NMFS Changes Course After Decision Not To Appeal Hogan Ruling
 Region Reacts To NMFS' ESA Policy Shift; Enviros Can Intervene In Case
 Optimistic Redd Counts Coming From Idaho
 Mid-C Fish Show Little Ill From Low Flows
 Science Panel Knocks NMFS Over Harvest Policies
 NMFS CHANGES COURSE AFTER DECISION NOT TO APPEAL HOGAN RULING
NMFS announced Nov. 9 that it will not appeal the Oregon ruling (Alsea Valley Alliance v. NMFS) that threw out an ESA fish listing because the coastal coho hatchery component was not included for protection. Instead, the agency will spend the next year developing a new hatchery policy, which will be completed by September 2002. At the same time, the agency will begin reviewing the status of affected stocks and promises the review will be finished by next fall.
NMFS regional administrator Bob Lohn said the Alsea Valley case reminded the agency that it doesn't have a "clear and consistent policy" on hatcheries and wild fish. NMFS will immediately begin a public rulemaking process, including public hearings, to determine what ESA listing standards should be applied to salmon populations that include fish reared in hatcheries.
Lohn said NMFS' actions mean a major shift in emphasis for NMFS staff in the Northwest. Status reviews of all ESUs that fall into the purview of the coho decision will be updated, which means that NMFS will take a new look at 23 out of 25 salmon and steelhead listed populations on the West Coast. He said the latest numbers of returning fish will be included.
Lohn said the agency will also encourage more local efforts for fish restoration. If NMFS judges them to be scientifically credible, the agency would give parties "safe harbor" for three to five years while the efforts are developed.
He said it's time to start investing in recovery, not in arguments over recovery. But Lohn also noted that the agency would not back away from current protections. No other ESUs will be de-listed at this time.
In the meantime, work of the technical teams on interim goals for recovery, like the one for Puget Sound stocks, will stay on course.
As for the petitions recently filed to de-list many of the stocks, the agency said they will be addressed next year, once the status reviews are updated. After the updates, if some stocks no longer warrant listings, they could be removed from ESA protection--a process that could be completed within another year. A formal de-listing process would take about two years to complete. -Bill Rudolph
 REGION REACTS TO NMFS' ESA POLICY SHIFT; ENVIROS CAN INTERVENE IN CASE
The National Marine Fisheries Service's recent announcement that it would not appeal an Oregon judge's ruling (Alsea Valley Alliance v. Evans) to de-list coastal coho has put the agency in a whole new ballpark as far as the ESA is concerned. Officials say the agency will make a major shift in policy as a result.
The district court ruled that NMFS was wrong when it included hatchery runs in the listed coastal coho environmentally significant unit (ESU) without offering them the same protections as the wild component of the run, a decision that Judge Michael Hogan admitted was based less on genetics and more on the legal technicalities of the ESA, specifically, the definition of a "distinct population segment."
Onlookers cheered each returning chinook at the Issaquah hatchery.
The huge return meant most fish were allowed to spawn naturally.
Environmental attorneys that have vowed to appeal the Hogan decision were rewarded Nov. 16 when Judge Hogan granted them intervenor status in the suit. The environmental and fishing groups had submitted a supplemental brief Nov. 6; as intervenors, they immediately filed a brief asking the Ninth Circuit court to stay Hogan's decision. NMFS had earlier argued against allowing the environmental and fishing groups to intervene in the case.
With 23 out of 25 listed salmon and steelhead stocks on the West Coast in this hatchery/wild conundrum, Northwest regional NMFS head Bob Lohn said Nov. 9 that much of his staff's work will be re-directed to develop a coherent hatchery policy that's consistent over all the listed stocks, a process expected to take until late next summer. Concurrently, listed stocks will undergo updated status reviews, with the ultimate goal of either maintaining the listings or beginning the process of de-listing, depending on the results of the reviews. Until then, Lohn said all current listings will be maintained.
But a Washington attorney said the agency should withdraw those stocks from listing now, based on the Oregon decision. "You cannot tell me that federal agencies will enforce the ESA throughout the region with those illegal listings," said Olympia attorney Jim Johnson, who is spearheading another lawsuit (Common Sense Salmon Recovery v. NMFS) in DC federal court.
