Oregon Ruling Challenges 
Restoring of Salmon

By Hal Bernton
Seattle Times staff reporter

A federal judge has challenged the legal underpinnings of Pacific Northwest salmon restoration in a decision that says hatchery fish should be considered part of threatened runs of Oregon coastal coho.

The ruling last week by District Judge Michael Hogan in Oregon threw out National Marine Fisheries Service listings of the coho under the Endangered Species Act.

If affirmed through an appeal process or other rulings, the decision could force major changes in endangered-species listings in Puget Sound and the Columbia River basin.

"The decision could have very far-reaching impacts," said D. Robert Lohn, a Northwest Power Planning Council official who within the next month will become Northwest regional director of the fisheries service.

The endangered-species listings of salmon and steelhead have launched multibillion-dollar restoration efforts. The efforts are aimed largely at increasing populations of wild salmon, not hatchery salmon, which are much more abundant.

The lawsuit brought by the Pacific States Legal Foundation resulted from some well-publicized clubbing of coho returning to a hatchery on the Alsea River in western Oregon.

The Oregon hatchery salmon were launched from eggs gathered outside the Alsea River drainage and were not counted by the fisheries service as part of the threatened coho of the Oregon coast. State hatchery managers did not want the hatchery salmon to escape to spawn in the stream, interbreed and possibly weaken the wild stocks.

But the judge ruled that the fisheries service had made an "arbitrary and capricious" distinction between the Alsea hatchery and wild salmon. He stripped away the federal protections that imposed civil and criminal penalties for harming coastal coho.

The ruling was a victory for critics of the fisheries-service listing. It can "slice the Gordian knot that paralyzes natural-resources management in the Pacific Northwest," wrote James Buchal, a Portland attorney who has long argued that hatchery fish should be given greater consideration.

The decision on whether to appeal the ruling will be one of the first big issues Lohn will face when he takes over as the fisheries service's Northwest chief.

Conservationists hope the decision can be successfully challenged and are eager to see it appealed. They say it discounts decades of scientific research that documents the differences between hatchery and wild salmon.

But if the decision is appealed and upheld, it could force a much broader reassessment of all salmon and steelhead listings on the West Coast, including 13 listings of Columbia River fish and a listing of Puget Sound chinook salmon.

It would also apply to the Klamath River, where conservation protections for threatened coho salmon have increased water flows and contributed to severe shortages of irrigation water.

If the fisheries service opts not to appeal the ruling, its effect would be confined to the Oregon coast.

But other district courts are expected to weigh in on hatchery fish, too.

A lawsuit challenging the Puget Sound listing of chinook salmon is pending in U.S. District Court in Washington, D.C. Filed by a group called Common Sense Salmon Recovery, the lawsuit is based partly on the fisheries service's failure to include hatchery salmon in the listing.

Hal Bernton can be reached at 206-464-2581 or hbernton@seattletimes.com.