March 16, 2009

Decision rendered in hatchery listing policy challenges

By Decision rendered in hatchery listing policy challenges

Today the Ninth Circuit issued its decisions in Alsea Valley Alliance v. Lautenbacher and Trout Unlimited v. Lohn.  Both cases presented challenges to the National Marine Fisheries Service's Hatchery Listing Policy (HLP).  Under the HLP, the Service determines whether and to what extent hatchery-raised salmon will be taken into account when determining whether to list a given salmon population under the ESA.  Several groups, represented by PLF attorneys, argued that the HLP contradicts the ESA by systemmatically discounting or ignoring hatchery fish in favor of naturally spawning fish.  Environmental groups also challenged the HLP, but on the grounds that the HLP gives too much consideration to hatchery fish.

The Ninth Circuit upheld the HLP against both sets of attacks.  The court concluded that NMFS had enough data and expertise favoring its position that hatchery salmon are not uniformly bad, and are properly looked to when assessing a salmon population's extinction risk.  The court declined to second-guess the agency's predictive judgments or assessments of the conflicting studies in the record.  Importantly, the court ruled that the ESA's purpose is in fact to preserve naturally self-sustaining populations, and that the HLP adequately serves that goal.

The Alsea and Trout Unlimited decisions mark the end of over a decade of salmon litigation in the Pacific Northwest.  After today, it is clear that, although hatchery will have some role to play in salmon conservation, neither the Service nor the courts will let that role be a major one.

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