[3] Feds May Face Lawsuit Over B.C. Sport-Caught Salmon

A new coalition of sports fishers and Snohomish County PUD say they will sue the federal government if it doesn't take immediate action to obey the ESA's stricture that prohibits the import of endangered species. The coalition wants the feds to crack down on chinook salmon caught by U.S. sportfishers in British Columbia's recreational fishery and brought across the border.

Seattle attorney Svend Brandt-Erichsen, counsel to the Salmon Spawning and Recovery Alliance, said recent data shows that about 5 percent of all the chinook caught off the West Coast of Vancouver Island are made up of three chinook stocks listed for protection under the ESA that come from Puget Sound, and the Lewis and Snake rivers.

Brandt-Erichsen told NW Fishletter that fish marking techniques are now available that allow fishermen to identify ESA-listed fish, so they can net only unlisted hatchery fish marked by a clipped fin.

According to the Aug. 17 letter to the U.S. Fish and Wildlife Service and U.S. Border and Customs Protection, federal agencies "have an obligation to resolve uncertainties in favor of ESA-listed species."

"This means," the letter went on, "that to properly implement the ESA's import prohibition, the Customs Service should not allow the import of salmon that cannot be demonstrated to be from non-listed populations."

Though the NMFS biological opinion on harvest allows for the Canadian take of the listed fish, the letter said the document did not evaluate the participation of U.S. citizens in the B.C. recreational fishery. Therefore, it said, such trade isn't authorized as an incidental take, and those imports are not exempt from the ESA's general prohibition on importing listed species.

The letter says that fin clipping could differentiate between protected salmon and unprotected hatchery fish. And, "with some additional effort, it should also be possible to identify wild salmon from non-listed stocks, based on where the fish are caught."

Brandt-Erichsen said that was a reference to creating more terminal fisheries, where stocks are not mixing as in most ocean fisheries. He acknowledged that it would be more of a challenge in the Columbia with Upriver brights, since relatively few, but ESA-listed, Snake River fall chinook are migrating upstream at the same time as the URBs headed for the Hanford Reach.

The coalition's letter cites testimony from the July meeting of the Northwest Power and Conservation Council (see NW Fishletter 200). where harvest managers said over 20 percent of all returning Snake River fall chinook were caught off Vancouver Island (sport and commercial fishery).

At that meeting, managers discussed in-season DNA testing, a cutting-edge management tool used by Canadians to determine stock composition of their commercial troll fishery off Vancouver Island. The results for the 2003-04 season show that the Canadian fishery catches mostly U.S. salmon--about 88 percent, about half of that is made up of fall chinook stocks from the lower Columbia. Another 19 percent are bound for Puget Sound.

The Snake fall chinook made up about 1.5 percent of the Vancouver Island catch, or 2,500 chinook, but that's about 21 percent of the number of Snake falls that made it over Lower Granite Dam by the end of 2003.

The letter also says that Canadians catch about 70 percent of the natural-origin chinooks bound for the Nooksack River, near Bellingham, another listed stock from Puget Sound. Recently, Canadian harvest rates have been boosted as B.C. stocks rebounded from poor ocean conditions. They're up 36 percent from 2003 to 2004.

The coalition, which includes sportsfishing groups Friends of the East Fork (Lewis River) and Fish First, along with Snohomish County PUD, also received support for their letter from the Portland-based Native Fish Society and the Clark-Skamania Fly Fishers. Brandt-Erichsen said some other groups have shown support, but chose not to sign.

There have been few lawsuits that have successfully challenged harvests in recent years, though litigation against the federal government did force the feds to complete an EIS on the salmon fisheries that caught listed fish. But only two weeks ago, at the latest NWCC meeting, independent scientist Dan Goodman warned the council of the potential train wrecks that might appear soon in the form of lawsuits over current harvest practices. Goodman was part of the group that reported in July that current harvest levels of listed stocks may not be justified.

A lawsuit [PNGC v. Brown] that challenged harvest practices in the context of the ESA was turned back in 1994. Plaintiffs had argued that commercial fishermen were violating the ESA by selling listed salmon. But the 9th U.S. Circuit Court of Appeals said that "it was impossible to enforce the trade or transport law as to the few forbidden fish harvested in the ocean or rivers. Impossibility in our view is sufficient answer. It was not the intention of the statute to ban all salmon fishing or to place upon the federal defendants an enforcement burden no one could accomplish."

Brandt-Erichsen said times have changed. Now fish from most federal hatcheries are marked, along with stocks from some tribal hatcheries. He pointed out that federal fish managers themselves have said in their harvest BiOp that some Canadian harvest levels are higher than the highest rate the agency believes would allow recovery of some listed stocks. -B. R.

Subscriptions and Feedback
Subscribe to the Fishletter notification e-mail list.
Send e-mail comments to the editor.

THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.

NW Fishletter is produced by Energy NewsData.
Publisher: Cyrus Noë, Editor: Bill Rudolph
Phone: (206) 285-4848 Fax: (206) 281-8035