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[1] Oregon ESU Ruling May Pave Way For More Fish De-Listings
[2] Irrigators Petition To De-list 7 Salmon And Steelhead Stocks
[3] Region Differs On De-listing Decision, Kitzhaber Supports Appeal
[4] Too Many Steelhead, So Little Time, Say Fish Managers
[5] BPA Just Says No To Direct Funding For State F&W Efforts
[6] IG Audit Surfaces On NMFS' Role In Salmon Recovery
[7] NOAA Picks Recovery Team For Columbia Basin

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The Sept. 10 Oregon District Court ruling (Alsea Valley Alliance v. Evans) that threw out the ESA listing of the state's coastal coho stocks has sent strong shock waves through the Northwest salmon recovery community. It has raised questions about whether or not some stocks in the Columbia Basin should be de-listed as well.

The suit was filed in 1999 after a public outcry over ODFW personnel's clubbing of hatchery fish to keep them from spawning in the wild in Fall Creek in the Alsea Basin. The Pacific Legal Foundation used the situation to bring suit against NMFS and ODFW, saying in part that by listing only naturally spawned coho, the defendants violated the ESA "by attempting to distinguish a species on a basis not provided for under the ESA."

"This could be as big as the Boldt case," said Doug Ancona, Grant PUD's manager for natural resources and legislative affairs. Ancona was referring to the famous Boldt decision from the 1970s that was finally settled in the US Supreme Court. The ruling, by federal judge George Boldt, gave Western Washington tribes the right to half the salmon harvest in the state, and was later expanded to include shellfish and other species, including shrimp and clams.

"If this case is upheld on appeal, or if NMFS doesn't appeal, then I would soon expect petitions to de-list some populations," Ancona said. He noted that the ruling by federal judge Michael Hogan could not only affect the Northwest and California, but might also influence policy in Maine, where the wild Atlantic salmon are listed in seven of that state's rivers.

NMFS spokesman Brian Gorman said last week that a decision whether to appeal has not yet been made. "The downside for us is if you lose in court, it affects the whole West Coast," said Gorman. "The Solicitor General at the Department of Justice makes the decision," he added.

Grant's Ancona, who once worked as a NOAA attorney, said he found it hard to identify a basis for appeal. "This has far-reaching implications," he said, because it turns over 25 years' worth of assumptions about the distinctions between hatchery and wild fish. "All those years, we closed down the ocean to harvest because we've managed things as if they were distinguishable," he noted.

The judge said NMFS was "arbitrary and capricious" when the agency gave ESA protection to the wild population of Oregon coastal coho salmon, but not the hatchery component as well, after including both parts in the "distinct population segment" of the stock. NMFS judged the hatchery coho not essential to recovery and therefore didn't list it, an action Judge Hogan found to be wrong.

"Thus the NMFS listing decision creates the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream," wrote Hogan, "but only one receives ESA protection while the other does not. The distinction is arbitrary."

Hogan said the term "distinct population segment [DPS]" was amended in the ESA in 1978 to exclude biological categories below subspecies, limiting the Secretary of Commerce "to make listing decisions among species below that of subspecies or a DPS of a species." He remanded the matter to NMFS for further consideration and directed the agency to consider the best available information, "including the most recent data, in any further listing decision concerning the Oregon coast coho salmon."

Though some observers think the Hogan ruling is limited to coho stocks, John Ogan, a staff attorney for the Power Planning Council, said it could affect Columbia Basin listings as well. "It depends how NMFS treated hatchery fish in its decisions," he said. "But no matter what happens, it doesn't mean any change in the way the Council does its business."

Washington Wants Appeal

"Washington state hopes NMFS will appeal the decision," said Sandi Peck, a spokesperson from Gov. Gary Locke's office. The state will continue its salmon recovery efforts, she added, while "maintaining a distinction between hatchery and wild fish."

Listed chinook stocks in Puget Sound could be affected by Hogan's ruling as well, since some regional hatcheries are included in the ESU, but not deemed essential to recovery and therefore not listed for protection.

The Oregon ruling had attorneys throughout the region combing through archives of the Federal Register looking for answers. Unfortunately, the earlier listings seemed devoid of much information on the subject, whereas later listings contained tables that clearly showed where hatchery stocks were included in a specific ESU, but not listed with wild stocks for protection.

