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The Endangered Species Act Out of Control

Is a salmon born in a hatchery a different species from the same salmon born in the wild?

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.

Promoting the survival of salmon is a worthy goal, but does it really matter if a fish’s ancestors are from a hatchery or are naturally spawned? As it is, many so-called "wild" or naturally spawned salmon were all but gone and brought back through the use of hatcheries. Given that hatcheries have been around for over a hundred years, it's likely that all naturally spawned salmon have at least some hatchery-spawned ancestors.

But whatever one's objections to the Endangered Species Act, its purpose is pretty clear: "to provide a program for the conservation of . . . endangered and threatened species." But how do you define hatchery and naturally spawned fish as different species? There are no biological or genetic differences. The only way you can tell the fish apart is the clipped fin on hatchery fish.

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.

Over the years, the government’s policies have lurched from one extreme to another. Ironically, while the courts are today asking if the salmon are endangered, just nine years ago the state of Oregon ordered mass killings of salmon to dry up the food supply for predatory sea lions in an attempt to drive them away from dams. The eggs from those salmon were shipped to hatcheries in South America and the dead fish sent to canneries. Private land owners are now facing the brunt of these costly government mistakes from the past.

These two court cases highlight the importance of balanced environmental policies. But if you are going to adopt policies that so severely impact farming and ranching, then those policies should actually accomplish something.

John R. Lott, Jr. is the author of "Freedomnomics" and a senior research scholar at the University of Maryland. Sonya D. Jones, an attorney for the Pacific Legal Foundation, is representing the appellants in Judge Coughenour’s decision.