In the last decade of the twentieth century, state and federal officials reluctantly acknowledged that restoring wild salmon would take more than making more fish. The anadromous Atlantic salmon (Salmo salar) once flourished in river systems throughout New England, but the economies of the nineteenth century unwittingly reduced the salmon’s range to a few river systems in Maine. In 2000, the remnant populations that returned to eight of the minor coastal river systems of eastern Maine were listed as endangered under the U.S. Endangered Species Act of 1973 (ESA). The bitter fight that broke out between State of Maine officials and federal officials over the listing represented a new low in environmental federalism. Combatants pitted the tenuous prospects of a much-revered biological relic facing a changing climate regime against the bright promise of economic revival of the boarded-up fishing and farming towns of Downeast Maine. Adding to the debate, far from the traditional, low-tech industries of that region that wax and wane seasonally, foreign investors in the new salmon-farming venture were determined to use technology, economies of scale, and intensive production methods to overcome ecological constraints and thereby ensure global competitiveness. Moreover, a newly elected governor, Angus King, who was independent of political party affiliation, was determined that “common sense” and higher economic aspirations would prevail over environmental fear-mongering and nimbyism. In an attempt at compromise, federal officials mustered whatever dexterity they could under the ESA. They used newly-minted ESA policies to avoid dealing with the hydropower dams on the salmon’s largest remaining riverine habitat and to maintain the state’s primacy in devising a conservation strategy. In the end, this flexibility was insufficient to bridge the differences between state goals and federal responsibilities. A century-old partnership turned into a brawl over the interpretation of genetic data and a rhetorical spat over the difference between a salmon in Maine and a Maine salmon. A political atmosphere that encouraged anti-federal grandstanding found a convenient whipping boy in the proposed listing, despite the flexibility shown by federal administrators. Accommodation turned to anger in the space of less than two years. The salmon farming industry’s resistance to changing their increasingly intensive and risk-prone husbandry practice undermined the federally endorsed state conservation plan (the Maine Plan). After one year of implementation, it was clear to federal officials that the Maine Plan was underfunded, not tough enough on the growing risks that aquaculture posed to the meager numbers of returning salmon, and unlikely to be strengthened. When two conservation groups, the Atlantic Salmon Federation and Trout Unlimited, sued federal ESA administrators, the listing proposal was reinstated. This time, the proposed status was “endangered,” with no plan to rely on state, local, and voluntary measures in lieu of federal restrictions. When the listing became final, the State of Maine challenged it in court, faulting its underlying science and its unwarranted intrusion on sovereign state interests. The federal court upheld the listing in 2003. The election of a new governor, John Baldacci, eventually laid the legal battle to rest. A victory for the federal regulatory decision in the U. S. District Court of Maine helped the state come to terms with the ESA listing. This victory was assisted by an independent scientific report by the National Academy of Sciences, which vindicated the view that the Maine salmon was a genetically distinct and significant population segment (DPS) entitled to recognition and protection as a “species” under the ESA. In the final analysis, however, it took a citizen-suit ruling under the federal Clean Water Act (CWA) to demonstrate to the state and to the aquaculture industry that, without a doubt, federal environmental law controlled. United States District Judge Carter demonstrated his willingness to deal with industry intransigence. If the regulators would not, he would order the salmon farms to cease stocking non-native strains of Atlantic salmon immediately or hold them in contempt of court, even if this imposed costs that the industry had hoped to avoid under a state conservation regime. Recovery planning for the Maine Atlantic salmon began, with both the state and the aquaculture industry promising to take a cooperative approach. Meanwhile, a final report from the National Academy of Sciences’ scientific panel that supported the DPS determination dropped the proverbial second shoe, making it clear that recovery activities that focused too narrowly on the eight rivers of the DPS would not be adequate. Notwithstanding the federal listing agencies’ victory on the definition of what a “Maine Salmon” is, the National Academy of Sciences’ panel concluded that rehabilitating the species in Maine must include helping the populations whose habitat is diminished by dams. Independent of the ESA listing and recovery efforts, private and nongovernmental groups began to tackle the fish passage and habitat degradation issues caused by dams, brokering the Lower Penobscot Multi-Party Settlement Agreement to restore the mighty Penobscot, the river to which most Atlantic salmon in Maine return. For the sake of the salmon, three of the worst offending dams would be bought from their power-company owner and pulled down, while other dams, less damaging to habitat, would increase their power output. As her predecessor Bruce Babbitt had done at the historic breaching of the Edwards Dam on the Kennebec in 1999, Interior Secretary Gale Norton took advantage of a photo opportunity on the banks of the Penobscot River in the summer of 2004 to extol the virtue of cooperation in regaining our common natural heritage. Despite her surprise appearance to sign the Lower Penobscot Multi-Party Settlement Agreement personally, Secretary Norton did not bring news of any federal funds to help meet the multimillion-dollar purchase price for the dams. That news was to take another four years and the intervention of many more players in the saga of the Atlantic salmon listing. Finally, the listing process came full circle when salmon in Maine’s four largest industrialized rivers were added to the endangered listing of Gulf of Maine salmon, along with an extensive determination of its critical habitat, which included virtually the entire watersheds of all significant salmon rivers in Maine. This case study recounts the state-federal conflict over the endangered species listing decision for the Maine populations of Atlantic salmon. After a brief introduction to the species’ natural history, it describes the cooperative conservation efforts that preceded the citizens’ petition to list under the ESA. Second, it describes federal efforts to use state authority and institutions to minimize the threats to salmon survival and avoid a listing. Third, it discusses how the breakdown of these efforts and an independent scientific review led to the federal listing decision. Fourth, it suggests the overriding impact of cooperative federalism policies under the CWA. The final section describes the recovery planning efforts that followed the listing, the listing of additional river systems and critical habitat, and a partnership for river restoration, all of which presents new opportunities for cooperation.
Saving Salmo: Federalism And The Conservation Of Maine's Atlantic Salmon,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol16/iss1/5