Wild beasts are those which enjoy their natural liberty, and go where they please.
- Article 3415, Louisiana Civil Code, 1870 revision

Twenty years ago, I was counsel to the U.S. House of Representatives committee that dealt with fish and wildlife issues such as the Endangered Species Act and establishing national wildlife refuges. Part of my job was to draft legislation (at the direction of members of the committee and with the help of the pros at legislative counsel), and to craft the committee reports that became the “legislative history” that accompanied the legislation and served as a guide to agencies and courts interpreting the legislation.

I didn't know much about salmon in those days. Raised in Louisiana, living on the East Coast, the complexity of salmon biology was not on my radar screen. Nor was I familiar with the habitat requirements for grizzly bears or the migration patterns of sea turtles. While the needs of animals are incredibly diverse, we were of necessity writing “one size fits all” legislation and legislative history.

The recent events involving Oregon coastal coho have made me reflect on the complexity of writing laws for fishes and other wild things. Recently, Judge Hogan, a federal district court judge in Eugene, Oregon, removed Oregon coastal coho from the protections of the Federal Endangered Species Act (ESA) because, in his view, the National Marine Fisheries Service did not follow the law when they placed them on the list of threatened species several years ago. The case hinged on a 1978 amendment to the ESA that limited the federal agencies in charge of implementing the ESA to protect only “species and subspecies of fish and wildlife and plants and ...distinct population segments of vertebrate fish and wildlife.” The rather arcane term “distinct population segment” was the focus of the case.

When the National Marine Fisheries Service placed the Oregon coastal coho on their list of threatened species, they determined that hatchery fish that were being released into the coastal rivers were similar enough to be part of the same “distinct population segment” as the wild fish. However, because NMFS quite logically believed that the ESA was intended to protect wild salmon stocks and not hatchery fish, they listed only the wild stocks. Judge Hogan, reading the law narrowly, decided that NMFS had erred when it had lumped hatchery and wild fish into one population segment but only listed the wild stocks. Making such distinctions below the distinct population segment level was, according to Hogan, impermissible. Unfortunately, NMFS used the same approach in listing 23 other populations of salmon, raising the specter that legal action could remove federal protection from most of the salmon populations in the Northwest.

Judge Hogan may be right on the law; the case is being appealed, and the Court of Appeals has reinstated the listing until the case is decided. But his ruling makes no sense in terms of salmon, for it makes no sense in terms of what it is about salmon that we are trying to protect. And in this conflict we see the fundamental problem of writing law to protect wild things.

There are lots of reasons to protect wild salmon. They are food to some, religion to others. They are a recreational resource and an economic engine. Their epic journeys amaze and inspire us. Yet more than any other reason, and encompassing all of the other reasons to protect wild salmon, is the role they play in linking the ocean with the land.

I recently asked a biologist how the evolutionary process resulted in a species that dies after reproducing. It seems counter-intuitive that the genes of animals that die after one generation would win out over animals that live longer. His answer was that, by dying, the salmon fertilize the sterile streams in which they spawn and provide food for their progeny, which correspondingly survive at a higher rate.

When salmon were plentiful, the benefits of salmon dying in the streams accrued not only to their offspring, but also to all of the denizens of their watersheds. From caddis flies to fir trees, the land lived off of the salmon. Marine isotopes of nitrogen, carried by salmon from the ocean, can be found in trees in Idaho. Scientists examining trophies of grizzly bears killed in the 19th century in the Malheur River Basin in Oregon and the Lemhi basin in Idaho determined that the bears dined mainly on salmon. It is easy to see why salmon are a religious icon to the native tribes in the Northwest. For Christians, the concept that in death there is eternal life is certainly familiar.

The 1978 amendment to the ESA regarding species was in response to a general concern by members of Congress that too many species would be listed and a specific concern that small populations of insects could be protected. Given that the number of insect species, let alone subspecies, is in the millions, the latter concern is certainly understandable. At a meeting of the Committee, it was decided to codify the bureaucratic standard of the U.S. Fish and Wildlife Service, and language making the change was incorporated into a larger bill that dealt with bigger issues, mainly the controversies surrounding the construction of Tellico Dam in Tennessee and the fate of the infamous snail darter. In the heat of the debates over dams versus fish, the language making a fairly major change in the law was overlooked. Very little explanatory language that gives guidance to courts or agencies can be found in the committee reports of the House or Senate, or in the floor statements when the bill was passed.

I was not subcommittee counsel when the legislation was passed, but, looking back and knowing what I know now, what would I have written? I probably would have written language in the committee report that stressed the need to protect wild stocks. I would have tied the language back to the purposes of the ESA, which are not only to protect species, but also the habitats on which they depend. I may have even added language in a committee report referring to studies that document that hatchery fish are often threats to wild fish, competing for food and interfering with the complex genetic heritage that guides these fish in their journeys to the ocean and back again. The diversity inherent in wild fish also allows them to survive the cycles of floods and droughts and the el niños and la niñas of ocean cycles.

But would I write about the real reasons to protect wild salmon?

Title 16 of the U.S Code contains the majority of the laws that protect fish and wildlife in this country. It is pretty dry reading, but paging through the laws one can see the efforts of many activists and lawmakers to devise laws to protect our fish and wildlife. Ding Darling, the illustrator whose cartoons inspired the Duck Stamp Act to provide funds to buy wetlands, is in there. So is Congressman Dingell of Michigan who wrote a law to provide funds for state agencies to support recreational fishing. His son, Congressman John Dingell, who presided over the passage of the Endangered Species Act in 1973, is in there too. Also in Title 16 one can find all of the members of congress and their staffs who labored over crafting the laws, inventing terms like “optimum sustainable population,” and “habitat conservation plan,” to give meaning and strength to laws that relate to the wild beings that live their lives in total indifference to the often constricted language of the law. The body of wildlife law is a tribute to legislators and their aids who tried to piece together policies to protect America’s wildlife, but the language does not do justice to salmon.

If I could write legislative language about salmon now, I hope I would step outside of the narrow language of the law and write about wild salmon as a gift—an annual offering of the ocean to the land. To hold a coho salmon that one catches in a river is to hold the ocean in your hands. The fish that left the river weighed but a few ounces. The fish that comes back, carrying several years of feeding in the Pacific, may weigh over ten pounds. If allowed to spawn and die, that fish will be found in the bodies of raccoons and bears and fir and cedar trees. We build our houses from their bones.

Hatchery fish, spawned in plastic buckets, incubated in trays, raised in concrete raceways are simply not the same thing. They are born in hatcheries and most are destined to return to hatcheries, where they provide little nourishment to the watershed. Those that do spawn with wild fish lessen the overall fitness of the species to continue the eternal relationships between river, land and ocean.

But that is not the language of the law as it is written. As we begin the process of litigation and administrative actions that could well determine the fate of wild salmon, the test will be if we can use the dry passages of the law to protect the primordial link between our homeland and the Pacific Ocean.