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Courts issue two fishy rulings
Posted by: McQ on Monday, September 03, 2007

Endangered species? John Lott asks:
Is a salmon born in a hatchery a different species from the same salmon born in the wild?
Is a test tube baby a different species that one produced through natural fertilization?
It is hard to believe, but recent Federal court rulings are claiming that otherwise genetically identical fish are separate species, forcing an appeal being announced recently to the 9th Circuit Court.

Two court decisions in the last two months show how much is at stake in these questions. In mid-June, Judge John C. Coughenour, of the Western District of Washington, ruled that "human interference" and the "unnatural" way that hatcheries maintain salmon populations was unlawful. The judge then ordered that the Upper Columbia River steelhead remain on the endangered species list.

Just this month, Judge Michael Hogan in Eugene reached a similar conclusion. After Hogan's decision, an attorney for the environmental group Earthjustice said "The debate over hatchery fish should be considered [in counting the number of salmon is] conclusively over."

These decisions will dramatically affect a lot of people living in the Pacific Northwest. Protecting the salmon will make water much more difficult to obtain, and, without irrigation permits, many farmers and ranchers will have to stop watering their crops and livestock. Large areas of private property will have to be set aside for any species listed as threatened or endangered. The commercial and recreational fishing industries in the Northwest, which generate more than $2 billion annually, will also be affected.
And yet, other than the clipped fin on the hatchery fish, there is absolutely no other way to tell them apart.

Does this make sense folks? The big distinction:
Environmental groups claim that some hatchery fish behave differently, but that is hard to take seriously. Why ignore all hatchery fish just because some behave differently?

Think where that logic ultimately leads. By defining different species based on behavior and not genetics, how many different species of humans do you think that there would be? It's kind of like differentiating species of humans based on whether you were born in a hospital or at home.

The claimed distinction largely stems from hatchery and natural fish survival rates. Hatchery fish have a higher survival rate from egg to smolt, but a lower survival rate from smolt to adult. Yet, that is hardly surprising. Many of the weaker naturally spawned fish have die off as hatchlings, leaving fewer of them to die off in the next stage.
If the purpose of the law is to ensure the survival of the salmon and that is being accomplished through hatcheries (which, btw, have been around for a 100 years) why does it make sense to distinguish between "wild" and "hatchery" when the only real result is to punish humans?
 
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why does it make sense to distinguish between "wild" and "hatchery" when the only real result is to punish humans?
That’s a sufficient reason right there. Those soi desant animal activists don’t care about animals, they just hate humans.
 
Written By: triticale
URL: http://triticale.mu.nu
Actually, rather than hatred of humans, most wildlife scientists are motivated by a curious desire to establish reliable facts.

And why not count zoo-raised animals in determining whether the wild species is endangered? You can hardly tell the difference, right?

There are real, scientifically observed differences between hatchery and wild fish. This is an important consideration in determining whether a population will be sustainable; pretending otherwise is just playing see-no-evil.
 
Written By: Mithras
URL: http://harnly.net
Doesn’t this make cows, dogs, chickens, and cats endangered too? I mean, the number of those critters in the wild is pretty small, I imagine.
 
Written By: FisherOfMen
URL: http://
Sounds like another case where there’s a hole in the laws and, surprise, a judge decided to fill it. Its Congress’ responsibility to clean up this mess.
 
Written By: jpm100
URL: http://
there’s actually a tremendous amount of evidence that hatchery fish do not act like wild fish and as a result have much higher pre-spawn mortality levels.

since catch levels are in essence set as a percentage of the total population, counting hatchery fish on a 1:1 basis with wild fish could quickly lead to extermination.

also not mentioned is that the USFWS and NMFS have the goal of maintaining and restoring salmonid runs in all the major historic rivers from which the fish originally came. A certain small percentage of wild salmonids will go wandering each year and help repopulate runs in rivers from which the salmon have been wiped out. Hatchery fish are much poorer at this.

note: Congress has already addressed this issue by including "distinct population segment" in the definition of "species" in the ESA. The judge was quite right as a matter of law ruling the way he did. In fact, it would have been reversible error to rule the other way.
 