A Sept. 18 memo from the NWPPC's top attorney John Shurts to Council members took a shot at determining which Columbia Basin stocks might be ripe for de-listing. He said preliminary information indicated that other listings "called into question by the new decision" include Snake River steelhead and possibly Upper Columbia spring chinook and steelhead, though Shurts said the NMFS listing only "implies" that the agency considered each ESU as a whole before making its decisions in those two cases. Other listings 'called into question by the new decision' include Snake River steelhead and possibly Upper Columbia spring chinook and steelhead.

He found that lower Columbia chinook and steelhead, middle Columbia chinook, upper Willamette chinook and steelhead and Columbia River chum might also fit the bill for possible de-listing.

But a draft document obtained by NW FIshletter shows that even more listed stocks might qualify for de-listing. NMFS itself has designated five hatchery stocks as part of the Snake spring/summer ESU but doesn't have them listed for protection. None of these hatcheries was mentioned when the stocks were first listed in the early 1990s because the agency said it was still analyzing the stocks in the basin. One of them--the hatchery at McCall, Idaho--saw a return of nearly 20,000 summer chinook this year, and about 14 percent are currently in the ESU, part of a wild supplementation program.

As for Snake fall chinook, the Lyons Ferry hatchery stock is now in the ESU, but not listed, which would put it in the same category of potential de-listing. If hatchery returns were counted, the ESU would be many times the strictly wild adult returns, which last year amounted to only about 560 fish.

The Snake chinook stocks were listed more than six years ago, and though attorney Shurts thinks the statute of limitations has run out for a direct challenge, he said NMFS may be under enough pressure to review all of its salmon listings.

Portland attorney James Buchal said he thought the statute of limitations was irrelevant because any party that filed a de-listing petition based on Hogan's ruling should get the fish agency to review its listing decisions.

Hogan himself said he had no argument with the agency's analysis of genetics. "Although I agree with the general concept that 'genetic diversity' is one factor in the long-term success of a threatened species and thus is one of many underlying goals of the ESA, genetics cannot, by itself, justify a listing distinction that runs contrary to the definition of a DPS [Distinct Population Segment]."

Environmentalists were upset at Hogan's ruling. Patti Goldman of Earthjustice told the AP that the ground rules are changed, but NMFS should have no choice but to restore the listing when it follows Hogan's order to use the best science to make its decision.

In his order, Hogan said the coho listing decision could "arguably be proper" if NMFS had defined "hatchery spawned" coho as a separate DPS, "but it does not appear that this is possible" because they are neither reproductively isolated from other population units, nor do they represent an important component of the historical legacy of the species, which are the two defining factors of a DPS. He said up to 87 percent of coho spawners in some basins in Oregon are of hatchery origin and interbreed with wild fish. "In addition, hatchery spawned and natural coho are the same species," he wrote in his decision. That's exactly what Columbia Basin tribes have been saying for years.

On the other hand, if NMFS tries to expand the listing to include hatchery fish, attorney Buchal said "it will be virtually impossible for NMFS to show that there is any danger that hatchery fish face a genuine risk of extinction. That, of course, has never stopped NMFS from making Endangered Species Act listings before, but perhaps the new Administration will bring some common sense to NMFS." Bill Rudolph


Less than three weeks after a federal judge in Oregon threw out NMFS' ESA listing for Oregon coastal coho stocks, the Columbia-Snake Irrigators Association has petitioned the federal fish agency to de-list seven Northwest salmon and steelhead stocks.

This petition is viewed as the beginning of bringing some reason into the whole salmon recovery industry," said natural resources consultant Darryll Olsen. "And it's one of several steps that need to be taken over the next year to bring the process under control."

Portland attorney James Buchal was blunt. "Judge Hogan's ruling is the law of the land," he said.

The irrigators' officewarming gift to new regional NMFS head Bob Lohn was mailed Sept. 28. (Lohn will begin on Oct. 1.) It's the first petition to see the light of day since Hogan's Sept. 10 ruling in Oregon District court in Eugene that the federal fish agency erred when it offered protection to only wild stocks in the coastal population, though some hatchery stocks were listed in the ESU [evolutionarily significant unit]. In some ESUs, some hatchery fish have been designated for protection, others not. The judge ruled that the agency made "arbitrary and capricious" decisions when it went this route.

