Summary
A September 10 court decision from the federal district court in
Eugene, Oregon concluded that the National
Marine Fisheries Service's 1998 decision to list Oregon coastal coho
as threatened under the Endangered Species Act (ESA) was arbitrary and
capricious, and inconsistent with the ESA.
Related links:
Memorandum
TO: Council Members
FROM: John Shurts
SUBJECT: Alsea Valley Alliance v. Evans -- listing distinct
population segments of salmon and steelhead under the Endangered Species
Act [revised version of 9/18 memo]
The decision
By now you have all seen or at least heard about a recent court
decision out of the federal district court here in Oregon (Judge Michael
Hogan) concluding that NMFS’ 1998 decision to list Oregon coast coho as
threatened under the Endangered Species Act was arbitrary and capricious
and inconsistent with the ESA. Alsea Valley Alliance v. Evans. The
court declared the listing "unlawful," remanded the matter to
NMFS "for further consideration consistent with [the court’s]
opinion," and directed the agency "to consider the best
available scientific information, including the most recent data, in any
further listing decision concerning the Oregon cost coho salmon." A
copy of the decision is attached.
At the Spokane meeting John Ogan and I will brief the Council on what
the decision says and what might be some implications for the listings in
the Columbia. Here is a brief summary of the decision:
The Endangered Species Act assigns NMFS the responsibility for
determining if anadromous fish species are endangered or threatened. The
ESA defines "species" to include "any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature." The ESA does not define "distinct
population segment," nor provide further guidance or limits on what
such a segment might be.
NMFS established the "ESU" (or "Evolutionary Significant
Unit") policy as a way to interpret and apply the concept of a
"distinct population segment" to Pacific salmon. That is, a
specific stock or group of chinook or coho or steelhead can be recognized
as a separate ESU, and thus as a "distinct population segment"
for purposes of consideration for listing, if the stock is
"substantially reproductively isolated from other conspecific
population units" and "represents an important component in the
evolutionary legacy of the species." It is on this basis that while
we may have just a handful of species of Pacific salmon (e.g.,
chinook, coho, sockeye, chum, pink, steelhead), we have dozens of ESUs and
thus dozens of distinct population segments considered for listing or
listed. Also, NMFS adopted a second policy that recognized that hatchery
populations may be considered part of an ESU when there is genetic,
geographic and life-history interaction with wild stocks. But the policy
also specifies that hatchery populations, even if within the ESU, should
be excluded from listing unless they are "essential for
recovery" -- indicating that the role of the hatchery populations in
an ESU in a listing determination was not whether those hatchery fish
counted (my term) in determining the listing status of the ESU, but only
whether the hatchery fish might have a role in the recovery of the
populations in the wild.
With regard to Oregon coast coho, NMFS defined the ESU to include not
only the naturally spawning coho in these coastal streams but also the
coho from nine hatcheries in these streams. NMFS included these hatchery
stocks in the ESU largely because of the origin of these fish in the
natural runs in the area and because of the life-history and reproductive
interaction of these hatchery spawners with the natural spawners. But then
when NMFS listed the Oregon coast coho as threatened, it limited the
listing to only the naturally spawning coho. In other words, NMFS listed
as threatened only one part of the ESU -- the naturally spawning coho --
and excluded the other part of the same ESU -- the hatchery coho
population. NMFS decided not to include the hatchery stocks in the listing
decision because NMFS did not consider the hatchery fish essential to the
recovery of the ESU.
Judge Hogan concluded that the ESA did not allow NMFS to make this
additional distinction, that the ESA requires NMFS to consider the ESU as
a whole (that is, the "distinct population segment" as a whole)
when deciding whether that ESU is threatened or endangered. In other
words, once NMFS determined what fish were part of the ESU or distinct
population segment, that unit as a whole was what the ESA called upon NMFS
to consider for listing and either list or not list in its entirety. If
the hatchery coho are part of the ESU, the hatchery coho have to be
included with the natural spawners when deciding whether to list the ESU.
What the court decision did not hold: (1) The court did not tell
NMFS that it cannot list the Oregon coast coho as threatened, only that
NMFS wrongfully failed to consider the ESU as a whole when making its
listing determination. (2) The court did not hold that there is no
difference between a hatchery produced fish and a naturally spawning fish,
only that when NMFS made the distinctions between the two when listing at
a level or division below the ESU level, this took the listing decision to
a level not allowed by the ESA. (3) And, the court did not hold that NMFS
was correct or incorrect to establish an ESU policy that linked hatchery
spawners and natural spawners in the same ESU, or that NMFS was correct or
incorrect to include the hatchery stocks in this specific ESU -- the
determination as to what went into the Oregon coast coho ESU was taken as
a given, and the issue decided was whether NMFS properly considered that
ESU as a whole in making the listing decision.
