Salmon stocks and how they are counted - Fly Fishing Forum
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Old 05-04-2004, 08:26 AM
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Salmon stocks and how they are counted

Got this post the other day - kinda scary!


WASHINGTON -- Sweeping changes in how salmon and their habitat are protected could result from a Bush administration proposal that would gauge the health of Northwest salmon by counting, for the first time, hundreds of millions of hatchery fish along with those born in the wild.

Critics immediately denounced the plan for ignoring scientific realities and potentially stripping away crucial protections now granted under the Endangered Species Act.

Carried out to its fullest, fishery experts said, it could result in some salmon stocks' being taken off the endangered species list after years and billions of dollars spent to restore dwindling populations.

Removing the fish from the list would weaken -- or even remove
-- land-use restrictions designed to protect habitat, representing a boon to timber, mining, agriculture and construction interests that have been barred from working on the protected land.

"I feel like the people of the Northwest woke up to a bombshell this morning," Sen. Maria Cantwell, D-Wash., said in response to reports, first published in The Washington Post and The

(Portland) Oregonian, that hatchery salmon would be used to determine the overall salmon population.

The policy, if adopted, would represent a fundamental shift. For years, federal fishery experts have pegged the health of chinook, coho and steelhead to the number of fish born and living only in the wild. Scientists generally agree that wild fish have the greatest biological diversity and are the most accurate measure of the salmon's present and future condition.

Critics fear that the Bush administration will reject the prevailing science for a policy that appears to benefit its political interests, in this case timber, mining, agriculture and commercial development.

"I'm very concerned we're moving away from science, which is what our policy has been based on, for some political judgment or political expediency," Cantwell told Conrad Lautenbacher, the Commerce Department undersecretary responsible for the National Oceanic and Atmospheric Administration, at a hearing yesterday.

If hatchery-raised fish are added to the analysis, fishery biologists said, the salmon population will increase dramatically, which could lead to the fish being removed from the Endangered Species Act.

"It gives them a hole in the ESA large enough to drive a hatchery truck through. That's what it does. It gives them the flexibility to say we have enough (fish) that we can remove them from the list," said Jeff Curtis, Western conservation director for Trout Unlimited.
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Old 05-04-2004, 10:02 AM
2hander 2hander is offline
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Not sure the Administration had a choice.

Read a couple of on line posts (other boards) that suggested they're just reacting to a Court imposed order. One more instance where a 'Judge knows best.'
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Old 05-04-2004, 11:05 AM
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I am sure GW and his group would like you to believe that excuse. Hard to argue with a court ruling especially when you don't choose to appeal a lower court's decision.


Seems to me just another example of this administration's failings on environmental issues.

Just my $.02
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Old 05-04-2004, 01:00 PM
flytyer flytyer is offline
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Rick J,

There is a thread titled "HATCHERY SALMON ARE NOW WILD" in the Worldwide Flyfishing" forum here on the FFF that has all the information in it on Judge Hogan's ruling, the 9th Circuit Court of Appeals affirmation of Hogan's ruling, and Judge Redden's order requiring NOAA Fisheries to redo the salmon recovery plan so that it reflects Judge Hogan's decision that hathery and wild salmon are the same fish geneticaly. Hogan's ruling also requires NOAA Fisheries to remove wild salmon from the threatened or engandered species list if there are hatchery fish of the same species in a river system.

Sinktip,

Hogan's ruling was appealed to the 9th Circuit Court of Appeals and the 9th Circuit affirmed Judge Hogan's ruling through making ruling that there was nothing wrong with Hogan's application of the Endangered Species Act; therefore, the 9th Circuit Court had no reason to review the ruling, and they sent it back to the Oregon Federal District Court Hogan sits on to have a timetable set up for NOAA to have a new salmon recovery plan reflecting Hogan's ruling.

