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Ninth Circuit Appeals Court Finds “Biological Opinion” For Federal Hatchery “Arbitrary & Capricious”

A 9th U.S. Circuit Court of Appeals panel ruled 2-1 on Tuesday that the U.S. Fish and Wildlife Service failed to ensure that the salmon hatchery doesn't endanger the tiny remaining bull trout population in Icicle Creek, a tributary of the Wenatchee River.
Dec 09, 2010

PO Box 402 Duvall, WA 98019 • Tel 425-788-1167 • Fax 425-788-9634 • [email protected]

Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
Brian Knutsen, Smith and Lowney, LLP, 206-860-1394

The U.S. Court of Appeals for the Ninth Circuit found that the biological opinion prepared by the U.S. Fish and Wildlife Service for its own Leavenworth National Fish Hatchery was “arbitrary and capricious.” The biological opinion, prepared by the Service as part of its Endangered Species Act responsibilities, evaluated the operations of the Hatchery on “bull trout,” a salmonid species listed as “threatened” under the ESA.  In a December 7 ruling, two judges of a three judge panel ruled in favor of Wild Fish Conservancy, a conservation group based in the Seattle area.  The organization filed a lawsuit against the Service in 2008, claiming that the five-year time frame of the biological opinion allowed the Service to improperly conclude that the Hatchery’s operations were not going to “jeopardize” the continued existence of bull trout.

A series of dams operated by the Hatchery blocks migratory bull trout from accessing their spawning grounds located in the upper reaches of Icicle Creek, a river in the Alpine Lakes Wilderness Area.  Bull trout belong to a family of salmonids that requires very cold water temperatures, and the pristine habitat of the Wilderness Area provides ideal spawning areas.   

“This is a great win for the Icicle Creek ecosystem,” said Kurt Beardslee, executive director of Wild Fish Conservancy.  “A river in a Wilderness Area needs its migratory fish to be complete. We are glad the majority identified the lack of migratory fish passage as the key issue.”   

“The Court correctly found that the Service’s arbitrary five-year period of analysis ignored the long-term devastating effects this seventy-year old Hatchery has on the Icicle Creek bull trout population” said Brian Knutsen, attorney with the firm of Smith and Lowney, LLP, who represented Wild Fish Conservancy in the case.  “While the biological opinion contains good scientific information, the conclusions the Service reached were not supported by the information.” 

“Wild rivers and wild fish do not receive consideration equal to that given hatcheries and hatchery fish, and if we are ever going to recover wild fish populations that needs to change,” continued Beardslee.  “We hope the Service begins to lead by example and operates this and other hatcheries with a greater regard for wild fish populations and their ecosystems.”


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