Johnson said he's in talks with Justice Department attorneys over settlement of his case, which, among other things, questions the NMFS decision to exclude hatchery stocks from many listed ESUs for genetic reasons, including Puget Sound and Upper Columbia salmon and steelhead. "It isn't a question of whether, it's a question of when," Johnson told NW Fishletter.
With NMFS' decision to let the Alsea Valley case stand, the agency stressed its support of local efforts to restore fish runs. "Recognizing the successes of local restoration efforts, we are determined to build on this momentum and bring state, local and tribal groups together to discuss salmon restoration efforts in a new and meaningful way," NOAA assistant administrator Bill Hogarth said in a Nov. 9 press release. He noted that the federal agency "has been guided" by principles developed by governors of the four Northwest states.
States Split On Appeal Question
Washington Gov. Gary Locke said he welcomed the NMFS announcement "to initiate new salmon restoration efforts" rather than appealing the decision. "The Bush Administration made it clear that they are going to support state and regional efforts to recover salmon," he said. "They recognize, as I do, that it makes no sense to halt our efforts because of a single court decision in Oregon. While there are issues in the court order that NMFS needs to address, Judge Hogan did not say we should stop trying to protect and recover salmon. The fact is we need to do a better job of protecting our watersheds and taking care of our rivers and streams for both people and fish."
When the Hogan decision was first announced in September, Oregon Gov. John Kitzhaber sent a letter to Commerce Secretary Donald Evans urging the government to appeal the case. "Simply relying on artificial production to support the populations of a species is contrary to the intent...and the spirit of the ESA itself," Kitzhaber wrote. After last week's decision, Kitzhaber said he was disappointed by the decision not to appeal, but "I am pleased that (the fisheries service ) has pledged greater support for state and local recovery efforts over the next three to five years and has committed to clarifying their view of hatchery policy."
NWPPC chair Larry Cassidy said he was excited by the prospects of working with NMFS "to address the needs of all fish and wildlife in the Columbia River Basin, including threatened and endangered species. Local input, and avoiding duplication, is the key to salmon and steelhead recovery."
And WDFW head Jeff Koenings said NMFS' decision not to appeal the Hogan ruling "does not, at this time, alter efforts underway to recover listed salmon runs in Washington state." He said his agency "welcomes a public review by NMFS of its salmon hatchery policies--particularly those relative to excluding hatchery fish as non-essential for recovery--and expects WDFW scientists to play an integral role in that review process along with others. Such a review may bring clarity to issues raised in the Alsea Valley Alliance lawsuit, and provide additional guidance as we move forward with a collaborative, ecosystem approach to salmon recovery."
Sportsfishing interests had urged NMFS to appeal, afraid that by listing hatchery stocks, the agency would lock up harvest opportunities. But lower Columbia tribes supported NMFS in its decision. "We feel the ruling is sound and proper," said Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission, "and not only holds for coastal coho, but for other listings in the region as well. We think they made the right decision." Hudson also said there is a middle ground where he hopes the tribes and NMFS can establish a working relationship to recover salmon using hatcheries as a restoration strategy.
Hudson said he didn't think any new NMFS policy would reduce harvest opportunities, but that sports interests were "too paranoid." He said he could see harvests in the future where both sports fishermen and tribal fishermen will be catching fish and none of them will be marked. Currently, most hatchery fish are marked to help sports fishermen identify them. Unmarked fish are generally wild and must be returned to the river if caught in non-Indian commercial and sport fisheries, especially during spring harvests.
Clarity is something the process could use as NMFS begins to sort out the hatchery and wild fish situation. For instance, NMFS documents indicate that in the threatened Snake River spring/summer chinook ESU, eight hatchery stocks were part of the ESU when the fish were listed, and one was not. As of Oct. 1, 2001, four more hatchery stocks had been added to the ESU, and two other hatchery stocks were judged not part of the ESU. When the ESU was first listed in early 1992, no hatchery populations were considered part of the listing, but now 12 are considered listed, due to captive broodstock or supplementation programs that have begun in the meantime.
An "Administrative" Question
The federal agency previously considered the question of whether to list existing hatchery populations in ESUs "as largely an administrative one," according to a 1999 evaluation prepared by the Conservation Biology Division at NMFS' Science Center in Seattle.
