Just another goldfish down the toilet?: the fate of Pacific salmon after Alsea Valley and the de facto rescission of the 4(d) rule.

• Author: Perron, Brian J.

1. INTRODUCTION II. "LET ME GO WILD": PACIFIC SALMON ON THE BRINK A. The Life Cycle of Pacific Salmon B. The Illusion of the Hatchery Solution III. CPR FOR SALMON: BRINGING FISH BACK FROM THE BRINK A. The NMFS Listings B. The Municicipal, Residential, Commercial, and Industrial Limit C. Impact of the 4(d) Rule on Local Governments IV. CRITICISMS OF THE 4(D) RULE A. Local Government Concerns: Takings Liability B. Affordable Housing Crunch C. Regional Concerns: Increased Urban-Rural Disparity D. Tenth Amendment Concerns with the 4(d) Rule V. NMFS's CAPITULATION: THE ALSEA VALLEY DECISION VI. THE AFTERMATH OF ALSEA VALLEY AND THE DECISION NOT TO APPEAL VII. MOTIVATIONS FOR FOREGOING APPEAL IN ALSEA VALLEY VIII. CONCLUSION I. INTRODUCTION

   More than just a child's goldfish won at the Puyallup Fair (2), salmon are the spiritual symbol of the Pacific Northwest. Yet despite the salmon's iconic place in Northwest lore, many salmon runs face extinction. (3) Since the late 1880s, Northwesterners have struggled with the issue of salmon decline and the need for conservation in a rapidly developing region. (4) Over the years, salmon conservationists have suffered countless empty promises of salmon recovery including hatcheries, (5) international treaties allocating and limiting harvest, (6) federal statutes prohibiting water pollution (7) and requiring consideration of salmon in hydropower generation, (8) and listing salmon as "threatened" and "endangered" species under the Holy Grail of conservation measures, the Endangered Species Act (ESA). (9) Given the multitude of status quo-oriented recovery approaches, it was a refreshing surprise when, in July 2000, the National Marine Fisheries Service (NMFS) (10) promulgated regulations under section 4(d) of the ESA for purposes of salmon recovery. (11) Unlike other provisions of the ESA designed merely to avoid take of "endangered species," (12) section 4(d) requires NMFS to adopt rules necessary for the conservation of "threatened species." (13) In the past, section 4(d) had been used only to extend threatened species the same protections given to species listed as endangered. (14) In issuing the final 4(d) rule for threatened Pacific salmon, however, NMFS employed 4(d)'s flexibility by detailing how states and localities could choose a proactive role in the recovery of threatened salmon. Further, the rule allows states and localities to obtain exemptions from standard ESA provisions and penalties by significantly modifying existing laws, including land-use regulations, to conform with NMFS's salmon recovery guidelines. (15)

   Pacific Northwesterners were still getting over the shock of the salmon listings and slowly beginning to accept the potential breadth and scope of the final regulations as a part of everyday life when concepts of "everyday" were shattered by the terrorist attacks of September 11, 2001. Yet, even as our President encouraged a return to normalcy, (16) Americans consistently commented that things once important no longer were. (17) And so, little fanfare or public debate met the September 10, 2001 decision of a federal judge in Oregon, Alsea Valley Alliance v. Evans (Alsea Valley). (18) That decision set aside NMFS's 1998 listing of Oregon Coast coho salmon for failure to consider hatchery fish when making the listing decision. This case, in turn, has put nearly all other Pacific salmon and steelhead listings, along with the 4(d) rule, in doubt.

   The ESA listings and final 4(d) rule had been an encouraging sign that the federal government was finally taking steps to bring salmon back from the brink of extinction. However, the salmon's future is once again uncertain as the Bush Administration did not appeal Alsea Valley, and, instead, is reevaluating twenty-three of twenty-five salmon and steelhead listings to determine whether continued listing is warranted. (19) These events highlight a pivotal moment in the debate over salmon restoration and call for scrutiny of the role hatchery-bred fish should play in salmon recovery, 4(d) rule criticisms, the Alsea Valley decision, and the administration's subsequent decision to forego an appeal.

   Accordingly, Part II of this Article will briefly discuss the life cycle and status of Pacific salmon, as well as the debate over hatchery-bred fish. Part III will provide background on the listings and final 4(d) salmon rule. Part IV scrutinizes the fears of developers who claim the rule will negatively affect housing affordability and further exacerbate urban-rural disparity in Washington state. This section also addresses the arguments raised by state and local officials that the rule will expose them to enormous takings liability and that the rule violates the Tenth Amendment. Part V reviews the Alsea Valley decision, and Part VI examines the likely aftermath of the decision. Finally, Part VII attempts to make sense of the Bush Administration's decision not to appeal the judgment, concluding with the notion that the misguided delisting will profoundly impact salmon recovery efforts in the Northwest.

