A federal appellate judge panel spent part of Monday morning playing devil's advocate, grilling attorneys about whether hatchery salmon and steelhead and their naturally spawned kin should be judged differently, or the same, and whether federal experts should be given deference to make such decisions.

The hearing pooled arguments in two lawsuits directed at NOAA Fisheries Service Endangered Species Act listing decisions made in 2005 and 2006.

In one case a U.S District Court judge upheld listing decisions for 16 West Coast salmon "evolutionarily significant units." ESUs, as defined by NOAA Fisheries, are groupings of interdependent salmon populations that together make up a species.

"Congress did not specify how NMFS should conduct a species review," U.S. District Court Judge Michael R. Hogan said in his Aug. 14, 2007, order.

The Alsea Valley Alliance, represented by the Pacific Legal Foundation, had said NOAA's assessment of the stocks' status did not give genetically similar hatchery fish the same status as naturally produced salmon in determining the overall health of the stock.

Nor did the resulting protective regulations exhibit equity for hatchery fish, the group claimed.

In the other lawsuit, a federal judge called illegal a NOAA decision to downlist the Upper Columbia River steelhead ESU from endangered to threatened because the "hatchery listing policy" used in making the decision doesn't comply with the ESA.

In his June 13, 2007, order U.S. District Court Judge John C. Coughenour concluded "that the HLP is deficient for requiring that risk assessments, or status determinations, be made on the basis of the entire ESU, as opposed to the risks facing natural populations."

He ordered that the steelhead stock's endangered status be restored.

A 2001 Hogan decision in a separate lawsuit had forced NOAA to reconsider the status of 27 West Coast salmon and steelhead ESUs and develop the new hatchery listing policy to evaluate artificial production's role. That order said that the federal agency erred by including genetically similar hatchery stocks in the Oregon coast coho ESU but excluding them from the actual listing and ESA protections.

The new hatchery policy used in making the 2005-2006 determinations "instructs NMFS staff to assess the extinction risk of the entire species, taking into account on a case-by-case basis both the negative and positive impact of hatchery programs on the naturally spawning fish," according to a federal brief filed during the appeal process.

Almost all of the West Coast listings now include hatchery fish but they are not afforded the same protections. Fin-clipped hatchery salmon are legal catch, while wild fish for the most part are not.

Both district court decisions were appealed to the U.S. Court of Appeals for the Ninth Circuit. Oral arguments were heard Monday by Judges Diarmuid F. O'Scannlain, Pamela Ann Rymer and Andrew J Kleinfeld in Seattle. They will at some point render decisions in the litigation.

The Alsea Valley Alliance insists that hatchery and natural spawners that share the same streams should be treated as equals.

Trout Unlimited says domesticated hatchery salmon are less fit and pose a risk to wild fish when commingled on the spawning ground.

The NOAA hatchery listing policy walks a fine line, assuming that in some situations hatchery produced salmon and steelhead can help ward off extinction of beleaguered stocks.

Judge Rymer said she had read the wealth of information provided during briefing and concluded that the prevailing science generally judges hatchery supplementation to pose risks to wild populations over the long term but can provide short-term benefits in some cases.

"Perhaps you're right that the balance is in favor of saying there's more risk than NMFS recognizes," Rymer said of oral arguments presented by Patti Goldman of Earthjustice, which represents Trout Unlimited.

Goldman told the panel that NOAA's decision to downlist Upper Columbia steelhead was based on abundance numbers padded by the counting of hatchery fish that are dragging the wild population down, not lifting it up.

"But how are we to tread through that and decide whose science is best?" Rymer asked Goldman.

"It [NOAA] found in these recent listing decisions that the hatchery fish are not improving the productivity in the wild, they found it's making it worse," Goldman told the appellate panel.

The Department of Justice's Ellen Durkee, representing NOAA, said the agency decision was not based on abundance alone but spatial distribution, productivity and genetic diversity as well. It decided that hatchery steelhead conservation programs had increased total returns and likely the number of natural spawners, which spreading out over a larger area.

"This is a good thing, for habitat that is not being used is being repopulated by the species," Durkee said.

She said the agency believed that, over the short term, hatchery fish help mitigate the extinction risk. She noted that the hatchery listing policy has only made a difference in two of 27 listing decisions. Both resulted in shifts between threatened and endangered status.

The difference "is the imminence of the risk" with endangered in more immediate peril.

"In some cases having these hatchery fish has allowed populations to be sustained," Durkee said.

"The impacts of the modern conservation hatcheries on the sustainability of species is on the frontiers of science," she said.

Goldman said hatchery reform requiring that hatcheries use more natural, local-origin broodstock is a move in the right direction, "but they're not there yet."

She said more time is needed to "see whether those hatchery fish are reproducing in the wild" and producing self-sustaining populations.

Federal attorney David Shilton said that nothing in the ESA tells NOAA Fisheries how to consider hatchery fish within ESUs in assessing risks of extinction. The hatchery listing policy provides a formula for deciding where hatchery fish might provide that short-term benefit. And ESA 4(d) rules allow the taking by harvest of marked hatchery fish unwanted on the spawning grounds.

"NMFS can decide to apply protections to part of the unit or all of the unit depending on the circumstance," Shilton said. "It's done very much on a case by case basis depending on what the best available science indicates."

The judicial panel was left to decide whether NOAA had stepped over legal ESA bounds, or it had not and its science deserves deference over competing theories.

The judges several times asked the litigants why NOAA's scientific conclusions shouldn't be given deference, something called for in the ESA and supported by case law.

"It looks to me as if it [Congress] left a lot of the discretion for the agency to figure out in the circumstances of a particular critter -- whether it is a distinct species," Judge Kleinfeld said. "I would think all we could do is look at the agency decision to see if it is arbitrary and capricious and defer to their interpretation of the statutory language."

"We are not arguing that the agency is without expertise," PLF's Damian Schiff told the panel.

The agency has said that "hatchery salmon are so genetically similar that we consider them to be a part of the same DPS," according to Schiff. That done, NOAA cannot treat components of the designated population segment (ESU) differently.

"The plain meaning of the ESA is contradicted by the hatchery listing policy, and therefore the ESA must win out," Schiff said, asking that the policy be declared arbitrary and capricious.

"What we're saying is that the agency has already made the decision" to include hatchery fish in the ESUs and the ESA requires that NOAA assess the status of all of the included stocks.

"It has to make that determination with respect to that entire entity," Schiff said. If that had been done, "many of these populations may not be listed at all."