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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« NOAA rejects petition to list tiger rockfish and China rockfish | Main| NOAA extends comment period for 5-year status review on Steller's sea lion »

9th Circuit upholds NOAA Fisheries distinct treatment of Steelhead and Rainbow trout

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Modesto Irrigation District v. Gutierrez, No. 09-15214, 2010 WL 3274499 (9th Cir. Aug. 20, 2010)(Judges Mary M. Schroeder, Consuelo M. Callahan, and Barbara M. Lynn)

This Endangered Species Act (“ESA”) case is a challenge to the decision of the National Marine Fisheries Service (“NMFS”) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.  Plaintiffs are irrigation districts in California's Central Valley, (including  Modesto Irrigation District (MID)) whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (“APA”) by failing adequately to explain its decision to adopt a new policy for classifying the fish. We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc.,129 S.Ct. 1800 (2009). We therefore affirm.

steelheadTroutSalmon.jpg
This case turned upon the distinctions between the steelhead (above from AlaskaSalmon.com) and rainbow trout, (below from oldtrout.ca) types of Pacific salmon that comprise the Oncorhyncus mykiss (“O.mykiss ”) species as scientifically defined. The fish are born in fresh water, but the steelhead migrate to the ocean anywhere from hours to years after their birth. To transition from fresh water to salt water, steelhead undergo a “smolt” stage, and then after one to five years in the sea, return to the original stream to spawn. Because of their migration pattern, steelhead are known as the anadromous form of O. mykiss. The rainbow trout, on the other hand, remain in fresh wa-ter their entire lives and are commonly known as the resident form of the O. mykiss species.  While the two fish grow to differing sizes as adults and have different predators and prey, they do inter-breed to some extent, and the offspring can take on the form of either. An excess of steelhead can regen-erate the population of rainbow trout, but the reverse does not seem to be the case.
RainbowTrout.jpg

BACKGROUND: Previously,NOAA Fisheries had sought to apply its evolutionary significant unit (“ESU”) policies to these species.  See, e.g. Proposed Listing Determinations for 27 ESUs of West Coast Salmonids, 69 Fed.Reg. 33,102, 33,115 (June 14, 2004); Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed.Reg. 834, 836 (Jan. 5, 2006).  Under these policies, NOAA determined that an ESU was the functional equivalent of a "Distinct Population Segment."  Under the ESU Policy, a salmon stock had to satisfy two main criteria before NMFS could place the stock in a distinct ESU: (1) It must be substantially reproductively isolated from other nonspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species.  On November 4, 2005, NMFS proposed to abandon the ESU Policy with respect to O. mykiss. NMFS proposed using the DPS Policy instead to classify O. mykiss so the steelhead and rainbow trout could be treated separately under the ESA. See 70 Fed.Reg. at 67,131. In support of the change in policy, NMFS stated:

"It is appropriate that we consider departing from our past practice of applying the ESU Policy to O. mykiss stocks, and instead apply the DPS Policy in determining “species” of O. mykiss for listing consideration. Such an approach would also be consistent with use of the DPS Policy by the agencies in defining DPSs of Atlantic salmon ... The primary difference in the application of the two policies is that the ESU Policy relies on “substantial reproductive isolation” as the primary factor in delineating a group of organisms, while the DPS Policy relies on “marked separation” to delineate the group. Within a discrete group of O. mykiss populations, the resident and anadromous life forms of O. mykiss remain “markedly separated” as a consequence of physical, physiological, ecological, and behavioral factors. Despite the apparent lack of reproductive isolation between the two forms within a given population or group of populations, under the DPS Policy anadromous and resident O. mykiss may not warrant delineation as part of the same DPS."

EXCERPT: NMFS changed its policy when it applied the DPS Policy to O. mykiss after it had previously applied the ESU Policy, and it is undisputed that such a policy change requires an explanation. See F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810-11 (2009). MID questions whether NMFS provided sufficient explanation for the change. We hold that the record reflects that NMFS engaged in a careful decision-making process and provided a sufficient explanation for its decision to apply the DPS Policy...  This record thus contains ample support for the reasons NMFS stated when it decided to use the DPS Policy. The final rule stated that the ESU Policy was no longer appropriate for classifying O. mykiss because it is “a type of salmonid with characteristics not typically exhibited by Pacific salmon.” 71 Fed.Reg. at 834. The final rule may not explicitly describe why and how O. mykiss differ from other species of Pacific salmon, but the rule does provide an extensive discussion of the similarities and differences between steelhead and rainbow trout that are not shared by other Pacific salmon. It “may reasonably be discerned,” then, that NMFS determined that O. mykiss is distinct from other types of Pacific salmon. See Fox, 129 S.Ct. at 1811.  In light of the evolving understanding of the differences between the fish, the desire for a flexible policy, and the depth of consideration that NMFS has given the issue over close to two decades, we conclude that the agency was not arbitrary or capricious in changing its policy in order to protect the steelhead. We therefore affirm the district court's holding that the explanation for the policy change was sufficient. Its ruling was fully consistent with the Supreme Court's subsequent decision in Fox.

KEITHINKING: The opinion ended on a discomforting pragmatic point, reminding us about the tensions between good law and bad facts: "We are aware of the practical difficulties the classification decision creates for management of the Irrigation and Water Districts. The two types of fish look and behave the same during their early years in the rivers and streams in the area, and the practical effect of our decision is that plaintiffs may have to protect both the steelhead and rainbow trout, even though only the steelhead is threatened. The flexibility to make policy changes in response to such concerns, however, remains in the agencies administering the provisions of the ESA and not with the courts."