NMFS spokesman Brian Gorman said he expects more petitions soon. Of the 25 ESUs on the West Coast, he said all but one of them, Southern California steelhead, include a hatchery element. He also reported that NMFS decided not to ask for a stay to Hogan's decision, nor has it been decided whether the agency will file an appeal. It has until Nov. 9 to decide. Also, it seems unclear whether parties not named in the original action have a right to appeal if NMFS decides not to take Hogan's ruling to the Ninth Circuit.

But the petition used more than Hogan's decision as its basis. "The Irrigators also note that the Secretary is under a duty, pursuant to 16 USC 1533(c), to "conduct, at least once every five years, a review of "all listed species to determine, among other things, "whether such species should be removed from the list." With this year's salmon runs the largest observed since dam counts began in 1938, "the time is ripe for reconsidering application of the Endangered Species Act to Pacific salmon stocks, and the best scientific and commercial data that must be considered in connection with this delisting petition include substantial increases in the salmon runs identified below."

The group called for de-listing all salmon and steelhead stocks in the Snake River, along with middle and upper Columbia steelhead, upper Columbia spring chinook and Snake River sockeye. The petition acknowledged that NMFS retains the option of adding all hatchery stocks to natural stocks within an ESU, "to the extent that the best scientific and commercial data support the 'threatened' or 'endangered' risk status of the ESU as a whole. The irrigators doubt that such a case can be made."

They say NMFS' own methodologies for assessing extinction risk, "when applied to ESUs as a whole, including hatchery stocks, show no appreciable risk of extinction for nearly all Pacific Northwest salmon ESUs."

The group even petitioned Snake River sockeye for de-listing, though less than 40 fish have been counted passing Lower Granite Dam this year. The irrigators say that the sockeye listing, which protects both the "natural" sockeye and their progeny developed in a captive broodstock program, "was always an arbitrary and capricious exercise of federal listing authority, which was never intended to apply to a species of great abundance threatened with extinction on a single lake on the geographical boundary of the species." More than 100,000 sockeye were counted at Bonneville Dam this year, most headed for the Wenatchee and Okanogan rivers in the upper Columbia region.

Further, they charge that the feds have no lawful role in selecting which hatchery stocks should be extirpated and which should be continued, saying that role is "Constitutionally charged" to the states and tribes. They call for the feds to withdraw from controlling salmon management in the basin through the ESA, and the states' role to be restored through interstate compacts, including the NWPPC.

"The federal government has far more pressing business than micromanagement of salmon recovery in the Pacific Northwest," say the irrigators, "and its unlawful extensions of federal authority in these and other areas threaten to turn the federal government into a jack of all trades, but master of none. We ask that you serve our Nation's interests by faithfully executing the law and removing these species from the list, as part of a necessary effort to redirect federal resources upon issues of genuinely national concern."

Olsen said the irrigators association will also re-commence its earlier lawsuit against Washington state over water permits. Olsen said the state settled out of court, promising to issue 12 new permits for water in McNary and John Day pools. But the state DOE said irrigators have to buy up rights before a new right is issued, according to Olsen, which he said is contrary to the agreement. "The state still supports the NMFS 'no net loss' water policy," he said, and the irrigators may sue NMFS' over this and other elements of the new hydro BiOp. -B. R.


The September decision in federal court to throw out the ESA listing for Oregon coastal coho was applauded by property rights groups, but Gov. John Kitzhaber argued that NMFS must immediately appeal the decision, a course of action the federal fish agency has not decided on yet.

"Wild and hatchery salmon are the same genetically and functionally and should be considered the same species for listing under the ESA," said Bill Moshofsky of Oregonians In Action. "Just because the hatchery fish spend a short period of their life in a hatchery doesn't make them different." He said their position is based on work with Drs. James Lannan and Ernie Brannon, who after lifetimes spent studying these fish have concluded they are genetically the same.

Moshofsky is concerned that the listings and the 4(d) rule under the ESA would put more pressure on private land, justifying more controls on farming, timber and urban development along streams, "which we feel have not been justified even if the listing were justified." He said if hatchery fish were counted there wouldn't be such urgency to go ahead with these controls.

