Abstracts & Reviews

Fjord Challenges Federal Salmon Genetics Data

By Aaron Porter

ELLSWORTH-Fjord Seafood and opponents of salmon farming are squaring off again over the listing of Maine's wild Atlantic salmon under the federal Endangered Species Act.

The latest round in this protracted fight started late last month when Fjord petitioned the U.S Fish and Wildlife Service and the National Marine Fisheries Service. The company questioned the quality of some of the information that supports limitations imposed on salmon farmers in the wake of the endangered species listing.

The formal request was made as the first step of an appeal under the 2000 federal Data Quality Act, which requires federal agencies to issue data quality guidelines to ensure quality, objectivity, utility and integrity of information provided to the public.

Opposition to the request was filed with the same services by a coalition of environmental interests including U.S. Public Interest Research Group, Maine Chapter of the Sierra Club, Conservation Law Foundation, Charles Fitzgerald and Stephen Crawford.

Fjord's attorneys noted that federal agencies, including the Army Corps of Engineers and the Environmental Protection Agency, have relied upon a 1999 study of Atlantic salmon genetic diversity in coming up with conditions for aquaculture permits in light of the 2000 endangered species listing.

The study was conducted by U.S. Geological Survey scientist Tim King.

The endangered species listing identifies eight Maine rivers that currently contain the so-called Gulf of Maine Atlantic salmon population.

Fjord's attorneys go on to complain that some primary data used in the King study has not been released in spite of repeated requests, including a Freedom of Information Act appeal filed by the state of Maine.

Fjord asserts that the conclusion that there are genetic differences between North American and European Atlantic salmon is all that the services have offered as a basis for permitting restrictions. The complaint continues: "Under the circumstances, it is impossible for affected parties to undertake their own independent review of that study."

While the inability to reproduce the results of a study might seem obscure grounds to discount its conclusions, it is failing under the Data Quality Act. The act states that guidelines for agencies disseminating "influential" data "shall include a high degree of transparency about data and methods to facilitate the reproducibility of such information by qualified third parties."

The Data Quality Act is a relatively new weapon in the salmon wars. Its history has been far from conspicuous. Quietly signed into law in the dying days of the Clinton administration, it was enacted as part of the 2001 Consolidated Appropriations Act and amends the Paperwork Reduction Act requiring the Office of Management of Budget to issue government-wide guidelines to federal agencies.

What that means is that every federal agency had to design procedures to review and substantiate the quality of information it might publish and mechanisms to allow for appeals and corrections of information. It all had to be in place by last fall.

For Fjord, the act is another way to address a persistent problem. Regulations imposed on the salmon farming industry after listing of wild fish have called for the elimination of all farmed stock that have any European genetics.

In his 1999 study, King noted that "given the deep evolutionary division between North American and European Atlantic salmon demonstrated by this study and others, the introduction of Atlantic salmon of European origin into North American aquaculture may pose a serious threat to native fish."

Fjord's brood stock includes hybrid fish with some genetic material from European salmon. The company predicted costs of production to rise 30 percent if it had to give up its current strains of fish, replacing them with available purely North American stock.

The opponents of Fjord's challenge under the Data Quality Act urge the services to reject the company's request.

"They're blowing up some procedural strategy to challenge the listing," according to Dave Nicholas, an attorney with the National Environmental Law Center.

The filing in opposition accuses Fjord's efforts as being "duplicative of other action, frivolous on its face, and utterly groundless."

Specific to the Data Quality Act, opponents assert that, "Data used by the services have been fully disclosed and have already been reviewed and heavily criticized by ASM [a Fjord subsidiary]. Those criticisms were evaluated and rejected."

Indeed, the state of Maine, which still has a lawsuit pending in federal court challenging the endangered species listing, seems to have been satisfied with the response it got to the Freedom of Information request it made in 1999 for data from King's lab.

Court records show that the information wasn't gathered without some dispute. However, Assistant Attorney General Christopher Taub said in the end the state was satisfied with the data provided.

He recalled that a key issue was over a genotype template file that King used to categorize the salmon he was studying. The problem was that the file had been altered as part of the research that continued on after King's 1999 report was finished.

"We were able to reconstruct the history of what happened to the file," Taub said. "We felt fairly confident about what modifications had been made to the file."

Nicholas said he knew there was some debate over the altered file but he doesn't give Fjord's argument about it much credence.

"I don't know what they say is different," he said.

But Fjord has other concerns as well, including independent critiques of King's study that point out shortcomings in the underlying data and the methodology used by the researcher are inaccurate or unreliable.

John Gold, a geneticist from Texas A&M University, goes so far as to suggest that the variation identified in European fish could be useful to North American fish.

They stress further, that the study isn't reproducible because the data isn' t available.

Irving Kornfield, a zoologist at the University of Maine, undertook a review assessing genetic distinctness in salmon when the listing was originally proposed. He said the data used by the federal services has not been made available. And while he didn't argue with King's identification of differences among salmon in the Gulf of Maine, he said, "The origin of these differences is speculative."

Kornfield repeated his frustration as a scientist at not being able to see the data and questioned the value of the reconstructed file that had to be used in reviewing King's work.

"No one has access to the data that is being used to make decisions," he said.

In terms of the Data Quality Act, such a failure is damning. Kornfield said such required reviews of scientific work make a lot of sense.

"It's a very reasonable thing," he said. "It's like 'who shaves the barber. '"

Fjord is looking to have more than one other scientist go in and reevaluate King's work with an eye to possibly changing the outcome of the endangered species listing or at least the new regulations imposed on salmon farmers as a result of it.

Right now it's up to the federal services to try out their new Data Quality Act procedures and decide whether or not to grant Fjord's request.