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NWF.132/Oct.19.2001
[1] Puget Sound De-Listing Petition Filed: Enviros Go After Hogan Decision
[2] Fish Litigants To NMFS: Revoke Chinook Listings
[3] Irrigators Pour Disdain On New Water Initiative
[4] Sept. 11 Events May Affect Next Year's Salmon Budgets
[5] Montana's Stan Grace To Leave NW Power Planning Council

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[1] PUGET SOUND DE-LISTING PETITION FILED: ENVIROS GO AFTER HOGAN DECISION

A few days after eastern Washington irrigators filed petitions to de-list Columbia River salmon stocks, two other Washington state-based groups filed to de-list chinook stocks in Puget Sound and chum in nearby Hood Canal. Portland attorney James Buchal, who filed the earlier petitions to de-list the Columbia fish after an Oregon federal judge threw out NMFS' ESA listing for coastal coho in that state, took aim at Puget Sound in his latest effort, representing an assemblage of property owners and an agricultural group.

The latest petition uses the Sept. 10 Oregon decision (Alsea Valley Alliance v. Evans) that found fault with NMFS' listing because the agency failed to protect hatchery stocks that were part of the listed coho evolutionarily significant unit. Federal judge Michael Hogan said the ESA doesn't allow NMFS to protect part of the ESU without protecting all of it. He said NMFS made an "arbitrary and capricious" choice when it left the hatchery fish out of the listing.

The new petition, filed by the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association, says NMFS has failed to list for protection along with wild stocks at least 36 of the hatchery stocks it included in the Puget Sound ESU and also failed to assesses risks to the ESU "taking account of risks to hatchery populations."

As for the chums, which only the property owners were petitioning to de-list, NMFS included five hatchery programs in the ESU, but didn't list them for protection along with the naturally producing fish.

In a footnote to the petition, Buchal said the NMFS use of "natural" stocks was itself an arbitrary and capricious choice, and "contrary to law because salmon straying and hatchery operations have effectively eliminated any truly 'natural' stocks."

NMFS itself did not request a stay of Hogan's decision and has not decided whether to appeal his ruling. But some environmental and fishing groups have announced they will try .

Kristen Boyles of Earthjustice's Seattle office told NW Fishletter they are filing for intervenor status in the Alsea Valley lawsuit, a motion that will be contested by the Pacific Legal Foundation, which led the suit for Oregon property owners that overturned the listing. She said if Earthjustice gets status, they will file for a stay of the judge's ruling, pending appeal.

"We think NMFS made a big mistake by not filing for a stay," she said. She also expressed worry that the fish agency may not appeal the ruling at all, although Oregon state officials said protection for the wild coho would remain in place in their jurisdictions.

"The court's ruling doesn't make in-the-river sense," said Tryg Sletteland of the Pacific Rivers Council. "The Endangered Species Act protects the habitats on which fish and wildlife depend. The ruling could result in the absurd situation where wild salmon are allowed to go extinct due to habitat destruction while we 'protect' hatchery stocks and their concrete pools."

Other groups taking part in the action are the Oregon Natural Resources Council, Pacific Coast Federation of Fishermen's Association, the Institute for Fisheries Resources, the Audubon Society of Portland, the Coast Range Association and Siskiyou Regional Education Project.

In his ruling, Judge Hogan said he was not questioning the value of NMFS' genetics arguments. But the agency made distinctions between population segments that Congress had not intended the agency to rely upon.

"Finally," he wrote in his Sept. 10 decision, "NMFS argues that its listing decision does not contradict the terms of the ESA because the listing decision and relevant policies are in accordance with ESA goals that prioritize 'natural' salmon populations and 'genetic diversity' within those populations. 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 decision that runs contrary to the definition of a Distinct Population Segment."

Another lawsuit that challenges the NMFS ESU definition may now get re-charged. It has been percolating slowly in DC federal court since 1999. Its main focus is Puget Sound listed chinook.

"It is our intent to enforce the court decision in Oregon for chinook listed in the Northwest," said Olympia attorney Jim Johnson, who represents Common Sense Salmon Recovery, a coalition of agricultural and business interests that are plaintiffs in the case. "We expect NMFS to follow the court's directive, and then we'll proceed with our options."

NMFS has until Nov. 9 to appeal, but conflicting rumors coming out of Washington DC have not indicated which way the agency may go. Some say that incoming regional NMFS director Bob Lohn would probably not rule against in-house attorneys if they want to appeal the decision. Others say the Bush Administration is taking a hard look at the whole situation, especially in the Columbia Basin, and discussions between the Interior and Commerce Departments have included the notion of walking away from the new hydro BiOp and starting all over again.

