In 1993, a group of conservationists, concerned with the survival of the Atlantic salmon (Salmo salar), petitioned the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, Services) to list anadromous Atlantic salmon as endangered throughout their historic range in the United States. The petition, authorized under Section 4 of the Endangered Species Act (ESA), presented information on declines of Atlantic salmon populations, threats to the fish consisting of commercial and sport fishing, pollution, barriers to their migration, adverse land use practices, and genetic disruption. In response to the petition, the Services published a ninety-day finding that stated that the petition contained substantial information and that the requested listing may be warranted. In 1995, after examining the data on Atlantic salmon described in the petition, a biological review team concluded that the salmon did not meet the definition of a species for purposes of the ESA. As such, the Services decided the request to list the salmon throughout its U.S. historic range was not warranted. Alternatively, the Services determined that there was a group of salmon, identified in seven rivers (later eight rivers), that met the definition of a "distinct population segment" (DPS) of Atlantic salmon that warranted protection as a species. The Services further indicated that a proposed rule to list the DPS was under development. Later in 1995, the Services published a proposed rule to list the DPS as threatened, rather than endangered, and a public comment period was opened. The proposed rule "encouraged" the State of Maine (State) to take a lead role and provide a conservation plan of its own that would "reduce threats and promote conservation[.]" The State, acting on the invitation, enacted legislation that established the Atlantic salmon Commission and developed an extensive conservation plan (State Plan). In December of 1997, after a public comment period and in light of the State Plan and other conservation measures, the Services published their intent not to list the DPS as threatened. The Services retained oversight of the conservation efforts and required an annual report from-the State on the status of the program. In January of 1999, the State submitted its first annual report to the Services. Following a biological assessment team's review of the report, which indicated that the DPS continued to decline, the Services decided that the Atlantic salmon should be listed as endangered. After publishing a proposed rule to list the DPS as endangered in November of 1999, the Services initiated a public hearing process. Twelve months later in November of 2000, the Services published their final determination that the DPS was endangered. Subsequent to the Services' determination, the State filed suit against the Services and requested that the court set aside the rule listing the DPS as endangered on the grounds that the Services' decision was, among other things, "arbitrary and capricious" and not based on the best scientific and commercial data available. In 2003, the U.S. District Court of the District of Maine held, in Maine v. Norton, that the Services' determination of endangered status was supported by the facts in the record, and thus was not "arbitrary or capricious." This paper will examine the implications of the salmon listing as it affects the relationship Maine citizens have with their environment and the economy of the State. Part One provides background on the natural, socioeconomic, and legal landscapes that are tied together in the federal government's efforts to protect a distinct segment of Maine's wild Atlantic salmon. Part Two presents the chronology of federal, state, commercial, and Non-Governmental Organization (NGO) actions that have shaped, and have been shaped by, the implementation of the ESA. It includes a relevant discussion of the ESA implementation process, from listing consideration through critical habitat designation, and Section 4(d) "take" delineation. Part Three focuses on critical habitat protection in the context of the ESA, judicial interpretation of habitat statutes, and how well critical habitat protection is working generally. Part Four considers the implementation of the ESA within the context of the DPS of Maine Salmon and suggests that, while the ESA does not allow implementation to be whittled away by socioeconomic concerns, implementation of the ESA may be structured to accommodate the various stakeholders, but in the current state of implementation, problems can be anticipated.
Swimming Upstream: A Legal Analysis Of Listing Atlantic Salmon As An Endangered Species,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol9/iss2/9