Hatchery Salmon are now wild? [Archive] - Fly Fishing Forum

: Hatchery Salmon are now wild?


Mattb
04-29-2004, 11:34 AM
See the article here(msnbc) (http://www.msnbc.msn.com/id/4856765/).

It seems to me that what this really amounts to is an end-run around the endangered species act, but I'm not very well informed about the situation with pacific salmon.

What's everyone's take on this?

sean
04-29-2004, 12:00 PM
I think it is a cop out and not the best for the fish.

In that ruling, U.S. District Judge Michael R. Hogan found that the federal government made a mistake by counting only wild fish -- and not genetically similar hatchery fish -- when it listed coastal coho salmon for protection.

The thing is these fish are not genetically similiar enough. Most of the hatchery fish do not come from the rivers they are dumped into and while they might look the same they have not evolved to survive in that specific river system as their native counterparts.

Plus these fish are not self-sustaining like their native brethern which I think is the real key. So if you use the hatchery+wild numbers things look great but once you cease hatchery operations you are back down to the remaining native fish which are really depressed in almost every river system in the Northwest. Hatchery fish do not have a good track record when it comes to being able to reproduce in the wild.

Over the past few years we have heard and witnessed huge fish returns but when you really start looking into the numbers it seems in most cases the wild portion of these runs are on their way down. For instance Native Columbia River Chinook are on a steady decline while the returning fish numbers are up due to good hatchery returns.

Now if these hatcheries went broodstock with the actual native fish used then you may be able to make a better argument but I do not see that happening anytime soon and even broodstock hatcheries have shown to not be all that effective.

So it seems we are at a crossroads. Do we stick with hatcheries forever or try to revive the real natives. Seems the government is making this decision for us:(

-sean

juro
04-29-2004, 12:14 PM
Great news! So I guess this means all the stunted ripple finned tiger trout should be counted as wild brookies in New England, therefore eliminating the need to protect natives.

And while we're at it, the brood stock salmon we dump into the Merrimac and Connnecticut Rivers are hereby native, therefore we can declare victory in restoring the once bountiful atlantic salmon runs in the US.

Absolutely ludicrous, typical political rationalization to justify some manipulative scheme to reduce spending on preservation, increase profitability of good ol' boy network buddies (Intalco, Plum Creek etc), harvest the remaining single digit percentages of old growth forest, or otherwise screw those who give a damn about the fragments of wild America that cling on for dear life.

.02

John Desjardins
04-29-2004, 12:24 PM
The least controversial comment I can add is "Remember this in November".

beau purvis
04-29-2004, 12:36 PM
This kind of news perpetuates the problem.For years we have set fishing quotas based on big hatchery returns. this means the native stks are hammered harder and longer while boats attempt to fill those quotas.Same thing happened on the Solduck when they added hatchery fish initially. the returns were high.therefore the pressure was allowed to increase. word got out that catches were high.therefore more people fished there.This meant more chance that natives would be caught,especially the early season natives that were in the river at same time as hatchery fish. therefore ,more of them were killed and now hardly any of them exist.The bull-- continues and the cycle keeps going the same direction. Washington has ,for my life,had the dumbest fisheries management of any state or province I have ever been around!!!!If we could move Texas Parks and Wildlife up there and give them a free hand ,things would get better.My dad was a washington state senator and I was a page boy during the legislature sessions when I was in the 7th and 9th grades.I quickly became aware of the fact that the legislators were mostly idiots when I was a 7th grader!!!!! Beau

flytyer
04-29-2004, 03:39 PM
Let us not forget that this declaration of hatchery Pacific Salmon being identical genetically to wild Pacific Salmon was made by a U.S District Court Judge, and it was upheld by the U.S. 9th Circuit Court of Appeals. Also, let us not forget that the legal defense group mentioned in the article has already put California, Oregon, Washington, Oregon, and the NMFS (and NOAA) on notice that if they don't change the fishing laws, and delist or change the status of the wild Pacific Salmon, they will be filing more lawsuits to force the change. Keep in mind they will use the Oregon Federal District Court's ruling to make their case, and it will be difficult to get another judge to go against the Oregon judge's ruling. We already know that the 9th Circuit Court of Appeals has ruled the Oregon Federal Judge was correct in his ruling.

Therefore, one more time, we have had an appointed for life U.S. judge "invent science" or law and make a ruling (which remember has the force of law through out the PNW states because of the 9Th Circuits Court's ruling in agreement).

It matters not which administration is in office in DC, not does it matter who the governor is in each of the states effected, nor does it matter who the legislators are when a U.S District Court Judge and a U.S. Court of Appeals covering the states effected makes a ruling we don't like. A federal judge is not subject to recall by the voters, he can only be impeached by the House of Representative, and removed after a trial by the Senate, and this is an extremely unlikely event.

