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[1] HARVEST CHANGES COMING TO SUMMER CHINOOK FISHERY IN COLUMBIA
With an early spring in full bloom, fall chinook began emerging from gravel beds in the Hanford Reach, causing dam operators in early March to initiate flow constraints to prepare for their appearance. Downriver, near Astoria, early catches of returning spring chinook have put a few hundred fresh fish in Northwest gourmet markets, where filets are commanding up to $20 a pound.
The high prices have provided added incentive for boosting commercial catches, and harvest managers have been using Pit-tag information to get a better idea about potential ESA impacts from different harvest scenarios.
Their new analyses have shown that more chinook could be harvested in late June and July without much adverse effect on ESA spring/summer chinook bound for the Snake River. The later running chinook, mostly headed for the upper Columbia, are not listed for federal protection.
Spring harvests for both commercial, sports and tribal fishers have been severely constrained over concern about the ESA-listed wild Snake chinook. Since 2001, after runs began improving, a sliding scale has been used to determine harvest rates so tribal fishermen could have more success in abundant years.
Improved runs allowed tribes to fish on summer stocks since 2003, the first time in 38 years. Managers have made some changes in the way they count fish to boost the harvest of these unlisted upper-C summers by adding two weeks to the spring counting season, hoping the extension will include most of the summer chinook headed for the Snake. After June 15, fish counted through the end of July are assumed to be mostly headed for the upper Columbia region.
Tribal fisheries above Bonneville Dam had been managed for a maximum 9-percent impact on Snake spring chinook with a 5-percent impact on the summer component of that run. But after the PIT-tag data was analyzed last year, it seems both parts of the run are well on their way home by the time the summer fishery opens around the third week in June.
However, a July 20, 2004, tribal staff report said that last year's spring and summer tribal fisheries likely exceeded that 5-percent impact. Even though their analysis showed that most of the Snake's tributary summer returns occurred between mid-May and the end of that month. The 2000-2003 data showed that up to 20 percent of the Imnaha and Salmon River summer runs still had not passed Bonneville Dam by June 17, with 20 percent of the Imnaha spring run still to pass by June 23.
On the other hand, only 20 percent of the upper Columbia summer run had passed the dam by June 22, with about 80 percent counted by July 23.
According to last year's fact sheet, tribal managers figured that states and tribes could have caught more than 17,000 upper-C summers that were surplus to escapement goals. As it was, tribal gillnetters caught about 8,000 summers.
This year, with the shift towards the use of PIT-tag information, the tribes may be able to target many more unlisted summer chinook after hatchery escapement needs are met. Sources said that the harvest will be on a sliding scale between 5 percent and 60 percent, depending on the size of the run, with the harvestable surplus to be split between tribal and non-tribal harvest sectors.
A January joint staff report released by ODFW and WDFW says that based on the pre-season forecast, tribes will be allowed a summer catch of approximately 15,000 fish as part of a new, three-year interim agreement.
Harvest managers are expecting around 254,000 upriver spring chinook (including 34,000 Snake summers) to enter the Columbia this year, with an additional 62,000 summer chinook predicted for the upper Columbia. If that prediction holds, the upper-C summer run would become the fourth largest return since 1979. Last year's 65,000-fish run ended up third largest since then.
Mike Matelywich, a harvest manager with the Columbia River Inter-Tribal Fish Commission, said a 29,000-fish escapement goal (counted to river mouth) is being used as the yardstick to measure any surplus from this year's run. If the summers appear as expected, the surplus will be harvested at a 50-percent rate, split between tribes and non-Indians, with another 75 percent harvestable of that portion over 50,000.
It was also reported that NOAA Fisheries has quietly OK'd the harvest change through consultation via the US v. Oregon process because the agency expects overall impacts to listed fish not to change. NMFS harvest manager Pete Dygert said a biological opinion is in progress.
The only thing that might derail the harvest changes is the possibility of an injunction that reportedly may be filed by the Colville Tribes, who hail from upriver. They are not a party to the US vs. Oregon process, and their share of any salmon harvest comes from the non-tribal portion that is divvied up by Washington and Oregon state fish managers.
Joe Peone, fisheries director for the Colville Tribes, didn't mention the possibility of court action, but said the proposed change in the lower Columbia summer harvest regime would adversely affect the Colvilles' federally protected fishing rights.
Peone told NW Fishletter that any increase in downriver harvest effort by lower Columbia tribes and non-Indians would also negatively affect future escapements for both wild fish and the Colville Tribes' proposed hatchery near Chief Joseph Dam.
