Academic journal article Duke Environmental Law & Policy Forum

State Fish Stocking Programs at Risk: Takings under the Endangered Species Act

Academic journal article Duke Environmental Law & Policy Forum

State Fish Stocking Programs at Risk: Takings under the Endangered Species Act

Article excerpt

"If these 'environmentalists' really wanted to help the poor animals, they would commit suicide to leave more room." (1)

Anyone who yawns at the mention of "fish stocking" may be oblivious to the fact that it can elicit such an intense response, especially from a fisherman. Fish stocking, raising fish in a hatchery and 'placing those non-native fish into a water body, has been in practice for over a hundred years) The primary purposes of fish stocking include the following: (1) mitigating declines of fish populations caused by federal water projects; (3) (2) helping to recover fish species listed on the Endangered Species Act; (4) and (3) providing wildlife-oriented recreational opportunities like fishing. (5) In the case of U.S. Pacific salmon, "[h]atchery programs generally have two goals which can conflict with one another: to increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct." (6)

While the virtues of supplementing wild populations of fish are often extolled, scientific studies have indicated that fish stocking can harm the wild, native species of the water body. (7) Reports have established the propensity of hatchery fish to out-compete the native fish for food sources, (8) the frequency of hatchery fish to feed on the native species, (9) the transmission of disease, (10) and the dilution of the native fish gene pool through mating of the hatchery and native fish. (11) The National Park Service has heeded this scientific data and has banned fish stocking in all of the National Parks. (12) Yet there is a federal hatchery system designed to research and implement fish stocking across the country, (13) and fish stocking is in full force in over thirty-five of the fifty U.S. states. (14)

For many years, fish stocking has flown relatively low on the legal radar screen. (15) But one case brought by environmental organizations in California may change that. In 2006, the Pacific Rivers Council and the Center for Biodiversity brought suit against the California Department of Fish and Game (DFG) under California's "little NEPA (National Environmental Policy Act)," the California Environmental Quality Act (CEQA), for failure to consider the effects of fish stocking on native populations. (16) Included in the evidence against the state agency were expert affidavits and reference to over 100 scientific studies attesting to the harms of trout stocking on native populations. (17) The plaintiffs specified twenty-five fish and amphibians at risk, (18) including sixteen endangered or threatened species. (19)

After two years of litigation, the California Superior Court required the DFG to comply with CEQA and prepare an environmental assessment. (20) While the state prepared its assessment, the court ordered interim measures that limit DFG's ability to stock fish where monitoring surveys have demonstrated the presence of certain sensitive native aquatic and amphibian species, or where monitoring surveys for these species have not yet been conducted--approximately 175 lakes and streams in California. (21) In early 2010, the state issued its final environmental assessment, which assessed impacts of the state's fish stocking operations, as well as the hatchery operations and the issuance of Private Stocking Permits. (22) The environmental assessment recommends a preferred alternative of continued fish stocking for recreational purposes with DFG. implementing guidelines that allow for some protection of native species. (23) The environmental assessment identifies over fifty potentially significant effects and includes mitigation measures to "reduce the impacts to less than significant." (24) Notably, the state acknowledged that even with the proposed actions, some impacts on protected species, such as the "significant adverse competition, predation, non-target harvest, or genetic effects of current hatchery operations" on native salmon and steelhead evolutionary significant units and native steelhead distinct population segments cannot be reduced to "less-than-significant levels. …

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