Property-rights lawyers score one against wild salmon

Court rulings force re-evaluation of endangered fish and habitat in the Northwest


When the latest upheaval over protecting wild salmon and steelhead surfaced in late April, many critics laid all the blame on the Bush administration.

It seemed to fit Bush’s pattern of industry favoritism and environmental rollbacks: NOAA Fisheries, the agency in charge of protecting the fish, is influenced by its senior legal advisor, Mark Rutzick. Rutzick, a Bush appointee, is a former timber lawyer who lobbied to strip away Endangered Species Act protection from salmon. Now, the agency is drafting new regulations that may succeed in doing just that.

For years, the agency has measured the vitality of 27 threatened or endangered salmon and steelhead populations by counting only wild fish. Now, it also wants to count the millions of hatchery-raised fish that are dumped into streams every year (HCN, 8/19/02: A fish is a fish is a fish - or is it?). Since the hatchery fish far outnumber the wild fish, that may obscure declines in the wild populations. And since hatchery fish are reared in concrete tanks rather than in streams, the new rules could loosen restrictions on logging and development around salmon habitat.

But the blame for the new rules also rests on the increasing influence of the property-rights movement and its lawyers.

"Once the fish is in the stream, the Endangered Species Act doesn’t care whether it’s a wild fish or a hatchery fish. All that matters is, are they the same species?" says Russ Brooks, a lawyer with the leading nonprofit property-rights law firm, Pacific Legal Foundation.

Brooks began the push to count hatchery fish with a 1999 lawsuit about Oregon coastal coho salmon. He won a favorable ruling in 2001 from U.S. District Judge Michael Hogan, a George H.W. Bush appointee, who held that hatchery coho must be counted if wild coho are counted (HCN, 12/3/01: Ruling ripples through salmon country).

Now, Brooks is hip-deep in similar lawsuits, demanding that hatchery fish be counted within other fish populations around the region. "The implications are huge," he says, predicting that some populations will be taken off the endangered list.

NOAA Fisheries says it must change its counting method to comply with Brooks’ lawsuit victory. The new rules come despite general agreement that hatchery fish are less able to survive in the wild.

"Careful strategy"

The Bush administration has never mounted a vigorous defense of the Endangered Species Act, but its negligence wouldn’t matter so much, if the property-rights movement weren’t attacking the law so effectively (HCN, 5/10/04: Shooting spree).

"They are incredibly well-organized," says John Leshy, the Interior Department’s top lawyer during the Clinton administration, who is now a California law professor. He sees a phalanx of libertarian think tanks combining with the lawyers in a "careful strategy" against environmental regulations.

One of the key strategists is Karen Budd-Falen, whose Wyoming law firm pressed an important suit against "critical habitat" designations, which protect habitat deemed essential to the recovery of endangered species. In that case, involving a cattle rancher and a bird called the southwestern willow flycatcher, she won a ruling from a regional appeals court in 2001 that ordered the U.S. Fish and Wildlife Service to consider the economic impacts of its critical habitat designations. Habitat designations for many species around the West were withdrawn in the wake of that ruling (HCN, 4/15/02: Habitat protection takes a critical hit).

"The courts are starting to say that humans are part of the ecosystem, too," says Budd-Falen.

In response to that ruling, NOAA Fisheries is now redrawing critical habitats for 19 populations of salmon and steelhead. Habitat protections may shrink, admits agency spokesman Brian Gorman. But the Endangered Species Act will still prohibit any activities anywhere which can be shown to have a direct negative impact on the fish, he says.

As for the hatchery fish, a campaign to reform hatchery management has reduced the differences between them and wild fish in some places. But more reliance on hatchery fish "won’t fix the real problems facing salmon — the dams (impeding migration) and habitat degradation," says Nicole Cordan of the Save Our Wild Salmon Coalition, whose members include commercial and sport fishermen. "We want a long-term recovery, and the return of a way of life."

NOAA Fisheries expects to formally unveil the hatchery fish proposal for public comment in June. Despite the hoopla, and lawyer Brooks’ prediction, some say the new rules may not have a huge impact. "The judge didn’t say one hatchery fish is equal to one wild fish," Gorman insists. Wild fish may still be considered more valuable, and many additional factors will figure into assessing each population. And more hatcheries will be reformed to produce wilder fish, Gorman says.

But environmentalists vow to press lawsuits against changing the count. That could keep the issue unsettled for years to come.

The writer is HCN’s editor in the field, based in Bozeman, Montana.

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