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Old 04-30-2004, 04:17 AM
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juro juro is offline
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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.

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Old 04-30-2004, 08:06 AM
Eddie Eddie is offline
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Clinton was not especially "environmentally friendly". To make that claim lowers the bar even further, and makes Bush seem "not so bad".
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Old 04-30-2004, 09:22 AM
Drake Drake is offline
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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.
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Old 04-30-2004, 10:55 AM
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JDJones JDJones is offline
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Question feds are to blame & it does no good to vote for environmentally friendly pres

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.
I fish because the voices in my head tell me to
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Old 04-30-2004, 01:18 PM
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Doublespey Doublespey is offline
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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,

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Old 04-30-2004, 01:33 PM
flytyer flytyer is offline
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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.


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.
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Old 04-30-2004, 02:06 PM
Leland Miyawaki Leland Miyawaki is offline
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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?


FYI: on the front page of the Washington Post

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."
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Old 04-30-2004, 02:11 PM
flytyer flytyer is offline
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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.


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.


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.
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Old 04-30-2004, 02:11 PM
Smolt Smolt is offline
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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

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Old 04-30-2004, 02:26 PM
flytyer flytyer is offline
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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.
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Old 04-30-2004, 02:27 PM
flytyer flytyer is offline
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Congress does not hold hearings on court decisions.
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Old 04-30-2004, 02:36 PM
kjackson kjackson is offline
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Flytyer's got it nailed...

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,

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Old 04-30-2004, 02:50 PM
Smolt Smolt is offline
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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.


Last edited by Smolt; 04-30-2004 at 02:58 PM.
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Old 04-30-2004, 03:10 PM
flytyer flytyer is offline
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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.
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Old 04-30-2004, 03:30 PM
Smolt Smolt is offline
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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.

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