Ninth Circuit Affirms NMFS Policy on Hatchery v. Natural Salmon

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SandBar 8:2, July, 2009 Recommended citation: Proctor, Jonathan, Ninth Circuit Affirms NMFS Policy on Hatchery v. Natural Salmon , 8:2 SandBar 4 (2009). Ninth Circuit Affirms NMFS Policy on Hatchery v. Natural Salmon Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009). Jonathan Proctor, 3L, University of Mississippi School of Law The Ninth Circuit Court of Appeals recently ruled that the National Marine Fisheries Service (NMFS) may consider natural and hatchery-spawned salmon and steelhead together in one evolutionary significant unit when listing species under the Endangered Species Act (ESA). In doing so, the court affirmed the agency’s decision to downlist the Upper Columbia River steelhead from endangered to threatened under the ESA. Furthermore, the court affirmed NMFS’ practice of distinguishing between natural and hatchery-spawned salmon and steelhead when determining the level of protection that should be provided under the ESA. Background Salmon species, including steelhead, in the Pacific Northwest have suffered greatly due to human development which has degraded or destroyed their natural habitats. In fact, several salmon species receive protection under the ESA. The ESA aims to conserve the “ecosystems upon which endangered species and threatened species depend.”1 Pursuant to the ESA, NMFS must first determine whether a population of fish, under the ESA, is a species.2 Under the ESA, “species” is defined as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” NMFS considers a salmon stock a distinct population if it is an “evolutionarily significant unit” (ESU) of the species.3 To be considered an ESU, the stock “must satisfy two criteria . . . (1) It must be substantially reproductively isolated from other nonspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species.”4 NMFS must then determine whether to list the species or ESU as endangered or threatened.5 If a species or ESU is listed as endangered or threatened, NMFS must afford that population certain legal protections, such as banning the “taking” of that fish.6 In an effort to combat dwindling population numbers, NMFS instituted hatchery programs designed to “increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct.”7 Though generally successful in bolstering population numbers, hatcheries can negatively affect the natural population via competition for prey, increased occurrences of disease, and interbreeding which can produce genetically inferior offspring.8 The hatchery programs raised the question of whether the hatchery fish should be considered alongside natural fish under the ESA. Through a series of policy decisions, NMFS had found that although hatchery fish could be part of the same ESU as natural fish, absent exceptional circumstances, only natural fish could be listed as endangered or threatened. However, in Alsea Valley Alliance v. Evans in 2001, an Oregon district court found that, if NMFS classifies natural and hatchery fish in the same evolutionary significant unit (ESU), they may not be listed separately under the ESA.9 To comply with the Alsea decision, NMFS issued a Hatchery Listing Policy in 2005, eliminating the previous distinction between natural and hatchery fish in defining and listing ESUs.10 The updated policy required NMFS to consider the ESU as a whole when determining whether to list the ESU as endangered or threatened. However, under the policy NMFS could still exempt listed hatchery fish from the ESA’s take prohibition.11 On the basis of the new policy, the Upper Columbia River steelhead ESU was downlisted from endangered to threatened, justified primarily by the inclusion of hatchery fish in the ESU. Trout Unlimited, along with other environmental groups, filed suit challenging NMFS’ decision not to separate natural and hatchery fish into distinct ESUs and the steelhead’s downlisting from endangered to threatened.12 Additionally, the Building Association of Washington (Building Industry) challenged NMFS’s policy to exempt listed hatchery fish from the ESA’s take prohibition.13 A California district court ruled that NMFS could continue to include natural and hatchery fish in the same ESU. However, the court held that the Upper Columbia River steelhead population had been improperly downlisted from endangered to threatened under the ESA. The trial court dismissed the Building Industry’s claims, finding that NMFS may consider the contributions of hatchery fish on natural populations and may distinguish between members of an ESU when making listing determinations. Ninth Circuit Decision When Congress gives an agency the authority to carry out its laws, the regulations and policies of that agency are given a high level of deference by the courts.14 Unless the courts find an agency’s interpretation or implementation of the law to be “arbitrary and capricious,”15 the agency’s decision shall be upheld. Therefore, if the Ninth Circuit found that NMFS made informed and plausible decisions with regards to the above issues, then the court should defer to the agency’s expertise on the matter. The court first addressed the question of whether NMFS should have created separate ESUs for the natural and hatchery steelhead. Trout Unlimited primarily relied upon the alleged dangers posed by hatchery fish to the native population in its argument that the natural and hatchery fish should not be considered in the same ESU. The group claimed that “‘[n]o hatchery has ever been shown to promote the long-term recovery of wild salmon, and countless studies document the harm that hatcheries have caused to wild populations.’”16 However, the court found this to be a simplification of two separate issues: 1) determining “the composition of the ESU”; and 2) later determining “whether to list the ESU.”17 The listing determination is the appropriate phase in which to consider the potential harms to natural steelheads, not when determining the composition of the ESU. As such, the Ninth Circuit affirmed the trial court’s decision that NMFS’s refusal of Trout Unlimited’s petition to split the two groups into separate ESUs was not arbitrary and capricious. Next, the court looked at Trout Unlimited’s claim regarding the downlisting of the Upper Columbia River 'from “endangered” to “threatened.” As part of that claim, the group argued that NMFS should only consider natural components of the ESU when making listing determinations. Building Industry argued that the agency should consider both natural and hatchery components. The court agreed with Trout Unlimited and the trial court’s assessment that the ESA’s main focus is on natural populations and, therefore, NMFS should primarily consider the natural fish when determining the ESU’s endangered or threatened status. However, the ESA requires NMFS to examine the “species” for listing purposes; it does not require NMFS to examine only the naturally occurring members of that species. Furthermore, the Hatchery Listing Policy in question provides that “[h]atchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations,”18 promoting the ESA’s goal of natural population protection. Whether NMFS made the scientifically correct decision is not for the court to decide; as long as the decision was not “arbitrary and capricious” it should be given deference. As such, the Ninth Circuit reversed the trial court’s ruling that NMFS improperly downlisted the steelhead from endangered to threatened. Conclusion Though Trout Unlimited and Building Industry may have had valid concerns about NMFS’s policies and practices, courts are restrained from overruling an agency’s plausible and informed decisions unless they are clearly arbitrary and capricious. Using this standard, the Ninth Circuit ruled in NMFS’s favor on all claims. Endnotes 1. 16 U.S.C. § 1531(b). 2. 16 U.S.C. § 1532(16). 3. Policy on Applying the Definition of Species, 56 Fed. Reg. 58,612, 58,618 (Nov. 20, 1991). 4. Id. 5. 16 U.S.C. § 1533(a)(1). 6. 16 U.S.C. § 15638(a)(1)(B). 7. Trout Unlimited v. Lohn, 559 F.3d 946, 948 (9th Cir. 2009). 8. Id. at 949 (citing Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed. Reg. 834, 857 (Jan. 5, 2006)). 9. See Alsea Valley Alliance v. Evans (Alsea I), 161 F. Supp. 2d 1154, 1162 (D. Or. 2001). 10. Trout Unlimited, 559 F.3d at 951. (See Policy on the Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (Jun. 28, 2005). 11. Trout Unlimited, 559 F.3d at 952. 12. Id. at 953. 13. Id. 14. See Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). 15. 5 U.S.C. §706(2)(a). 16. Trout Unlimited,559 F.3d at 955. 17. Id. 18. Id. at 958 (citing Policy on the Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,215 (Jun. 28, 2005)).
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SandBar 8:2, July, 2009
Recommended citation: Proctor, Jonathan, Ninth Circuit Affirms NMFS Policy on Hatchery v. Natural Salmon , 8:2 SandBar 4 (2009).

Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009).

Jonathan Proctor, 3L, University of Mississippi School of Law

The Ninth Circuit Court of Appeals recently ruled that the National Marine Fisheries Service (NMFS) may consider natural and hatchery-spawned salmon and steelhead together in one evolutionary significant unit when listing species under the Endangered Species Act (ESA). In doing so, the court affirmed the agency’s decision to downlist the Upper Columbia River steelhead from endangered to threatened under the ESA. Furthermore, the court affirmed NMFS’ practice of distinguishing between natural and hatchery-spawned salmon and steelhead when determining the level of protection that should be provided under the ESA.

Background
Salmon species, including steelhead, in the Pacific Northwest have suffered greatly due to human development which has degraded or destroyed their natural habitats. In fact, several salmon species receive protection under the ESA.

      The ESA aims to conserve the “ecosystems upon which endangered species and threatened species depend.”1 Pursuant to the ESA, NMFS must first determine whether a population of fish, under the ESA, is a species.2 Under the ESA, “species” is defined as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” NMFS considers a salmon stock a distinct population if it is an “evolutionarily significant unit” (ESU) of the species.3 To be considered an ESU, the stock “must satisfy two criteria . . . (1) It must be substantially reproductively isolated from other nonspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species.”4 NMFS must then determine whether to list the species or ESU as endangered or threatened.5 If a species or ESU is listed as endangered or threatened, NMFS must afford that population certain legal protections, such as banning the “taking” of that fish.6

      In an effort to combat dwindling population numbers, NMFS instituted hatchery programs designed to “increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct.”7 Though generally successful in bolstering population numbers, hatcheries can negatively affect the natural population via competition for prey, increased occurrences of disease, and interbreeding which can produce genetically inferior offspring.8

      The hatchery programs raised the question of whether the hatchery fish should be considered alongside natural fish under the ESA. Through a series of policy decisions, NMFS had found that although hatchery fish could be part of the same ESU as natural fish, absent exceptional circumstances, only natural fish could be listed as endangered or threatened. However, in Alsea Valley Alliance v. Evans in 2001, an Oregon district court found that, if NMFS classifies natural and hatchery fish in the same evolutionary significant unit (ESU), they may not be listed separately under the ESA.9

      To comply with the Alsea decision, NMFS issued a Hatchery Listing Policy in 2005, eliminating the previous distinction between natural and hatchery fish in defining and listing ESUs.10 The updated policy required NMFS to consider the ESU as a whole when determining whether to list the ESU as endangered or threatened. However, under the policy NMFS could still exempt listed hatchery fish from the ESA’s take prohibition.11 On the basis of the new policy, the Upper Columbia River steelhead ESU was downlisted from endangered to threatened, justified primarily by the inclusion of hatchery fish in the ESU.