Peone said the tribe submitted testimony at the January meeting of the Columbia River Compact (where non-tribal harvest policy is developed by Washington and Oregon) that came out against ramping up harvest rates. The testimony reports that the Colvilles would have a very limited 1-percent to 5-percent harvest opportunity under the new proposal, far short of a 17 percent equitable share.
Others say the directed harvest of the upper-C summer stock doesn't make any sense at this time, and that the wild portion, about 30 percent of the overall run, should be allowed to rebuild even if it is not listed for protection under the ESA. The proposed fishery may even have an added 12 percent adverse impact on upper Columbia spring chinook, which are already listed as "endangered" under the ESA. -Bill Rudolph
[2] IRRIGATORS ARGUE FISH BETTER OFF WITH BARGING AND DAMS IN PLACE
Columbia Basin irrigators are now claiming that juvenile salmon are actually better off migrating past eight or nine dams in the Columbia and Snake Rivers than if the dams weren't there. When the benefits of barging fish are factored in, they argue that overall salmon survival is better than when the Columbia Basin was in a natural pre-dam state.
In a second memo filed March 11 in their case against the new federal hydro BiOp, Portland attorney James Buchal, representing the Columbia-Snake and Eastern Oregon Irrigators' Association, says NOAA Fisheries' analysts "cherry-picked" survival data from juvenile salmon traps to use the one that showed the lowest natural mortality to make their case that fish are worse off now with the dams in place. Buchal argues that the federal analysis exaggerates the effects of the dams and is "at least, arbitrary and capricious."
Buchal says the government has treated fish transportation benefits the same way. If they hadn't, he says "it would probably be obvious that 'system survival' (i.e., the net survival of transported and untransported fish) in the FCRPS is higher than in a natural river." (Italics his.)
The feds say they did include recent trap survival data in their BiOp analysis. They also said the judge should throw out Buchal's own "study" and most of his other exhibits because they are not part of the administrative record. "Plaintiffs," they say, "have not met their burden of showing that the record is deficient or that one of the narrow exceptions to the general rule applies."
The irrigators also say the feds have "studiously refused" to compare Columbia and Snake spring chinook with survivals in other rivers. They claim that Snake fish have exhibited a 260-percent increase from their previous peak in 1986-87, while a general West Coast production index has actually declined by 12 percent since then.
"It seems obvious that if salmon populations struggled mightily to pass through eight dams and reservoirs," according to the group's memo, "encountering significantly higher mortality than that prevailing in a natural river, such populations would fall faster in other rivers as ocean conditions deteriorate, and recover more slowly as ocean conditions improve. Yet this is not the case at all."
The irrigators' earlier memo in the BiOp litigation pointed out the federal baseline analysis included future harvest impacts from inriver tribal and non-tribal fisheries. The irrigator group considered this to be a significant error because the harvest arena is responsible for much more mortality than the proposed hydro operation; tribal and non-tribal harvest sectors catch more than 30 percent of returning fall chinook.
According to the irrigators, this makes harvesters responsible for ten times more fish mortality than the proposed hydro operations when compared to the "reference" operation that NOAA Fisheries' analysts use as a hypothetical yardstick for running the power system for maximum fish benefits.
The irrigators also charged that NOAA Fisheries has disregarded decades of research on river flows and juvenile survival, leaving out altogether the most significant variable of all--temperature.
The feds say it is perfectly appropriate to put tribal harvest considerations into the baseline "because tribal fishing rights will always affect the status of the species at issue." They argue that treaty rights are not a discretionary federal action like those undergoing ESA section 7 consultation, but are "reserved rights that generally date from time immemorial" that "will continue on in perpetuity."
The feds have argued that ocean salmon harvests, which take another 20 percent of the returning run, are outside the action area of the hydro BiOp, and covered under other ESA consultations. But they admit the hydro action area does at least extend to the freshwater plume beyond the mouth of the Columbia.
But the irrigators' reply, filed Mar. 24, say adding future harvests into the environmental baseline and cumulative effects analysis has "utterly subverted salmon planning." They also argued that federal attorneys are trying to "insinuate" that Tribal treaty rights are not subject to the ESA, when it's "well established" that the Marine Mammal Protection Act and the Magnuson Act are subject to ESA regulations. They say it is also "well established that Tribal treaty harvest is subject to even State regulation for conservation."
The irrigators say that the four lower Columbia tribes already subordinated their harvest rights under a compensation agreement regarding operation of The Dalles Dam.
The feds say the irrigators have misunderstood how the standard is implemented.
