Clarity sought in muddied salmon waters.

Byline: Bill Bishop The Register-Guard

PORTLAND - A panel of federal appeals court judges weighing whether wild salmon and hatchery salmon in the same river deserve the same environmental protections indicated Thursday it will first decide whether environmentalists have the right to bring the issue to court.

The judges' ruling could guide future policies for protecting threatened wild salmon, or - if they throw the case out - leave a key question about the issue in legal limbo.

Thursday's hearing by three judges of the 9th U.S. Circuit Court of Appeals grew from a controversial 2001 ruling by U.S. District Judge Michael Hogan in Eugene, who said federal officials must count hatchery salmon along with wild salmon when determining whether the Alsea River coho salmon population is threatened.

The ruling would effectively remove threatened species protections for the fish and was seen as a major victory for property rights advocates who seek a lifting of endangered species regulations on logging, agriculture and other activities in watersheds.

Hogan's ruling brought a review of protection measures and generated proposed new rules on two dozen threatened salmon runs in the Northwest. It also prompted similar lawsuits in Oregon and Washington.

However, the federal court appeal is far from the last word on the issue.

National Marine Fisheries Service officials may yet rewrite their rules to exclude hatchery salmon from being counted with their wild brethren, lawyers said Thursday.

"That's a case and an appeal for another day," said Russell Brooks, attorney for the conservative Pacific Legal Foundation, which filed the lawsuit by landowners in the Alsea Valley Alliance that produced Hogan's 2001 ruling.

Brooks argued that currently, while new rules are under development, environmentalists have lost nothing thus far because protections have remained in place during the process.

Because they are not impacted, they have no legal standing to bring the issue to court, he told the judges.

Patti Goldman, a Seattle lawyer representing conservation and commercial fishing groups, said the law allows the groups legal standing because Hogan specifically permitted them to appeal his ruling.

Arguing against Hogan's conclusions, Goldman told the judges that hatchery and wild salmon are significantly different and should not be considered to be the same fish. Hatchery fish return to spawn earlier and lay larger eggs that are more susceptible to floods. When they interbreed with wild fish, the survival rate of offspring is not good, she said. Hatchery fish are not naturally sustainable, she said.

Hatcheries do not aid in rebuilding native runs and historically have not been managed for that purpose, Goldman said.

Some hatcheries are considered detrimental to wild fish runs because their fish compete with the wild fish.

Turning to technical details in the case, Goldman said Hogan misinterpreted the law by giving rigid scientific meaning to the phrase "distinct population segment," while Congress actually intended the phrase to provide flexibility for fisheries managers to define segments of populations.

"Hatchery fish are different in very significant ways," she said.

Fisheries service lawyer Ellen Durkee told the panel about the agency's current efforts to revise its endangered species decisions in accordance with Hogan's ruling. The process involves redefining which fish are covered under each "distinct population segment" in the various runs.

In his presentation, Brooks briefly repeated the arguments that won Hogan's support - that the wild and hatchery coho salmon in the Alsea River share the same habitat, are genetically identical, interbreed, and are indistinguishable but for the clipped fin that denotes fish released from a hatchery.

"You can't tell these fish apart," Brooks told the panel. "They can't tell the difference between themselves."

The case began in 1998 when a Philomath man on a hunting trip stumbled upon wildlife regulators clubbing to death hatchery coho salmon and destroying their eggs in the process of closing the Fall Creek hatchery east of Waldport. The closure was planned to aid in rebuilding the native salmon run after fisheries managers determined that the hatchery fish were competing with native coho.

After Thursday's hearing, Brooks said any effort by fishery managers to consider wild and hatchery fish separately in order to continue protections for wild fish would "raise a lot of serious legal questions."

Goldman said the case is part of growing pressure on government agencies to abandon efforts to restore native salmon.

"There is a lot of pressure on the administration to change their focus," she said. "The ultimate question is whether we need to produce salmon in rivers or produce salmon in hatcheries."

The worst thing that could come from Thursday's hearing, Goldman added, is for the judges to avoid ruling on the merits of Hogan's decision by simply saying conservationists have no role in the issue at the moment. That would leave courts and fishery officials to grapple continually over the impact of hatcheries and their role in managing wild salmon runs.

"This battle will go on for a long time if we don't know what the underlying law is," Goldman said.

The three-judge panel, consisting of judges Clifford Wallace, Richard Tallman and Donald Lay, probably will decide the case before year's end.