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NWF.139/Mar.15.2002
[1] NMFS Caves On Critical Habitat
[2] Debate Over BPA Spill For Hatchery Fish Now Annual Event
[3] Sports Fisheries Bring Cash Boon To Northwest
[4] Survival Of Wild Broodstock Coho Lower Than Wild Ones
[5] Environmental Groups Flunk Feds' Slow Salmon Recovery Efforts
[6] Giacometto Resigns From NWPPC; Hines Appointed In His Place

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[1] NMFS CAVES ON CRITICAL HABITAT

The National Marine Fisheries Service is asking a Washington DC judge for permission to withdraw current critical habitat designations for 19 listed populations of West Coast salmon and steelhead. The move is in response to a lawsuit filed over a year ago by the National Homebuilders Association and 16 other parties, including some counties in eastern Washington state, who took issue with the agency's blanket designations of all the fishes' habitat as "critical." The plaintiffs said the government erred by not looking at the economic impacts of the designations as required by the Endangered Species Act.

The ESA says it's illegal to adversely impact or destroy habitat that's designated as critical to the survival of listed species. But it also requires an analysis of the economic impacts of setting aside land as critical habitat. If the judge OKs the feds' proposal, the plaintiffs will drop their lawsuit and NMFS will begin a new analysis to designate critical habitat for the listed fish populations.

While the plaintiffs say the critical habitat designations are too vague and excessive, NMFS' announcement has mobilized environmental attorneys, who have already filed objections to NMFS' proposal. Earthjustice attorney Todd True told NW Fishletter that NMFS has absolutely no basis for rescinding habitat protection. He said any change to the final rule on habitat designation must go through rulemaking, including a public comment period.

"The court can't be used to short-circuit the rulemaking process," said True, who is representing several environmental and fishing groups that have been trying to intervene in the case since last May. So far, the judge has made no decision on the matter.

NMFS agreed to change its ways last November, when federal lawyers involved in the case filed a Motion of Voluntary Remand of Critical Habitat for designations adopted on Feb. 16, 2000. One of the plaintiffs' attorneys, Galen Schuler of Perkins-Coie's Seattle office, said the suit was filed in hopes of getting a better public policy. "Congress has already decided the issue of economic considerations in the ESA. They said it's worthwhile to recover these species for their own sake." But he said that analyzing the economic impacts of critical habitat designations will help design the most cost-effective recovery effort.

Federal lawyers pointed to a May 2001 decision in the 10th Circuit Court (New Mexico Cattle Growers Assoc. v. USFWS) that found the government's current approach to analyzing the economic impacts of habitat designations "must be much more specific." The Tenth Circuit set aside the USFWS critical habitat designation for the southwest willow flycatcher and remanded the designation for completion of an economic analysis.

Fifth Circuit, Tenth Circuit, Short Circuit

"The Tenth Circuit decision is wrong," said Earthjustice attorney True. He cited a Fifth Circuit Court decision involving the gulf sturgeon as more applicable to the case.

In a summary judgment memo filed last fall, plaintiffs had argued the original NMFS approach was illegal. To support their position, the plaintiffs' memo quoted comments made by then acting NMFS Northwest regional administrator Donna Darm in an intra-agency memo. "...When we make critical habitat designations," Darm said in the e-mail, "we just designate everything as critical."

The Homebuilders' lawyers argued that the approach was wrong because "NMFS simply designated all waters presumed to be accessible to fish and an indeterminate riparian zone around those waters," whether fish really inhabited the habitat or not.

Plaintiffs also pointed to the ruling in the New Mexico case as the reason for looking at the economic impacts. They said critical habitat designations have important economic consequences from permitting delays, higher costs of preparing biological assessments, project redesign or limitations based on ESA "take" requirements, or any "adverse modification/destruction" determination that keeps a project from being completed.

They also said that NMFS has treated the "jeopardy" standard and "critical habitat" tests as one and the same . Once a species is listed, the jeopardy standard becomes effective, they said, so "critical habitat designations and their regulatory effects have been treated as relatively unimportant by NMFS and FWS. From this indifference has grown the 'incremental impact' approach to economic analysis in the critical habitat designation."