The federal response says the proposed action is measured against the environmental baseline and cumulative effects to see whether it would "reduce appreciably" the likelihood of both survival and recovery in the wild. Feds also say the irrigators' attack on the consultation regulations should be thrown out because the six-year statute of limitations has long since run out on the consultation rulemaking, which was finalized in 1986.
"Contrary to the irrigators' suggestion, NMFS did not throw the entire kitchen sink into its cumulative effects analysis," said the feds, who pointed out that their jeopardy analysis was not required to include actions guaranteed to occur, but only reasonably certain to happen.
They pointed out that some state and tribal programs that currently contribute to the degraded status of the stocks are likely to end, which will eventually allow habitat conditions to improve, though such improvements wouldn't have much benefit until after the 10-year hydro BiOp expires.
Feds also responded to arguments by environmental attorneys, who are attacking the new BiOp from a totally different angle. In a spirited defense of the 2004 BiOp's new analysis that puts the dams' existence in the environmental baseline, feds said in an additional March 11 filing that their new approach is "more faithful" to the language of the ESA than was the 2000 BiOp.
The earlier BiOp, the feds say, focused on the species' entire life-cycle, "rather than on a product of application of the precise language of the statute and regulations." -B. R.
[3] ENVIROS ASK JUDGE FOR MORE SUMMER FLOWS AND SPILL FOR FALL CHINOOK
Citing an extremely low water year and poor conditions for migrating salmon, environmental and fishing groups, along with some lower Columbia tribes, have asked a federal judge to order more flow and spill for Snake River fall chinook.
The groups are still in the midst of a challenge to the new hydro BiOp, and on March 21 filed a motion for a preliminary injunction in Oregon District Court, asking a judge to order action agencies to add more spill and water velocity in the Snake River. Flow averages this summer in the Snake will likely be under 30 kcfs. No Northwest state has stepped in to support the push for more water and spill.
The plaintiffs want a 10-percent boost in summer water velocity in both the lower Snake and Columbia River (below the confluence) with augmented flow and possible reservoir drawdowns, along with spill at all lower Snake dams and McNary in the Columbia through July and August.
While they say the boost in flows could improve river survival by 50 percent, they lack any documentation to support such a statement. In a normal water year, inriver survival for subyearling fall chinook is only about 14 percent. Most Snake fall chinook are barged, but survival benefits are speculative at best, and a new NOAA Fisheries study is just beginning to determine if there are any benefits.
But environmental groups trotted out two recently retired biologists who submitted lengthy declarations supporting their proposal, assuring that survival of the Snake fall chinook could improve by 50 percent if more fish were allowed to migrate inriver and spill over Snake dams, rather than be barged below the hydro system. Summer operations now barge over 90 percent of the Snake falls through the hydro system.
However, federal scientists have cautioned that recent research into the survival of the Snake fall chinook has found that over half of returning adults may have never been detected as juveniles because they overwintered in reservoirs and migrated before detection systems were in operation. Until now, the fish would have been classified as mortalities, which may have led fish analysts to considerably underestimate overall survival.
An independent science panel that reports to NMFS and the Northwest Power and Conservation Council looked at these sticky fall chinook and flow issues last winter. They recommended that the entire structure of fall chinook management, including flow augmentation and fish barging, be reevaluated because the overwintering fish have not been accounted for.
Science panelist Charles Coutant, a resource ecologist with the Oak Ridge National Lab, said the region has also confused temperature issues with those concerning general flow increases. He pointed out that in places like the lower Snake, adding summer water from Brownlee Reservoir to aid the migration of young fish might actually increase their mortality because it is so warm.
But neither Fred Olney, retired USFWS biologist, nor Steve Pettit, a retired IDFG biologist, mentioned the confounding factors from the overwintering or the hot water from Brownlee Reservoir in their declarations supporting the environmentalists' motion.
Pettit even suggested that less water might be needed from the upper Snake if Lower Granite Pool was drawn down an additional 10 feet from its minimum operating level. Such a condition would keep barges and cruise ships from reaching Lewiston, according to Dixon Shaver, president of a Portland-based towboat company. He said the lack of dredging in the lower Snake, on hold because of another lawsuit by environmentalists, has already made it necessary to operate the reservoir at Minimum Operating Pool (MOP) plus one foot to keep loaded grain barges afloat.
In pushing for more water, American Rivers and other environmental groups cite current flow conditions in the range of the drought year 2001, which they say "produced the deadliest inriver migration since salmon were listed." This justifies their call to action agencies to purchase more water from willing sellers in the Snake Basin, negotiate for more water from Canadian reservoirs and change operations at Grand Coulee to reduce impacts from ongoing maintenance work.
