqualified to take.”). It is not our role to ask whether we would have given more or less weight to different evidence, were we the agency. Assessing a species’ likelihood of extinction involves a great deal of predictive judgment. Such judgments are entitled to particularly deferential review. The Lands Council, 537 F.3d at 993.
BIOLOGY: Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River. Human development in the Pacific Northwest has long threatened many salmon and steelhead species with extinction. “forestry, agricultural, mining, and urbanization activities . . . have resulted in the loss, degradation, simplification, and fragmentation of habitat.” ... To compensate for reduced natural salmon populations, “extensive hatchery programs have been implemented throughout . . . the West Coast.” Not all hatchery fish return to the hatchery, however; some stray from the hatchery to mate and spawn in the wild... Hatchery programs generally have two goals which can conflict with one another: to increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct. “While some of the programs . . . have been successful in providing fishing opportunities, many such programs have posed risks to the genetic diversity and longterm reproductive fitness of local natural steelhead populations.”
KEITHINKING: The opposing arguments of the environmentalists and the building industry may have helped bring about the NOAA victory in a court with a reputation for being less than deferential towards federal government agency decisions. Trout Unlimited argued that the 2005 Hatchery Listing Policy impermissibly requires NMFS to consider the status of the entire Evolutionarily Significant Unit, rather than just the natural components of the ESU when making listing determinations, while the Building Industry’s core claim is that the ESA does not allow NMFS to make any distinctions between hatchery fish and natural fish once NMFS has included them in the same ESU. As the 9th Circuit explained: "While Trout Unlimited contends that NMFS impermissibly conflates hatchery and naturally spawned salmon, the Building Industry argues that NMFS impermissibly distinguishes between hatchery and naturally spawned salmon." The Court rejected both groups of criticisms, and simply deferred to NOAA.
See news coverage from MercuryNews.com. Photos of hatchery salmon and hatchery eggs from NOAA.