(Regarding, "How are We doing: Assessing the Elements of Salmon Recovery" by William Stelle, Jr.)

On September 10, 2001, the Federal District Court of Oregon stripped Oregon coast coho of its threatened status under the Endangered Species Act of 1973 (ESA), leaving it with no federal protections while legal and administrative review occurs. The court decision ranks as one of the most significant regarding salmon in the last decade, and for this reason, Northwesterners need a clear understanding of its implications. Though some ESA opponents are trumpeting that the court found there exists no difference between hatchery and wild fish, the court did not go so far-courts are arbiters of law, not of biology. The opinion held that National Marine Fisheries Service (NMFS) applied one too many steps in its determination process that led to the listing of Oregon coast coho as threatened under the ESA. To remedy the situation, the court immediately de-listed the coho.

When Congress delegated to NMFS the authority to list salmon species under the ESA, it did so with restrictions on the process. The ESA defined "species" to include any species "and any distinct population segment of any species ...which interbreeds when mature." So, the listing decision-tree to be used by the agency could go down two tiers: through the species to the distinct population segment (DPS) level. And while Congress laid out the decisional framework for NMFS, it rightly left the biology to the biologists. In regard to the complex and at times, confusing biology of proper Pacific salmon management, NMFS' policies in the 1990s reflect an effort to inject recent and informed science into a regulatory framework conceived of in the 1970s. In reaching its breathtaking remedy of immediate de-listing of imperiled fish, the district court blunts good science and gambles mightily with the existence of a weakened native stock.

NMFS, as proper interpreter of issues involving complex science, established the Evolutionarily Significant Unit (ESU) policy to determine distinct population segments of Pacific salmon that could be properly listed as threatened or endangered. Under the policy, a salmon stock "substantially reproductively isolated" from other population units of the same species "which represents an important component in the evolutionary legacy of the species" would be considered its own ESU. The policy contemplated the genetic homing instincts of salmon, which return to their natal streams to spawn after their time in the ocean.
So for instance, lower Columbia River coho would comprise a separate ESU than Oregon coast coho.

Knowing that the purpose of the ESA is to protect imperiled wild species in their natural habitats-not artificially propogated animals bred in captivity-NMFS had another dilemma to address with Pacific salmon: that of hatchery fish. Because excess hatchery fish have at times strayed and interbred with wild fish (albeit at a less successful rate than wild/wild reproduction), NMFS' ESU policy would thus determine that the Oregon coast coho ESU included both hatchery and wild fish. While the ESA allows artificial propogation as a potential method to conserve listed species, the Northwest's history with hatcheries has revolved around production of salmon meat, rather than conservation of salmon species. It found itself caught between biological realities and commercial dependence on hatchery production. For context, when the Columbia Basin runs were at their strongest, our waters saw wild runs of 16 million fish. More than 95% of those natives are gone. Today we have less than 400,000 wild fish left in the basin. In 1999, to keep salmon in Northwest waters, more than 140 million hatchery fish were pumped into the basin, resulting in this year's estimated run of 1.2 million fish-most all of which are hatchery. The weight of scientific evidence on the interaction of wild and hatchery fish of the same species indicates that substantial differences exist between the two. These differences can and do harm native fish populations in their abilities to tolerate disease, survive in the wild, mature, and spawn successfully.

So, in an effort to balance the Northwest's dependence on production hatcheries with the biological interests of native fish (the latter mandated by the ESA) NMFS established a hatchery policy. The policy addressed the reality that hatchery populations can be included as part of an ESU when they interbreed with wild stocks. Recognizing the hatchery ills noted above, the policy stated that the hatchery fish should not be included in a species listing for protections unless the hatchery stock is "essential to recovery" (the easy example of such essentiality is where you have but a handful of wild fish, and artificial propogation must be used to avoid extinction). Indeed, if such protections were afforded to hatchery fish, perverse outcomes ranging from the designation of concrete lap pools as critical habitat to the creation of an incentive to glut rivers with hatchery fish to force de-listings could occur.

This background leads us to the recent court decision. In 1998, NMFS defined the Oregon coast coho ESU to include both the naturally spawning coho and the coho from nine proximate coastal hatcheries. It then went on to invoke the hatchery policy to list only the naturally spawning coho as threatened under the ESA. It is in this additional hatchery/wild distinction where the District Court found legal fault, concluding that NMFS had gone beyond the two-tiered species/DPS analysis laid out in the ESA. Because that review and the legal appeal could take up to two years, the interim harms to these long imperiled (and again unprotected) species are significant, ranging from expedited timber cuts to radically increased ocean harvest rates.

While the full implications of the decision will be sorted out over the coming months, three things are clear. First, the approach NMFS applied to Pacific salmon ESU determinations is complex, and at times, confusing. Yet it properly reflects the agency's effort to apply recently informed science through and ESA regulatory framework conceived of in 1973. Second, the biology is in: hatchery fish and wild fish are very different things, and to treat them the same under the ESA thwarts the intent of that Act and disregards biological realities. Third, the decision has muddled the agency's scientific determinations, and rather than taking protective measures while we sort out the proper listing process, the court has demanded that the species bear significant risks of harm during the interim.

Whatever the outcome, the recent decision will force us to finally answer a core question: what is the proper role for hatchery fish to play in native salmon recovery? Difficult to observe and hard to understand, the discussion about the interplay of genetics between hatchery and wild fish has long been shunted to the background-but the long-term effects are real. And if ignored, it could prove the final nail in the coffin of the Northwest's wild salmon.

Joe Whitworth, Executive Director, Oregon Trout