Oh yeah, the judge who made the ruling was appointed by the Clinton administration, just like judge Bolt (who is so beloved by Washington state fishers) was appointed by LBJ and both of those administrations were "environmentally friendly".

juro
04-29-2004, 06:55 PM
If I read your post correctly, are you saying the feds are to blame and it does no good to vote for environmentally friendly presidents?

kjackson
04-29-2004, 07:56 PM
Well said, flytyer. All of the hoopla about how this ruling is Bush's fault that I've seen on various boards is bunk. Those folks must have been sleeping in civics class (or whatever it's called now) or out fishing. The judicial branch of the government has ruled, and we have to live with it. The "we" includes both the administration and the public.

What we can do is hold politicians' collective feet to the fire to make sure that hatcheries are really turning out fish that are equal or nearly so with wild fish (and I'm not talking about the cement race-track zombies here) AND make sure that habitat restoration doesn't get sidetracked. Hatchery reform is a must if we have to live with the Hogan ruling.

All the hair-pulling I've read makes me wish those individuals could direct that energy to doing something useful.

One thing I do believe firmly is that the salmon and steelhead species are resilient natural animals that can recover. All you have to do is look at the return of steelhead and salmon to the Toutle system after St. Helens blew. It took a couple of years to see, but the runs did come back without much help from us. Wild fish will return to our rivers eventually if we leave them alone. Sure, we've lost genetic material of wild fish, and the same thing is happening in wild, pristine systems without man's interference. It's called selection, for those who skipped biology to go fishing.

As far as Bush goes, the man has made some good points from a conservation/fishing standpoint. He's also made some bad decisions as well. This isn't one of them-- he had nothing to do with the Hogan ruling. I applaud the idea that his administration is moving on-- there is little the executive branch can do to change a ruling of the judicial branch. If we can keep NOAA and the states improving hatcheries and the stock that they plant, then we may actually be ahead of the game.


My $.03

Keith

juro
04-29-2004, 08:58 PM
I am of the opinion that hatcheries are a necessary evil, but an evil just the same. And not all that necessary either.

Natural selection is just that - natural. Human induced selection however is not natural at all, eccentric to the cycles of nature fed with anti-biotics and chemically formulated pellets to raise fish 3x their natural counterparts with no sense of territorial bounds when pumped by the millions into river systems with snapping jaws eating alevin and fry of their brethren who are trying to exist naturally, ultimately resulting in artificial populations of drones who don't even have an urge to dig a redd.

Considering hatchery fish as equals to native fish is IMHO nothing more than delusional human rationalization for some financial, political or otherwise dishonorable agenda.

.02

Leland Miyawaki
04-29-2004, 09:19 PM
This is the Bush administration watering down our environmental protection laws in order to favor business and big money.

Wild salmon need protected watersheds and clean waters. Hatchery fish do not, plain and simple.

Leland.

kjackson
04-29-2004, 09:31 PM
Juro-- I think that is why hatchery reform is so necessary. We've been turning out smolts that outcompete their wild brethren because of their increased size as well as their staggering numbers. But what if we could turn out hatchery fish that augmented natural production with fish much like wild smolts? If they're the same genetic stock, then I support that move.

I'm not as up to speed on hatchery science as perhaps I should be to comment, but it's my understanding that we can do a much better job than we have in everything from stock selection to culture. We have much of the knowledge but we lack the will and the money.

Having read the King of Fish about the fall of salmon, I believe that we've got to do much more than just close hatcheries to restore wild runs. We don't have the habitat in many of our rivers that these fish have adapted to... and without that habitat, healthy wild runs of salmon and steelhead naturally produced are unlikely to occur in our lifetimes.

But after Hogan's ruling was let stand, the question becomes one of what can we do to make hatcheries better? The alternative to better hatcheries that produce smolts better adapted to natural conditions is to close ALL hatcheries, making wild fish the only stock in the rivers. If that happens, it's likely that much of the fishing we now enjoy will be prohibited. We'll lose fishing, lose fishermen, lose fishing infrastructure. I doubt that full recovery would happen as quickly in most systems as it did in the Toutle, and if that is the scenario, then things indeed are bleak.


Keith

beau purvis
04-29-2004, 09:52 PM
not only are hatchery fish not equal to wild, but as I stated above there is tremendous evidence that over time they do harm to the native runs.How smart is it to spend money to raise fish that help wipe out the superior fish that are free!!
In my life it has always been the judge,or the governor, or the mayor of forks,or the nets favored by the legislature, or the dams,or slade gordon stalling removal of the Elwa dams,or the quick fix hatcheries to make it look like someone is doing good,only to have them turn out crap fish and add to the decline of the wild fish.My entire fishing life, of say 50 yrs, of one mistake after another!And you know what must be one of the biggest problems.The fishing community never seemed to get organized enough to stop this trend.all the groups fight among themselves!Take the WSC and the town of forks!Still going on!The fly boys vs the gear boys.Kush is right! when the trend continues so long everyone interested in the resource needs to figure out a way to pull together.Beau

beau purvis
04-29-2004, 10:02 PM
P.S.,for that 50 yrs of my fishing life everyone has held on to the belief and hope that hatcheries were the savior.they turned out to be the trojan horse in my opinion. except for an initial burst at the beginning of programs.then the offspring start a downhill slide and the wild fish do the same.Beau

flytyer
04-29-2004, 10:15 PM
Juro,

No, the feds are not to blame, the blame for this mess (re: hatchery fish being genetically identical to wild fish) lays solely with a federal district court judge by the name of Hogan.