When species are listed under the ESA, said the plaintiffs, Section 7 requirements for consultation ensure that federal actions are not likely to jeopardize the species. An economic baseline is provided at that point by the listing and consultation, so designation of critical habitat "has no meaningful regulatory effect" beyond the baseline. Since consultations on adverse modification of critical habitat and the jeopardy standard are "indistinguishable," the plaintiffs said the agency decided that critical habitat designations have no regulatory or economic impacts, and therefore, has not even attempted an economic analysis of the critical habitat in question--over 150 watersheds in four states.

It's an approach that federal courts have consistently rejected, said the plaintiff's memo, citing several decisions, including the New Mexico case that NMFS is now using as a reason to re-initiate consultation over critical habitat.

NMFS' official statement said the agency didn't expect the proposed decree would significantly affect protection of the listed fish population, pointing out that provisions of "essential fish habitat [EFH]" in the Magnuson-Stevens Act will remain in place to protect salmon habitat. As part of the agreement, plaintiffs said they would dismiss all claims that the EFH standards were adopted in violation of that act.

NMFS officials from Southern California told the San Francisco Chronicle they felt the agency would lose in court if the lawsuit continued, and would thereby lose "total control" over getting the economic analysis done properly.

California contractor Bruce Smith, speaking for the National Homebuilders Association, said his group agrees with NMFS on the need for salmon protection that uses better scientific data. "This agreement gives us a chance to work together, and create a more balanced approach," Smith said. "Ultimately, we think we can come up with more science-based salmon protection and environmentally sensitive land use while still meeting housing demand in these communities. We look forward to working with NMFS and environmental groups to achieve these goals."

A press release from the Building Industry Association of Washington said the settlement was "triggered" by Darm's remarks that NMFS designates everything as critical, as made public by the plaintiffs.

"Mostly we don't do this because we lack information," Darm said in the same 1998 memo (but not included in the press release). "What we really do is the same thing we do for Section 7 consultations. We just say we need it all. It might be good to be explicit about this as well, since this designation is related to habitat analysis."
So-called "critical habitat" along the Snohomish River,
a rehabbed stretch of riverside once the scene of
a huge, months-long tire fire.

NMFS downplayed the issue after the remarks were made public. Agency spokesman Brian Gorman told the Tri-City Herald that Darm's comments were based on the premise that the most conservative thing to do for endangered salmon is to protect as much habitat as possible.

But environmental and fishing groups say NMFS did not err in its critical habitat designations. They point to a nine-page table NMFS included in its rule, identifying particular stream "hydrologic units" by state and county where critical habitat is located. As for the economic issue, the groups say the ruling in Cattle Growers that invalidates the baseline approach to economic analysis is "flawed" because it contravenes the ESA mandate that such analysis focus on the effects of designating a "particular area" as critical habitat. They cite a decision in the Fifth Circuit (Sierra Club v. USFWS) that found a contrary ruling to the Tenth Circuit's decision on the definition of jeopardy and adverse modification. They say the Tenth Circuit is wrong because it relies on a definition that "fails to recognize the distinct statutory benefits that can be provided by a listing and the designation of critical habitat, especially where the designation encompasses habitat beyond the species' present range."

The plaintiffs took issue with this approach in their November memo, arguing that NMFS designated all accessible reaches of rivers as critical habitat, whether these areas are occupied by listed fish or not. They point out that NMFS' own words in the Federal Register consider barriers such as culverts and irrigation diversion dams as "ephemeral...that the agency does not view as impassable structures."

"We knew full well we would lose this case," said senior NMFS biologist Craig Wingert from the SW Regional Office in Long Beach, California. Before the agency was sued, he said NMFS officials were aware of the potential risk from the vague designations.

"The real question is how do we link recovery planning to critical habitat designations?" He acknowledged that there are potentially significant economic effects if habitat, not yet occupied, is deemed necessary to recover some stocks. He says such a situation is more likely to occur in California, the southern-most range for listed chinook, steelhead and coho. If the judge accepts the consent decree, Wingert said others in his office have estimated it could take up to two years for NMFS to re-do the habitat designations.

