Stocks of wild salmon retain legal protection

Endangered Species Act provisions to remain in place

Saturday, May 15, 2004

By ROBERT MCCLURE SEATTLE POST-INTELLIGENCER REPORTER

In a reversal of expectations, the Bush administration handed conservationists a big victory yesterday by declaring its intention to continue to protect wild salmon under the Endangered Species Act.

Development interests labeled the decision "ridiculous," saying that there are plenty of salmon produced in hatcheries, that hatchery salmon are just as good as wild salmon and that none of them needs legal protection.

Environmentalists, though, have long crusaded to protect dwindling stocks of wild salmon, citing scientists' statements that hatchery-bred fish are not as fit genetically as their wild counterparts.

Conservationists tempered their praise for the Bush administration's decision until they see details of the new policy later this month.

"I'm heartened," said Jeff Curtis, Western conservation director of Trout Unlimited. But he added: "I'm waiting to see what the fine print is."

The Bush administration said 25 of the 26 salmon and steelhead stocks currently protected under the law will continue to be guarded. The 26th species -- steelhead that spawn in the mid-Columbia River -- still is being reconsidered for protection.

Legal challenges are sure to follow.

"We'll let them justify to a judge how they think hundreds of thousands of fish are threatened with extinction," said Russ Brooks, a lawyer for the Pacific Legal Foundation who won a federal court ruling in Oregon that treating wild and hatchery salmon differently is "arbitrary." "We'll let this play out in court."

The heart of the dispute is whether wild salmon are substantially different from those bred in hatcheries.

A body of evidence has built up over the years showing that hatchery-bred fish don't have as much genetic diversity, in general, as wild fish. While people don't fully understand what makes salmon succeed, preserving as much of the original gene pool for any given stock is the best way to ensure its continued survival, scientists say.

Hatcheries, though, have traditionally tended to reduce that genetic diversity, because eggs and sperm were taken from relatively few fish, scientists say.

Property-rights advocates have argued that the Endangered Species Act makes no distinction between hatchery-bred fish and wild ones. If this view holds, they hope, it would open the door for more logging and development alongside streams that harbor salmon.

The Building Industry Association of Washington, which played a key role in forcing the administration to reconsider salmon protections, said yesterday's decision appears to violate a federal court ruling in a case brought by property rights advocates in Eugene, Ore. There, U.S. District Judge Michael Hogan called it "arbitrary" to separate protections enjoyed by wild fish from those applied to hatchery fish.

That prompted a flood of petitions by development and agriculture interests seeking to remove protections for a number of salmon stocks. Conservationists feared that salmon from Southern California to the Canadian border and east to Montana would no longer be guarded by the law.

The administration's decision yesterday was announced in a letter from Conrad Lautenbacher, an undersecretary in the Commerce Department, which administers Endangered Species Act protections for salmon through the National Marine Fisheries Service.

Lautenbacher's letter echoed what fisheries service officials in the Pacific Northwest have said for some time: That they do not expect wholesale removal of legal protections for wild salmon as a result of the Oregon court decision.

"It's absolutely legally indefensible," said Timothy Harris, general counsel of the building association. "Under the Endangered Species Act, (wild and hatchery-bred salmon) have to be considered the same species. This is a real step backwards."

Fisheries officials have worked for 2 1/2 years on a new policy dictating how to sort out protections of wild fish versus those applied to salmon born in hatcheries. Getting rid of hatcheries is hardly an option, officials say, because they were built to supplement runs battered by population growth and development in the Northwest. By far, most of the Northwest salmon eaten by people come from hatcheries.

Late last month, news reports based on a brief excerpt of a draft of the forthcoming policy said Bush administration officials were ready to pull the plug on the fish protections. That prompted an outcry by, among others, Democratic U.S. Sens. Maria Cantwell and Patty Murray and U.S. Rep. Norm Dicks, all of Washington.

"There is well-documented evidence that hatchery-bred fish can have negative impacts on wild stocks if hatchery facilities are not constructed and operated in a manner that recognizes and is consistent with wild salmon," they wrote in a joint letter.

Yesterday's announcement resulted from the partial leak of the policy, fisheries service officials said.

"Plenty of people outside our agency have felt free to speculate wildly based on that one data point," Bob Lohn, head of agency's Northwest operations, said in an e-mail to employees.

The agency "thought it was time to clear the air and rein in speculation," spokeswoman Janet Sears said.

Cantwell said in a statement that she remains suspicious until she sees the explanation for the policy.

"This letter doesn't ease my concerns because uncertainty remains whether this new hatchery policy is based on sound science or political expediency," she said. "My fear is that this policy will derail salmon-recovery efforts by fishermen, farmers and landowners in the region."

The backdrop to the administration's decision is an effort in the Puget Sound region to close or change the practices of hatcheries that seem to harm wild salmon, and determine how hatcheries can be used to help rebuild the wild runs.

Sometimes that can be as easy as releasing the hatchery-bred fish at a different time of year, so they don't compete more successfully with wild fish for space and food. State and tribal officials have agreed in principle to try to reshape the way hatcheries are run so that they help wild fish.

The National Marine Fisheries Service is "encouraged by improvements in hatchery management, and is seeing their increasing contribution to speeding the recovery of salmon," the Commerce Department's Lautenbacher wrote to Congress.

P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattlepi.com

© 1998-2004 Seattle Post-Intelligencer