In other words, the case was appealed and the 9th Circuit Court of Appeals refused to have a full review of the case because they saw nothing wrong with Hogan's ruling. To say that the administration did not appeal Hogan's ruling is not accurrate. The ruling was appealed and the appeals court sent it back to the originating court. This means that the case is dead at that point for furthur appeal and it cannot be appealed to the Supreme Court. Also, since there were not Constitutional issues in the wild salmon vs hatchery salmon decision of Judge Hogan's, the likelyhood of the Supreme Court taking the appeal and holding a hearing even if the 9th Circuit Court of Appeals had held a full hearing would be virtually zero.
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Old 05-04-2004, 04:08 PM
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Flytyer,

It was my understanding and I could certainly be wrong but the appeal you mention was limited to a very narrow procedural focus and did not include a challenge to the validity of the scientific determination of the "sameness" of hatchery and wild stocks. Such a challenge, while argued for by most in the scientific community, was abandoned my NMFS.

The question is why didn't NMFS challenge the science behind Hogan's decision? Could it be they were told that the administration did not support such a challenge? Was the decision made on legal grounds? Dogmatic grounds? Pragmatic grounds? If these questions can be answered factually, then maybe we could get a clear idea if the Bush administration is environmentally evil or just ignorant of their actions.

I know, I know, somewhat inflamatory but since I voted for him, I figure it gives me the right to call him as I see him.

'tip
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Old 05-04-2004, 04:49 PM
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Sinktip,

Since the appeals court had as part of its determination (or ruling) to deny an appeals hearing on the appeals motion that Hogan was correct in saying hatchery and wild fish were the same per the Endangered Species Act, there is no appeal of that possible. Also, Judge Hogan said in his findings of facts portion of the ruling that there was no genetic difference on the species level (which is what the Endangered Species Act is concerned with) between wild and hatchery salmon. This means that the difference between hatchery and wild salmon is not at the species level, only at the "race" level (kind of like saying that a yellow lab is a different dog than a black lab).

Therefore, my guess is that NOAA decided from purely pragmatic and legal standpoints that it would be a waste of time, energy, and money to pursue further appeals. Alos, I see pragmaticism in abiding by the court order throughout the Pacific Northwest instead of just in Oregon, where the Hogan's ruling technically applies at this time, because the Pacific Legal Foundation is poised and ready to file the same lawsuit in Washington, California, Idaho, Alaska, and Montana federal district courts to force NOAA to spend the time, money, and energy to defend a wild fish are different than hatchery fish policy.

Don't forget, since the 9th Circuit has already weighed in and said that Hogan was correct in calling hatchery and wild fish the same species, NOAA would lose any other case on the same matter either in the federal district court or the 9th circuit court.

Remember, I'm not a happy camper with Hogan's ruling either. But blaming anyone or any group other than Judge Hogan is counterproductive and keeps us form focussing on what we can do within the parameters of his ruling. I sincerely hope we don't go down the same road we did with Bolt and all the mis-directed energy and resources that were done instead of taking actions withing the parameters of Bolts's decision.
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Old 05-04-2004, 05:40 PM
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This ruling has been a burr in my saddle, and now the whole thing is on the edge of blowing up. Maybe I am just being paranoid, but if this single court decision is extrapolated to the fullest extent, extinction is all but guaranteed.

It makes me feel as though we have just jumped back 100 years and now have to start the whole conservation process over. Habitat protection means absolutely nothing because there will be concrete raceways to mitigate all damage.

Where in the hell is the science showing how narrow gene pools of hatchery runs are compared to wild runs? Could this not prove the point that they are indeed genetically different?

Next thing you know, the wonderful US court system is going to pass into law, since all living organisms contain DNA, we are all just one massive organism.

