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NW Fishletter #245, April 11, 2008

[4] Federal Court Upholds Puget Sound's ESA Harvest Policy

A federal judge in Seattle ruled against several conservation and fishing groups who had sued NOAA Fisheries to get more ESA-listed salmon back into Puget Sound streams.

Their arguments that current harvest numbers are too high for a variety of reasons did not persuade Judge Robert Lasnik in the least.

It's the latest in a series of setbacks to harvest reform that began several years ago, when issues of harvest and recovering ESA stocks got a serious boost in the public consciousness after Seattle attorney Eric Redman spoke before the Northwest Power and Conservation Council about the conundrum of harvesting the very fish the region was obliged to recover. Redman helped write the Northwest Power Act nearly 30 years ago.

His main message was that expensive salmon-recovery efforts in Puget Sound and the Columbia Basin were being stymied by too much harvest. He announced the formation of a new alliance of municipal governments, utilities and environmental groups to focus on harvests by both humans and marine mammals.

That alliance is now pretty much a goner, and its attempts to get more ESA-listed fish to spawning grounds are running out of steam in the courts.

In the March 20 decision, the feds did admit that the management plan put together by Sound-area tribes and WDFW, and approved by NOAA Fisheries, was less than ideal, but managers were faced with competing mandates of upholding tribal harvests and starting recovery efforts. They felt current harvest rates wouldn't really harm recovery because so little improvement in salmon numbers would occur from few habitat actions during the short, 5-year life of the plan

Judge Lasnik said, in the face of competing scientific data, the agencies deserved "deference" in their decisions, and he gave it to them on every major point.

Plaintiffs' attorney Svend Brandt-Erichsen said the judge should not have deferred to the agencies because it allowed the government to sidestep its legal obligation to recover the ESA-listed chinook. He represented the Salmon Spawning and Recovery Alliance, Wild Fish Conservancy, Native Fish Society and Clark-Skamania FlyFishers in the proceedings, which began in early 2006.

Brandt-Erichsen argued that the harvest plan set escapement goals far too low -- some only a tenth of what a technical recovery team had estimated was needed to create viable populations.

But harvest managers said those goals were based on MSY (Maximum Sustainable Yield), the estimate of a certain watershed's current fish-production capability. MSY is a factor limited mostly by habitat constrictions and has nothing to do with recovery goals. The feds argued that reducing harvest rates had little impact on recovering the chinook, compared to rebuilding habitat.

Plaintiffs also argued that increased Canadian interception of some Puget Sound stocks should have triggered re-consultation of the harvest plan's BiOp, but the government argued successfully that it is still collecting data on the subject, which is generally updated every five years.

"Accordingly, the Court defers to NMFS's technical expertise and concludes that NMFS' decision not to reinitiate consultation on the Canadian harvest was not arbitrary and capricious," Lasnik ruled.

"We have yet to find a court that will take a serious look at recovery," Brandt-Erichsen told NW Fishletter. "It's a frustrating thing." He said there has been no decision yet whether to appeal.

Two other harvest-related cases are still in process. The same groups had filed over the legality of bringing ESA-listed salmon across the border. That one was dismissed in customs court about a year ago, and is now in the Federal Circuit, where a ruling may come in a couple of months, said Brandt-Erichsen.

The groups' challenge to the Pacific Salmon Treaty and increasing Canadian harvests was dismissed in federal District Court in September 2006, and appealed to the 9th U.S. Circuit Court of Appeals, where argument is set for April 11 over whether the district court has jurisdiction to hear their complaint.

The political will to push for harvest reforms that began with Congressional hearings four years ago seems to have pretty much petered out.

In October 2005, several Northwest congressmen, including Norm Dicks (D-Wash.), held field hearings on ESA recovery and harvest issues.

The Tacoma hearing listened to attorney Brandt-Erichsen, who represented a then-brand-new coalition concerned about the Canadian interceptions of listed U.S. stocks. He hinted that the group might sue federal agencies to reopen consultation over the U.S.-Canada salmon treaty. At that time, the coalition also called on the Customs Service to enforce regulations that would keep U.S. sports fisherman from returning home with chinook caught in B.C. because the fish might have been part of an ESA-listed U.S. stock.

At a Jan. 25, 2005 hearing on harvest in Pendleton, Ore., Gary Loomis, president of the Salmon Spawning & Recovery Alliance, told Congress that "harvest rates on chinook from key Puget Sound rivers are too high for the salmon to recover." He said NOAA Fisheries acknowledged it, "but approved the harvest plan anyway."

That very same day, the White House announced that the Bush administration would like to reduce harvests and weed out hatcheries that had adverse effects on listed stocks.

The get-tough-on-harvest message, delivered by James Connaughton, chair of the White House Council on Environmental Quality, was partly in response to the emerging lawsuits.

Since then, the Bush administration has found bigger fish to fry. NMFS is now actually supporting some increase in harvest rates in the Columbia River in the nearly finished renegotiations in the U.S. v. Oregon process, and the hatchery review in the Columbia Basin is only half-completed at best.

And Snohomish County PUD, the biggest member of the Salmon Spawning and Recovery Alliance, no longer participates nor funds it. That leaves just two conservation groups -- Fish First, and Friends of the East Fork -- in the Alliance.

But the Alliance's Loomis (he's also president of Fish First) hasn't given up. He has found thousands of new constituents in the recreational-fishing sector as a prime mover to develop Oregon and Washington chapters of the national Coastal Conservation Association, with a chief aim to ban non-Indian commercial gillnetters, which he sees as the major obstacle to increasing wild salmon and steelhead runs.

The Northwest CCA chapters are picking up where the Salmon Alliance left off -- pushing for more clipped-fin hatchery fisheries to allow for more selective fishing, while allowing more wild (unclipped) salmon and steelhead to get back to their spawning grounds.

In 2003, Norm Dicks sponsored legislation that called for marking all fish at federal hatcheries. It passed, despite serious objections from many tribes. The new regime has led to a selective spring chinook sport fishery in the Columbia and selective coho and steelhead fisheries in some areas of both Washington and Oregon.

But it's still not being implemented in Canadian or Alaskan mixed stock chinook fisheries in the ocean, though some players in upcoming treaty talks say it will definitely be one of the hot-button issues in talks this year. About 80 to 90 percent of the chinook caught by Canadian commercial trollers and sports fishers off Vancouver Island are bound for the Lower 48. -B. R.

The following links were mentioned in this story:

NW Fishletter 191, Jan. 31, 2005

NW Fishletter 204

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