One legal analysis of the Hogan decision obtained by NW Fishletter suggests that NMFS could revise its hatchery policy and re-adopt it through rulemaking, with judicial review available to any dissatisfied party. It also said the agency has little chance of success winning an appeal. If it did win, NMFS could possibly be in worse shape than if it had lost because of the unpredictability of any ruling by the Ninth Circuit Court.

The analysis also said the NMFS hatchery policy has never undergone any public review or comment, and that a review would disclose "serious questions about its biological efficacy." -Bill Rudolph


[2] FISH LITIGANTS TO NMFS: REVOKE CHINOOK LISTINGS

Another lawsuit that has tried to undo NMFS' ESA listing decisions on Northwest salmon has taken an abrupt new turn. Olympia attorney Jim Johnson, representing Common Sense Salmon Recovery, a coalition of business and agricultural interests, has formalized an Offer of Settlement to its 1999 litigation against the Department of Commerce. He sent it on to the feds Oct. 5.

The Common Sense lawsuit claims the listings were based on the federal agency's "unlawful interpretation of the statute and on NMFS' erroneous scientific and factual prediction that the salmon runs were facing extinction."

In light of federal Judge Michael Hogan's decision that threw out the listing of Oregon coastal coho, it's now "appropriate" that the defendants "agree with us to resolve these claims by revoking the challenged salmon listings and remanding," said Johnson. Hogan ruled NMFS was wrong to include hatchery coho stocks in its "evolutionarily significant unit" but not to list them for protection because the agency didn't consider them essential for recovery.

Johnson's letter said his clients will be meeting with new regional NMFS director Bob Lohn to discuss the proposed settlement, which calls for revoking the ESA listings of lower Columbia fall chinook, upper Columbia spring/summer chinook and Puget Sound fall chinook. Johnson said such an agreement would serve the region much better than a protracted de-listing process that could take years.

NMFS top brass, including several regional officials and new regional head Bob Lohn, met for several days in Washington, DC last week. One of the topics of discussion was reportedly the Hogan decision and whether to appeal it. Several de-listing petitions have already been sent to the agency as a result of the judge's order, and more are expected. The agency has until early November to appeal Hogan's ruling to the Ninth Circuit Court.

Johnson said the listings he wants revoked are for ESUs containing hatchery stocks that aren't included for protection with wild stocks. "It is clear that the [Oregon District] court held that a hatchery stock must be included in the calculation of population and status under ESA. Simply applying this correct analysis to the chinook runs here and current run sizes leads to adult run sizes often confirmed by actual counts at the dams." 'As the run sizes make abundantly clear, the NMFS analysis leading to the challenged listings was also scientifically wrong in the several respects argued in our complaint.'

He pointed out that in the case of Puget Sound chinook, in-season updates of earlier predictions have boosted the probable return to over 400,000 fish from 181,000 fish. "The numbers have been and are being substantially increased as these chinook return in historically high numbers roughly comparable to that shown by runs of the Columbia River," Johnson wrote.

"As the run sizes make abundantly clear, the NMFS analysis leading to the challenged chinook listings was also scientifically wrong in the several respects argued in our complaint," he said. "NMFS' projection of declining chinook salmon runs leading to a 'threat of extinction' was simply wrong. This faulty scientific analysis was pointed out at the time by Alaska and the state of Washington and by the Columbia River Inter-Tribal Fish Commission on behalf of the treaty tribes for which the United States exercises a trust responsibility.
Trolling for silvers in the Duwamish
past south Seattle's Boeing plant.

"NMFS simply failed to understand the historic cyclical nature of salmon runs largely resulting from ocean temperature and productivity cycles which other scientists had observed for over 100 years."

Johnson said the fish agency should follow the same approach it did when another federal court found that Oregon's fish recovery plan wasn't prescriptive enough to keep the fish from being listed. In that situation, NMFS complied with the court's decision "prospectively, and applied the court's analysis to other salmon (and did not appeal). The same approach is more strongly required here, where subsequent scientific analysis confirms the court's decision is legally unassailable and the consequences of the Agency's refusal irreparable."

Meanwhile, salmon recovery efforts continued at full speed in Puget Sound. The region's Technical Recovery Team met last week and hashed out questions over fish extinction models and spawner-recruit curves in preparation for developing some ranges for interim recovery goals for the 21 distinct chinook populations identified by the TRT. Policymakers, like NMFS' Bob Turner, want numbers they can use in their forums. Turner expressly asked the TRT for a low-range interim recovery goal, according to NMFS' Elizabeth Babcock, because he needed it to dispute critics' claims that recovery could be achieved simply by cutting harvest.

But the numbers weren't ready for release, and it seems the group is saddled with huge uncertainties while trying to come up with some usable goals. A lack of much data in many of Puget Sound's watersheds is making it all the harder to build accurate models, said NMFS scientist Norma Sands, who is attempting to construct a life-cycle model for the stocks in question.