NMFS said that hatchery fish would "generally" not be listed even if they were part of an ESU "unless they are considered 'essential' for recovery of the ESU. It is important to note that a determination that a stock is not 'essential' for recovery does not preclude it from playing a role in recovery. Any hatchery population that is part of the ESU is available for use in recovery if conditions warrant." The agency went on to point out that "essential' hatchery populations were vital to recovery because wild stocks associated with the ESU were either already extinct or at high risk. They also said that "in general, fish that are progeny of listed fish taken into a hatchery for broodstock automatically will be listed, so that any hatchery population involved in formal recovery under the ESA eventually will be comprised of listed fish."
Though NMFS may be on track to develop a different policy to respond to the Hogan ruling, one attorney familiar with the issue said NMFS could attempt to justify its current policy after an "open and thoughtful" review and a formal rulemaking proceeding. Of course, the agency has already said it will pursue a new hatchery policy through a rulemaking process over the next year, but it's still unclear whether any future major de-listing effort will ensue. After all, new regional NMFS head Bob Lohn told the region that the agency will now focus on rebuilding stocks, and shift from being a regulator--"in everyone's hair"--to a facilitator, to help both local and regional efforts like the NWPPC program. Lohn said a top-down plan was "beyond our reach," but NMFS will now set the framework and let others fill it in.
Meanwhile, local and basin-wide recovery efforts are continuing as if nothing has happened, as well as BPA and other action agencies' plans to implement the NMFS hydro BiOp. -B. R.
 OPTIMISTIC REDD COUNTS COMING FROM IDAHO
Information is trickling in from Idaho that is showing spring chinook adults had little trouble making it home to spawn. According to IDFG spokesperson Sharon Kiefer, counts are now available for the nests, or redds, dug by the beleaguered stock preparatory to spawning in several index streams in the Salmon River drainage. Though anecdotal reports have trickled downriver that said high mountain streams were teeming with salmon, this is the first official word of just how good the spawning season for spring chinook really was.
Bear Valley Creek, for instance, has the highest redd count since 1988 (283), with 172 redds counted this year. In fact, it's the third highest number counted since 1976 (215), and comes from a brood year that produced only 38 redds in 1997. Progress has been steadily upwards over the past few years---with 33 redds counted in 1999, 69 counted last year and 172 tallied this year.
The news is good over on Elk Creek as well, where 219 redds were counted this year, the highest since 1993 (242). It's also the third highest number since 1973 (375). It's been steadily improving too, up from 10 redds in 1999 and 103 last year.
The Marsh Creek drainage was found to have 185 redds this season, the highest since 1988 (217) and the third highest since 1978 (270). No redds were counted in the Marsh drainage in 1999 and 36 were counted last year.
Spawner/recruit ratios are expected to be higher than earlier good returns because recent runs have so few three-ocean returns compared to runs more than a decade ago, which spread out returns over two years rather than the more compressed reality of returning springers that's been found in recent years. -B. R.
 MID-C FISH SHOW LITTLE ILL FROM LOW FLOWS
Though flows and spill this year were down considerably, a draft report on juvenile salmon survival in the Mid-Columbia region has shown that survival past Chelan PUD dams this spring was similar to results obtained over the past several years.
With 90,000 fish tagged for the study, survival averaged 92.2 percent (weighted) at Rock Island. Last year's PIT-tag results showed similar numbers, while it was reported the 1998-2000 weighted average for steelhead and chinook survivals at Rocky Reach was 96.2 percent [Correction: The 11/21 version of this story mistakenly reported that chinook survival this year at Rocky Reach was reported to be 96.2 percent. No survival study was conducted at Rocky Reach this year.] Results from the study also found no seasonal trend, or significant relationship with flow and spill levels. "A lack of within-season trend in survival estimates is generally consistent with survival results generated by NMFS at Snake River hydroelectric projects," said the report, prepared by John Skalski of the U.W's Columbia Basin Research and Chelan PUD.
Twenty groups of paired releases were conducted between mid-April and the end of May, hatchery fall chinook raised for a year to approximate the size of spring chinook, which spend a year in fresh water before they migrate to sea.
Average survival of the groups to McNary Dam was almost 75 percent for the fish released in the tailrace at Rock Island and 69 percent for those released at Rocky Reach, further upstream.
