[4] Feds Fight Off Puget Sound Harvest Lawsuit

The federal government has filed a dense, complicated response to allegations by conservation-minded fishing groups that NOAA Fisheries didn't follow its own criteria when it determined that harvest levels for ESA-listed salmon stocks in Puget Sound do not jeopardize efforts to recover the fish--an effort that's expected to take decades.

The legal wrangling [Salmon Spawning & Recovery Alliance v. NMFS] is being closely watched by many parties throughout the Northwest as other potential lawsuits have been threatened over harvest policies in the Columbia Basin.

The Puget Sound lawsuit is tied up in the technical details of how to determine the number of fish that can be caught--and the feds readily admit that the numbers are based on the maximum escapement governed by current habitat conditions.

In a brief filed May 29 in federal court in Seattle, the federal government said the groups have misunderstood the relationship between the agency's paper on viable salmonid populations and its determination of "viable" thresholds for individual salmon populations.

But the plaintiffs say that developers of the resource management plan written to cover the Puget Sound harvests by both treaty and non-treaty fishers didn't base upper management thresholds for fish escapements on the viability numbers developed by the Puget Sound technical recovery team, which are substantially higher.

However, in their latest brief, the feds said they are not required to use the TRT numbers developed for recovery targets since they were premised on "vast habitat improvements."

Besides, said the feds, escapement levels have been set to achieve viable thresholds at least 80 percent of the time over the next 25 years. And since they factored in low marine survival rates to make results more conservative, "escapements would also increase" as marine survival improves.

The feds said the contribution of hatchery fish to natural spawning areas has also increased escapement trends in some local rivers. As an example, they point to the increasing numbers of two stocks in both forks of the Nooksack River to counter claims by plaintiffs that the north region (Georgia Strait) did not have two stocks headed for viability.

The feds pointed out that it had already considered that the total exploitation rate on the North Fork Nooksack stock by all U.S. and Canadian fisheries was about twice the NMFS-derived rate of 12 percent, and that it would be exceeded even with no fishing in Puget Sound.

Their modeling estimated that Alaskan and Canadian fisheries alone would represent a 14-percent increase in the likelihood that the populations would fall below their critical thresholds, but only a 2-percent decrease in the probability of rebuilt populations in 25 years. Hence, they concluded that populations would be adequately protected for the next five years, the life of the current resource management plan.

The federal position was backed up by an amicus filing by WDFW and Puget Sound tribes that argued since federal experts considered all the relevant factors, "and articulated a rational connection between the facts found and the choice made, its decision should be upheld."

The Salmon Spawning & Recovery Alliance and other plaintiff groups say that harvest levels should also be cut because of increased pressure by Canadian fishers on listed Puget Sound stocks, since BC fishers have begun fishing earlier in the year.

But the amicus memo by WDFW and tribes said the boost in Canadian catches may be true but cannot trigger a reconsultation over the plan, since they are the actions of a "separate sovereign over which NMFS and the Co-Managers have no control."

The feds argued that they have already considered the possibility of increased Canadian interceptions and that some years, the rebuilding exploitation rates would be exceeded. But they said a process is in place to cope with it if co-managers don't alter their plan--then consultation could be reinitiated.

The feds also noted that it hasn't been that long since they became aware of the increased Canadian harvest and that it would take several more years of gathering data to complete a comprehensive evaluation. Typically, they said, that is done every five years.

Plaintiffs will file a reply brief by June 15, with the defendants responding by July 3. -B. R.

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