If she accepts the consent decree, environmental and fishing groups have urged DC District Court Judge Colleen Kollar-Kotelly to keep the current critical habitat designations in place while NMFS rewrites them. -Bill Rudolph


[2] DEBATE OVER BPA SPILL FOR HATCHERY FISH NOW ANNUAL EVENT

The annual rite of the Spring Creek spill debate began in earnest last week when Columbia Basin salmon managers argued for three hours with hydro managers over the contentious issue. The only agreement among all sides at the March 6 Technical Management Team meeting was to bump the decision up to the Implementation Team the following day, thereby dropping the hot potato in the lap of mid-level policymakers. A week later, water was pouring over Bonneville Dam's spillway, but a lot less than fish managers wanted.

It began with the first System Operations Request of the year by fish managers, who called for hydro operators to bump up flows at Bonneville Dam to 170 Kcfs for at least five days beginning on the evening of March 11. That would be enough water to allow for 100 Kcfs of spill to aid the passage of 7.8 million Spring Creek hatchery fish (fall chinook "tules") that were set for release the morning of March 11.

Spilling each day could cost BPA about $250,000 in lost generation at a 50 Kcfs, 12-hour spill level, the agency's TMT representative Scott Bettin told NW Fishletter. He questioned the value of the strategy, since turbine survival at Bonneville Dam is already about 95 percent.

Since most of the fish pass the dam within a few days of their release, some said providing spill for five days would only add about 50,000 more smolts to the millions already on their way to the ocean. Fish managers were more optimistic, estimating that up to 300,000 smolts would be saved by spilling the water. In the past, BPA has provided 10 days of spill to help the fish.

Rudd Turner of the Corps of Engineers told the IT group on March 7 that his agency estimated the fish managers' request would increase survival of the hatchery fish from 95 percent to 96.5 percent, or add another 90,000 smolts to the number of fish in the estuary.

With recent adult returns estimated to be as high as 2 percent of the outmigrating fish, that could mean close to 2,000 more fall tules to be caught by sport, commercial and treaty fishermen. But it would be a drop in the bucket compared to recent totals. Last year, tribal fishermen caught nearly 54,000 of them, along with nearly 40,000 of the more valuable Hanford Reach fall chinook.

This summer about 145,000 hatchery tules are expected to enter the Columbia River. It's a mixed blessing for harvesters, though, who found the fish nearly worthless last year in a marketplace glutted with farmed salmon and wild fish from Alaska. Buyers offered as little as 10 cents a pound for the fish, which are ready to spawn when they hit fresh water, reducing their quality.

The spill request came with another potential problem: possible negative effects to some nearby redds dug by ESA-listed chum salmon in shallow back waters below Bonneville Dam. With young fish beginning to emerge from the gravel, both the fish and eggs would be vulnerable to high levels of dissolved gas created by the spill at the dam.

According to the SOR, "The overall importance of this stock [tules] to ocean and Columbia River commercial sport and tribal fisheries has been previously documented and recently reported in the Oregon Department of Environmental Quality request for a total dissolved gas waiver. The Spring Creek stocks are an important buffer to ESA listed stocks present in ocean and Columbia River mixed stock fisheries."

ODFW's Ron Boyce, chair of the salmon managers, told the TMT that the Spring Creek fish are the "backbone of ocean and lower Columbia fisheries that means tens of millions of dollars to the region."

When pressed by Montana representative Jim Litchfield, who said it might help to try to quantify the catch, Boyce said only that the stock provides the "opportunity" to give harvest managers the flexibility "to do what they need to do in the ocean."

"So, it's an economic decision for everybody," Litchfield said.

"It's not our job to discuss that here," Boyce responded.

The value of the additional fish was not discussed the next day either, during the IT conference call. Policymakers did weigh the risk of implementing the salmon managers' request compared to a lesser offering from the Corps, which said it could probably come up with a few days of 150-Kcfs flow and 50-Kcfs spill. At present, flows have been reduced to the 120-125 Kcfs range to reach the BiOp-mandated elevation behind Grand Coulee by April 10. That's determined by the water supply forecast which was updated the next day. But the new forecast stayed the same--91 percent of average at The Dalles.