Interim recovery goals are expected in a couple of months, but others familiar with the process think the deadline is too optimistic. One of the agenda items may be telling. "What are we asking people to count, anyway?" it read.

The group will begin examining harvest and hatchery issues soon, and the sensitivity of their results to those issues. The hatchery question could be a tough one, especially if artificial propagation is shown to have negative effects on wild runs. As one TRT member asked, "Do we need greater capacity if we have hatcheries in the system?" Some said yes.

The difficulties associated with modeling fish populations and extinction risk will be tough issues for every recovery team on the West Coast. "Every TRT is going to have to wrestle with its own models," said member Kit Rawson, a biologist with the Tulalip Tribes.

Also at the TRT meeting, representatives of the Shared Strategy group that's bringing together state, county, federal and tribal entities involved in fish recovery reported on a work plan to coordinate watershed improvement efforts throughout the Puget Sound Basin. The draft was going before a huge 17-member development committee for more work the next day. Not a word was spoken about the huge numbers of returning fish or potential headaches from de-listing petitions. -B. R.


[3] IRRIGATORS POUR DISDAIN ON NEW WATER INITIATIVE

Washington Gov. Gary Locke has announced a new initiative to help resolve conflict over water management in the Columbia and Snake rivers. In launching the process earlier this month, Locke hailed it as a new way of doing business that would help both the economy and fish. But one Northwest irrigators' group has already criticized the new effort, calling it another "state-sponsored 'kum-ba-yah' process."

The program is designed to protect new and existing water uses, "while maintaining a water level in the rivers that supports the needs of fish," said an Oct. 1 press release. "The process will also result in a schedule of activities designed to increase water reliability for existing uses and water availability for new uses."

The new initiative, to be led by Department of Ecology spokesman Tom Fitzsimmons, will include both national and regional peer review, along with facilitated negotiations among water users, power producers, fishing groups, environmentalists, municipal governments and recreationists. Locke said federal agencies, other Northwest states and tribal governments are invited to take part, with the final results due by December 2002.

The Columbia-Snake Irrigators Association has fired off an open letter to newspapers that blasts the state's position. The letter says the state has "embraced the technically unsound 'flow targets' of NMFS, totally biased the water right review process and the application of public interest principles within the state water code, and forfeited the state's legal obligation to protect state water right interests before the misguided dictates of federal agency staff."

The Association has also re-kindled a lawsuit that went into settlement talks with the Department of Ecology over issuance of new mainstem water rights. After the state offered to allow 12 new permits, the irrigators agreed. But now they say the state reneged on the deal.

"They still support the NMFS 'no net loss' water policy for ESA fish," said consultant Darryll Olsen, a spokesman for the group. "They still want water users to pay for existing rights to mitigate issuance of new rights." The suit had focused on the issuance of long-promised permits for water from John Day and McNary pools, promises made long before salmon were listed in the Columbia Basin.

Rather than start another new process, Olsen said the Governor's office should get involved with the mainstem review process under way by the Power Planning Council, chaired by Larry Cassidy. Cassidy told NW Fishletter that he had not been informed of the Governor's new initiative before it was announced.

Olsen said DOE spokesman Keith Phillips told irrigators that none of the group's analyses of the BiOp's flow targets was included in the new water rights record of examination because the agency didn't want to upset Seattle environmentalists. The analyses, including a report by UW professor Jim Anderson, found no benefit to fish from spring flow augmentation, a mainstay of the NMFS BiOp. -B. R.


[4] SEPT. 11 EVENTS MAY AFFECT NEXT YEAR'S SALMON BUDGETS

With budget issues a main item on the agenda, the NW Power Planning Council's F&W committee played to a packed house the other day in Portland. BPA is still committed to spending $186 million on the Columbia Basin's F&W program, but Council members heard that other federal agencies may not have any money to pay for their share of the BiOp next year, due to shifts in priorities brought about by last month's terrorist attack on the World Trade Center. The Council is struggling with the BiOp itself, and working to integrate it into its new subbasin planning process.

A cameo appearance by the new NMFS regional administrator Bob Lohn, late of the Power Council staff, added to the draw. He hinted that NMFS may soon make some significant changes in how it handles the ESA and fish listings in response to a recent court decision that ruled against the agency.

"One signal I want to send clearly is in regard to how the Administration responds to the Hogan decision," Lohn said, referring to the Oregon federal judge's ruling that NMFS erred by not providing ESA protection for hatchery fish along with wild stocks of the same evolutionarily significant unit. "Subbasin planning is absolutely critical." He said that no one in the Administration "is comfortable with the idea that you can walk away from stocks in poor condition."

Lohn said there has been intense discussion in DC over the Hogan ruling and that it will go through a full set of ESA policy decision-making. "There's no final decision yet."

