Judge: Bush policy errs on species protection

A federal judge in Seattle has overturned a Bush administration policy under which federal agencies considered the numbers of hatchery-bred salmon and steelhead when weighing whether to extend species protections.

District Judge John Coughenour ruled that the National Marine Fisheries Service erred when it listed upper Columbia River steelhead as threatened instead of endangered.

The "threatened" listing was based on a decision by the government to count millions of hatchery fish alongside wild salmon when determining what protections to place on several Washington state runs.

Coughenour maintained there is a difference between hatchery and wild fish, and said government policy must be focused on preserving natural life cycles.

"Though it scarcely seems open to debate, the Court concludes that in evaluating any policy or listing determination under the ESA [Endangered Species Act], its pole star must be the viability of naturally self-sustaining populations in their naturally-occurring habitat," Coughenour wrote.

"To be sure, the inclusion of hatchery fish alongside natural fish ... strikes the Court as odd."

Environmentalists heralded Wednesday's decision, while a property-rights group vowed to file an appeal.

Against the advice of many scientists, the National Marine Fisheries Service published its proposed policy for considering hatchery-bred fish in endangered-species listings in 2004.

The agency received more than 27,000 comments on the policy.

A few environmental and recreational groups, including Trout Unlimited, the Sierra Club and Federation of Fly Fishers, filed a lawsuit to reverse the administration's decision.

"We're naturally a little disappointed," said Brian Gorman, a National Marine Fisheries Service spokesman in Seattle. "I just don't know what the next steps will be until the analysis is complete."

Jan Hasselman, an attorney with Earthjustice, said the ruling was important, but he did not foresee immediate land-use or regulatory changes.

Efforts to save upper Columbia River steelhead could include increased fishing restrictions and dam management.

"Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams," he said.

Sonya Jones, an attorney with Pacific Legal Foundation, a property-rights group that repeatedly has sued to overturn Endangered Species Act listings, said the group was "quite surprised" by the judge's ruling.

Her group was preparing to file an appeal, Jones said.

"If this decision stands, it opens up a floodgate of listing decisions," she said. "One more time, the ESA is used to regulate the use of private property."

Seattle Times reporter Hal Bernton contributed to this report.

Alex Fryer: 206-464-8124 or afryer@seattletimes.com