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Judge Orders Fisheries To Use 'Best Science' On Coastal Coho

Portland, OR  October 10, 2007

        A decision by a federal judge in Portland may mean Oregon will have another protected fish species by December.

        Tuesday's decision by Judge Garr King found that federal plans not to protect coastal coho ran afoul of requirements under the Endangered Species Act for good science. Jan Hasselman is the winning attorney with Earthjustice.

         Jan Hasselman: “The court ordered the National Marine Fisheries' Service to issue a new decision within 60 days which is based on the 'best science'. So we expect that when they look at the right science, that the species will be listed again.”But Hasselman says it's possible that federal scientists could try to find other research that would support their decision not to not list coastal coho as threatened.  Or the feds could try to get the Ninth Circuit Court of Appeals to intervene.

         In conjunction with Oregon scientists, federal officials decided last year not to list the coastal coho. That decision followed a complicated legal history over jurisdiction, and the role of hatchery fish in recovery.

November 2, 2005

New Zealand Mudsnails, a non-native, invasive species, have recently been found on the Deschutes river.  It is likely that they were introduced inadvertently by anglers after fishing infected waters, such as in the Snake basin.  Please see the link below for ways to prevent further introduction into Oregon's waters.

http://www.esg.montana.edu/aim/mollusca/nzms/manage.html

Judge demands agencies help salmon at dams
October 8, 2005
Michael Milstein
The Oregonian

In especially blunt talk aimed as high as President Bush, a federal judge in Portland said he will not put up with any more botched government attempts to reduce the harm Columbia River dams wreak on native salmon.

Federal agencies had better do it promptly this time, and do it right, U.S. District Judge James Redden ordered Friday. And the government had better realize that four hydroelectric dams on the Lower Snake River may have to be torn out if Congress and the president do not supply the money and commitment to aid salmon in other ways.

" 'Speeching' on the dams will not avoid breaching the dams," the judge wrote, a likely reference to President Bush, who in a 2003 speech at one of the dams pledged they would not be breached. "Cooperation and assistance may."

He gave federal agencies one year -- half the time they asked for -- to come up with an effective plan to aid salmon. He then tightened the leash by ordering them to report progress to him every 90 days. Redden outlined five key faults they must correct.

The National Marine Fisheries Service, which has jurisdiction over protected salmon, told Redden it would be inappropriate for him to give step-by-step instructions that would "inject the court into the deliberative process of the agencies."

Redden countered that the agency's failures have proven he must take a more direct role to make sure the next attempt is "not a secret process with a disastrous surprise ending."

Redden's forceful directive is no surprise -- it's a detailed follow-up to what he had told attorneys in court a week ago. But the straight-talking judge made clear that leaders at all levels of government have an obligation to act.

He said government efforts to offset the impacts of the dams were derailed because Congress and the president were not providing the funds to do the job right.

"We are all aware of the demands of other users of the resources of the Columbia River and Snake River, but we need to be far more aware of the needs of the endangered and threatened species," Redden wrote.

He said the agencies responsible for salmon survival and for managing the Columbia and Snake dams have mishandled their task too many times and wasted too much time. They ignored the Endangered Species Act and tailored their assessments to conclude salmon will be all right when they really won't.

"The government's inaction appears to some parties to be a strategy intended to avoid making hard choices and offending those who favor the status quo," he said. "Without real action from the action agencies, the result will be the loss of the wild salmon."

The National Marine Fisheries Service, the U.S. Army Corps of Engineers and Bonneville Power Administration crafted a 10-year, $6 billion plan to assist young salmon by, among other things, keeping them from getting sucked into dam turbines.

But Redden rejected the plan in May as unreliable, the third time in 12 years courts turned down the government's fix for Columbia salmon.

Another failed effort by federal agencies would expose the government to legal liability under the Endangered Species Act for injuring protected salmon. That could require the courts to step in and "run the river," the judge said, something Redden said he cannot tolerate.

"Such a dysfunction of government is not a rational option," he wrote. "There must be cooperation between the parties and all of the three branches of government to avoid such an embarrassment."