Leland,

The judge ruled that the fish were identical genetically and the 9th Circuit Court of Appeals agreed earlier this year. the Bush administration had nothing to do with it, as Keith already pointed out. It was a federal judge, who was appointed by Clinton and affirmed by the Senate, that said it and changed environmental law with his decision. Since his decision was affirmed by the 9th Circuit Court of Appeals, the decision effects all states within the 9th Circuit Court's jusridiction. This means that California, Oregon,. Washington, Idaho, and Alaska must abide by the single judges ruling and change their policies and laws to reflect it. It also means that the NMFS and NOAA have to change their policies and rules on Pacific Salmon to comply with the ruling as well.

Remember, this judge was appointed for life by the environmentally friendly President Clinton. And three the 9th circuit judges were appointed by President Clinton too. Also, remember that when a judge makes a ruling and the ruling is appealed and upheld by the higher court, it becomes the law and the judicial ruling (law) overrides any legislation or laws that were enacted by state legislatures or Congress. This includes any prior ruling that a species is endangered or threatened.

The maddening part about this is that no legislative body can change what the judge did. We and the feds and state fisheries managers must live with it. The only way it can be changed is through having another federal district court judge rule hatchery and wild fish are not genetically identical. This is highly unlikely, and even if it did occur, the decision would be immediately appealed to the 9th Circuit Court of Appeals and the probability of the 9th circuit overturning a prior ruling of theirs is nil.

The blame for this cannot be laid on Bush. The responsibility can only be laid on a single federal judge. Also keep in mind that Democrats in the Senate have prevented through filibusters on votes to affirm al the l Bush federal judicial choices for the last 2 years.

Welcome to the wonderful world of United States Case Law, which means the laws put into force by a non-elected federal judges that cannot be changed unless overturned by another judge.

Hammer
04-30-2004, 12:29 AM
i can here it going off,,super thread,,the coho are considered offlimits offshore,and of course the communities at the coast rely on tourist dollars;apparently quite a few salt fishers catch a dozen hatchery cohos,that,can't be kept,while trolling for chinook,and that HAS to be applying pressure,,the coho story,,man!,,,i'm still downloading info on THAT,,i was told they aren't even native to the watershed;the ODFW planted them in the 30's!,can't quite seem to unlock info from their sites,,,yet!!!,,i'm listening!,,er, reading,,,,next!,,great thread!:D,,,,,,,,,edit,,,,,,,,,,,,hold it ,,six experts gave their views,and got ran off,i'm chasing this!,,,i'll be back!

juro
04-30-2004, 04:17 AM
Flytyer -

Thanks for taking the time to explain, I stand enlightened and equally maddened by the situation!

Yet the one point I don't completely agree with nor understand is the one about appointment by environmentally friendly executive branch. Guys like Bruce Babbitt were also part of that regime. He is a man who brought respectability to government again. I guess I don't see your point in mentioning who appointed who, I am more concerned with who is compelling who behind the scenes.

Despite appointment details, people act upon impetus when they make such decisions. One should be curious if not downright suspicious as to the impetus behind these kinds of decisions, and history would prove that whether Bush himself is involved or not, it's invariably been the right wing who railroads these movements through because they stand to gain from breaking down protective layers to exploit resources.

I couldn't nor wouldn't say it's an underhanded conspiracy of the current executive branch, but I would wager a week's pay that the judge is not acting on his own volition but instead is being influenced by those who stand to benefit financially, politically, or personally from it.

They are not environmentalists, and the likelihood that they are in the 'good ol boy network' of right wing exploitationists is near certain simply because that's where the impetus lies. With all due respect to think the judge is acting on his own volition is somewhat naive.

Environmentalism is part of the solution not the problem IMHO.

.01

Eddie
04-30-2004, 08:06 AM
Clinton was not especially "environmentally friendly". To make that claim lowers the bar even further, and makes Bush seem "not so bad".
Spin is a wonderful thing:(

Drake
04-30-2004, 09:22 AM
Nature and politics abhor a vacuum. When legislators and executives fail to do their jobs, judges will step in and do it for them and the results are not always in keeping with what you’d like. Although I find this situation repulsive, the checks and balances do work over time. Judges get appointed for a lot of reasons – their ideology on balance, a specific stance on matters of policy or law. It is overly simplistic to lay this all at the doorstep of one or two judges appointed by someone with a particular political leaning.

