ELR Citation: ELR 20061
No(s). s. 07-35623, -24750 (9th Cir. Mar 16, 2009)

The Ninth Circuit upheld the National Oceanic and Atmospheric Administration (NOAA)-Fishery's Hatchery Listing Policy for Pacific salmon and steelhead trout and held that the agency may distinguish between natural and hatchery-spawned fish when determining their level of protection under the Endangered Species Act (ESA). Environmental groups argued that because hatchery fish pose threats to wild fish, they should be split into separate evolutionarily significant units (ESUs). But the groups' emphasis on the threats hatchery fish pose to natural fish collapses two analytically distinct phases of agency action: (1) the initial decision regarding the composition of the ESU, concerned only with the "neutral" task of defining a species; and (2) the subsequent decision whether to list the ESU, which takes into account the effects, positive or negative, of hatchery salmon on natural fish to determine whether the ESU is endangered or threatened. Here, NOAA-Fisheries met its statutory duty to consider the effects of hatchery salmon on natural populations; it merely conducted that inquiry at the listing stage rather than at the definitional phase. This is a permissible construction of the ESA and is entitled to deference. The court also rejected the groups' argument that the 2005 Hatchery Listing Policy, which resulted in the downlisting of the Upper Columbia River steelhead, violates the ESA because listing determinations are based on the status of the entire ESU rather than the status of only the natural fish within the ESU. The policy is consistent with the plain language of the ESA and its statutory goal of preserving natural populations. The ESA requires NOAA-Fisheries to "determine whether any species is an endangered species or a threatened species." A species, in turn, includes "any subspecies of fish or wildlife or plants, and any distinct population segment." Consistent with the plain language of the ESA, the policy conducts a status review of the entire "species"—no more, and no less. The court therefore reversed and remanded a lower court's ruling that the policy violated the ESA.

[A prior decision in this litigation can be found at 37 ELR 20145]