A three-judge appeals panel is considering whether hatchery-born salmon can be counted along with stream-bred salmon when it comes to determining whether coho are 'endangered' and in need of special protection in the form of tough land-use regulations.
Although government officials claimed that their clubbing expeditions were intended to clear the way for healthier development of wild salmon, skeptics observed that by killing salmon, it was easier for bureaucrats to grab headlines — and expand their power over private property — by claiming that salmon are in decline.
Two years ago, the dispute went before U.S. District Court Judge Michael Hogan in Eugene. He found it fishy that the government insisted on making metaphysical distinctions between coho from hatcheries and coho from streams. Hatchery-born coho are biologically identical to stream-born coho, he declared, based on the National Marine Fisheries Service's (NMFS) records. So if there are plenty of coho in streams and rivers, coho aren't 'endangered' under the federal Endangered Species Act, even if many of them are from hatcheries.
In reviewing Judge Hogan's order, the Ninth Circuit should not get reeled in by the government's slippery pseudo-science. The fact is, for over half a century, coho salmon have thrived in the Pacific Ocean off the coast of Oregon — and they do so today in phenomenal numbers. More than 240,000 stream-bred coho returned to Oregon's rivers in 2002, a staggering increase from the 14,000 that returned just six years ago. More than 660,000 hatchery-born coho made the trip up river last year.
Since 1952, the Fall Creek hatchery — originally with the eggs of 'wild' (partially spawned) salmon — has produced countless generations of salmon that have become fully integrated with the 'wild' population.
Indeed, many biologists, including a chief of the NMFS hatcheries and inland fisheries branch, agree that there probably aren't any truly 'wild' salmon left in the lower 48 states and that because of nearly 50 years of natural cohabitation, the hatchery-spawned salmon and the 'wild' salmon are virtually indistinguishable. The only way to identify hatchery salmon is by the missing fin clipped by the hatchery.
If even marine scientists cannot tell 'wild' salmon and hatchery salmon apart in a biological sense, why should government bureaucrats be allowed to insist on drawing arbitrary distinctions? And why should a court have the power to do so?
Even though the clubbing has stopped, regulators can still lowball the salmon count if they're allowed to exclude those born in hatcheries. Such manufactured pessimism gives regulators more excuses to take control of logging, farming, grazing and home building on thousands of acres of land, endangering the economy for a species that isn't in danger.
Judge Hogan was right to deny regulators the use of dishonest, politicized science to justify their power trips.
Russ Brooks is the managing attorney of Pacific Legal Foundation's Northwest Center. He brought the landmark Alsea Valley Alliance case that was heard by the Ninth Circuit Court of Appeals on May 8. For 30 years, Pacific Legal Foundation has fought for balance and common sense in application of the Endangered Species Act.
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