Redden specifically faulted federal agencies for limiting their examination of the effects of dams on salmon. Among the tasks he set before them was to expand their analysis of whether dams affect extinction possibilities to also consider whether dams thwart recovery measures.

Federal attorneys have 60 days to appeal Redden's ruling and are considering whether they will, said Brian Gorman, a spokesman for the Fisheries Service. In the meantime, he said, "we'll roll up our sleeves and do our very best" to comply with the judge's order.

Michael Milstein: 503-294-7689; michaelmilstein@news.oregonian.com

Environment clout in Salem all but extinct
September 29, 2005
      The Oregonian

SALEM -- Sure, Oregon practically invented recycling, and we were among the first to protect our beaches and control sprawl. But that was a generation ago.

Today, Oregon conservation groups don't have enough political clout in the state Capitol to get much of anything done. The environmental lobby had high hopes and a common agenda for the 2005 Legislature but ended up playing defense. Advocates acknowledge they likely will remain on the defensive leading up to the November 2006 election as polls show Oregonians are more worried about the economy, education and health care than they are about the environment.

Even among the Democrat-controlled state Senate, "there aren't many people who place a priority on protecting the environment," says Sen. Charlie Ringo, D-Beaverton, a former Sierra Club state chairman who more recently headed the Senate's Environment and Land Use Committee.

The disconnect between Oregon conservation groups and elected leaders extends to the governor's office.

The year's hottest environmental initiative -- adopting California's stricter vehicle emissions standards -- originated with Gov. Ted Kulongoski, not the environmental lobby. Conservation groups put up a fight when the Legislature tried to stop the state from adopting the clean-air standards, But they didn't sway lawmakers, and the governor used his veto to move
forward.

In a report this week, the Oregon League of Conservation Voters gave the 2005 Legislature a failing grade for not doing enough to help the environment. For conservationists, the disappointing legislative session followed the 2004 election, when they suffered major setbacks.

Voters rejected a conservation-backed Measure 34, which would have required state forests to be managed for permanent restoration of old growth as well as timber production. At the same time, voters supported Measure 37, a land-use law favoring property owners that was opposed by a coalition that included environmental groups.

Considering an estimated 150,000 Oregonians belong to various conservation groups, "there's a lot of head-scratching going on right now," said Matt Blevins, a lobbyist for the Oregon Environmental Council.

Press the question with lawmakers and lobbyists, and they recite a list of reasons why conservation groups can't get political traction.

Start with money.

"In many cases, the clout you have is directly proportional to the campaign contributions that you raised and distributed," said Douglas Myers, who lobbies for four environmental groups.
The Oregon League of Conservation Voters' political action committee spent nearly $400,000 in 2004. By comparison, the Oregon Forest Industries Council political action committee spent about $360,000.

But the conservationists were outspent by the combined forces of timber, industry, business and agriculture.

More important than campaign cash is trust forged over years between legislators and lobbyists, argues Paulette Pyle, lobbyist for Oregonians for Food and Shelter, which represents agriculture and timber interests.

Industry and natural resource representatives have worked the Capitol for decades, while conservation groups send new faces. If they sent anyone.

Pyle adds that there's more to Oregon than metro Portland. On the environment, she says, "I think the Legislature reflects the people."

Oregon conservationists learned a hard lesson this year: They can't always count on their friends.

Andy Kerr, a consultant to a number of conservation groups, notes that Democrats welcome support from conservationists but they also depend upon labor unions to provide campaign money and volunteers.

Says Kerr: "When it comes to a fight between labor and the environment, we lose."

Conservation leaders say they need to break through the notion that the environment belongs to Democrats. And they're working on legislative relationships.

The Oregon League of Conservation Voters hired a full-time lobbyist this year, and executive director Jonathan Poisner says the league wants to recruit pro-environment Republicans to run for House seats.

Then there are the issues.

Ray Wilkeson, a veteran timber lobbyist, blames conservation groups for bringing a state forest management bill to the 2005 Legislature that looked a lot like the failed 2004 ballot measure.

