On Monday, Judge Wanger of the Eastern District of California upheld, in California State Grange v. National Marine Fisheries Service, NMFS's listing of five distinct population segments (DPSs) of steelhead trout (O. mykiss). PLF represents the plaintiffs, a coalition of timber, agricultural, and municipal water interests. The case was a follow-up to PLF's victory in Alsea Valley Alliance v. Evans, in which Judge Hogan of the District of Oregon ruled that NMFS's hatchery listing policy (HLP) was contrary to the Endangered Species Act (ESA) because it forced the agency to ignore hatchery raised salmon and trout when determining whether to list fish populations.
Following the Alsea decision, NMFS's reanalyzed its salmon and trout listings pursuant to a new HLP, but basically left all of them in place. PLF thereupon brought a new challenge, contending that NFMS had been unfaithful to the spirit of Alsea with its new HLP. The California State Grange case was part of the follow-up. (For coverage on other follow-up cases, see here).
In Monday's decision, Judge Wanger upheld the five challenged steelhead listings, largely on theories of deference. The Court held that NMFS was within its lawful discretion to analyze hatchery and naturally spawning steelhead differently. Further, the Court held that NMFS's practice of looking to hatchery stock only for the ancillary purpose of helping the viability of the naturally spawning parts of these steelhead populations is consistent with the ESA's supposed purpose of returning endangered and threatened species populations to self-sustaining levels. The Court flatly rejected the contention that the ESA would be vindicated if trout populations were wholly reliant upon hatchery stock for their continuing viability.
The Court also upheld NMFS's decision to exclude resident rainbow trout from the listed populations.
The decision is unquestionably disappointing, not least because the Court seems to have misunderstood PLF's central point, which is: the HLP systematically prejudices the listing analysis in favor of a segment of the listable population, rather than in favor of the entire listable population. The ESA contains no warrant for NMFS's anti-hatchery prejudice.