Written By: Francis
URL: http://
Just to follow up, the level of anti-science rhetoric coming out of Q&O at times is rather distressing. It gets dressed up as hand-wringing about "hysteria" or "forced conformity", but it’s actually just political, gut-based rejection of the scientific process and community. It’s pretty disappointing for an otherwise well-balanced and thoughtful blog.
 
Written By: Mithras
URL: http://harnly.net
If the goal is to simply keep a species around, then, sure, a hatchery fish is the same as a wild one. But if the goal is to keep a population of wild fish around, then it makes sense to differentiate, no? After all, why else are they tagging the hatchery fish?

And of course, wild fish stocks are something that can be killed off by a "tragedy of the commons" effect. I believe that would be considered to be a market failure and justify some government intervention. Or am I wrong?
 
Written By: Harun
URL: http://
Mithras -

Science is not always correct, nor is science always wielded as an instrument of truth by ideologues. Skepticism about the environmental movement is well-deserved and that’s my take of the thrust of this particluar posting. It would be more accurate to call this posting anti-environmentalist than anti-science.
 
Written By: Grimshaw
URL: http://
Just to follow up, the level of anti-science rhetoric coming out of Q&O at times is rather distressing.
Mithras, most of the links on your google link are dated from the 90’s. In the 90’s "science" had it that you were to eat no more than 3 eggs a week and stay away from butter. "Science" no longer makes those claims. As a heart patient on special diets I know. This tells me that science is not always right and not at all immutable and a skeptical eye may be warranted.
I lived in Alaska for 27 years and fished alot. There have been difficulties in establishing hatchery runs but there have been a few outstanding successes as well. A distinction should be made between hatchery fish and farmed fish. I don’t eat farmed fish as the taste suffers. Fish farming in Alaska is not done. That’s probably due to the influence of the United Fishermen of Alaska.
Francis said:
also not mentioned is that the USFWS and NMFS have the goal of maintaining and restoring salmonid runs in all the major historic rivers from which the fish originally came. A certain small percentage of wild salmonids will go wandering each year and help repopulate runs in rivers from which the salmon have been wiped out. Hatchery fish are much poorer at this.
This is true but extremely rare. The fish that wander accompany other fish of that particular stream suggesting that stream is not yet wiped out. There is a term for those fish that I can’t remember but there are very rare. Also immature salmon not yet ready to spawn will occasionally with the spawning salmon. These are called "Jacks."
Well, see Grimshaw beat me to that point.
 
Written By: tom scott
URL: http://
Doesn’t this violate "Brown vs Board of Education" ?
 
Written By: Neo
URL: http://
Doesn’t this make cows, dogs, chickens, and cats endangered too? I mean, the number of those critters in the wild is pretty small, I imagine.
Veal certainly are. They’ve never raised one to maturity nor gotten them to reproduce in captivity.
 
Written By: triticale
URL: http://triticale.mu.nu
Having glanced at abstracts of the study purporting to show to show differences in the behavior of hatchery and entirely wild fish, I am struck by this.

Environmentalists want hatchery fish to be uncounted, where a study claimed to support them and court rulings supportive of them only show they should be pro-rated in counting—if in fact there is any constitutionally founded purpose of the national government regarding them at all. That is of course a different issue.

Hatchery fish could only be held entirely uncountable for purposes of species health measuring to the extent their offspring had such differing behaviors as to make them "not salmon".

Differences in survival rates and reproductive success that affect only hatchery born individuals without leading to new phenotypes as expressed in their offspring permit no legitimate distinction be made in counting individuals towards overall species health.

If 90% of wild individual who are caught reproduce, and 80% of hatchery raised individuals caught reproduce, and you catch 100 of each and the offspring are alike, then towards a count made for purposes of species health, you have 170 fish.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
The offspring from hatchery fish in the wild, and non-hatchery fish in the wild will look, and act, identically for the purposes of survival as long as they have always operated "in the wild".

If the hatchery fish have a higher mortality because they have learned bad habits in the hatchery environment(postulated) then nature will sort that ought quickly enough won’t she.

And if certain areas can’t be restocked successfully via hatchery program, perhaps they ought to be looking at the reason those areas were "fished out" in the first place (meaning by the way, oh best beloved, that the wild fishies did no better than the hatchery fishies did in that area) instead of assuming that mere re-stocking would solve the problem, and then blaming the inability of hatchery fish to survive as well as their dead, provably non-surviving, natural kin did (or didn’t do) in that same environment.
 
Written By: looker
URL: http://
The post was about the law of the Endangered Species Act. The ESA, like many federal statutes, delegates substantial authority to an administrative agency, in this case USFWS/NMFS. One area of debate among ESA experts has long been the degree to which subspecies and distinct population segments should receive the protection of the act. This issue was so hotly debated that the agencies were eventually forced to go through a rulemaking process. One outcome of that rulemaking process was that the ability of the USFWS/NMFS to list a particular fragment of a species that has a large geographic range was limited. However, the USFWS argued for and obtained the power to list different river runs of salmonids, on the grounds that the original legislative intent of the ESA was to do just that.

When the agencies went through the process of listing various river runs, there was a strong scientific debate on the issue of hatchery fish. Ultimately the agencies, in accordance with the powers vested in them by Congress, made a series of decisions about various river runs and how to deal with hatchery fish. Had the science run one way only, the agencies would not have had the evidence necessary to defend the rule in court.

(this is a simplified version of what happened.)

So, the courts ruled precisely consistently with the law. Counting the hatchery fish would have put the court in the position of overruling government scientists on a scientific issue, and that would be judicial activism.
 
Written By: Francis
URL: http://
Francis is right when she states:
Congress has already addressed this issue by including "distinct population segment" in the definition of "species" in the ESA. The judge was quite right as a matter of law ruling the way he did. In fact, it would have been reversible error to rule the other way.
The problem with the court ruling is Congress mandated that the "agencies" should designate "Distinct Population Segment" (DPS) and there are specific processes in place for this process. IMHO, the court overstepped it’s bounds by maintaining the species on the list and instead should have remanded the process back to the agency for a DPS determination.
 
Written By: SShiell
URL: http://
I don’t see how the question is whether or not hatchery fish and wild fish should be counted separately... not when we’re talking about a *judge* deciding that the two populations are legally different *species*, which is ridiculous.

I imagine that the issue is complicated and I’d think, proven by the mere fact of maintaining hatcheries, that the people involved in hatcheries sincerely want to help the wild populations and reintroduce fish to places they’ve disappeared.

Why is this an issue for the courts at all?

And a judge deciding what a specie is brings to my mind the specter of judges deciding other scientific issues... and it shouldn’t be assumed that they *wouldn’t* decide in favor of creationism, if what we’re talking about is science by judicial decree.

In other words... is the precedence, stupid.
 
Written By: Synova
URL: http://synova.blogspot.com
Counting the hatchery fish would have put the court in the position of overruling government scientists on a scientific issue, and that would be judicial activism.
I was with you until this.
Are you implying that judges ought to color their rulings to show favoritisim to the position of government scientists?
Surely that didn’t quite come out the way you intended.
That sort of behavior obviates the need for a judge.
 
Written By: looker
URL: http://
"And yet, other than the clipped fin on the hatchery fish, there is absolutely no other way to tell them apart."

"there’s actually a tremendous amount of evidence that hatchery fish do not act like wild fish"

Trofim Lysenko would be proud. His theories seem to be gaining ground.


"Veal certainly are."

LOL. Good one.
 
Written By: timactual
URL: http://

 
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