Trying not to over-react,

William
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Old 05-04-2004, 08:28 PM
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Inland,

There are many times when a decision by a federal judge boils my blood and gets under my craw in a major way. This decision by Judge Hogan and the 9th circuit's denial of the appeal is just one of the latest onese. It is very obvious that this judge thnks in terms of species level identification and that if wild fish become greatly diminished (as we know they are in many rivers) or disappear, it matters little since the hatchery fish will ensure the species continues to exist in the river systems so effected.
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Old 05-05-2004, 12:06 PM
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if this single court decision is extrapolated to the fullest extent, extinction is al

And if they are indeed extinct, then they no longer need protection. Which opens the doors to wholesale raping of the land. Right?

Now, as was mentioned in one of the other threads on this subject, Hogan's ruling was not that hatchery fish and wild fish are the same. He simply said that if you are going to count the hatchery fish along with the wild fish in any fish count, then you have to include both wild and hatchery fish in all fish counts.

That is not to say his ruling is meaningless, or will have little or no impact on the river(s). What it does mean is that, for the time being, we have been out maneuvered by our enemies.

Timber, mining, land developers, construction, even PETA, have no party affiliations when it comes to achieving their goals. They will throw their money wherever they have to in order to have it their way.
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Old 05-05-2004, 01:42 PM
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It is my understanding that the Hogan decision is confined to one specific ESU (Oregone coast Coho) and is stated as such but the Bush administration is now going to apply it to all ESU. So please don't say they didn't have a choice on what they did. They saw a hole in the system and ran for it. They should be ashamed of themselves. And this is coming from a person who is a die hard republican, at least I was.

JJ
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Old 05-05-2004, 03:47 PM
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JJ,

Although Hogan's decision only pertains to one rivery system in Oregon, the Pacific Legal Foundation (the timber/agriculturr/power producer/developer/builders strwman who filed the lawsuit in Oregon) has put California, Oregon, Washington, Idaho, and NOAA fisheries on notice that they will file new lawsuits using Hogan's ruling as the basis to have the threatened/endangered status revised on any river system that has wild and hatchery salmon. Since Judge Redden (also of Oregon federal court) has already ordered NOAA Fisheries to revise its Pacific Salmon Recovery Plan so it includes hatchery fish and wild fish when deciding if a run is threatened or not.

NOAA is responding to Judge Redden's order in a case that was brought by the power producers, agricultural interests, timber, Snake and Columbia River shipping companies, and irrigators with the Pacific Legal Foundation filing friend of the court briefs in support of making a ruling requiring hatchery fish to be considered (Redden used Hogan's ruling as part of the basis for his ruling) and since the 9th Circuit Court of Appeals has already agreed with Hogan's ruling (remember the can of worms Hogan's ruling opened), an appeal by NOAA to the 9th Circuit Court of Appeals would probably uphold Redden's ruling requiring NOAA Fisheries to consider hatchery fish when determining threatened/endangered status. I think they made a pragmatic decision not to appeal because of this.
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Old 05-10-2004, 06:34 PM
Todd Ripley Todd Ripley is offline
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I'm kind of short on time right now, but here are a few clarifications of some inaccurate procedural assertions from above.
I'll try to put them in an order that makes sense to my own head...hopefully it will for yours, too.

First, the ESA is not only concerned with "species"...there are provisions for preserving population segments if they satisfy some criteria, like being biologically significant for the entire species, having some sort of reproductive isolation, among others. That is where the idea of an ESU (evolutionarily significant unit) comes from.

Judge Hogan's decision is binding only on coastal coho in Western Oregon. Other fish and other areas within the 9th Circuit are not bound by the decision...but the decision would be quite persuasive to other district courts within the 9th Circuit.

The ruling itself did not say that hatchery and wild fish are the same...it said that the distinction made by NMFS/NOAA Fisheries on the coastal coho was not legally defendable through the ESA.