I do not know whether the United States will appeal this decision to
the Ninth Circuit. We have new administration personnel at NMFS and
elsewhere who may or may not be inclined to pursue this particular
approach to considering ESUs for listings. As far as I can tell, no group
or individual intervened the case on the side of NMFS (Oregon Trout filed
an amicus brief). If so, if the U.S. does not appeal, the decision will
not go up for review. I do think the basic legal analysis by Judge Hogan
is sound and even rather mechanical, if he is correct about how NMFS did
not consider the hatchery fish in determining whether the ESU should be
listed. It may be the United States has a viable argument that the
hatchery fish were part of the listing decision in some way, but I
don’t know of it.
Questions relevant to assessing the implications for the Columbia ESU
listings
There are 12 ESUs of Pacific salmon listed in the Columbia River
system. In assessing the effect of this decision on those listings
(assuming this decision is not appealed, or not reversed if appealed), you
have to consider two threshold questions:
(1) Similar factual circumstances? The first and most obvious
question is whether any of the Columbia listing decisions fit the same
fact pattern as the Oregon coast coho listing -- that is, where NMFS
designated hatchery stocks as part of the ESU but then did not
include the hatchery stocks when deciding to list the ESU.
I have looked at the Federal Register notices for the listing decisions
for the 12 Columbia ESUs, and I can give you some preliminary information
as to which ESUs included hatchery stocks and whether those hatchery
stocks were part of the listing determination or not. This will indicate
which ESUs are within the category of listings called into question by the
new decision. But I cannot tell you for sure, without study of the record
of the listing decisions, whether in fact these hatchery stocks were in
some way considered in the listing decisions in a way that might take that
listing out of the fact category of the Oregon coast coho.
The Columbia ESUs that appear to fit within the category of listing
decisions with facts similar to the Oregon coast coho listing include
Snake River steelhead, middle Columbia steelhead, lower Columbia chinook,
lower Columbia steelhead, upper Willamette chinook, upper Willamette
steelhead, and Columbia chum. The list in full:
Snake River spring/summer chinook (listed 4/92) -- no hatchery
stocks designated as part of the ESU; left as an open question for the
future
Snake River fall chinook (4/92) -- no hatchery stocks designated
as part of the ESU; left as an open question for the future
Snake River sockeye (11/91) -- no hatchery stocks designated as
part of the ESU
Snake River steelhead (8/97) -- NMFS defined the ESU to include
the Dworshak, Imnaha and Oxbow hatchery stocks, but not the Lyons
Ferry, Pahsimeroi, East Fork Salmon or Wallowa hatchery fish. The hatchery
stocks that are part of the ESU were not included in the listing of
the Snake River steelhead ESU as threatened. So this ESU appears to fall
into the category that Judge Hogan found of concern in the Oregon coast
coho case -- an ESU that was further subdivided in the listing decision.
Upper Columbia spring chinook (3/99) -- NMFS defined six
different hatchery stocks as part of the ESU, while four hatchery stocks
in that area were deemed not part of the ESU. But NMFS then declared the
hatchery stocks within the ESU to be "essential for recovery" of
the ESU, and thus NMFS included these hatchery stocks in the
listing determination for the ESU as endangered. This is quite different
from the Oregon coast coho listing, in which the hatchery populations in
the ESU were not listed -- here, NMFS listed the ESU as a whole (an issue
that will surely arise is how NMFS considered the hatchery
populations in coming to its listing decision). NMFS defines the upper
Columbia spring chinook ESU as the spring-run chinook "in all river
reaches accessible to chinook salmon in Columbia River tributaries
upstream of the Rock Island Dam and downstream of Chief Joseph Dam in
Washington, excluding the Okanogan River."
Upper Columbia steelhead (8/97) -- NMFS defined the Wells
hatchery stock as part of the ESU, and declined to include the Skamania
stock in the ESU. As with the upper Columbia chinook, NMFS then included
the Wells hatchery stock in the listing determination for the ESU as
endangered. Thus this listing is also different from the Oregon coast coho
listing faulted by Judge Hogan. NMFS defines the upper Columbia steelhead
ESU as those steelhead in the Columbia system above the Yakima River.
Middle Columbia steelhead (3/99) -- NMFS defined the ESU to
include the Deschutes and Umatilla hatchery stocks. But the hatchery
stocks that are part of the ESU were not included in the listing of
the Middle Columbia steelhead ESU as threatened, so this ESU fits the
facts that Judge Hogan found of concern in the Oregon coast coho case.
NMFS defines the middle Columbia steelhead ESU as the steelhead in the
Columbia system above the Wind and Hood rivers up to and including the
Yakima River.
Lower Columbia chinook (3/99) -- NMFS defined this ESU to
include 14 hatchery stocks, and not to include another nine hatchery
stocks in the area. NMFS did not include the hatchery fish within the ESU
in the designation of the ESU as threatened, so this is another listing
that fits the challenged fact pattern.
Lower Columbia steelhead (3/98) -- another ESU that fits the
challenged fact pattern, NMFS defined this ESU to include hatchery stocks
from the Cowlitz and Clackamas; did not include five other hatchery stocks
in the ESU; and then did not include the hatchery stocks that are within
the ESU in the determination of the ESU as threatened.
Upper Willamette chinook (3/99) -- NMFS defined the ESU to
include five hatchery stocks (North Fork Santiam, North Fork Willamette,
McKenzie, South Fork Santiam and Clackamas), but did not include these
hatchery fish in the designation of the ESU as threatened -- another
listing that fits the challenged fact pattern.
Upper Willamette steelhead (3/99) -- another ESU that fits the
challenged fact pattern, NMFS defined this ESU to include one hatchery
stock from the North Fork Santiam; did not include two other hatchery
stocks in the ESU; and then did not include the hatchery stock that is
within the ESU in the determination of the ESU as threatened.
Columbia River chum (3/99) -- the final ESU that fits the
challenged fact pattern, NMFS defined this ESU to include Grays and
Cowlitz hatchery stocks, but did not include the hatchery stocks that are
within the ESU in the determination of the ESU as threatened.
One phenomenon you are certain to see in the next few weeks will be
assertions or arguments that the listing decision for any particular ESU
matches or does not match the facts in the case before Judge Hogan. Those
who favor a particular listing decision are likely to reach to finds
grounds for distinguishing their listing of interest from the Oregon
coastal coho listing decision. Vice versa, those interested in undoing a
particular listing will undoubtedly find reasons why that listing decision
raises the same concerns as the Oregon coast coho listing.
(2) What is the legal status of the Columbia listings? Could someone
challenge the listings that appear vulnerable under the facts and holding
in the Alsea Valley case, and if so, how? Judge Hogan’s
ruling applies only to the Oregon coast coho listing. No listing in the
Columbia (or Puget Sound or California) is automatically undermined or
vacated by this decision, even if the fact pattern of the listing is the
same as the Oregon coast coho listing. And as far as I know and can find
out, there are no pending lawsuits challenging the legality of the
Columbia ESU listings.
However, the time period for launching a direct challenge to most of
the ESU listing determinations in the Columbia may still be open. As
described in Judge Hogan’s opinion, the general statute of limitations
that applies to civil actions against the federal government applies to
ESA cases. The period is six years. Nine of the 12 ESU listings in the
Columbia occurred in 1997 or later, less than six years ago. So it seems
possible for people to file direct challenges to these listings. On the
other hand, it does not appear legally possible to collaterally challenge
the validity of a listing when a federal agency takes an action to address
the needs of a listed population, such as in a Section 7 consultation or
biological opinion, or an application of the "4d" rules, or in a
take situation, although people will assuredly try.
I can imagine that NMFS will be under significant pressure to review on
its own motion all of its Pacific salmon ESU listings. And I suspect
private citizens and groups will also prod NMFS in this direction by
filing petitions for delisting ESUs on these grounds. As part of
any review of current listings, it seems to me that NMFS will probably
need to rethink its overall ESU policy, especially how to understand the
relationship between hatchery fish and naturally spawning fish in deciding
what is an appropriate "distinct population segment" of Pacific
salmon under the ESA. So, it is possible the ESUs will remain as they are,
but NMFS takes another look at whether to list or not, or it is possible
NMFS may have to reconstruct the Pacific salmon ESUs.
On the other hand, NMFS cannot simply pull back from or vacate the
existing listing decisions. NMFS adopted these listing decisions as final
rules under the notice-and-comment rulemaking procedure specified in the
Administrative Procedures Act. NMFS would have to follow the same
procedures to review and change any Columbia ESU listing, and that takes
time.
(3) Question concerning ESU listings that did include the hatchery
populations in the listing itself.
I am already beginning to hear arguments for how the Alsea Valley
decision might call into question ESU listings even in those cases in
which NMFS included the hatchery stocks not just in the ESU but
also in the listing, such as occurred with the upper Columbia chinook and
steelhead ESUs. The argument is this -- NMFS’ hatchery/ESU policies led
NMFS to consider the hatchery populations in the ESU only to the extent to
which those populations might be useful to the recovery of the naturally
spawning fish. The listing decisions were still based only on the strength
or health of the naturally-spawning fish, not on the basis of the entire
ESU. In other words, the hatchery fish did not "count" (again,
my term) on their own terms in deciding whether the ESU as a whole should
be listed. And so, the argument goes, these listings may also be invalid
for not really taking into consideration the entire ESU in deciding
whether to list the ESU.
This kind of argument or challenge may or may not have merit on its own
terms, but I am not persuaded of the relevance of the Alsea Valley
decision in making the case. Judge Hogan’s opinion, as I noted above,
seems to be quite mechanical: The statute calls on NMFS to either list or
not list the ESU (or distinct population segment) as a whole, without
further dividing the population. NMFS split the ESU in listing Oregon
coast coho. This is not permissible under the ESA -- try again. In the
upper Columbia chinook and steelhead ESUs, the ESUs as a whole are listed,
so there is not the obvious and mechanical inconsistency with the statute.
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