January 23, 2014

Judge rules against hatcheries

By Damien M. Schiff Senior Attorney

Earlier this week, Judge Ancer Haggerty of the District of Oregon ruled in Native Fish Society v. National Marine Fisheries Service that the current operation of the Sandy River fish hatchery violates the National Environmental Policy Act and the Endangered Species Act.  The Sandy River is a popular salmon-fishing spot just outside of Portland.  The state has operated a fish hatchery there for many years.  In running the hatchery, the state has tried to keep hatchery raised salmon separate from naturally spawning salmon, fearing that an intermingling would reduce the chances for a sustainable 100% natural salmon run.  In the last several years, however, the state’s efforts at segregation have been made more difficult by the removal of two dams, which had served as a barrier between the salmon.

Hence, Judge Haggerty’s decision finds fault with the Service’s approval of the state’s hatchery management plan largely because the Service failed adequately to assess the impacts of an increased “stray rate.”  The decision holds that the hatchery management plan will probably have a significant impact on the environment, and thus the Service was required to produce a full-blown environmental impact assessment rather than the truncated environmental assessment.  Further, the decision holds that the Service’s biological opinion under the ESA inadequately assessed the impacts of the hatchery management plan on the naturally spawning component of the ESA-listed salmon populations in the Sandy River.

It remains to be seen whether this decision will result in significant cutbacks in recreational fishing in the Sandy River.  But the decision is not surprising, as the environmental community, as well as the Service, have for long considered hatchery raised salmon as inferior to their genetically indistinguishable naturally raised cousins.  And the Ninth Circuit  upheld this prejudice in Trout Unlimited v. Lohn.  Thus, Judge Haggerty’s decision is certainly not novel, and likely will not be the last of its kind.

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