The fish managers had ended the TMT meeting the day before in a feisty mood, leaving with an all-or-nothing demand. They had changed their position by the next day, although not without another long discussion.

Realizing they weren't going to get their request, the fish managers suggested more flexibility in hydro operations could be gained by taking some water from John Day Pool during the proposed spill effort, then refilling it during the spring freshet.

But the Corps' Cindy Henriksen said irrigators need water year round and could not tolerate more than a couple of days with their pump intakes dry. USFWS' Howard Schaller suggested looking at water from Montana's Libby Reservoir. Henriksen said the latest water supply forecast has already raised the level that the pool needs to reach by April in order to be ready for BiOp flow augmentation and flood control.

The meeting ended without results, though fish managers promised to have another proposal on the table by noon Friday. It was likely likely that the final strategy would call for three or four days' worth of 200-Kcfs flows, with tailwater elevations rising to 14.5 feet at Bonneville Dam, to keep total dissolved gas from spill operations below 105 percent for nearby chum redds.

There was plenty of grumbling, as tempers flared; both fish and hydro managers seemed unwilling to trust each others' analyses. NMFS TMT representative Paul Wagner said he found the unwillingness of salmon managers to negotiate the issue the previous day "somewhat troubling," after hydro managers had explained that the request could not be implemented while maintaining BiOp guidelines for water levels.

Some fish managers seem ready to accept more risk than others, even though it could mean less water to aid migrations later in the spring. USFWS' Schaller said the failure to accept the SOR means that the region is willing to accept more risks to fish when operators will not tolerate risks in other uses of the hydro system. ODFW's Ron Boyce said actions should be dictated by the needs of the fish, not the constraints of the hydro system.

But BPA's Scott Bettin said his agency has a mandate to provide a reliable power system.

Others seemed content that the fish would probably get a little more protection. "We tend to tune in on this one [discussion] almost every year," said Liz Hamilton of the Northwest Sports Fishing Industry Association, "and it's been going on for a long time. Releases of hatchery fish are everything to us; that's what we fish on now. So measures that you do in the river that enhance the performance of these fish mean millions to our people, and we appreciate every small bit that goes into it and we'd like to see it maximized."

Spill began March 12 when flows were bumped up to 150 Kcfs and a spill level of 50 Kcfs. The operation was scheduled to end March 15, when about 90 percent of the fish were expected to have passed the dam, but fish managers were back at the table requesting more water last Thursday afternoon. They didn't get any.

The spill cost (through Friday morning) was expected to be about $500,000 in foregone power, said BPA's Scott Bettin, about half the cost if the fish managers' request had been implemented. Bettin said the smolt index count had been "smothered" by the huge release, making an accurate count impossible. -B. R.


[3] SPORTS FISHERIES BRING CASH BOON TO NORTHWEST

Last year's huge salmon runs on the West Coast meant good times for sporties, tackle shops and charter operators--if they were still around after the last big economic shake out from declining runs and declining opportunity from ESA sanctions in the 1990s. But commercial salmon fishermen did well themselves, pumping nearly as much economic gas into local economies as the sporties.

Commercial troll impacts on West Coast coastal community economies (including state personal income) amounted to more than $21 million last year, mostly in California and Oregon, according to figures released by the Pacific Fishery Management Council. The figure is about twice the ex-vessel value of chinook and coho fish landed in commercial fisheries last year. The PFMC met this week to set ocean fishing regimes for the upcoming season. As part of the process, their latest analyses were recently released. They do more than just count fish. They count dollars, too, and model the economic impacts of the fisheries.

The PFMC report has found that recreational ocean fishing contributed about $23 million to the states' economies last year, about the same as the previous year, but down considerably from the early 1980's when the recreational fisheries were estimated to pump about $40 million (2001 dollars) into West Coast communities. Commercial fisheries were much stronger then, contributing an estimated $72 million annually in the early 1980's. However, that was still much lower than commercial values in the late 1970's, which averaged nearly $180 million a year, about three times the estimated value of recreational salmon fishing to the economies of the three West Coast states.

But crackerjack sports fishing last spring on the Columbia River pumped about $15 million into local economies as well, according to an analysis based on a national survey that compute every salmon angler trip to be worth $103 to the economy. This year looks like it will be pretty much the same, though coho fishing is expected to be reduced considerably over last year's huge return.

