The Alsea Decision: ESA Off-Ramp or Passing Sideshow?

William Stelle, Jr.
Preston Gates & Ellis LLP
Seattle, Washington

A recent district court decision voiding the listing by the National Marine Fisheries Service (NMFS) of Oregon coastal coho seriously implicates the listings of numerous salmonid stocks in the Columbia Basin and the Pacific coast from Puget Sound to central California. Alsea Valley Alliance v. Dept. of Commerce (99-6265-HO, D.Or.)(Sept. 13, 2001). It will trigger additional lawsuits challenging some or all of these other listings. How it plays out in the end will depend in part on whether the Bush administration decides to appeal and how NMFS decides to cure the "defects" in the other listings in light of this decision if they don't appeal. It will also turn on the persuasiveness of the science associated with the role of hatchery stocks in the rebuilding of wild salmonid populations.

On September 13, 2001, U.S. District Judge Michael Hogan found that NMFS arbitrarily excluded hatchery fish from its listing of Oregon coastal coho as threatened in 1998. The court ruled that the 1998 listing decision was based on distinctions below that of taxonomic level of a distinct population segment (DPS), as that term is defined by the Endangered Species Act (ESA), and thus violated the ESA's prohibition of listing populations of fish or wildlife below the DPS level. NMFS has coined the term "evolutionary significant unit" as the equivalent of a "distinct population segment" for purposes of Pacific salmonids. See Policy on Applying the Definition of Species under the ESA to Pacific Salmon, 56 Fed. Reg. 58, 612 (Nov. 20, 1991). The Alsea court found the ESU policy a permissible construction of the statutory term "distinct population segment."

The Court further found that under the ESA, NMFS (and the U.S. Fish and Wildlife Service) may consider only an entire species, subspecies, or DPS, and that once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS, the listing decision should have been made without further distinctions. In short, NMFS cannot on the one hand determine that hatchery populations are part of a DPS but then decide to exclude them from the listed unit. The judge then proceeded to vacate the listing and remand the matter to the agency for further action.

A coalition of environmental and fishing groups are seeking to intervene in the Alsea case in order to appeal, and the U.S. Department of Justice must also decide whether to appeal. Meanwhile, a coalition of irrigators in the Columbia Basin have formally petitioned NMFS to delist seven other stocks in the Columbia in light of the decision, and served notice of their intention to litigate the issue. There are numerous other listing decisions that appear to share similar characteristics as coastal coho, including Puget Sound chinook, Snake River steelhead, middle Columbia steelhead, lower Columbia steelhead and chinook, upper Willamette steelhead and Chinook, and Columbia River chum. If the government does not appeal Alsea, then NMFS will in all likelihood reexamine its listing decisions in these other circumstances in light of the Alsea decision to determine if the hatchery stocks should be included in the ESUs and, if so, whether the status of the ESUs as a whole continue to warrant listing status based upon the best available information.

One thing is for certain. There were only two parties in the Alsea litigation - the plaintiffs and the United States. That won't happen again.