He told Council members that in a few weeks, their work would be seen to be very important. But Lohn wouldn't elaborate, leading to speculation that he was referring to the extensive effort, led by Council staff, to overhaul hatchery practices throughout the basin. More than one observer said the remark signaled a possible sea change in the way NMFS will rate hatchery stocks in ESA-listed fish populations. Whether that could lead to de-listing of some stocks is anybody's guess.

Council staffer Doug Marker, acting head of the NWPPC's fish and wildlife division, said Bush Administration priorities have shifted due to the Sept. 11 terrorist attacks. The five-year plan to implement the BiOp is on hold, he said, but the ongoing one-year implementation plan is still moving ahead.

Using the Bureau of Reclamation as an example, Marker said funding for irrigation screens and water rights to aid fish recovery in tributaries--items that also give the action agencies credit against the BiOp--may not be available because the agency may have to ask for money to safeguard its projects. But neither the Council nor BPA wants to be on the hook for all BiOp costs.

"The Council can play a central role in getting appropriations," Marker told the group, by lobbying for agency budgets. Federal agencies are not allowed to lobby Congress for their funds.

Sarah McNary, BPA's own F&W head, was there to show support for the Council's subbasin planning process and discuss the 50 pages of comments her agency had sent the Council over funding F&W proposals. She called it "the beginning of a dialog" and stressed that BPA's comments do not mean that it's exclusively a BiOp-focused review. It's all part of a complicated effort to reach compliance with the BiOp, after input from NMFS on whether certain proposals get "credit" for implementing the plan to avoid jeopardy to fish stocks listed under the ESA.

The immediate issue is how to prioritize fish recovery proposals in the Columbia plateau region, where the Council's independent science panel and fish managers agreed on $66 million in projects for next year.

With no budget ceiling to work with originally, fish managers had come up with over $80 million in proposals before the scientific review. Last year, the plateau province budget amounted to only $28 million.

"BPA never gave us a number to work with," said Brian Allee, head of the Columbia Basin Fish and Wildlife Authority. He said CBFWA will now be going back to take another look at the budget with BPA.

Marker said the problem is how to allocate funding among the provinces still under review, since $41 million has already been committed to three regions. Though BPA has bumped total F&W spending from $159 million last year to $186 million, pro-rating the increase over the provinces still under review would add only about $8 million for the plateau province and bump spending for the area, which contains some of the program's spendiest hatchery projects, up to $35 million. That means cutting the current number of recommended proposals in half.

So the Council staff will lead the prioritization effort. The question, Marker said, is whether BPA will OK those recommendations, even if it didn't say yes the first time around, as with the so-called "early action" and "high priority" projects BPA decided to fund on its own.

A sleeper issue that made the agenda last week was the proposal to create a new oversight board to guide activities of the Fish Passage Center, long seen by power advocates and some others as an advocacy group when it was created to provide information on fish passage and make recommendations for flow and spill operations of the hydro system.

FPC staffer Margeret Filardo recently made headlines by announcing results of juvenile survival that showed benefits of spill during this year's migration, adding to earlier results announced in August (See NW Fishletter 129) . However, when pressed, the FPC was not able to produce documentation to explain the findings. In fact, NMFS scientists told NW Fishletter that they were unable to duplicate the FPC survival results and that sample sizes were so low that results from the spill survival analyses were "statistically insignificant."

That's exactly why some Council members have pushed for more oversight of the Fish Passage Center. When Council counsel John Shurts said he thought the FPC results should be presented to Council members along with the latest NMFS results, Montana's Stan Grace asked if the Fish Passage Center had any supporting documents besides the presentation that's available on its website. "They have not, I've been told," said Grace. Shurts said the staff was working on that. -B. R.


[5] MONTANA'S STAN GRACE TO LEAVE NW POWER PLANNING COUNCIL

After more than 12 years on the job, Montana Power Planning Council member Stan Grace has announced he will be leaving the Northwest Power Planning Council in late October.

The council's longest serving member, Grace may be best known for voting in the minority against the NWPPC's controversial 1994 F&W program, which called for annual drawdowns of Snake River reservoirs to aid juvenile fish passage. He has served as chair of both the F&W committee and the entire Council. This year, he led Council skeptics in criticism of BPA's fish spill program, citing little evidence of improvement for fish passage and a waste of water in the second lowest water year on record.

Grace said he has stayed on longer than he had originally planned, but is now ready to retire. "The fishing is good on the Missouri and I will have the new harness for my mule team in a few weeks," he wrote in a message sent Sept. 21. "I have thoroughly enjoyed my tenure on the Council and will miss not only the friends I have made and worked with but also those that I've been able to represent."

Grace will be replaced by Montana lawyer Ed Bartlett, who previously lobbied for Montana Power and has lately served as both chief of staff and chief counsel to Gov. Judy Martz. -B. R.

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