The fact remains that the Bush administration could have appealed the decisions but chose not to. Why do that when handed such an easy victory in support of their ideology that our natural resources are commodities ripe for exploitation? Now, lest I be accused of hysterical tree-hugging, I feel compelled to come out of the closet and state that I am now, and have always been, a card-carrying member of the GOP. But, quite frankly, I’ve had enough with this crowd.

What I find somewhat interesting is that if this is, indeed, the “law” of the land, at least in the states covered by the 9th Circuit, then why do the Feds feel compelled to publish this as “policy” in the Federal Register and open up a period of public comment? Is it irreversible or not? Is this process nothing more than another show to placate certain interests in the officially-listed swing states of Washington and Oregon? Clear-thinking people should feel insulted by the whole affair.

JDJones
04-30-2004, 10:55 AM
Question is, who is controlling the feds? Let's not go there. Just realize that it doesn't really make much difference who is in power. And that applies all the way down the line. The ball just keeps rolling along. Business as usual. :mad:

Doublespey
04-30-2004, 01:18 PM
It does matter who's president. Guess who gets to appoint the heads of the EPS, Forest Service, etc.

And who do you think puts the appropriate "spin" in these individual's heads??

The whole tone of natural resources policy is established by the priorities of the existing administration and Congressional majority.

Clinton wasn't entirely pro-environment. I believe he was trying to protect the environment as he could while attempting to mitigate the impacts of these protections on the rural families they often negatively impacted (logging restrictions, etc), and I respect that.

Be that as it may - most will agree Bush has established a very Pro-Business and Anti-Environment agenda and IMHO we're just seeing the trickle-down effect. There are plenty of ways to legislate the impact of court decisions (see the proposed Constitutional amendment declaring Marriage as between Boy and Girl in response to recent judicial "lawmaking"), but we'll certainly see none here.

my .02,

DS

flytyer
04-30-2004, 01:33 PM
Juro,

Judges formulate and hand down their decisions on the basis of: 1) who they thought made the best and most compelling agrument in the case; 2) their own personal biases; 3) prior case law (i.e. what other judges have decided in similar cases); 4) their interpretation of what formal written, codified law says; and 5) what they intrepret the Constitution says. In other words, it doesn't make any difference what any administration, Congress, the people, the state legislatures, the state governors, scientist, or interest groups "see" as the best decision to make. And once the decision is made, it has the force of law in the area the court has jurisdiction over unless overturned by a higher court. The Bush administration had no more say or influence over the judges decision than the Clinton administration would have had.

In this case, the group that brought the suit against the state of Oregon and NMFS/NOAA made more compelling legal arguments than did Oregon and NMFS/NOAA. And the 9th Circuit Court of Appeals affirmed the district court judge's decision when it was appealed.

Drake,

The articles on this I have seen have been disingenous regarding the Bush administration not appealing the decision. The administration through NMFS/NOAA did appeal it. Otherwise, it would have never been reviewed by the 9th Circuit Court of Appeals. An appeals court cannot decide to review a case unless the lower court's decision has been appealed. I wish the media reported this accurately and I wish the media would have reported accurately that this policy change was in response to what Judge Hogan and the 9th Circuit Court of Appeals ruled they had to do.

And since they were no Constitutional concerns raised by the ruling or case, the Supreme Court would have never heard the case since they limit themselves to matters with a Constitutional concern. Therefore, it would have been a fruitless waste of time for the 9th Circuit Court of Appeals affirmation ruling to be appealed (meaning requested to be reviewed) by the Supreme Court.

Remember that although the case Judge Hogan ruled on only applied to one river system in Oregon. However, once the 9th Circuit Court of Appeals affirmed his ruling (i.e. said it was correct), the single river system ruling can then be applied to all river systems in the states within the jurisdiction of the 9th Circuit Court of Appeals. All it takes to have it enforced on another river system in those states is for someone or some group to file a lawsuit in a federal district court in the state the river system in located. And the group that successfully sued Oregon and NMFS/NOAA over considering hatchery and wild fish being different put all 4 of the states and NMFS?NOAA on notice that they were going to do just that.

Since the 9th Circuit Court of Appeals has already ruled that Judge Hogan was correct in his ruling that hatchery and wild fish are genetically identical in a river system with both present, the probability of another federal district judge within those 4 states or the 9th Circuit Court of Apeals changing the first decision is virtually zero. Meaning that NMFS/NOAA, other federal agencies, or any of the 4 states would be wasting time and money to fight for the ruling to be changed.

NMFS/NOAA is simply complying with the court's ruling and implimenting the changes required by the ruling.

Once again I must restate, the blame for this calling hatchery and wild fish genetically identical lies solely with Judge Hogan, not the administration. Remember the administration fought it by appealing the decision to the 9th Circuit Court of Appeals. Unfortunately, they lost the appeal and the 9th Circuit Court of Appeals agreed with and affirmed judge Hogan's ruling.

Leland Miyawaki
04-30-2004, 02:06 PM
Please take a look at this article and tell me if the Bush administration shouldn't be held accountable, particularly in light of the fact that the federal government did not immediately appeal the ruling. Are they not the defenders of the Environmental Protection Act?

