Oregon Court Finds Distinction Between Hatchery and Natural Spawning Salmon Arbitrary and Capricious, and Invalidates Listing of Oregon Coho Salmon

In an order dated September 10, 2001, the United States District Court for the District of Oregon held that the listing of the Oregon coast coho salmon under the Endangered Species Act (“ESA”) was arbitrary and capricious, and set aside the listing. Alsea Valley Alliance, et al. v. Donald Evans, et al., USDC Or., Case No. 99-6265-HO. The court held that the National Marine Fisheries Service (“NMFS”) could not legally distinguish between naturally spawning and hatchery produced Oregon coast coho salmon for purposes of listing. Under the ESA and under NMFS policy, the naturally spawning and the hatchery fish were part of the same “distinct population segment” or “evolutionarily significant unit,” and therefore could not be separated for listing purposes. As is discussed below, NMFS has applied this distinction to other ESU listings as well, and hence those listings may be subject to the same challenge.

Under the ESA, only a “species” may be listed as threatened or endangered. The ESA defines species to include subspecies and “distinct population segments.” Under a policy adopted in 1991, NMFS defines “distinct population segments” of Pacific salmon as “evolutionarily significant units” (“ESU”). To qualify as a separate ESU, a stock of Pacific salmon must be substantially reproductively isolated from other stocks, and represent an important component in the evolutionary legacy of the species. In its 1998 listing decision for Oregon coast coho salmon, NMFS included both naturally spawning and hatchery produced salmon within the same ESU. However, NMFS employed its “Hatchery Policy” to exclude hatchery fish from the listing. In accordance with the Hatchery Policy, NMFS excluded hatchery fish from the listing because they were not deemed essential to recovery of the ESU. Thus, natural spawners were protected by the take prohibition, but hatchery fish were not.

The court held that this subdivision of the ESU for listing purposes was invalid under the ESA. The court held that NMFS was within its discretion in defining “distinct population segments” of salmon as ESU’s. However, NMFS went too far in further subdividing the ESU between naturally spawned and hatchery produced fish for listing purposes. As explained by the court:

  • The central problem with the NMFS listing decision of August 10, 1998, is that it makes improper distinctions, below that of a [ESU], by excluding hatchery coho populations from listing protection even though they are determined to be part of the same [ESU] as natural coho populations.

The court’s order on summary judgment set aside the listing as unlawful, and arbitrary and capricious. The court’s order also remanded the listing decision to NMFS for further consideration consistent with the court’s opinion. The court directed NMFS to include the most recent data in any further listing decisions concerning the Oregon coast coho salmon.

There is no indication yet whether the United States will appeal the decision. It will have sixty days from entry of judgment to do so. The United States may also seek to have the listing remain in place pending reconsideration of the listing, or to stay the effect of the judgment pending appeal.

There are a number of potential implications of this decision. First, if it does not appeal, then NMFS will have to include hatchery produced Oregon coast coho salmon in its evaluation of whether that ESU is threatened or endangered. If hatchery spawned fish are included, then the ESU may not meet the criteria for listing. However, NMFS might also decide to maintain the listing but extend the listing to include the hatchery fish, which would expand the impact of the listing. Second, this decision calls into question listings of other ESU’s that included hatchery fish in the ESU, but relied on the 1993 Hatchery Policy to exclude hatchery spawned fish from the listing. NMFS took this approach with respect to the following listings of ESU’s that are significant to California: California Coast Coho (Oct. 31, 1996); Southern Oregon/Northern California Coast Coho (May 6, 1997); Central Valley Spring-Run Chinook (Sept. 16, 1999); California Coast Chinook (Sept. 16, 1999); Central California Coast Steelhead (Aug. 18, 1997); South-Central California Coast Steelhead (Aug. 18, 1997); Central Valley, California Steelhead (Mar. 19, 1998); and Northern California Steelhead (June 7, 2000). Each of those listings may now be vulnerable to challenge. Third, NMFS may seek to change its definition of what constitutes an ESU to make it easier to exclude hatchery fish. Under the current definition of an ESU, NMFS has difficulty excluding hatchery fish from ESU’s, since spawning hatchery fish may return to the same streams as natural spawners and interbreed with naturally produced fish.

Clients with questions about this decision, or who wish to discuss its implications for a particular ESU or stream system, may contact Dan O’Hanlon by telephone at (916) 321-4500, or by e-mail at dohanlon@kmtg.com .