"It is a manufactured crisis, as the Pacific Legal Foundation said," Moshofsky added, "when they filed the lawsuit. The huge surge of fish coming back this year is attributable to ocean conditions and while we recognize that watersheds are important, we think they are a minor factor compared to the ocean conditions." He said the lack of naturally spawning habitat can be augmented by hatchery fish. "The freshwater habitat is important for coho but it is not the major factor," he said.

Still, Moshofsky was still unhappy with Judge Hogan's decision because he felt the ESU (Evolutionarily Significant Unit) concept NMFS uses in listing distinct population segments should also be tossed.

But Jim Myron, conservation director for Oregon Trout, is concerned about listing hatchery fish as protected species under the ESA. "We need to have standards for hatchery programs under the ESA. We can support a rescue hatchery program that is aimed at protecting the species rather than listing fish produced for harvest as with coastal coho. Hatchery fish are not a substitute for restoring wild salmon in their ecosystem."

But the judge ruled on a different issue, and NMFS hasn't said what it plans to do next. "The primary issue turns on the way NMFS treated hatchery fish and the judge considered that flawed," said NMFS' Steve Stone. Donna Darm, Acting Regional Administrator for NMFS, responded to questions about the Hogan decision, saying that we "haven't sorted it out yet and it will probably not be anytime soon." She said the decision is important because "it goes to the heart of Endangered Species Act policy."

Oregon's Governor John Kitzhaber quickly sent a letter to Commerce Secretary Donald Evans. He asked Evans to consider two courses of action. "First," Kitzhaber said, "I urge you to appeal the decision to allow for a broader review of the issues raised in the case. Second, I want to recommend that before or concurrent with its reconsideration of whether Oregon Coast Coho warrant listing under the ESA, the National Marine Fisheries Service conduct a rule making process making it clear that because hatchery fish are not essential to recovery they are not part of distinct population segments under the ESA."

Governor Kitzhaber said he was concerned about the potential social, economic and ecological consequences of this decision. "If NMFS reconsiders its listing decision and lists Oregon Coastal Coho, including the hatchery component of the ESU, this could have devastating effects on fisheries and result in increasing regulations for landowners on the Oregon coast.

"I am very concerned that in the absence of these actions by NMFS there will be a call for increasing hatchery fish production to avoid ESA listings, masking the underlying problems causing the degradation of watershed health."

He also expressed concern about the implications this ruling has for maintaining and recovering wild runs of salmon, steelhead and trout. "Much research has been done that indicates adverse impacts on wild salmonids from hatchery introductions in the same streams and rivers. Simply relying on artificial production to support the populations of a species is contrary to the intent...and the spirit of the ESA itself."

A good example of the potential impact of delisting the salmon comes from Mark Mouser who works for Clackamas County, Oregon, fixing fish barriers on streams. Mouser is busy replacing culverts that are barriers to salmon passage and he is worried about this decision because correcting fish passage problems is a long-term process and it's expensive.

If the fish in the Columbia Basin were removed from the ESA, Mouser said "there would be no federal dollars for replacement of culverts and our effort would be reduced to the old program of replacing two to three culverts per year." Fish passage work is presently supported by the state of Oregon, the U.S. Fish and Wildlife Service, Fish America Foundation, The Halton Company and others.

"There are 975 barriers to fish passage [in Clackamas County] and we have replaced 46 of them or about 12 culverts per year," Mouser said. "At this rate, it will take over eighty years to replace them all. This time period exceeds the life span of a culvert."

Mouser said it would cost at least $100 million to replace them all. "If the fish are no longer protected by the ESA, the funds will dry up." -Bill Bakke


Washington fish managers have proposed a steelhead fishery to begin Oct. 5 on the upper Columbia River to keep hordes of hatchery fish from overcrowding streams already full of wild listed steelhead. The trouble is that NMFS must likely issue a permit under section 10 of the ESA to allow the fishery since the hatchery fish are part of the "endangered" ESU in that region.

"... And that would mean a 30-day public comment period before we could proceed," said Rob Jones, chief of NMFS' Hatchery and Inland Fisheries Branch in Portland.