Leland.




FYI: on the front page of the Washington Post
http://www.washingtonpost.com/wp-dyn/articles/A51480-2004Apr28.html


Hatchery Salmon To Count as Wildlife

By Blaine Harden
Washington Post Staff Writer
Thursday, April 29, 2004; Page A01


SEATTLE, April 28 -- The Bush administration has decided to count hatchery-bred fish, which are pumped into West Coast rivers by the hundreds of millions yearly, when it decides whether stream-bred wild salmon are entitled to protection under the Endangered Species Act.

This represents a major change in the federal government's approach to protecting Pacific salmon -- a $700 million-a-year effort that it has described as the most expensive and complicated of all attempts to enforce the Endangered Species Act.

The decision, contained in a draft document and confirmed Wednesday by federal officials, means that the health of spawning wild salmon will no longer be the sole gauge of whether a salmon species is judged by the federal government to be on the brink of extinction. Four of five salmon found in major West Coast rivers, including the Columbia, are already bred in hatcheries, and some will now be counted as the federal government tries to determine what salmon species are endangered.

"We need to look at both wild and hatchery fish before deciding whether to list a species for protection," said Bob Lohn, Northwest regional administrator for the National Marine Fisheries Service.

Lohn added that the new policy will probably help guide decisions this summer by the Bush administration about whether to remove 15 species of salmon from protection as endangered or threatened.

From Washington state to Southern California, the decision to count hatchery-bred fish in assessing the health of wild salmon runs could have profound economic consequences.

In the past 15 years, the federal government's effort to protect stream-bred wild salmon has forced costly changes in how forests are cut, housing developments are built, farms are cultivated and rivers are operated for hydroelectricity production. Farm, timber and power interests have complained for years about these costs and have sued to remove protections for some fish.

They are enthusiastic advocates of counting hatchery fish when assessing the survival chances of wild salmon. Unlike their wild cousins, hatchery fish can be bred without ecosystem-wide modifications to highways, farms and dams.

"Upon hearing this news, I am cautiously optimistic that the government may be complying with the law and ending its slippery salmon science," said Russell C. Brooks, a lawyer for the Pacific Legal Foundation, an industry-funded group that has challenged federal salmon-protection efforts in court.

Word of the new policy was greeted by outrage from several environmental groups.

"Rather than address the problems of habitat degraded by logging, dams and urban sprawl, this policy will purposefully mask the precarious condition of wild salmon behind fish raised by humans in concrete pools," said Jan Hasselman, counsel for the National Wildlife Federation.

"This is the same sort of mechanistic, blind reliance on technology that got us into this problem in the first place," said Chris Wood, vice president for conservation at Trout Unlimited. "We built dams that block the fish, and we are trucking many of these fish around the dams. Now the administration thinks we can just produce a bazillion of these hatchery fish and get out from underneath the yoke of the Endangered Species Act."

Six of the world's leading experts on salmon ecology complained last month in the journal Science that fish produced in hatcheries cannot be counted on to save wild salmon. The scientists had been asked by the federal government to comment on its salmon-recovery program but said they were later told that some of their conclusions about hatchery fish were inappropriate for official government reports.

"The current political and legal wrangling is a sideshow to the real issues. We know biologically that hatchery supplements are no substitute for wild fish," Robert Paine, one of the scientists and an ecologist at the University of Washington, said when the Science article was published in late March.

Federal officials said Wednesday that the new policy on hatchery salmon -- to be published in June in the Federal Register and then be opened to public comment -- was in response to a 2001 federal court ruling in Oregon. In that ruling, U.S. District Judge Michael R. Hogan found that the federal government made a mistake by counting only wild fish -- and not genetically similar hatchery fish -- when it listed coastal coho salmon for protection.

To the dismay of many environmental groups, the federal government chose not to appeal that ruling, though it seemed counter to the reasoning behind the spending of more than $2 billion in the past 15 years to protect stream-bred wild salmon.

"There was an inescapable reasoning to Judge Hogan's ruling," said Lohn, chief of federal salmon recovery in the Northwest. "We thought his reasoning was accurate."

He said the Bush administration will continue to spend hundreds of millions of dollars on habitat improvement for salmon.

"We have major problems to overcome, both with habitat and with improving the way hatcheries are operated," Lohn said. "Run right, hatcheries can be of considerable value to rebuilding wild fish runs."

flytyer
04-30-2004, 02:11 PM
Doublespey and Juro,

The reason I mentioned who appointed Judge Hogan was to show that judges can and do make decisions that go against the public stance (whether perceived or actual) of the president who appointed them. Just like judge Hogan did in this case. In other words, the judge's decision overrides and overrules any and all policies of the effected agencies, and they can do nothing about it.

Doublespey,

It matters not who the head of any federal agency is when a federal judge has ruled that the agency must change how is does things. The agency must comply with the judicial ruling, period. The fault for this policy change lies solely at the feet of Judge Hogan, not the federal agencies involved.

Yes, legislation can be proposed; however, it is not the president or federal agencies that get to make it law. The Congress (both House of Representatives and Senate) must pass a bill legislating the change or creating the law. In this case of hatchery vs wild fish, it is extremely unlikely such a bill would ever even make it to a committee, let alone get passed into law. The reason for this is that the average non-fishing person (hell their are a lot of fisherman who think there is not difference either) knows nothing about hatchery or wild fish, all they know is that a salmon is a salmon. If this was not the case, there would not be the very large market for farmed salmon.

In other words, it is a very low priority item for Congress and I suspect that the great majority of those in the House of Representatives and Senate think that a salmon is a salmon. Also, Judge Hogan's ruling would be introduced as "proof" that their is not difference during any committee hearings if a bill made it that far, something with a probability of realy close to zero.

JD,

As I've already pointed out, the feds are under the control of the court's decision in this case, and many others too. The feds cannot ignore Judge Hogan's ruling (and the 9th Circuit Court's affirmation of his ruling), nor can the feds do something that is different from what the court has ruled.

What has happened here is the same thing that happened when Judge Bolt issued his decision on tribal netting in Washington state. His ruling was affirmed by the 9th Circuit Court of Appeals too and Washington state had to comply with it. It mattered not how much WDFW or the fishermen of Washington State thought of the ruling, Judge Bolt's ruling had to be followed.

Smolt
04-30-2004, 02:11 PM
I'm with Doublespey. While I have not yet read the opinions in this case, I have no doubt that -- at a Republican President's request to a Republican Speaker of the House or Republican Senate Majority Leader -- Congress would hold hearings, make findings, and thereafter pass appropriate protective legislation. The foregoing, of course, assumes that the timber industry would let that happen.

BTW, I voted for Gerald Ford, for Ronald Reagan (once), and for Bush I (once).

My $0.02

flytyer
04-30-2004, 02:26 PM
Leland,

Notice what the lawyer for the Pacific Legal Foundation, Russell C. Brooks said, "Upon hearing this news, I am cautiously optimistic that the government may be complying with the law (remember the law referred to is Judge Hogan's ruling that there is no difference between hatchery and wild fish) and ending its slippery salmon science."

The Pacific Legal Foundation is ready and waiting to file more lawsuits in federal courts to force NMFA/NOAA, other federal agencies, and the states to change their salmon policies, rules, and laws to reflect Judge Hogan's decision. The federal agencies are simply complying with Judge Hogan's (and the 9th Circuit Court of Appeals) ruling.

For the reporter to say the court's ruling was not appealed is disingenuous at best and an outright lie at worst, Judge Hogan's ruling was appealed by the administration's NOAA and other agencies to the 9th Circuit Court of Appeals. The reporter knows this (or should know this) and barely mentions the fact that Hogan's ruling was upheld by the appeals court. There is the possibility that an editor edited the info on the appeal out of the reporter's original article. At any rate, it is disingenuous for it to have been left out and an outright lie to say Hogan's decision was not appealed.

flytyer
04-30-2004, 02:27 PM
Smolt,

Congress does not hold hearings on court decisions.

kjackson
04-30-2004, 02:36 PM
For those who feel Bush is the cause of the Hogan decision, you're wasting your energy. You can blame the current administration as much as you want, but you would be better served by looking at the Boldt Decision and seeing the aftermath of that on fishery management.

Then take a deep breath, and ask yourself how you can make the best out of the Hogan decision. Realize that this decision doesn't take away all ESA habitat protections as many of the watersheds still contain stock that is endangered-- dollies for example. Also, while the feds decree if a run is endangered or not, the states, in most cases, still make the rules on harvest and habitat.

What can you do, besides flapping your gums (sorry but that's what a lot of this is), to influence state decisions? That is a question that needs to be answered.


Leland-- In regard to that article you posted-- speaking as one who has to evaluate what I write professionally for balance and accuracy-- this story was obviously slanted. The writer is not a friend of Bush and was interested, in my opinion, in showing Bush in a bad light. Based on what I know to be facts, there are inaccuracies in what was written.

I'm still going for $.03 because of inflation,

Keith

Smolt
04-30-2004, 02:50 PM
Flytyer,

Congress holds hearings on issues. The issue here is the appropriate protection of endangered species. Congress is free to pass new legislation, within the bounds of the Constitution, that addresses that issue. New Constitutionally sound legislation trumps pre-existing court decisiions.

So, you are right, Congress doesn't hold hearings on court decisions, but that hasn't and shouldn't stop Congress from dealing with issues that "bad" court decisions have raised. Courts act as a check and balance on Congress, but Congress may also act as a check and balance on the courts.

CK

flytyer
04-30-2004, 03:10 PM
Smolt,

In this instance, Congress has already passed the Environmental Protection Act way back in 1972 when Tricky Dick was in office. Judge Hogan used that federal law when rendering his decision that hatchery and wild salmon were the same, genetically identical species. Therefore, there is nothing for Congress to hold a hearing on, and I do not see Congress considering a bill that would replace or ammend the Endangered Species Act, which was designed and passed to prevent the extermination of species. The feds made their case for the biological differency between hatchery and wild salmon to Judge Hogan and they lost.