"The Legislature is loathe to contradict the will of the voters," he says.

Others suggest the environmental movement has grown out of touch with Oregonians.

"The environment is an important issue to people, but it is no longer a key deciding factor for most legislators. For me it is," said Rep. Jackie Dingfelder, D-Portland.

A spring 2004 survey conducted for the Oregon League of Conservation Voters found Oregonians ranked the environment ninth on a list of important issues.
Gas prices ranked No. 1, followed by the economy and jobs, health care and education.

That's not surprising, especially with people worried about jobs, health care and terrorism, said Bob Meadow, a Washington, D.C.-based pollster who did the Oregon survey.

Oregonians do not appear to be clamoring for "major new environmental laws," Meadow says. But that could change if the public believed Oregon was rolling back environmental protections, he says.

For now, even a whiff of environmental lobby support is enough to kill a bill.

Blevins says he was told to stay away from a bill promoting electronics recycling last session. Representatives for 1000 Friends of Oregon, a land-use group that allies with environmental organizations and farmers, were shut out of discussions about how the Legislature might modify Measure 37.

"We were told we were unrealistic," said Bob Stacey, 1000 Friends' director. "And politically unviable."

Memo to NW Power Planing and Conservation Council Members: Response to harvest impact on Columbia River salmonids is needed

By Bill Bakke, Executive Director

September 27, 2005

I am writing to you on behalf of the Native Fish Society and the Salmon Spawning and Recovery Alliance. The Northwest Power Planning and Conservation Council is the leading interstate and regional body in the Pacific Northwest. This letter concerns a matter of fundamental importance for our entire region, its people, and its fish.

In the years before our native Northwest salmon and steelhead were listed as "endangered" or "threatened" under the Endangered Species Act ("ESA"), the commercial and recreational harvest of these fish was a primary management objective - perhaps the primary objective. With the ESA listings, that should have changed. The ESA does not treat salmon and steelhead differently from other animals. It contains no special provisions that allow continued harvest of ESA-listed salmon and steelhead while harvests of other ESA-listed species are prohibited. The listing of our Northwest salmon and steelhead under the ESA was expected to protect them from harvest, just as from other hazards. Yet it has not done so.

Under the ESA, the continued harvest of listed species is no longer a permissible management objective - it's a real-world problem. In most circumstances, it is also illegal. Harvest need not necessarily be banned, or even subjected to a moratorium, in order to save ESA-listed native salmon and steelhead. But harvest does need - urgently - to be reformed. And the Council is one organization that can force the needed reform to take place.

Recovery, not harvest, is the region's objective today. Evidence continues to accumulate, and common sense continues to insist, that the combined U.S. and Canadian, commercial and recreational, ocean and in-river, Tribal and non-Tribal harvest of our ESA-listed fish is simply too great to allow some - and perhaps most - of the listed native populations to achieve recovery regardless of habitat improvements, important and valuable as habitat improvements (including fish-sparing hydro operations) definitely are.

In its recent Biological Opinion on the harvest of the ESA-listed Puget Sound Chinook salmon, NOAA Fisheries has specifically found, noting that authorized harvest levels are too high to allow the populations of nearly a dozen major rivers to be sustained, much less recover. It would be hard for anyone to argue differently for Snake River Fall Chinook or B-Run summer steelhead. The total harvest of these ESA-listed Chinook salmon exceeds fifty percent (50%) of the adult population, which is only the authorized harvest level.

In the years immediately prior to being listed, almost all ESA-listed salmon in the Northwest, including the Puget Sound and Snake River examples, were harvested at total rates of fifty to eighty percent (50-80%). Now, a decade later, DNA data reported to the Council by the Chinook Technical Committee of the Pacific Salmon Commission shows that eighty-eight percent (88%) of the Chinook salmon caught in the troll fishery off the West Coast of Vancouver Island proved to be salmon of U.S. origin. Almost all were from ESA-listed stocks. Half were from ESA-listed Columbia and Snake River stocks. Even the hatchery fish in most of these stocks are now ESA-listed.