      Trout Unlimited, along with other environmental groups, filed suit challenging NMFS’ decision not to separate natural and hatchery fish into distinct ESUs and the steelhead’s downlisting from endangered to threatened.12 Additionally, the Building Association of Washington (Building Industry) challenged NMFS’s policy to exempt listed hatchery fish from the ESA’s take prohibition.13

      A California district court ruled that NMFS could continue to include natural and hatchery fish in the same ESU. However, the court held that the Upper Columbia River steelhead population had been improperly downlisted from endangered to threatened under the ESA. The trial court dismissed the Building Industry’s claims, finding that NMFS may consider the contributions of hatchery fish on natural populations and may distinguish between members of an ESU when making listing determinations.

Ninth Circuit Decision
When Congress gives an agency the authority to carry out its laws, the regulations and policies of that agency are given a high level of deference by the courts.14 Unless the courts find an agency’s interpretation or implementation of the law to be “arbitrary and capricious,”15 the agency’s decision shall be upheld. Therefore, if the Ninth Circuit found that NMFS made informed and plausible decisions with regards to the above issues, then the court should defer to the agency’s expertise on the matter.

   The court first addressed the question of whether NMFS should have created separate ESUs for the natural and hatchery steelhead. Trout Unlimited primarily relied upon the alleged dangers posed by hatchery fish to the native population in its argument that the natural and hatchery fish should not be considered in the same ESU. The group claimed that “‘[n]o hatchery has ever been shown to promote the long-term recovery of wild salmon, and countless studies document the harm that hatcheries have caused to wild populations.’”16 However, the court found this to be a simplification of two separate issues: 1) determining “the composition of the ESU”; and 2) later determining “whether to list the ESU.”17

      The listing determination is the appropriate phase in which to consider the potential harms to natural steelheads, not when determining the composition of the ESU. As such, the Ninth Circuit affirmed the trial court’s decision that NMFS’s refusal of Trout Unlimited’s petition to split the two groups into separate ESUs was not arbitrary and capricious.

      Next, the court looked at Trout Unlimited’s claim regarding the downlisting of the Upper Columbia River 'from “endangered” to “threatened.” As part of that claim, the group argued that NMFS should only consider natural components of the ESU when making listing determinations. Building Industry argued that the agency should consider both natural and hatchery components. The court agreed with Trout Unlimited and the trial court’s assessment that the ESA’s main focus is on natural populations and, therefore, NMFS should primarily consider the natural fish when determining the ESU’s endangered or threatened status. However, the ESA requires NMFS to examine the “species” for listing purposes; it does not require NMFS to examine only the naturally occurring members of that species. Furthermore, the Hatchery Listing Policy in question provides that “[h]atchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations,”18 promoting the ESA’s goal of natural population protection. Whether NMFS made the scientifically correct decision is not for the court to decide; as long as the decision was not “arbitrary and capricious” it should be given deference. As such, the Ninth Circuit reversed the trial court’s ruling that NMFS improperly downlisted the steelhead from endangered to threatened.

Conclusion
Though Trout Unlimited and Building Industry may have had valid concerns about NMFS’s policies and practices, courts are restrained from overruling an agency’s plausible and informed decisions unless they are clearly arbitrary and capricious. Using this standard, the Ninth Circuit ruled in NMFS’s favor on all claims.

Endnotes
1.   16 U.S.C. § 1531(b).
2.   16 U.S.C. § 1532(16).
3.   Policy on Applying the Definition of Species, 56 Fed. Reg. 58,612, 58,618 (Nov. 20, 1991).
4.   Id.
5.   16 U.S.C. § 1533(a)(1).
6.   16 U.S.C. § 15638(a)(1)(B).
7.   Trout Unlimited v. Lohn, 559 F.3d 946, 948 (9th Cir. 2009).
8.   Id. at 949 (citing Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed. Reg. 834, 857 (Jan. 5, 2006)).
9.   See Alsea Valley Alliance v. Evans (Alsea I), 161 F. Supp. 2d 1154, 1162 (D. Or. 2001).
10. Trout Unlimited, 559 F.3d at 951. (See Policy on the Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (Jun. 28, 2005).
11. Trout Unlimited, 559 F.3d at 952.
12. Id. at 953.
13. Id.
14. See Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
15. 5 U.S.C. §706(2)(a).
16. Trout Unlimited,559 F.3d at 955.
17. Id.
18. Id. at 958 (citing Policy on the Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,215 (Jun. 28, 2005)).