Let us not go down the road fishemen and environmentalist went down with Bolt's decision on tribal netting. It was counterproductive and had the end result of wasting a lot of time, energy, and resources only to have Bolt's decision continue to be affirmed (mostly through the appeals court's refusal to reconsider the case). Instead of hand-wringing, finger pointing (remember all fingers need to be pointed at Judge Hogan and the 9th Circuit Court of Appeals), and chest-beating, we need to work within the framework of the court ruling and use things such as the listing of dollies to prevent overharvest of wild fish.

The alternative to this is to eliminate hatcheries and only have wild salmon in our rivers because if you take the hatchery fish out of a river system and only rely on the greatly reduced wild fish for a salmon run, the fish can be said to be nothing other than threatened or endangered. This also means that no one will be able to fish with the result that there will be lawsuits filed on behalf of commercial fisherman, tribes, developers, timber companies, etc. to force the states and feds to put hatchery fish back in the system in order to prevent "extinction" of the species. And since the courts have already determined that hatchery and wild salmon are identical, they would win these lawsuits.

Smolt
04-30-2004, 03:30 PM
Flytyer,

I agree with you that a "solution" to the problem that appears to be raised by the decision would be to eliminate hatchery fish. I don't pretend to know whether it is the best solution, but it may be a solution.

BTW Congress revisits existing legislation all the time. The tax code may be the best example. But let's get beyond carping at each other about what the courts and Congress may and may not do.

CK

Drake
04-30-2004, 03:57 PM
Flytyer,

I stand corrected. Of course, the case would have never made it to the 9th Circuit without the government's appeal. As a casual observer of the process, I'm left wondering about the zeal with which said appeal was conducted. How zealous can a career administrator in any agency be when he knows full well that his appointed bosses in DC and the field are beholden to those with an ideological bent different than his own. The average gummint employee is nothing if not a master manager of his career.

My point, and I still believe it is correct, is that there is plenty of blame to go around. The legislature left the loop hole, the industrial interests and their handmaidens in the executive branch jumped through it and the judge held the safety net on the other side.

If, indeed, the office of president is a "bloody pulpit," then the preacher needs to deliver the right sermon. Otherwise the administrators know that they can get away with, and perhaps even be rewarded by, whatever means are deemed to justify the end. If such were not the case, we wouldn't be spending so much time fixing corporate financial reporting and the SEC's oversight function. And yes, that goes back to prior administrations as well. The tone, the atmosphere, the ideology aren't being set properly with regard to this issue and most others involving our natural resources. As others have pointed out, if they really wanted to do something about this, they'd find a way. But they won't becaue they don't want to do anything about it despite their "appeals" to the contrary.

Smolt
04-30-2004, 04:19 PM
To Teddy Roosevelt the White House was a "bully pulpit". Who knows, to Bush "bloody pulpit" may be fitting. (I couldn't resist, and wanted to correct you before Flytyer did.)

Drake
04-30-2004, 07:07 PM
Thanks... I'm having a tough day. Earlier I attributed a quote from Mae West to Eleanor Roosevelt... :D

flytyer
04-30-2004, 08:39 PM
Drake,

Any administration is powerless to change what a court decrees a federal agency must do or change. Just like priot administrations, the State of Washington, and various fishing and environmental groups were unable to do anything about Judge Bolt declaring and having affirmed by the 9th Circuit Court that the tribes in Washington State were entitled to 50% of the harvest on all river systems with salmon and steelhead runs in the state. No amount of hand-wringing, finger-pointing, or wishful thinking is going to change the Bolt decision, nor are they going to change the Hogan decision on hatchery and wild salmon being the same species.

The only place either can be changed is Congress. With Bolt, Congress would have to either overturn portions of the treaties Bolt relied upon, or outright abolish all American Indian Treaties.

With the Hogan decision, Congress would have to change the Endangered Species Act to make small DNA differences of the same species lawful for listing or not listing a species as threatened or endangered.

I think the possibility of either of these happening is about the same as the possiblity that in the next 5 minutes 25% of the earth's population is simply going to vanish without a trace. Congress is not going to abolish the Indian Treaties because it is far to volitile an issue; likewise, they are not going to change the Endangered Species Act to declare small DNA differences within the same species is sufficient to declare a species threatened or endangered.

Smalma
04-30-2004, 10:47 PM
Placing the blame on elected politicans for bonehead desisions like this is just foolishness!

If you must find a scape-goat just look in the mirror. It is our general apathy that allows such things to continue. It is only the special interests that demand accountability. The rest of us just wring our hands and do nothing.

Remember if you donb't like something vote the Rascals out!

It is not the judges that make law but our elected officials. Don't like something demand changes.