"We've got escapement times two, said Bob Leland, WDFW's steelhead program manager. He said both agencies are working on the issue "at the highest levels." The state wants the fishery to continue throughout the winter, both above and below Priest Rapids Dam until March 31, 2002.

WDFW's Sept. 18 letter to NMFS says, in part, "The combination of exceeding the escapement goal for the wild steelhead by a wide margin combined with the ability to selectively harvest hatchery fish is an excellent example of protecting sensitive species while providing for a responsible fishery."

Jones said NMFS' priority is to de-list the hatchery component of the ESU, but "that's quite different from conducting a fishery. "We have to fulfill an open process." He said a fishery is only one option, that it might be possible to trap fish at certain places as well.

The state's escapement goal for the basin above Priest Rapids Dam is 6,000 wild steelhead, said Jones, and over 8,700 are expected, along with about 5,700 supplemented (wild/hatchery crosses) fish and 17,000 marked hatchery fish from the Wells facility, totaling about 31,000. So far, about 26,000 have been counted past the dam.

Spawning goals for the Methow River are 2,212 steelhead, along with 300 fish for the Okanogan, said Heather Bartlett, from WDFW's office in Omak. "Over 12,000 steelhead have already passed Wells Dam, she said. "We have way over what we need."
Steelhead at Lower Granite lining up for a record run.
Photo courtesy of Neil Paasch.

With a large part of the run already beyond Priest Rapids, neither side would predict whether a fishery would take place, but the final decision should be made by week's end. Other biologists say the situation may not be as dire as some think. Douglas PUD biologist Shane Bickford said tagging studies have shown that many steelhead will likely remain in the mainstem Columbia throughout the winter, rather than enter tributaries during periods of extreme low water. "They don't like their caudal fins to be out of the water," he said.

In the mainstem Columbia, tribal fishers got another crack at the steelhead passing Bonneville Dam after harvest managers raised their estimate for the overall summer steelhead run to almost 637,000 fish, 150 percent above their preseason estimate. -Bill Rudolph


After a long campaign by officials in Washington state to tap directly into BPA's cash flow for funding BiOp-related fish recovery proposals, the federal power agency cleared the air and just said "no." In a Sept. 19 response to concerns expressed by two utility groups, the Pacific Northwest Generating Cooperative and the Public Power Council, BPA acting Administrator Steve Wright said his agency shared concerns over the block grant proposal pushed by Washington and Idaho."

"While the block grant concept can mean different things to different people," said Wright, "we share your concerns about the use of block grants to meet our fish and wildlife obligations. In particular, we believe that block grants do not provide the accountability for which Bonneville is ultimately responsible."

"There's nothing new here," said Curt Smitch, Washington's point person on salmon issues. "We didn't expect anything creative." He reiterated concern over the BiOp itself and the current lawsuit that takes issue with elements of it, especially the requirement for offsite mitigation to help boost listed stocks enough to keep the hydro system from getting a jeopardy decision regarding its operations.

Smitch said the state isn't asking for a blank check to pay for salmon recovery, as it's portrayed. He calls that an "interesting diversion." The big question, he said, is how the BiOp gets implemented.

"We think the BiOp lawsuit points out the weaknesses of this approach," Smitch added. He said his state, along with Idaho, is focused on "working DC." With key Bush Administration people now a in place, Smitch said a salmon team appointed at the assistant secretary level has been formed in the other Washington.

He said if the team is concerned about truly working in partnership with the states, it will take his message to heart--"If we can't show the judge we can make a viable case for offsite mitigation, do you go back to debating dam breaching or do you show a serious program to do it [mitigation]?" Smitch said after talks with Justice Department officials involved in the case, they feel the same way.

But BPA's Bob Austin, deputy administrator for fish and wildlife, said his agency is comfortable with the funding process already in place--with proposals getting scientific scrutiny before a final review--"and it works pretty well."

But he admitted that insuring accountability is the biggest problem. Now that more focus is off the mainstem, Austin said it gets more complicated. "Looking at tributaries," he said, "we're becoming more familiar with how to do those kinds of projects," but the action agencies need to be assured that what's been proposed is really happening, whether it's buying water rights, land easements or riparian restoration.