Estimates were also made for survival in the lower river from the tailrace of McNary to the tailrace of John Day dam, which averaged 86 percent (plus or minus 3 percent) for fish released above Rock Island. The Mid-C study showed McNary to John Day survivals ranged widely. For instance, survival of the first release group in April was about 66 percent, but was over 92 percent for fish released just a two days later in April. The second-to-last release in May showed a 62 percent survival; another group of fish released two days later showed negligible mortality.
This year's juvenile survivals through that part of the river don't seem too bad for the second worst water year on record. Survival of young spring chinook through that reach (dam plus pool survival) in an above-average water year (1999) is about 85 percent, and about 76 percent in a low water year like 1994, according to the latest NMFS BiOp.
An earlier estimate of survival through this reach in 2001 was made by the Fish Passage Center, which excluded the Mid-C fish used in this study because "they do not represent the timing on the run-of-the river fish." It concluded that the weighted average survival through this stretch was a little more than 82 percent, with different groups of fish (bunched in differing time blocks) showing survival early in the season of around 76 percent to 93 percent late in the season.
The Mid-C fish may have survived better to the estuary than Snake River spring chinook, according to a NMFS researcher who reported his preliminary results at an early November Corps of Engineers' review in Walla Walla. Dick Ledgerwood told the gathered scientists that his PIT tag detections using a trawl net below Bonneville Dam showed that 40 to 45 percent of the mid-C fish made it that far, compared to about 28 percent survival for spring chinook from Lower Granite Dam on the Snake. Last year, Ledgerwood reported that about half of the Mid-C spring chinook evidently survived to below Bonneville Dam, similar to results from Snake fish.
Critics say that the surrogate mid-C fish may show higher survivals than true spring chinook since fall chinook travel lower in the water and could benefit more from spill at dams. But, according to biologists, fall chinook also have lower collection efficiencies at bypass systems, which means they are not bypassed around turbines as well as spring chinook. Since they travel deeper in the water column than spring chinook, they are more likely to pass under screens in front of turbines rather than being directed around them, thereby incurring higher mortality from turbines.
But Chelan PUD biologist Chuck Peven was beaming about the findings. "Though it took them twice as long on average to make the trip," Peven said, "we feel that our fish faired pretty well in a year with such poor water conditions." He said some fish were so pokey this year that detections were still being made into September. -B. R.
 SCIENCE PANEL KNOCKS NMFS OVER HARVEST POLICIES
An independent panel of scientists has issued a report that recommends the National Marine Fisheries Service re-examine its policies for setting salmon harvests that include ESA-listed fish, and take another look at the legal constraints under which it operates to determine whether Indian treaty rights and the Magnuson-Stevens Act are superceded by the Endangered Species Act. They suggested creating more opportunity for terminal area harvests to overcome some of these constraints.
The group, known as the Salmon Recovery Scientific Review Panel, includes six nationally respected experts in genetics, ecology and conservation ecology appointed by NMFS to oversee the work of the Technical Recovery Teams (TRT), who are being put together to develop recovery plans for listed stocks on the West Coast. The scientific panel meets with the Technical Recovery Teams several times a year to review their work on behalf of endangered salmon and to make recommendations.
The Scientific Review Panel concluded that NMFS continues to permit "biologically unsustainable" harvest levels of listed salmon, and they advise the federal fisheries agency to develop a more "rational policy."
They noted frustration "... to hear discussion of optimal harvest strategies, as if no other factors were involved... it is our view that it is this isolation that led to some counterintuitive recommendations, such as to continue the harvesting of declining populations."
The panel said it appeared that "harvest decisions are never connected with other factors in an overall restoration and recovery plan."
"The NMFS Scientific Review Panel shares many of our concerns over the way ESA-listed salmon are being harvested," said Kurt Beardslee, director of Washington Trout, a statewide conservation organization from the Seattle area. The group has filed a notice to sue NMFS over the agency's approval of its Puget Sound salmon harvest plan. -Bill Bakke
LINKS/DOCUMENTS FROM NW FISHLETTER 134:: Below are listed links and documents referred to in the text of NW Fishletter issue 134.
- Oregon Coast Coho Decision
- Evaluation of the Status of Chinook and Chum Salmon and Steelhead Hatchery Populations for ESUs Identified in Final Listing Determinations, Conservation Biology Division, Northwest Fisheries Science Center, March 4, 1999
- Meeting Report, Salmon Recovery Scientific Review Panel, Aug. 27-29, 2001
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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