Tight lines
S malma

beau purvis
04-30-2004, 11:08 PM
well ,I just had dinner and a few drinks with a lawyer friend.Been around a long time with some very big law firms.For whats one mans opinion, he said it is well known that Clinton appointed a bunch of real fruit cakes to the 9th circuit.Proof of that is that 67%,according to him, of their decisons are reversed .Lets hope he is correct!Beau

JDJones
05-01-2004, 02:40 AM
Placing the blame on elected politicians for bonehead decisions like this is just foolishness!

Remember if you don't like something vote the Rascals out!

What kind of double talk is this? You can't vote out an appointed bureaucrat. And in the case of federal judges, it is a life time appointment.

It is not the judges that make law but our elected officials

True but the judges can interpret the law any way they want.

It is only the special interests that demand accountability. The rest of us just wring our hands and do nothing.

I didn't want to have to get into this but,,,,special interest groups run on MONEY and some have members with a lot of it. Unfortunately, ,none of us do.

flytyer
05-01-2004, 09:31 PM
JD,

It is not just that judges can interpret the law any why they like, they also create law with their rulings. This creation of law by judges is known as "Case Law", and other judges use it (these decisions made by other judges) to make decisions in similar cases. Also, lawyers use case law to present their case and make their argument to persuade the judge to make the decision they want in the case.

I don't know how many of you know this; but law school teaches their students how to argue a case effectively. They do not study the law. Instead, the prospective lawyers study peior decisions of judges (case law) and the arguments made by the attorneys that led to the decision made by the judge.

Therefore, judges do indeed make laws!! To think otherwise, is not accurate.

flytyer
05-01-2004, 10:16 PM
Just read an article on the front page of the Skagit Valley Herald (www.skagitvalleyherald.com) title "FEDS ASK FOR MORE TIME FOR SALMON PROPOSAL" that is on the issue this thread has been discussing.

"A federal agency that is rewriting a salmon recovery plan for the Pacific Northwest has asked for a six-month extension."

"A federal judge ordered NOPAA Fisheries to rewrite its recovery plan, known as a biological opinion, last May [2003], after ruling that the existing bluprint violates the Endangered Species Act."

"U.S. District Judge James Redden set a June 2 [2004] deadline for the new plan. The previous plan, adopted in late 2000 by the Clinton administration, remains in effect while the rewrite is completed."

"But in court papers filed this week, the fisheries agency, formally known as the NMFS, said it needs another six months to do the job. The agency said the comprehensive nature of the recovery plan, and the extensive work it has done with the affected state, as well as the Indian tribes and conservation groups in the region, make the delay unavoidable."

"Todd True and other conservationist say they would not abject to an extension of up to three months to allow the government to do a thorough job. But they say six months is too musch time."

""I think some extension is reasonable and fair to provide,' said Nicole Cordan, policy and legal director for the Save our Wild Salmon, another group involved in the case."

"'The judge has made it clear all along that he wants us to work more closely with the states and tribes on this, and we are happy to do that,' Brian Gorman [from NOAA Fisheries] said. 'It just means it is likely we will need an extension of time.'"

"The extension request comes as the bush administration considers a major policy shift of samon protection. A draft plan being considered by NOAA fisheries would add hatchery-bred salmon to any decision about protecting wild fish runs under the Endangered Species Act."

"Bob Lohn, the agency's [NOAA] regional administrator, said the POLICY CHNAGE WAS REQUIRED BY A RECENT FEDERAL APPEALS COURT RULING THAT FORCES OFFICIALS TO COUNT ALL FISH THAT ARE GENETICALLY RELATED [emphasis added by flytyer]."

As everyone can clearly see by this article, NOAA's new salmon policy that hatchery and wild fish of the same species are the same was forced to happen by Judge Hogan's decision. The other judge, James Redden, made the ruling on when NOAA had to have the salmon recovery plan changed to reflect Hogan's decision that wild and hatchery salmon are the same after the 9th Circuit Court of Appeals affirmed Judge Hogan's ruling and sent the case back to the Oregon Federal District Court for the Oregon Court to make a ruling as to the date NOAA was to have the new plan ready. And Judge Redden told NOAA that they had to include the treaty fishing tribes of the states effected, the states effected, conservation groups that were involved supporting NOAA's original salmon recovery plan (which said hatchery and wild fish were different-remember Judge Hogan ruled otherwise), timber interests, agriculture interests, and power generators in both the process of developing the new policy and the have their concerns addressed in the final policy.

Judge Reddden has required NOAA to provide him with a copy of the new salmon recovery plan by June 2, 2004 so that he can review it to see if it complies with the orders of Judge Hogan and the 9th Circuit Court of Appeals. In other words, NOAA must include in its salmon recovery plan hatchery and wild fish being treated having no difference.

Like I've said before in this thread, Judge Hogan, and appointed for life federal judge, is what has caused the change in the salmon recovery plan and the delisting of salmon when there are hatchery and wild fish in the same river system.

The change is being forced by Judge Hogan's ruling, period.