The ongoing battle waged by Building Industry Association of Washington to force the National Marine Fisheries Services to remove several Washington salmon runs from listing under the Endangered Species Act has scored an important victory.
The Ninth Circuit Court of Appeals has upheld the 2001 U.S. District decision in Alsea Valley Alliance v. Evans delisting Oregon Coast coho salmon because NMFS failed to include hatchery-spawned salmon when determining total salmon populations.
U.S. District Judge Michael Hogan ruled in Alsea that hatchery-spawned coho salmon are genetically indistinguishable from naturally-spawned “wild” coho salmon, and therefore must be included as part of total coho population counts. NMFS listed only naturally-spawned “wild” Oregon coast coho salmon, deciding that hatchery-spawned coho were not “essential for recovery.”
In his ruling, Judge Hogan, found, “…the NMFS listing decision creates the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream, but only one receives ESA protection while the other does not.” Hogan thus invalidated NMFS’ listing of Oregon coho.
While NMFS did not appeal Hogan’s ruling, environmental groups immediately filed a lawsuit with the Ninth Circuit Court of Appeals to appeal Hogan’s decision.
The Court of Appeals has now dismissed that suit. “The decision upholding Hogan’s ruling is a landmark victory that will benefit numerous other lawsuits challenging NMFS’ exclusion of hatchery-spawned salmon when listing other salmon species,” said BIAW General Counsel Timothy Harris. “This is one of the primary focuses of the BIAW-led coalition lawsuit against NMFS, which is currently pending in federal district court in Washington, D.C.,” said Harris.
As in Oregon, NMFS refused to include hatchery-spawned salmon when listing several species of Washington salmon as threatened or endangered under the ESA. The BIAW-led coalition, Common Sense Salmon Recovery , argues in its lawsuit that NMFS violated the ESA by not including hatchery-spawned salmon in population counts, and that were NMFS to include hatchery-spawned salmon in population counts, the listing of the species would not be justified under the ESA.
The CSSR lawsuit is pending in federal District Court in Washington, D.C., and was filed well before the Alsea case was filed. “BIAW played an active part in helping to file the Alsea case in Oregon,” said Harrison. “In fact, the underlying theory and analysis of the Alsea case — that it was bad science to not include hatchery-spawned salmon — was present in the BIAW lawsuit well before Alsea was filed,” said Harris.
The delisting of salmon would have a dramatic impact on the state’s economy, lifting the ESA regulatory barriers that are obstacles to economic development. The listings have spawned an onslaught on regulations restricting land and water use that have affected the entire state: Farmers in the Methow Valley lost hundreds of thousands of dollars in crops when the federal government shut off the farmers’ supply of irrigation water under the claim that allowing water to be used by farmers for irrigation might reduce water levels for salmon.
Similarly, farmers in the Klamath Basin lost their irrigation water rights when the federal government cut off irrigation water in order to protect ESA-listed salmon and suckerfish. And four young firefighters lost their lives in Eastern Washington when the delivery of water they desperately needed to keep a raging forest fire at bay was delayed because of the bureaucratic red tape involved in taking water from a river containing ESA listed salmon.