Trout Unlimited v. Lohn

Decision Date16 March 2009
Docket NumberNo. 07-35750.,No. 07-35623.,07-35623.,07-35750.
Citation559 F.3d 946
PartiesTROUT UNLIMITED; American Rivers; Pacific Rivers Council Wild Steelhead Coalition; Native Fish Society; Sierra Club, Plaintiffs-Appellees, v. D. Robert LOHN, in his official capacity as Regional Administrator of National Marine Fisheries Service Northwest Regional Office; National Marine Fisheries Service, Defendants-cross-claimants-Appellees, Building Industry Association of Washington; Washington State Farm Bureau; Coalition for Idaho Water; Idaho Water Users Association, Defendant-intervenors-Appellants. Trout Unlimited; American Rivers; Pacific Rivers Council Wild Steelhead Coalition; Native Fish Society; Sierra Club, Plaintiffs-Appellees, v. Building Industry Association of Washington; Washington State Farm Bureau; Coalition for Idaho Water; Idaho Water Users Association, Intervenors, D. Robert Lohn, in his official capacity as Regional Administrator of National Marine Fisheries Service Northwest Regional Office; National Marine Fisheries Service, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Damien M. Schiff, Pacific Legal Foundation, Sacramento, CA, argued the cause for the defendant-intervenors-appellants. Brian T. Hodges and Sonya D. Jones, Pacific Legal Foundation, Bellevue, WA, and James S. Burling, Pacific Legal Foundation, Sacramento, CA, filed the briefs.

Patti Goldman, Earthjustice, Seattle, WA, argued the cause for the plaintiffs-appellees and filed the brief. Jan Hasselman, Earthjustice, Seattle, WA, was on the brief.

Ellen J. Durkee and David C. Shilton, Environmental & Natural Resources Division, U.S. Department of Justice, argued the cause for the defendants-appellees-appellants and filed the briefs. Michael Bancroft and Chris McNulty, NOAA Office of General Counsel, Seattle, WA, and Ronald J. Tenpas, Assistant Attorney General, and Lisa Russell, U.S. Department of Justice, were on the brief.

James L. Buchal, Murphy & Buchal LLP, Portland, OR, filed a brief of Amicus Curiae Fishery Scientists.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CV-06-00483-JCC.

Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the National Marine Fisheries Service may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act.

I
A

Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River.

Pacific salmon have a long and turbulent evolutionary history. Salmon have survived geological disruptions such as the rotation of the Cascade Mountains, which caused coastal rivers to change their patterns; the most recent ice age, which covered the present location of Seattle with a sheet of ice 4,000 feet thick; and the warming and frequent floods attendant on the thawing of that glacier. Such natural challenges have resulted in a set of genetically diverse salmon populations. Accordingly, salmon populations can vary greatly even if geographically close, depending on their adaptations to conditions in the natal stream.

Human development in the Pacific Northwest has long threatened many salmon and steelhead species with extinction.1 "[F]orestry, agricultural, mining, and urbanization activities ... have resulted in the loss, degradation, simplification, and fragmentation of habitat." Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed.Reg. 834, 856 (Jan. 5, 2006). In particular, "logging, road construction, [and] urban development" have caused "declines in [steelhead populations] in the past several decades." Id. These declines have caused concern to environmental organizations and fisheries alike.

To compensate for reduced natural salmon populations, "extensive hatchery programs have been implemented throughout ... the West Coast." Id. at 857. Such programs artificially increase salmon abundance by capturing and killing returning adult females, harvesting their eggs, and fertilizing them with the sperm of returning adult males. After being kept in the hatchery during their youth, hatchery salmon are released into the wild, where most complete the same migration to and from the ocean as natural salmon do. After hatchery salmon return to their natal stream, they are killed and the assisted fertilization process is repeated. Not all hatchery fish return to the hatchery, however; some stray from the hatchery to mate and spawn in the wild.

Hatchery programs generally have two goals which can conflict with one another: to increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct. "While some of the programs ... have been successful in providing fishing opportunities, many such programs have posed risks to the genetic diversity and longterm reproductive fitness of local natural steelhead populations." Id. The risks hatchery programs pose to natural fish include:

excessive mortality of natural steelhead in fisheries targeting hatchery-origin steelhead; competition for prey and habitat; predation by hatchery-origin fish on younger natural fish; genetic introgression by hatchery-origin fish that spawn naturally and interbreed with local natural populations; disease transmission; degraded water quality and quantity, and impediments to fish passage imposed by hatchery facilities.

Id. Interbreeding poses particular risks to natural salmon populations because it can result in decreased genetic differentiation. On the other hand, "the use of conservation hatcheries may play an important role, under appropriate circumstances, in reestablishing depressed West Coast [salmon and] steel-head stocks." Id.; see also Proposed Listing Determinations for 27 ESUs of West Coast Salmonids, 69 Fed.Reg. 33,102, 33,142 (June 14, 2004).

B

Congress enacted the Endangered Species Act ("ESA") in 1973 "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b). The ESA's "primary purpose ... is to prevent animal and plant species endangerment and extinction caused by man's influence on ecosystems, and to return the species to the point where they are viable components of their ecosystems." H.R.Rep. No. 95-1625, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9455.

As part of this mandate, the ESA requires the National Marine Fisheries Service ("NMFS") to do three things that are at issue in these appeals. First, NMFS must decide whether a population of fish or wildlife constitutes a "species" or a "distinct population segment" within the meaning of the ESA. The ESA defines "species" to include "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." 16 U.S.C. § 1532(16) (emphasis added). "The ability to designate and list [distinct population segments] allows the [agency] to provide different levels of protection to different populations of the same species." Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir.2003). The ESA does not define the term "distinct population segment."

Second, after deciding whether a population of fish or wildlife constitutes a "species" or a "distinct population segment," NMFS must decide whether to "list" the species or distinct population segment. A species or distinct population segment may be listed as either "endangered" or "threatened." 16 U.S.C. § 1533(a)(1). An "endangered" species "is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A "threatened" species "is likely to become an endangered species within the foreseeable future." Id. § 1532(20). A species may be considered "threatened" or "endangered" because of "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1)(A)-(E). The ultimate listing determinations must be based "solely on ... the best scientific and commercial data available after conducting a review of the status of the species." Id. § 1533(b)(1)(A).

Third, if NMFS decides to list a species or a distinct population segment as "endangered" or "threatened," it must accord the species or the distinct population segment various legal protections. For example, an endangered species may not be "take[n]," meaning that no one may "harass, harm, pursue, hunt, shoot, wound kill, trap, capture, or collect" it. Id. §§ 1538(a)(1)(B), 1532(19). A threatened species, on the other hand, is subject to NMFS's discretionary protection. See id. § 1533(d) ("Whenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species."). "Conservation" measures "may include regulated taking" in "the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved." Id...

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