This and other information that can no longer be ignored, and it places the region, and the Council, at a great crossroads. In our efforts to recover ESA-listed salmon and steelhead, either we are really going to start insisting on harvest reform and really integrating it into all our many recovery efforts, or we are not. If we do not, then the native salmon and steelhead we are all trying to save may well perish. No one can argue that endangered native fish can be recovered while continuing to catch and kill them unselectively, not even trying to distinguish native fish from hatchery fish?

The region has heard three main reasons for ignoring harvest or paying it only lip service in recovery planning. None of these reasons can withstand scrutiny factually, logically, or under the ESA:

1. "Listed fish are taken only incidentally, and in small numbers, in fisheries targeting abundant hatchery stocks and non-listed fish." This false. First, the numbers and proportion of ESA-listed fish taken in a wide variety of fisheries have proven to be substantial, as evidenced by the data cited above, NOAA Fisheries' own BiOps for Puget Sound and Columbia River Chinook, and abundant other evidence. Second, as these same sources show, many of these listed fish are targeted and taken in directed fisheries, not "incidentally" by any definition.

2. "Salmon are different because of Tribal fishing Treaties." Yes - but only for Tribal fishermen, and only because of the Treaties, not because of the ESA. The legal entitlement of non-Treaty fishermen to harvest ESA-listed salmon is no greater than the legal entitlement of non-Treaty fishermen to hunt or harvest other ESA-listed animals - namely, non-existent. It is legally and morally wrong, and simply perpetuates historic injustices against the Tribes, for those who resist reform of non-Tribal salmon fishing to use the Treaty Tribes as a shield. There is no necessary conflict between the ESA and the Treaty rights of those Tribes. Moreover, when conservation of species requires activities to be restricted, the courts have repeatedly held that the lawful course requires the conservation goal to be pursued by restricting non-tribal activities - not the activities of Treaty tribes. The Northwest's many entities enlisted in the salmon recovery effort, and the region's several harvest managers, are a very long way from proving that harvest reform for non-Tribal fisheries, combined with improved habitat and hydro operations and hatchery reform, can't work for ESA recovery purposes. It hasn't even been tried yet.

3. "The only ESA-listed salmon we harvest are those in excess of the number of returning spawners that existing habitat conditions can currently support." This is self-serving and absurd. Nature doesn't over-crowd her rivers with salmon. Anyone who has visited rivers in Alaska or Russia knows how jam-packed with spawners they can productively be. It's also ridiculous to pretend to know (as NOAA's BiOp for Puget Sound does) that the habitat of a particular river can support only 500 returning spawners, and that an extra 125 spawners would somehow add nothing to the next generation, or even make recovery more difficult. Biologically complex systems just don't allow such arrogance, such precision. This approach ignores spawner abundance that provides both genetic integrity and nutrient enrichment of spawning streams. Finally, the ESA contains no concept of an "excess" of a still-listed species, much less a "harvestable excess" of a still-listed species. Under the ESA, a fish is either listed or not, protected from a targeted fishery or not. The ESA has no room for the notion of listed native salmon in a particular river being half-protected, half-targeted for a directed fishery. Under the ESA, the choices are either protect until recovered or de-list as having been recovered.

The Council is in a unique position of leadership and responsibility to insist that harvest finally be integrated for the first time into salmon recovery planning - really integrated. Without it, the fish and wildlife program for salmon under Section 4(h) of the Northwest Power Act has little real relevance. Without it, the Bonneville salmon recovery-related funds whose expenditure the Council directs may well be wasted. Without it, sub-basin planning and habitat improvement efforts may be wasted too.

To avoid any confusion, let us emphasize: We do not ask the Council to do less to help recovery of ESA-listed native salmon in matters related to habitat, hydro operations, or hatcheries. We ask instead that the Council do more to help recovery of these fish in matters related to harvest, and particularly the temporary (pending recovery) reform of non-Tribal fisheries.

It will be said that Council has no formal jurisdiction over harvest. This misses the point. Everything the Council does on salmon recovery either does or does not make sense, depending on what those entities that do have formal jurisdiction over harvest decide to do about making harvest support recovery, not conflict with it. It is time for harvest accounting, that is, determining whether harvest is impeding or supporting recovery of salmon and steelhead in each ESU population. We have asked NMFS for harvest accounting and they agree it is needed and should be done, but there has been no movement to do so.

Before or even as a condition of taking its own salmon recovery actions, the Council should insist on answers from those harvest-managing entities:

* What number of returning spawning pairs would constitute "recovery" for each of our ESA-listed salmon and steelhead stocks in each of the relevant rivers and streams of the Columbia Basin?

* What is your plan for getting that number of spawning pairs back to those rivers and streams?

* How will your plan be accomplished?

* When?

* If the numbers of spawning pairs currently returning to those rivers and streams are below the recovery numbers, how can you legally justify the approved taking of any returning spawners by non-Treaty harvesters?

* Will you implement mark-selective fisheries for non-Treaty fishermen? If so, how and when? If not, why not?

The service the Council could provide the Pacific Northwest and its ESA-listed salmon and steelhead by insisting on answers to these questions - sensible answers - would be immense.

Wild Fish Study Says Many Risk Extinction
      By Joe Rojas-Burke, The Oregonian

August 30, 2005

Nearly half the state's unique wild fish stocks are at risk of slipping further toward extinction within five to ten years, Oregon wildlife biologists conclude in a new study.

The native fish status report is the first such accounting in 10 years. It is significant because the risk level it defines will set priorities for protecting fish and restoring streams.

Biologists with the state Department of Fish and Wildlife considered 69 distinct populations, including all varieties of the state's salmon and steelhead as well as most trout populations. They assessed selected sturgeon, lamprey, dace and chub species listed under the Endangered Species Act.

Of the 33 salmon and steelhead populations, 11 are at risk of irreversible decline, and seven are potentially at risk, a draft of the report says.

Biologists concluded that seven are not at risk. Eight historic populations have gone extinct in the past century, most of them concentrated in upper reaches of the Snake and Klamath rivers cut off from migrating fish by the construction of power-generating dams.

Spring chinook salmon illustrate the pattern. The species went extinct in the upper Snake and Klamath rivers after the construction of impassable dams. Four of the remaining six spring chinook units are at risk because of the loss of habitat, the loss of many historic sub-populations, the escape of large numbers of domesticated hatchery fish into spawning grounds and other problems.

Among trout species, such as redband and bull trout, 17 of 27 unique populations are at risk, five are potentially at risk, and four are not at risk.

The Alvord cutthroat trout, a species native to springs and creeks of southeast Oregon and northern Nevada, is the only trout group considered extinct. The species disappeared within a few decades of the intentional release of non-native rainbow trout into the Alvord cutthroat's only remaining habitat in the 1920s.

Bill Bakke, head of the Native Fish Society, a conservation group, said wild fish are probably in even worse shape than the report suggests.

"The bar they are using for conservation is really low," Bakke said. "Even with the low-bar criteria, there are a lot headed toward extinction."

Kevin Goodson, fish and wildlife conservation planning coordinator, said that the study intends to provide a broad overview of the health of native fish, and that the agency will devote more in-depth studies to the populations facing the worst threats. The Department of Fish and Wildlife and other agencies, such as the Oregon Watershed Enhancement Board, will be able to use the information to allocate money and staff to the species most in need.

The study was funded through a grant from the Watershed Enhancement Board. The Department of Fish and Wildlife used to assess and report the status of native fish every two years but stopped in 1995 as state budgets tightened.

The Oregon Native Fish Status Report is online at www.dfw.state.or.us/fish/ONFSR/index.asp. The department will accept public comments on the draft report through Oct. 24. Address comments to Kevin Goodson, 3406 Cherry Ave. N.E., Salem, OR 97303-4924, or kevin.w.goodson@state.or.us or.

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