On March 16, the U.S. Court of Appeals for the Ninth Circuit confirmed a decision by the National Marine Fisheries Service ("NMFS") to downlist the Upper Columbia River ("UCR") steelhead under the Endangered Species Act ("ESA"). Trout Unlimited v. Lohn, Nos. 07-35623, 07-35750, 2009 WL 650534 (9th Cir Mar. 16, 2009). Authoring the unanimous opinion, Circuit Judge Diarmuid F. O'Scannlain reconfirmed that hatchery populations should be listed with their natural counterparts under the ESA, but held that NMFS properly distinguished between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the ESA.
The ESA protects threatened and endangered "species." While the statute defines "species" as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature," 16 USC § 1532(16), the ESA does not speak to whether a "species" or subpopulation—for salmon, called an "evolutionarily significant unit" ("ESU")—includes artificially propagated strains of that species. Until 2001, NMFS's policy was to define ESUs to include hatchery fish but to list only the wild salmon component of an ESU as endangered or threatened. In an Oregon district court decision that year, however, Judge Michael Hogan held that NMFS must list (or not list) entire ESUs, including their hatchery components. Alsea Valley Alliance v. Evans, 161 F Supp 2d 1154, 1162 (D Or 2001).
In response to the Alsea Valley decision, in 2005 NMFS revised its hatchery policy to (1) eliminate the distinction between wild and hatchery fish in defining and listing ESUs; (2) indicate that NMFS would consider the status of an ESU as a whole, not just wild fish, when determining whether an ESU should be listed as endangered or threatened; and (3) assert that NMFS could exempt listed hatchery fish from the ESA's take prohibition in certain cases ("2005 Hatchery Policy"). Consistent withAlsea Valley and its new policies, NMFS then added hatchery populations to the UCR steelhead ESU and downlisted the ESU from "endangered" to "threatened." This decision was supported, in part, by the inclusion of hatchery fish in the ESU.
Trout Unlimited v. Lohn
In Trout Unlimited, plaintiff environmental organizations challenged NMFS's decision, alleging that NMFS improperly conflated hatchery and naturally spawned salmon in making its downlisting decision. Industry and trade associations made the opposite assertion, namely that NMFS impermissibly distinguished between hatchery and naturally spawned salmon. The district court held that NMFS could include hatchery fish in an ESU, but found that the 2005 Hatchery Policy and NMFS's corresponding downlisting of UCR steelhead violated the ESA. The parties subsequently appealed to the Ninth Circuit.
Finding that NMFS's hatchery policies are entitled to considerable deference, the Ninth Circuit held for NMFS on all counts. Most importantly, the court upheld NMFS's decision to include both hatchery and wild strains of steelhead in a single ESU, but to consider the different roles of natural and hatchery fish in evaluating the status of an ESU. Judge O'Scannlain agreed with the district court that "the ESA's primary goal is to preserve the ability of natural populations to survive in the wild." However, while the listing decision properly hinges on the status of the natural population, NMFS need not be blind to the potential contributions of hatchery fish in conserving a natural self-sustaining population. Given conflicting scientific evidence concerning the effects of hatchery fish on wild strains, the court deferred to NMFS's determination that hatchery strains in the UCR steelhead ESU justified the downlisting from endangered to threatened. The court also upheld NMFS's ability to exempt hatchery fish from the take prohibition in certain cases.
Perhaps the most important takeaway from this decision is its deference to NMFS's hatchery and listing decisions where the agency carefully considers the role of hatchery fish in an ESU and keeps in mind the ESA's primary goal of protecting wild fish. We expect NMFS to continue including hatchery fish in ESUs, to consider their relative contribution to wild counterparts in making ESA listing determinations, and to exempt hatchery fish from the ESA's take prohibition in certain cases.