Endangered? Ha! The salmon that never was
Salmon have returned to the spotlight with Judge Hogan's decision. This found that an Evolutionary Significant Unit is the smallest unit that can be treated under the Endangered Species Act. The National Marine Fisheries Service tried to subdivide an ESU by declaring coho salmon with unclipped fins to be one species, and those with clipped fins another creature.
The Judge found that the fish occupied the same waters at the same time, and inter-breed and therefore, is but one species. If the 'natural' fish only are counted, there aren't lots of them. If the hatchery fish are also counted, there are oodles of fish, too many to make a case for their extinction.
The Administration will not appeal the ruling. The Environmentalists are making angry noises, but none can show standing to appeal, nor are they willing to risk the 6 figure salaries of their executives in an iffy lawsuit. (If they lose they pay for both lawyers and court costs).
Coupled with the huge returns of salmonids this year, the highest counts since 1938, when counting was invented, this seemed to be a good time to petition to have the salmon delisted. The decision considered the coho specifically, but is certain to extend to all other salmonid runs that are part hatchery and partly unclipped finned. A petition for delisting, by Attorney James Buchal, makes a good case for the Plaintiffs.
This petition notes that the NMFS has decreed as a final rule (law), that a 'distinct population segment' as noted in the ESAct, is now called an ESU. The Act says they cannot be subdivided. NMFS may not, therefore, further subdivide an ESU and may not include hatchery stocks in the ESU but exclude them from the listing. This was done, however, in that no limits were placed on harvesting clipped-fin fish, but those with fins must be returned to the water. The two kinds are not isolated populations and share the same rivers, habitat, and seasonal runs, therefore, NMFS may not redefine ESU's to include only 'natural' fish.
NMFS can extend a listing to include hatchery stock only if it is found that the entire ESU is in danger of extinction. This case cannot be made. It is not generally known, but the Pacific Northwest furnishes only 5% of the harvest of salmonids. Canada furnishes about 10%, Alaska nearly 50% and Japan and Russia furnish the remaining 35%.
Certainly no one wants to see the salmon vanish from the Pacific Northwest (Montana, Idaho, Washington, Oregon, and California) but it is patent that if some disaster happened to extirpate the salmon here, ample stocks remain in other areas to replenish the streams of the PNW.
Mr. Buchal maintains that the idea of 'natural' fish is arbitrary and capricious since salmon stray into other streams than their native waters, and the huge numbers of hatchery fish released between 1872 and 2001 make it speculative that any 'native' fish are left. All salmon must have some hatchery relatives.
Further, the listing of coho as threatened in the Southern Oregon and Northern California ESU which comprises the Klamath, Rogue, and Trinity Rivers is illegal, since it neglected to include the hatchery fish from the Matole, Eel, Trinity, and Rogue Rivers and Rowdy Creek hatcheries. Again, their inclusion would have made impossible a finding of 'threatened' with extinction.
Then one comes to the listing of the shortnose and Lost River suckers. Testimony by David Vogel before the full congressional committee on Natural Resources was devastating to the agencies that declared the sucker and the Klamath coho required the farmer's irrigation water. His testimony is available on the web. His experience and education clearly make him a worthy witness.
Briefly, Mr. Vogel pointed out existing information that shows since the listing of the suckers in 1988, the fish populations are now much higher and these increased population figures were ignored by USFWS in their Biological Opinion. Annual studies showed that the sucker do better in a dry year than a wet year and holding the Upper Klamath Lake at a high level causes massive sucker kills. And he documented the years of these losses. And the tens of thousands of suckers now swimming around in the Klamath Basin, outside of the original habit as defined in 1988. All this information was available to USFWS at the time of the Biological Opinion, yet they ignored it, in favor of Rural Cleansing.
Then Mr. Vogel turned to the ruling by NMFS that declared that all available water must be sent down the Klamath to 'save' the coho. He pointed out available information that shows that critical habitat for coho is not in the mainstem where the water was released, but in the tributaries where the young fish hatch and grow for a year. NMFS ignored this important data. Thousands of pages of data were ignored by NMFS that show the recent and historical flows from Iron Gate Dam has no limiting effect on coho in the Klamath River.
"The agencies action resulted in too much warm water dumped
in the wrong place, at the wrong time, and for all the wrong reasons.
The purported biological benefits to coho salmon will not be realized,"
stated Mr. Vogel.
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