[7] Niners Uphold Puget Sound Harvest Plan

The Ninth Circuit Court has nixed an appeal by conservation groups that argued the National Marine Fisheries Service had not properly factored recovery of Puget Sound's listed chinook into its harvest plan and biological opinion for the ESA-protected run.

The Niners' panel upheld the ruling by District Court Judge James Lasnik that said the agency deserved deference in its determination that since total recovery of the ESU was not achievable under current habitat conditions, the resource management plan developed by NMFS did not appreciably reduce the chinook ESU's chances of recovery.

"This conclusion," wrote the panel in its Aug. 14 decision, "and the methods adopted to reach it--was reasonable and entitled to substantial deference."

The plaintiff groups, the Salmon Spawning & Recovery Alliance, the Wild Fish Conservancy (formerly Washington Trout), Native Fish Society, and Clark-Skamania Flyfishers, took small comfort in comments added by Ninth Circuit Judge Marsha Berzon, who did take issue with part of the decision.

Though she did agree that NMFS was entitled to deference in its determination, she sided with the conservation groups who argued that NMFS acted "arbitrarily and capriciously" when it approved planned exploitation rates for the Georgia Strait region, because they were twice the benchmark rebuilding exploitation rates the agency had derived for the ESA-listed Nooksack River chinook.

Judge Berzon said NMFS' arguments that other factors would adequately protect chinook populations in the region were not reasonable. "Even if contributions from hatchery-origin spawners will 'buffer' the adverse effects of high exploitation rates, this justification cannot be squared with NMFS' repeated emphasis on maintaining the viability of the natural salmon population in each region."

The judge said the agency's argument that increasing natural-origin escapement trends justified a departure from its methodology was at odds with NMFS' previous conclusion that the absence of increasing natural-origin escapement among other populations justified higher exploitation rates.

Berzon didn't buy another NMFS claim--that Indian tribes' expertise regarding the conservation of trust resources would adequately protect the Nooksack River chinook. She said the statement was "vague."

She also faulted the agency for not providing any quantitative support for its proposition that these factors would compensate for the "dangers posed by high exploitation rates. The absence of quantitative analysis is particularly striking in light of the fact that the agency used complex data analysis techniques to drive the RERs [Rebuilding Exploitation Rates] and did not rely simply on speculation." -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