But for now, the summer fish plan will stay within the current BiOp, said Bonneville Power Administration head Steve Wright at a March 24 press conference, where he and other utility officials called for region-wide energy conservation to keep rates from going up during this low-water year. That means no summer spill at the three lower Snake dams and McNary where fish are collected for barging, but some spill at other mainstem dams.
Wright said 2005 was shaping up to be the 10th worst water year in the 70-year record. However, unless power reliability becomes an issue, summer operations for fish are expected to be normal, he said.
Utilities are beginning to marshal their forces for the latest skirmish over spill. "Further remedies are uncalled for because population trends are up and this BiOp builds upon the extensive protections already in place," said Scott Corwin vice president of the Pacific Northwest Generating Cooperative. "The measures sought by the plaintiffs are way over the top, and would do more harm to fish than help."
Corwin said utility groups will respond to the motion in April, "showing the plaintiffs are misguided about the status of the runs, misguided on the science, and misguided in their call for an injunction and further measures that will harm the economy without helping fish."
BPA staffer Roger Schiewe said his agency is working on cost estimates for the environmentalists' proposal and should have results for the court by mid-April.
But estimating benefits to fish may be even tougher to quantify. An August 2004 NOAA Fisheries memo released when the draft BiOp went public last fall said half the wild fall chinook adults returning to the Snake seemed to come from the overwintering portion of that population. These are fish that don't benefit in any way from summer operations.
More recent information presented a few weeks ago at the March NWPCC meeting was even more dramatic. Researchers said it seemed that only about 10 percent of the wild fish that returned to the Snake from the brood year 2000 actually outmigrated during the 2001 drought. The vast majority who survived and returned to spawn evidently waited out the low 2001 flows, overwintered and went to sea early the next spring. Researchers say it could be a fall chinook survival mechanism that allows them to cope with low flows since the same pattern was evident in 1994 when flows in the lower Snake were down considerably as well. -B. R.
[4] THE CASE OF THE MYSTERIOUS, REAPPEARING FALL CHINOOK
Ongoing research into the habits of Snake River fall chinook that turns conventional wisdom upside down was reported earlier this month at the Northwest Power and Conservation Council by USGS biologist Ken Tiffan.
By radio-tracking fall chinook that linger in the reservoir above Lower Granite Dam, Tiffan and others found that more than half of them haven't yet passed the dam this winter.
Since dam bypass systems are not functioning this time of year, fish passing the dam must face whirring turbine blades. About 6 percent made it as far as the tailrace at Little Goose Dam, and one fish out of the 140 was tracked as far as Ice Harbor.
Until recently, most biologists assumed that fall chinook largely migrated seaward as subyearlings, heading to the ocean only a few months after they hatched from eggs. But Tiffan, who is collaborating with USFWS biologist Billy Conner on the study, said it's likely that summer releases of water behind Dworshak Dam to cool the Snake for the ESA-listed fall chinook are "enabling" this group of chinook that stay behind. Without the cold Dworshak water, the reservoir would probably be too warm for the fish to survive through the summer, Tiffan said in his March 16 presentation before the Power Council.
But by migrating to sea the following spring, the yearling fish seem to survive at a much higher rate than subyearlings. Biologists say the difference in size is likely responsible, since yearlings are more than 200 mm long, while the average subyearling is about half that.
The phenomenon has created some interesting statistics. Since 1993, the biologists estimate that over 40 percent of returning wild adults were reservoir-type juveniles. That means 40 percent of the return didn't benefit from anything dam operators have done to help fall chinook downstream, like barge them from lower Snake dams or spill water at Columbia River dams.
(Courtesy of BPA) In some years, like those returning from the brood year in 2000, the reservoir-type fish represented almost 90 percent of the returning wild run. Tiffan speculates that the extremely low flow year of 2001 had something to do with that, with many juveniles just not getting any migrational cue from flows and, consequently, holding over until the following spring.
Hatchery fish seem to follow the same pattern, with about half of returning hatchery adults made up of fish that stuck around the reservoir all winter.