By giving block grants to state or tribes, Austin said his agency won't see the level of detail needed to insure the accountability needed for the BiOp.

Wright's letter promised coordination with state, tribal and local entities to meet its fish and wildlife obligations in a timely and cost-effective way. "Apparently," Wright said, "the interest in block grants was initiated, at least in part, due to concerns whether the process the Council uses to prioritize projects is fair and open to all parties. It is our view that the Council process must strive to assure fair and open access to Bonneville funding for all parties in the region. From discussion with Council members, it is my understanding that they share this view. We intend to work with the Council to achieve this objective."

"The current process doesn't eliminate concern of the state of Washington," said Smitch, "or from asking the Bush Administration, along with Idaho, what level of funding might be available to help the state, county and local watershed groups when the federal agencies are content to plan for another five years.

"We're not going to be the ESA pinata," he added. -B. R.


A submerged government audit critical of NMFS activities in the ESA/salmon arena bobbed to the surface last week, in, of all places, WA's Okanogan County. Now, both the draft version and so-called final version of a report from the Seattle regional Office of the Inspector General are available on the county's website. In a Sept. 24 press release, County Commissioner Craig Vejraska said both versions were sent to the county by an anonymous source. He said the county had asked for the document five months ago through a FOIA request, but was told they didn't have it.

The final version appeared in the form of a four-page memo sent to NOAA Acting Assistant Administrator for Fisheries William Hogarth by the IG's office in April. The county says the final version makes no mention of earlier criticism in the draft from August 2000. However, it still includes a general complaint from other regional stakeholders about NMFS' lack of coordination, and critics say it was deliberately quashed to deflect criticism of the agency just a few months before it issued its far-reaching BiOp on the hydro system. The report's original author was reported to have "abruptly left the Commerce Department and refuses to discuss the circumstances of her departure."

"Some interviewees," said the memo, "voiced their perceptions that NMFS's scientific decision-making processes lack transparency and that the agency engages in research efforts that allow it to obtain results that support its own policies. For instance, this was their perception when NMFS appeared to change its support of a basic analytic model from the Plan for Analysis and Testing of Hypotheses (PATH) to Cumulative Risk Analysis."

The memo said that, "rightly or wrongly," some stakeholders saw this as a move to a less inclusive approach by neglecting input from scientists from other jurisdictions. The earlier draft contained more complaints about this topic--citing interviewees who said NMFS' CRI process remained "internal and closed."

These complaints were often voiced publicly long before the IG memo surfaced last week. NMFS sidelined PATH after a lengthy analysis showed some its assumptions were unduly pessimistic, such as both juvenile and adult survival through the hydro system, and benefits of transporting fish.

The early draft also contained stronger language about other perceived faults with the agency. "Another common observation made by a wide variety of respondents is that NMFS is unnecessarily and unproductively arrogant and confrontational in dealing with other participants. Many respondents commented on the personality traits of individual NMFS employees, characterizing them as unusually and professionally abrasive in their relationships with other participants. Others commented on a lack of negotiation and interpersonal skills among NMFS representatives."

"We want to know what happened to the audit--the real one," said Vejraska. -B. R.


The feds have announced the third technical review team to develop recovery goals for West Coast ESA-listed salmon and steelhead stocks. Teams have already begun work in Puget Sound and Willamette/Lower Columbia regions. The latest team will focus on seven stocks in the Columbia and Snake River basins, and is made up of representatives from tribes, state and federal agencies, and regional universities. It was reported that a few others may be named as well, to add more expertise in the fields of habitat and downstream passage.

So far, the list looks like this: Ted Bjornn, University of Idaho; Richard Carmichael, Oregon Department of Fish and Wildlife; Tom Cooney, National Marine Fisheries Service; Peter Hassemer, Idaho Department of Fish and Game; Michelle McClure, National Marine Fisheries Service; Dale McCullough, Columbia River Inter-tribal Fish Commission; Charles Petrosky, Idaho Department of Fish and Game; Howard Schaller, U.S. Fish and Wildlife Service; Fred Utter, University of Washington; Paul Spruell, University of Montana.

The agency said there will be opportunity for public involvement throughout the entire process, and the TRT results will be peer-reviewed and made available for public comment. -B. R.

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