By next month, it may be a lot harder to find a bag of potato chips west of Bonneville Dam than a spring chinook. With over 300,000 upper Columbia springers expected to return, it's likely to be the second best season since 1938, when counting began at Bonneville Dam. Fall chinook returns are expected to be about twice that number, a run that promises to be one of the largest in the past 50 years. -B .R.


[4] SURVIVAL OF WILD BROODSTOCK COHO LOWER THAN WILD ONES

When wild salmon and steelhead decline to the point where concern about their extinction grows, a common regional response is to intervene with a hatchery program using wild broodstock to rescue the wild native population. But a recent ODFW memorandum that evaluated this type of program for the last two wild native coho runs in the Columbia Basin questions its effectiveness.

In his memorandum of February 1, 2002, ODFW's Mark Chilcote looked at the hatchery rescue program for wild coho salmon in the Clackamas River. In summarizing his review, he noted the following points.

The returns of wild and hatchery coho salmon were very strong in the Sandy and Clackamas rivers, and this increase is very encouraging since Oregon has placed these populations on the state Endangered Species Act.

"However, lost in the good news is a very disappointing return of hatchery smolts derived from wild broodstock that were released into the Clackamas basin as part of the 'rescue/recovery' program implemented in 1996," said Chilcote.

The low return of wild coho in the Clackamas River in the late 1990s spurred a program to collect wild coho broodstock for a hatchery rescue effort. Fish were collected in 1997 and 1998 and smolts were released in the river above the North Fork Dam. The smolts were counted when they migrated past the dam. By dividing the number of returning adults counted at the dam in 2000 by the smolts that migrated out, it was possible to calculate and compare smolt to adult survivals for hatchery and wild fish.

"To my surprise," said Chilcote, "there was a very large difference between the two groups of fish. The survival rates for the hatchery 'rescue' smolts were low: 0.7% for 1999 smolts and 2.2% for 2000 smolts. In contrast, survival rates for wild smolts in the same years were 6.6% and 15.3%. Although, hatchery smolts normally do not survive quite as well as do wild smolts, the difference is generally much less." He said a rough estimate for Eagle Creek Hatchery coho survival (a Clackamas River tributary) has been in the range of 7 percent.

During the 1980s, three brood years of hatchery coho were released from wild broodstock. Chilcote found that the survival of wild coho was much higher than for hatchery 'rescue' fish. The survival rate for wild smolts ranged from 1.8% to 0.7% while the "wild-type" hatchery fish survival range was 0.40 to 0.10 percent.

"Because the fish from the most recent wild broodstock program (1997 and 1998) were intended to assist the rebuilding of the wild population," Chilcote says, "the fact that their survival rates were nearly 1.10 of that observed for wild smolts is troubling. In particular, these differences are so great that they may cancel out any gains that accrue due to the egg-to-smolt survival rates in the hatchery environment which is normally 10 to 20 times greater than they are in the wild environment."

Chilcote also calculated the average number of adult progeny produced per parent for wild and hatchery fish. For the five brood years evaluated, the adult progeny per parent was about the same with 3.85 and 3.93 progeny per hatchery and wild parent respectively. "On the face of these numbers, it appears that the wild system performed about the same as the hatchery," said Chilcote. In other words, removing wild fish and running them through the hatchery system yielded no more adult offspring than if they had been left in the river."

Chilcote also calculated the number of smolts per spawner. For the wild fish, the highest value was 107 smolts per spawner, which occurred in the brood year with the fewest spawners, 235 fish.

"This demonstrates that at lower spawner densities," said Chilcote, " the egg-to-smolt survival was quite high, exactly what classic spawner-recruit models would predict."

This illustrates a very important point. "When the spawner density begins to fall into the range that we might be concerned about the persistence of the population," he said, "we should expect egg-to-smolt survival to be at its highest (i.e., not many mouths to feed and essentially an unlimited habitat). Under such conditions, there will be little benefit to bringing some of the wild fish into the hatchery environment if the resulting hatchery smolts will have ocean survival rates that are 1/10 of those for wild smolts."