The "new" policy will be to count fish that are only "moderately divergent" from the wild stocks as wild fish...those that are more than "moderately divergent" from wild stocks will not be counted as wild fish. While "moderately divergent" hasn't been defined yet, it looks like Chambers Creek stock steelhead wouldn't be counted as wild fish anywhere, since they themselves were a mish mash of different stocks before they were shipped all over the northwest. Skamania summer runs scattered around wouldn't be counted, either. However, hatchery fish derived from locally adapted stocks probably would be.

The new policy will also be up for public comment later this summer.

As far as petitioning the Supreme Court to hear the case, it doesn't matter what the 9th Circuit rules...it is only important that it does (in most cases). The 9th Circuit can NOT make any ruling that is not reviewable by the Supreme Court...if they could, then what exactly would the Supreme Court ever hear?

Now, just because it is indeed reviewable by the Supreme Court, I doubt very much that they would accept cert. if they were approached with it. They would likely wait until there were several other rulings, especially if they were in conflict with each other, before they would step in.

And now for my editorial comment...NOAA Fisheries did not do this for the sake of pragmatism...the current Administration's advisor on salmon issues in the PNW is the former attorney for the PLF (Pacific Legal Foundation, timber, development, agricultural, and private power company consortium). This was a direct attack on the ESA and the habitat destruction restrictions inherent in the ESA's application.

Any lip service about how hatchery fish can save wild fish, and how hatcheries can be part of the river habitat that wild/hatchery fish can depend on to continue recovery, is just that...lip service. Any and all science runs directly counter to such BS. This is about money...in the beginning, in the middle, and at the end.

I have more to say, but I'll leave it at that for now...

Fish on...

Todd
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Old 05-10-2004, 08:18 PM
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Thanks, Todd
For clearing some of it up for us.
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Old 05-10-2004, 09:23 PM
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Todd,

Thanks for your post on this.

I have a question for you on your editorial about the NOAA Fisheries proposed change in the salmon recovery plan being a direct attack on the ESA. The question is: Since the 9th Circuit Court has agreed with Hogan (granted it only applies to one rivery system in Oregon) and as you said, "...the decision would be quite persuasive to other district courts within the 9th Circuit.", how high is the probability that NOAA would win in the various district courts if they did not adopt a policy very similar to the 5 paragraph proposed one?
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Old 05-11-2004, 05:28 PM
Todd Ripley Todd Ripley is offline
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Flytyer,

Quote:
The question is: Since the 9th Circuit Court has agreed with Hogan (granted it only applies to one rivery system in Oregon) and as you said, "...the decision would be quite persuasive to other district courts within the 9th Circuit.", how high is the probability that NOAA would win in the various district courts if they did not adopt a policy very similar to the 5 paragraph proposed one?
Hard to say...if they made the exact same arguments, chances are more likely that the same result would occur...unless they could convince a different judge that J. Hogan was wrong, which judges don't really like to believe. If the other judge wanted to rule in favor of NOAA-F, then they'd have to give him/her something to hang his hat on, i.e., a new argument.

I haven't seen the record, so I'm not sure what exactly NOAA argued, but I'm sure that they could come up with something new if they needed/wanted to.

Overall, I'd say that it would be an uphill battle, but not impossilbe by any means.

Just to make it clear for everyone, in case it isn't, since I've been hearing so many different interpretations lately...the Bush Administration's declaration and Judge Hogan's ruling are not at all the same thing.

Judge Hogan ruled that NOAA/NMFS's distinction between hatchery and wild fish in listing coastal coho in Oregon was not legally defensible. He didn't say that they must be counted...he said that they must be unless a better distinction was to be made between them and wild fish.

The Bush Administration policy says that some hatchery fish are going to be counted, and some are not. The ones that derive from locally adapted stocks are to be counted, and ones that aren't from locally adapted stocks are not. At least, that's how it looks it will be interpreted. It hinges on how they define "moderately divergent"...and I'll be very cynical here and point out that it could be defined as " a steelhead is a steelhead", or as "a chinook is not a silver" for definitive purposes...we'll have to see how it all shakes out.

Fish on...

Todd
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