[2] Lawsuit Planned Over Canadian Harvest Of ESA-Listed Stocks

A small coalition of utilities and sportsfishing groups has threatened to sue federal agencies if they don't re-open consultation over the Pacific Salmon Treaty. Citing new DNA catch data, they say nearly 90 percent of the fish landed by Canadian fishers off the west coast of Vancouver Island come from US waters and most are listed for protection under the Endangered Species Act.

In their intend-to-sue letter to NOAA Fisheries and the departments of State and Commerce, the Salmon Spawning and Recovery Alliance says the biological opinion written in 1999 to analyze impacts from the Pacific Salmon Treaty with Canada is outdated. They point out that recent information like the DNA analysis "now show that the Canadian fisheries have a much greater impact on our ESA-listed salmon than was understood (or admitted) in 1999. This is a fishery that actively targets salmon, the vast majority of which are now known to be ESA-listed fish from US rivers."

Seattle attorney Sven Brandt-Erichsen says renewed listing decisions that include hatchery-origin fish means that they are also subject to ESA protection, a situation not contemplated in the 1999 BiOp.

The BiOp is also out of date, says the letter, because NOAA Fisheries has a better understanding of what it must do to achieve recovery of listed stocks since then, "...and it is now clear that the Canadian harvest levels on several runs are too high for those populations to recover."

The potential plaintiffs also claim that that the old BiOp on the treaty was flawed from the beginning because it didn't look at impacts of fishing on recovery prospects of the listed stocks and analyzed the impacts of Canadian harvest by comparing the proposed action to a baseline (fishing absent a treaty) "rather than aggregating impacts of harvest on the ESA-listed salmon and comparing those impacts to a recovery standard."

The letter points out that ESA-listed Snake River fall chinook make up less than 2 percent of the Vancouver Island catch, but that is more than 50 percent of the ocean catch of the listed stock. "Moreover," says the letter, "the number of Snake River Fall Chinook caught and kept in the WCVI troll fisheries alone equals the portion of the Snake River Fall run reportedly caught in all of the in-river Columbia fisheries during that same period."

The Canadians also catch many chinook bound for Puget Sound streams, where chinook are listed under the ESA for protection. According to the letter, between 1985 and 2002, BC fishers landed more than 55 percent of the Skagit River chinook caught in all fisheries, and just last year, caught 70 percent of the natural-origin chinook bound for the Nooksack.

With salmon recovery plans finally beginning to take shape, the letter notes that Canadian harvest rates will make it impossible to achieve recovery objectives. "Fisheries can sometimes take large chunks, but not now," said Brandt-Erichsen.

The letter cites information from Snohomish County's new salmon conservation plan, expected to cost $134 million over the next 10 years, that calls for limiting harvest to 24 percent while stocks are rebuilding. But actual harvest is more like 30 percent, which the letter says will likely lead to fish declines, "regardless of habitat improvements (italics theirs.)"

By implementing stock-selective harvest regimes like the recreational coho fishery off BC, which keeps only marked hatchery fish, the coalition says catches could refocus on hatchery fish "deemed unnecessary for the recovery of the ESA-listed populations."

The letter also claims that the BiOp on Canadian harvest is flawed because of its failure to satisfy at least two criteria based on the recent Oregon District Court opinion (NWF v. NMFS) on the hydro BiOp. First, because it fails to give adequate consideration to the impact of Canadian harvest on the recovery of ESA stocks. Secondly, it improperly compares harvest under the salmon treaty to a hypothetical fishery that might have occurred without a treaty, "instead of measuring the cumulative impact of all harvest on the listed stocks against a recovery standard."

According to Judge James Redden's recent ruling, the coalition says both are "fatal flaws." At present, the coalition includes the sport groups Fish First and Friends of the East Fork, and Snohomish PUD, one of BPA's largest customers. Several other groups supported the letter, including the Native Fish Society and the Clark-Skamania Fly Fishers. -B. R.

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