Chilcote's analysis of 12 Oregon steelhead populations points out that the hatchery fish, even those from wild broodstocks, are not as viable as wild fish. This work is further supported by his review of supplementing wild coho populations with hatchery fish.

"These results have a significant bearing on the use of wild fish in hatchery programs for conservation purposes," said Chilcote. "I suggest a proactive response to search for solutions now, rather than waiting until the next crisis occurs." -Bill Bakke


[5] ENVIRONMENTAL GROUPS FLUNK FEDS' SLOW SALMON RECOVERY EFFORTS

The Power Planning Council heard from environmentalists last week, who explained why they gave the federal effort to recover Columbia Basin salmon mostly failing grades so far. They based their analyses on how far along are the 199 different measures spelled out in the 2000 hydro BiOp, said Nicole Cordan, who represented Save Our Wild Salmon a coalition of conservation and fishing groups. She told Council members that the government had failed to implement 75 percent of the measures in its plan during its first year.

Cordan said the BiOp "is not a plan that will recover salmon." Further, she criticized hydro operators last year for the "complete and utter failure" at helping salmon during last year's drought. She told members that her group feels that "partial removal" of the four dams on the lower Snake is necessary for recovering the fish.

Council chair Larry Cassidy said the report from Save Our Wild Salmon is "very important bell ringing," while Oregon member Erich Bloch said "It's good to know the score, but what can we do about it?"

Montana's Ed Bartlett called the report "way too harsh," though he gave her an 'A' for presentation.

BPA spokesman Ed Mosey said he agency should have its own progress report out by the end of March. "It's very different from what these people came up with," said Mosey. "A lot of these elements, like subbasin planning are very new. We're very pleased with the progress we have made." -Bill Rudolph


[6] GIACOMETTO RESIGNS FROM NWPPC; HICKS APPOINTED IN HIS PLACE

Citing controversy after a fatal car accident took the life of one of his friends and political allies, Montana Power Planning Council member Leo Giacometto resigned from his position on March 8. "With all the turmoil, rumors, innuendo, not to mention misleading press stories running on me, I do not feel it is fair for the Governor to have to deal with me and the associated distractions," Giacometto said in a press release.

Giacometto, with several friends, was first on scene at a one-car rollover accident that claimed the life of Montana House majority leader Paul Sliter last August. The car was driven by Shane Hedges, chief policy advisor to Montana Gov. Judy Martz. Hedges was driving legally drunk and later pled guilty to negligent homicide. Law enforcement officials suspected a potential cover-up, according to an article in the Billings Gazette, alleging that Giacometto and his friends were trying to leave the impression that Sliter, who died at the scene, was driving, rather than Hedges. Giacometto denied the allegations, and no charges were ever filed.

Giacometto was also accused of threatening a former Martz aide who had written a critical article about the governor, a charge he has also denied. The matter is under investigation, according to the Gazette.

Martz said she accepted Giacometto's resignation with regret. "Leo is a dedicated public servant," said Martz, "whose leadership, public input and advice on energy issues has been invaluable to me and greatly beneficial to the state of Montana. It is unfortunate that the turmoil, rumors and innuendo that have unfairly surrounded Leo have led him to this decision. His departure is a true loss."

Gov. Martz appointed John Hines to fill the position. "Throughout his professional career, John has been instrumental in working on a broad array of electric issues, currently serving as the Council's administrative officer." Said Martz. " I have full confidence that, with his extensive expertise, John will hit the ground running."

Hines has worked in various capacities with the Northwest Power Planning Council and private industry, including serving as an economist for the Council (1988-1994), and serving as a financial consultant for the World Bank in 1987. Hines is also a member of the Board of Directors of the Northwest Energy Efficiency Alliance, and a member of the Governor's Low Income Advisory Group.

"I am honored to be chosen by Governor Martz to be a representative on the Northwest Power Planning Council," said Hines. "I am anxious to begin working in this capacity on behalf of the citizens of Montana and this administration to help ensure that Montanans have fair, low-cost, and stable energy rates. I look forward to continuing the tradition that the Montana Council members have played in previous Council deliberations: one of leadership and prudence". -B. R.

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