2. "LET ME GO WILD": (20) PACIFIC SALMON ON THE BRINK (21)

   The Pacific Northwest has been described as "wherever the salmon can get to," (22) but by that definition, the region has been vanishing before our very eyes. Since the passage of the Northwest Power Act in 1980, (23) three billion dollars have been invested to save the salmon, yet, by nearly all measurements, the effort has fallen miserably short (24) as salmon have now disappeared from roughly forty percent of their historic range. (25) To many local communities, saving salmon boils down to economics--the region has lost an estimated seventy-two thousand salmon related jobs over the last thirty years, and now loses an estimated $1.5 billion in salmon-based income annually. (26)

   However, numbers on a corporate ledger alone do not explain the salmon's importance, as they are a key component of the "evolutionary and cultural heritage of the Northwest." (27) Fossil records date the first presence of salmonids in the Northwest at forty million years ago, with their early ancestors appearing near the end of the dinosaur age about one-hundred million years ago. (28) Native peoples of the Northwest have been fishing for at least ten-thousand years, as salmon became the centerpiece of tribal culture and religion. (29) The arrival of the commercial fishing industry to the Columbia River in 1866 gave birth to unique communities throughout the state that maintain their fishing culture to this day. (30) During the salmon season, it is a common sight to see what seems to be every father and son, husband and wife, man and dog, loading into boats or joining others on the various river banks to cast a line across the water with the hope that it will be met by a tug on the other end. Needless to say, salmon extinction is not an option. Unfortunately, while expressing a strong interest in salmon recovery, (31) Northwesterners have at the same time foolishly focused on supplanting wild runs with hatchery fish to justify the loss of healthy river ecosystems through ecologically unsound logging, grazing, irrigation, power generation, overfishing, and urbanization. (32) To truly understand that hatchery fish are not the answer to declining salmon populations, one must first understand the salmon's life cycle.

   1. The Life Cycle of Pacific Salmon

      There are five species of Pacific Salmonids: (1) chinook or king salmon (Oncorhynchus tshawytscha); (2) sockeye or red salmon (O. nerka); (3) coho or silver salmon (O. kisutch); (4) chum or dog salmon (O. keta); and (5) pink or humpback salmon (O. gorbuscha). (33) The genus name Oncorhynchus comes "from the Russian term for 'hooknose,'" and "refers to the hooked upper jaw that males develop during mating." (34) The steelhead trout (O. mykiss), is a sea-run rainbow trout. (35) Most salmon are anadromous, meaning that they begin their lives in freshwater, grow to maturity in the ocean, and return to their natal streams to spawn, where they spend the end of their days. (36)

      Critically, over the course of their evolution, the Pacific salmon species have developed diverse life histories and traits that have allowed them to maximize their survival according to their habitat. (37) It is important to understand that general life history traits of salmon vary with each population of a particular species, and have been tailored to that population's local habitat. (38) Salmon generally finish incubating and emerge from their eggs as alevins within two months, spending the next six to eight weeks hiding in river gravel and feeding off the nutrients in their yolk sacs. (39) Once the sac is absorbed, alevins become fry and leave the protection of their gravel hideaways, foraging for the small aquatic organisms that they rely on for nourishment. (40) Some salmon remain in their natal streams or lakes for nearly three years before beginning their migration to the sea; others begin this journey immediately. (41) This freshwater fife stage is most dangerous for salmon, as disease, starvation, and predation cause significant loss of salmon fry. (42)

      After salmon fry grow into parr (43) and descend toward the sea, they undergo a series of physiological changes called smoltification. (44) During smoltification, the salmon's blood chemistry changes, the fish grow scales, gain their silver hue, and begin their seaward migration. (45) Salmon that survive this transition from freshwater to saltwater will spend one to five or more years feeding and grow to enormous sizes. (46) Pink and sockeye spawn after a one to three year ocean maturation period, during which time they will grow to five to eight pounds; chum, steelhead, and coho mature for a similar period of time, but grow larger, eighteen to twenty pounds; and chinook mature for three to six years, growing to between eighteen and sixty pounds. (47)

      After this period of ocean feeding, Pacific salmon make the...