But Tiffan says researchers still don't know the abundance of reservoir-type fall chinook, nor how much mortality they suffer by passing from one dam to another during the winter. However, their results have surely cast doubt of the validity of previous survival studies of fish transportation, which have assumed that all the fish migrate as subyearlings. These reservoir-types migrate before detection systems at dams are operating, so they are never counted on the way out
Noting that about a quarter of recent redd counts have occurred in the much cooler Clearwater River, where a wild fish supplementation effort has been under way for some years, Tiffan told NW Fishletter that it's likely the Clearwater fish are smaller than those from redds in the much warmer and more biologically productive Snake River below Hells Canyon, and may not grow enough to reach the migrating stage before winter sets in. But he was also surprised by how much they did grow when they stuck around.
Tiffan said the ongoing study has implications for both flow augmentation and summer spill policies. He also noted that this fall chinook study had originally been approved by the fish and wildlife program's independent science panel, but rejected by the Power Council's own staff during its budget review. However, it was one of those proposals that the Bonneville Power Administration felt strongly about, and decided to fund anyway -B. R.
[5] WHAT'S NEXT FOR SUBBASIN PLANS?
Four more subbasin plans were approved at the March meeting of the Northwest Power and Conservation Council meeting, leaving 9 of 59 plans still uncompleted.
Now the big question is how to transform those plans into on-the-ground projects for habitat restoration that will be ready for funding by FY 2007, the start of the Bonneville Power Administration's next rate period.
The plans currently contain general measures, but little in the way of specifics that could readily be presented as potential projects able to go through the normal implementation process that includes scientific review and public comment.
Council members and staff discussed several ways to streamline the process, since it could take 18 months just to develop goals at the provincial level that would be used to make informed decisions about prioritizing individual subbasin projects.
Referring to a draft letter prepared by Council staffers that outlined several "process alternatives," Washington member Larry Cassidy said it represents "the biggest challenge I've seen since I've been on the Council."
To help prioritize efforts in the subbasins, an effort called "rollup" was discussed as a way to develop the province-wide goals by evaluating the subbasin plans once they are adopted. All 11 provinces in the Columbia Basin would then have benchmarks for measuring fish and wildlife program performance, providing a framework for a monitoring and evaluation program and helping managers prioritize resources.
The last three-year budget process funded by BPA based allocations for fish and wildlife projects on previous spending among ecological provinces, with 70 percent going to anadromous fish, 15 percent for resident fish and 15 percent for wildlife.
Some folks, including Mary Verner of the Upper Columbia United Tribes, say that future spending shouldn't be based on the proportions provinces got three years ago. But she said the UCUTs support the 70-15-15 split, a policy that BPA wants to continue through the next rate period. Verner presented the Council with a letter outlining the tribes' recommendations for future funding in their part of the Basin.
Attorney John Platt, speaking for the Columbia Basin Inter-Tribal Fish Commission, reminded the Council that in 1986 it had developed an interim goal of returning 5 million to 6 million fish to the region, and recommended "full funding" of the subbasin planning effort, echoing the message from other tribal representatives at the February Council meeting. Platt said the Council had breached its trust responsibility to the tribes.
A workgroup of state and tribal managers under the aegis of the Columbia Basin Fish and Wildlife Authority has tentatively pegged full funding of the subbasin effort at $300 million a year over BPA's annual $140 million F&W budget for the next 10 years. But a March 16 letter sent to the Council and BPA said CBFWA members were still reviewing "detailed costs." However, their analysis says that current funding is inadequate and should go up at least $100 million a year.
Oregon fish and wildlife officials had objected to the huge draft cost estimates for subbasin planning because the approach included potential actions not necessarily supported by all the co-managers in each subbasin.
"This is problematic for us because characterizing the document as a description of overall future costs implies each action is a necessary and fundamental component of subbasin plans," said a Feb. 10 letter to CBFWA from Tony Nigro, ODFW program manager for ocean salmon and Columbia River.
The letter says the current program needs more mainstem measures to restore fish runs impacted by the hydro system, and asks for 2006 funding of at least $186 million a year, the level assumed in the 2002 rate case.
The CBFWA letter invites BPA and Power Council staffers to work with them to complete the analysis by the end of April as part of BPA's Power Function Review. But CBFWA's call for a major budget increase isn't likely to improve its chances for much coordination with other agency staffs. The letter says at current spending levels, it would take over 100 years to implement all the measures in the Council's program. -B. R.
[6] LOWER COLUMBIA HARVEST PROJECT GETS MIXED REVIEW
A 10-year long BPA-funded effort to get more salmon in non-Indian commercial gillnets without impacting ESA stocks has received lukewarm praise from a joint review by a group of independent scientists and economists. The joint review examined an earlier October 2004 report on the effort that was produced by fish and wildlife staffers from Oregon and Washington and economic development staff from Clatsop County, Oregon.
The project, called SAFE [Selective Area Fisheries Evaluation project] has developed several sites on the lower Columbia River where juvenile chinook and coho hatched at nearby facilities are raised in net pens, then released to migrate to sea. When the fish return as adults they are targeted by these "select" fisheries, out of the mainstem Columbia where most listed fish are migrating upriver.
BPA has questioned the ultimate value of the project, which costs more than $2 million a year, since it's likely that the annual value of the fishery has never approached the annual outlay to keep the project going. But the states say the netpens also produce fish that are caught in ocean commercial and recreational fisheries. In fact, they estimate about one-third of the returning fish produced by the netpen project are hooked before they reach the mouth of the Columbia.
However, the economic panel says the states' report does not include enough data to calculate net benefits of the fishery, which precludes an analysis of a costs and benefits.
The states said boosted values for wild spring chinook, after consumers were scared by publicized health concerns over farmed salmon, helped river fishers catch more than $800,000 worth of salmon in the SAFE fishery in 2003, up about $200,000 from 2002. In the late 1990's, the value from the SAFE fisheries to lower river commercial fishers was around $200,000 a year, but started climbing when more fish returned from much improved ocean conditions.
The states' report also pegged the estimated value of 2,400 chinook and coho caught by recreational fishermen at nearly $200,000. The total value of the SAFE fish was estimated at more than $3 million when all fisheries were accounted for, with a $735,000 estimated worth for the 14,000 SAFE-produced coho caught in ocean recreational fisheries.
The ISAB [Independent Science Advisory Board] charged with investigating biological issues said the October 2004 report didn't include enough information to validate the states' contention that the select area fishery "indicates a very limited impact on listed stocks." The science board also wondered when the BPA subsidy will be removed to allow the project to be supported by commercial and recreational interests. "Is the hydropower mitigation aspect expected to be continued forever?" they asked in their review.
The states say the project is still not fully implemented, but the science board noted in earlier technical reviews that "there seems to be no real definition of an end point."
The ISAB wanted to know the rationale for using a chinook stock originally from the Rogue River for one of the stocks used in the netpen project and they questioned whether the estimated harvest rate (up to 90 percent) on the SAFE fish had "unwarranted" effects on local fishes. -B. R.
[7] TACOMA NOT LIABLE FOR CUSHMAN DAMAGES: TRIBAL CLAIMS MOVED
In a major victory for the city of Tacoma and Tacoma Power, the 9th U.S. Circuit Court of Appeals in early March said the municipality and its utility are not liable for $6 billion in damages claimed by the Skokomish Tribe for the construction and operation of the city's 130-MW Cushman Hydroelectric project on the North Fork of the Skokomish River.
However, the action may yet survive as a claim against the U.S. government in proceedings in the U.S. Federal Court of Claims. And in the meantime, the parties have launched a new round of Appeals Court filings over the terms included in the subsequent license approved by FERC for Cushman.
"We're pleased the court confirmed what the federal district court and a three-judge panel previously ruled, and that is the complete and entire dismissal of the claim," said Steve Klein, superintendent of Tacoma Power.
"I think the court did an excellent job analyzing the law and the facts," said Gordon Thomas' Rick Creatura, Tacoma's lead attorney in the case. He said the court ruled what "we've been claiming all along: there is no individual right of action arising out of a treaty against a non-party to that treaty."
"It's a complete win for Tacoma," added Van Ness Feldman's Mike Swiger, another Tacoma attorney. "It was a decision well worth waiting for." Attorneys argued the case a year ago this month before an en banc, or full panel, of 11 Ninth Circuit judges. Less than two percent of Ninth Circuit cases are granted en banc review.
Philip Lynch, the U.S. attorney who represented the government, also said the court made the right decision. "They correctly found that we are immune." But he said he was uncertain how the Claims Court would handle the case.
Besides the majority opinion, the decision includes two others--one that concurs in part and dissents in part, and the other dissents. Each is signed by different permutations of four judges. The majority opinion was replete with footnotes explaining why the dissents misunderstood the majority point of view.
The majority ruled that that Skokomish Tribe is entitled to "equitable relief" for treaty violations caused by the Cushman hydroelectric project, but not in the form of money from the city of Tacoma. It said the Tribe should have filed in the U.S. Federal Court of Claims and, as part of the order, formally transferred the claims to that court.
It was unclear whether some or all of the claims the Tribe made against the U.S. under the Federal Tort Claims Act (FTCA) and those against Tacoma for state law and treaty violations could be heard in the Claims Court.
"We're disappointed," said Mason Morisset, attorney for the Skokomish. "We think the court is incorrect on a number of treaty law issues." He said he agreed with the split minority order that said the majority "appeared to rule the opposite of earlier panel decisions on the nature of treaty rights, whether they are compensable or not and on the nature of the reservation and its purpose, which we thought was settled law."
Morisset said the Tribe has a number of options, including a request for rehearing of the en banc decision, which is rare, but not unprecedented, he said. Another option is to appeal to U.S. Supreme Court, where Morisset holds a perfect 3-0 record. They could also do nothing at all, an option he said the Tribe probably would not take. In addition, he said, the Tribe will pursue the U.S. Court of Federal Claims action and determine whether it can do so simultaneously with a rehearing or appeal petition.
In the meantime, the battle between the Tribe and Tacoma over the conditions in Cushman's subsequent license goes on. Tacoma never formally accepted the 1998 license, which was issued after a 24-year proceeding, arguing that its 240 cubic feet per second minimum flow regime would render Cushman uneconomic to operate.
Following a series of rehearing requests and court appeals, Federal Energy Regulatory Commission issued its "final action" in the case last month and, in a split decision, upheld the flow regime by lifting a stay it had previously placed on it pending the appeals. Both sides have now filed appeals of various sets of orders issued in the proceeding over the years--Tacoma in the D.C. Circuit, and the Tribe in the Ninth. The Tribe filed a second appeal in the Ninth after FERC refused to consider arguments based on Tacoma's water rights that the Tribe did consider to have been finalized. In the D.C. circuit, Tacoma has appealed the lifting of the stay. The Tribe was set to file its opposition March 10. FERC is filing in support of the Tribe.
"There's going to be a lot of action over the next few weeks," Morisset said.
In the new ruling, the court addressed claims brought by the Tribe against the federal government under the Treaty of Point No Point, and under the Federal Power Act and the FTCA.
The court said a treaty amounts to a contract between two sovereigns. Treaties have been found to allow "equitable relief" against "non-contracting" parties such as Tacoma, but that relief "merely ensures compliance" with the law, not the right to recover monetary damages from the city for treaty violations.
"The city and Tacoma Public Utilities are not contracting parties to the Treaty," the court observed. It said the Tribe misunderstood several cases it relied on in its brief, including one assuring a treaty right to harvest a share of fish runs passing through "usual and accustomed" fishing places. That is "quite different" from a right to sue a "non-contracting" party for damages under a treaty, the court said. "There is no basis for implying the right of action for damages that the Tribe seeks to assert."
The Niners upheld the district court's dismissal of the Tribe's claims under the Federal Power Act, noting the language of the FPA "unequivocally exempts" the U.S. from liability. It said the Tribe should not have brought claims under the FTCA, because they are treaty claims, not torts. Rather, it should have brought these claims under the Indian Tucker Act. The court said that while it did not have jurisdiction to hear the damages claims, it was exercising its discretion to transfer them to the Federal Court of Claims.
Despite the win, the Court did reject a central element of Tacoma's case, namely, that the Tribe's damages lawsuit amounted to an impermissible "collateral attack" on the Cushman relicense proceeding before FERC. FERC has acknowledged, the court pointed out, that the 1924 document it granted for Cushman was only a "minor part" license for the flooding of 8.8 acres of federal land, and did not authorize construction, operation and maintenance of the project.
Tacoma's Creatura said he was disappointed by that. "We do think the Federal Power Act does preempt this entire area. The U.S. has to have some authority to issue a license that binds all parties, including tribal members, and we still think that is a viable argument."
FERC has said that "Tacoma did everything it was required to do," Creatura added. When the license was issued in 1924, the FPA only required a minor part license. "Tacoma couldn't have gotten more than it got."
The court upheld the lower court's grant of summary judgment for Tacoma over arguments the Tribe made concerning the Civil Rights Act of 1871 and on water rights. It said the government is not liable under the 1871 Act, which provides that anyone who causes another to be deprived of Constitutional or statutory rights is liable to that person. It said the tribe is not a "person" within the context of the Act. It also rejected the Tribe's attempt to sue under theory that Tacoma violated water rights that were reserved to the Tribe under the Treaty. It also said all of the Tribe's state law claims were barred by the statute of limitations. -Ben Tansey
[8] SCIENTISTS DEBATE HATCHERY/WILD ISSUES IN SEATTLE
Judging from remarks at a day-long seminar in Seattle, NMFS is still pretty much up in the air about the agency's revised policy regarding hatchery and wild salmon that's due in June. The Mar. 29-30 workshop gave geneticists throughout the country a chance to hear each others' ideas and provided a semi-academic setting to debate the issue.
With only the first day open to the public, it was still a chance to witness a frank exchange of views, including several speakers who supported NMFS' proposal to count many hatchery fish in salmon and steelhead ESUs. Several members of an independent panel used by NMFS to examine their overall salmon recovery effort were also present, who went on record last spring with a letter in Science recommending that NMFS keep hatchery fish out of the new proposal, principally because of reduced fitness.
The agency is revising its hatchery policy in response to a 2001 court decision (Alsea Valley Alliance v. Evans) that ruled NMFS had erred by not including the hatchery component of Oregon coastal coho for protection as it did for the wild portion of the run. Judge Michael Hogan ruled that the listing was illegal since the agency had judged the hatchery stock to be part of the distinct population segment. The agency agreed with the decision and promised to produce a new policy that would abide by the law.
However, after the Alsea Valley decision, the agency was flooded with delisting petitions for other salmon and steelhead ESUs. In the case of steelhead, some petitions said the agency must include the resident form of the steelhead, rainbow trout as part of the ESU.
NMFS finally proposed a new policy in June 2004 that would leave ESU and hatchery policies pretty much the same, but would list around 150 hatchery stocks and resident fish populations. However, current hatchery numbers would not be counted toward any ESU's viability, only the offspring of hatchery fish that spawned in the wild.
NMFS geneticist Robin Waples, who played a large role in developing his agency's original ESU definition, led a discussion of other ESU concepts constructed by biologists, but ended up supporting his agency's own version, which he said may be a little more legally oriented. "Maybe ours is a little more vague and allows us more discretion," he told the nearly full auditorium in Seattle.
Rob Jones of the NMFS' salmon recovery division pointed out that hatcheries had served four main goals; compensation for lost habitat; keeping small wild populations alive while restoring habitat; actually supplementing wild populations; and providing fishing opportunities. He said only the second and third points dealt with ESA issues, but over 300 different hatchery programs in the Northwest are now being evaluated for ESA compliance.
Others admitted that biologists know little of the relationship between resident and anadromous forms of steelhead. For stocks with some resident-only populations like in California's Central Valley, the big questions include how much improvement in viability does the resident form add to the ESU and how the agency would address such populations above barriers like dams.
As for the larger questions about hatchery and wild fish, biology professor Joe Travis from the University of Florida, a member of NMFS' Recovery Science Review Panel, was pretty straightforward about the topic. "I don't think we have a clue," he said, but noted that some recent research showed evidence that found overall fitness of a hatchery steelhead spawning in the wild would be reduced by at least 10 percent in one generation.
Russ Lande of UC San Diego, who chairs the RSRP, said hatchery fish are at best an impediment, or in the worst case, can make a population "seriously unfit." He mentioned the controversial letter penned with other panel members last March, published as "policy" comments in Science, that said the new hatchery policy proposed by NMFS was too lax. Their letter said hatcheries generally reduced fitness and inhibited future adaptation of natural populations, and that the legal definition of an ESU must be unambiguous. "Hatchery fish should not be included as part of an ESU," they said. The scientists said they went public after the federal agency resisted their findings and said their conclusions went beyond the science into policy.
But Ernie Brannon from the University of Idaho thought it was appropriate for NMFS to include hatchery fish in ESUs. He said much of the debate over the fitness of hatchery fish was hypothetical, noting that there is no evidence that hatchery fish from a native steam don't contribute to the overall population.
Roger Doyle, emeritus professor of biology from Dalhousie University, said a lot of the difficulties with hatchery fish could simply be "bypassed" to balance out fitness by determining which fish are going to reproduce.
Rich Carmichael of ODFW's NE Fisheries Research and Development Program said a new definition of NMFS' ESU concept would have little practical effect. He said supplementation is already practiced in most projects in his region and a new ESU definition "will not change the way we operate over the next 20 years, whether they [the fish] are listed or not," except by possibly adding more paperwork if more permits will be needed. -B. R.
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Link/Document AnnexLINKS/DOCUMENTS FROM NW FISHLETTER 194:: Below are listed links and documents referred to in the text of NW Fishletter issue 194.
- Review of the Select Area Fishery Evaluation Project 1993-2003 Final Project Completion Report, Mar. 16 2005
- Select Area Fishery Evaluation Project, Final Project Completion Report October 1993 - July 2004, October, 2004
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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