Salmon Farming Controversy Goes to Ninth Circuit

Published October 1, 2007

In a fight against a court decision that many have characterized as unnecessary regulation of fishermen, business people, and private property owners, Pacific Legal Foundation (PLF) attorneys on August 2 filed a notice of appeal for Trout Unlimited v. Lohn to be heard by the Ninth United States Circuit Court of Appeals.

The ruling, issued in June 2007 by a United States District Court judge in Seattle, discounts the positive impact of hatchery fish on salmon populations and forces regulators to ignore those fish when determining whether salmon should be listed as “endangered,” according to PLF attorneys.

Dueling Decisions

“Arbitrary and illegal listings under the Endangered Species Act (ESA) result in onerous and unnecessary federal regulation of private property,” said Sonya Jones, an attorney with PLF’s Northwest Center, in Bellevue, Washington.

“In PLF’s landmark 2001 victory in Alsea Valley Alliance v. Evans, Oregon Federal Judge Michael Hogan got it right,” Jones continued. “He followed the plain language of the ESA and ruled that hatchery salmon shouldn’t be ignored when determining whether salmon populations are ‘endangered.’ Hogan’s logical decision paved the way for some return to balance in species protection throughout the Pacific Northwest.”

Relief Sought

In appealing the Trout Unlimited decision, PLF attorneys intend to argue the ruling wrongly concluded that only stream-spawned fish can be considered when making listing determinations under the ESA. The ruling stands in direct opposition to the Alsea decision.

“If regulators ignore hatchery salmon, it’s much more likely that salmon will be declared ‘endangered’ and landowners, farmers, and businesses will face unnecessary regulation under the ESA,” said Jones. “Ultimately, all of us would be losers, because as consumers we end up paying more for goods and services as a result of the increased cost of doing business in a heavily regulated environment.

“And let’s be realistic: Hatchery salmon are real salmon, biologically the same as stream-spawned fish,” said Jones. “In fact, most if not all stream-spawned salmon have parents or grandparents that were spawned in hatcheries.

“We welcome a clear reading by the Ninth Circuit Court of Appeals in this matter and relief for overburdened landowners,” Jones continued.

Fishermen, Farmers Unite

At an August 2 news conference held on the steps of the United States Courthouse in Seattle, representatives from the fishing and farming communities joined the Pacific Legal Foundation to underscore the detrimental impact unnecessary, onerous ESA regulation has on lives and livelihoods.

“Farmers and ranchers have long been the best stewards of the land,” said Britt Dudek, first vice president of the Washington State Farm Bureau.

“This ruling threatens their stewardship with unnecessary regulations, restrictions, and litigation as they sustainably provide the food, fiber, and energy our society depends upon,” Dudek said.

In the current litigation, PLF attorneys represent the Building Industry Association of Washington, Washington State Farm Bureau, Coalition for Idaho Water, and Idaho Water Users Association.

Harold Johnson ([email protected]) is director of media for the Pacific Legal Foundation.

For more information …

Trout Unlimited v. Lohn, W.D.Wash.:

Alsea Valley Alliance v. Edwards, D.Or.: