Wild steelhead win in Fresno Federal District Court

10-28-08Fresno BeeFish policies upheld in court rulingJudge says feds have steelhead discretion...John Ellis http://www.fresnobee.com/local/v-printerfriendly/story/967296.htmlA federal judge in Fresno ruled Monday that the U.S. government has discretion to recognize differences in steelhead fish populations when determining whether they are eligible for listing under the Endangered Species Act. U.S. District Judge Oliver W. Wanger issued a 168-page ruling on two challenges to how the National Marine Fisheries Service viewed California's steelhead populations. One case challenged the government's practice of counting hatchery steelhead populations separately from wild populations. The Pacific Legal Foundation had argued that Endangered Species Act listing decisions could be based on the numbers of hatchery steelhead produced each year. Based on that, the foundation had asked the court to remove five separate populations of steelhead from the list of endangered species. In his decision, Wanger wrote that the "best science available" used by the NMFS "strongly indicated that naturally-spawned and hatchery-born [steelhead] are different." Environmental groups said the Pacific Legal Foundation wanted the federal government to look at wild and hatchery-spawned steelhead the same, which could lead to higher fish numbers and the species being removed from the endangered list. The other case argued that steelhead -- which go out to the ocean -- should be removed as federally listed endangered species because genetically similar rainbow trout -- which don't go to the ocean -- could replace extinct steelhead populations. Addressing that case, Wanger wrote that "the very fact that these two populations end up in different environments for portions of their lives supports dividing them into separate [populations]." Wanger also wrote that "it is undisputed that the steelhead life form is indispensable to the species as a whole." That case was filed by the Modesto Irrigation District. MID officials could not be reached to comment. Steve Mashuda, an attorney with Earthjustice, said he was pleased with Wanger's decision. Addressing the Pacific Legal Foundation lawsuit, he said it would be "biologically bankrupt" to rely 100% on hatchery fish when determining the health of steelhead species. In both cases, Earthjustice said the ultimate goal was to "strip protected status from five populations of wild steelhead trout." Damien Schiff, an attorney with the Pacific Legal Foundation, was disappointed in the ruling, but said the San Francisco-based 9th U.S. Circuit Court of Appeals recently heard oral arguments on two similar cases the foundation also lost -- one in Oregon and another in Washington. Decisions on those appeals are pending.