INTRODUCTORY NOTE:  





	The following is a transcript of Oregonâs response to the Tribeâs preliminary injunction in 


federal court that seeks to release hatchery steelhead in the Imnaha River over Oregonâs request for 


a scientifically sound monitoring and evaluation plan.  The Tribes withdrew their legal action.  


However they followed this up with a bill in the Oregon Legislature to exempt all Oregon streams 


above Bonneville Dam form the Oregon Wild Fish Management Policy.  The passage of this bill 


would diminish Oregonâs management authority over wild, native steelhead protection in those 


streams.  The streams the Tribes wish to exempt from wild fish protection all contain native wild 


steelhead that are listed as threatened species under the federal Endangered Species Act.


___________________________________________________________________________





MEMORANDUM IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION





UNITED STATES OF AMERICA ET AL.,  PLAINTIFFS





			V.					Case No. 68-513 MA





STATE OF OREGON,  ET, AL.,   DEFENDANTS





	The present dispute over (hatchery) steelhead supplementation in the Imnaha River 


Subbasin really centers on a single narrow issue - whether the monitoring and evaluation plan 


proposed by the Nez Perce Tribe is adequate to support the tribal proposal to release 100 adult, 


hatchery-reared steelhead into Lightening Creek.


	The Tribe devotes much of its brief to issues that are not really in dispute, in an apparent 


attempt to divert the courtâs attention from what is in dispute - the Tribeâs monitoring and 


evaluation plan.  Oregon is not seeking to relitigate issues that were addressed in last yearâs Imnaha 


dispute.  Oregon has agreed to (and begun implementing) a supplementation program for the 


Imnaha River Subbasin, outplanting the adult hatchery stock the Tribe proposes to use into Big 


Sheep Creek.  Oregon is also willing to include Lightening Creek in the supplementation program, 


provided there is an appropriate monitoring and evaluation plan in place.


	Monitoring and evaluation, which is expressly required by the Columbia River Fish 


Management Plan (CRFMP) for new supplementation efforts, is critical because (1) there is a 


growing body of scientific evidence that this type of supplementation program is unproven at best, 


and could actually harm existing wild steelhead populations; (2) Lightening Creek (and, to a more 


limited extent, Big Sheep Creek) present a unique opportunity to study the effects of 


supplementation that will be forever lost if the Tribeâs plan is approved in its current form; and (3) 


without adequate monitoring and evaluation we will never know whether the outplants were 


successful in contributing to achieving our management objectives.


	Oregon has consistently stressed the need for an appropriate monitoring and evaluation 


plan.  This is not a ãployä to re-argue the issues in last yearâs dispute. Moreover, as demonstrated 


below, the Tribeâs proposed monitoring and evaluation plan was woefully inadequate.  Rushing to 


implement a supplementation program without appropriate monitoring and evaluation will likely be 


detrimental to the partiesâ mutual efforts to restore naturally spawning stocks.  The Tribeâs attempt 


to gain the courtâs approval of a supplementation program that lacks an acceptable monitoring and 


evaluation plan, as required by the CRFMP, should be rejected.





BACKGROUND





I.	CRFMPâs Supplementation Requirements.





	When the parties entered into the CRFMP more than ten years ago, the risks and benefits 


of supplementation were still unknown.  As a result, the parties recognized that supplementation  


might be worthwhile, but further study was needed to determine the effectiveness of 


supplementation programs.  


	Accordingly, the parties specifically agreed to the following actions:





ãa. 	evaluation of sites suitable for release of hatchery fish at levels of release compatible with 


natural propagation and harvest management;


b.	rearing and transfer of biologically appropriate fish form existing hatcheries to release sites 


in the Upper Columbia River Basin to restore natural spawning populations; and


c.	research to determine the effectiveness of these programs through improved methods of 


supplementing naturally spawning stocks with compatible stocks of hatchery fish in the Upper 


Columbia River Basin.ä (emphasis added)





	The supplementation programs, and the required research, are to be implemented 


consistent with the Planâs overall goals ãto protect, rebuild and enhance upper Columbia River fish 


runs while providing harvest for both treaty Indian and non-Indian fisheriesä (CRFMP Preamble).





II.	Scientific evidence concerning the effects of supplementation.





	As fully explained in the Affidavit of Mark Chilcote, there is a growing body of scientific 


evidence that supplementation programs are both unproven and risky as a means of restoring 


depleted fish populations.  Several recent studies concluded that supplementation programs have 


never aided in the recovery of wild fish populations.  There is no evidence that supplementation has 


had any positive influence on restoring naturally spawning populations of steelhead in the Imnaha 


River Subbasin.


	Moreover, the evidence is growing that the presence of greater numbers of hatchery fish 


will actually be detrimental to efforts to restore naturally spawning populations.  There is ãa 


growing body of scientific evidence that hatchery steelehad do not reproduce as successfully as wild 


fish,ä Chilcote Aff.  If the difference in reproductive capacity between hatchery and wild fish is 


genetically based, and is as great as recent studies suggest, then ãthe interbreeding of hatchery fish 


with wild fish could result in a serious reduction in the health of the wild population.ä Chilcote Aff.


	


II.	Why monitoring and evaluation is critical.





	Given the uncertainty and risks of supplementation, monitoring and evaluation of the 


effectiveness of any supplementation program is critical.  This is especially true of Big Sheep and 


Lightning creeks, where adult hatchery fish have never before been introduced.  Horse and 


Lightning Creeks in particular ãoffer a unique opportunity for evaluating supplementationä because 


they have more similar characteristics than any other two streams in the Grand Ronde or Imnaha 


river basins.  (Carmichael Aff.).  As a result, these tow streams are uniquely situated for study as a 


control-treatment pair.  (Carmichael Aff.. )  Thus, a unique opportunity to study the effectiveness 


of supplementation  in an ideal setting will be lost forever if supplementation proceeds before an 


adequate monitoring and evaluation plan is developed.


	Monitoring and evaluation is not a ãnewä idea that Oregon has raised at the last minute in 


an effort to return to its position in last yearâs dispute.  The Regional Assessment of 


Supplementation Project (RASP) identified years ago the essential elements of an acceptable 


monitoring and evaluation plan.  RASP was a comprehensive effort by state, federal, and tribal 


fisheries biologists to develop standards and guidelines for supplementation programs.  Under the 


RASP guidelines, any supplementation project must allow for assessment in for performance areas: 


(1)  post-release survival; (2) reproductive success; (3) long-term fitness; and (4) ecological 


interactions.  The Tribe was well aware of these requirements; Tribal representatives participated in 


many other efforts to assess and develop appropriate supplementation programs, including 


monitoring and evaluation, over the years.  Indeed, the Tribe even proposed a similarly rigorous 


evaluation as part of a permit application it submitted under the Endangered Species Act in 


connection with spring chinook management in the Grand Ronde basin. 


	





IV.	Last yearâs dispute.





	Last yearâs dispute over supplementation in the Imnaha River centered on one fundamental 


issue - whether the Tribeâs supplemental program was ãbiologically appropriate.ä


Oregon (joined by the United States, Washington and Idaho) sought to prevent the Tribe from 


implementing its supplementation program because the weight of scientific and empirical evidence 


suggested that the Tribeâs supplementation program - which involved outplanting fry - was not 


ãbiologically appropriate.ä  The parties agreed to settle the dispute last year contingent upon a 


monitoring and evaluation plan to determine what effects the program would have on wild fish 


populations.


	The dispute between the parties this year is significantly different from what the parties 


agreed upon in the stipulated order issued by the court last year regarding supplementation of 


Imnaha steelhead.  Contrary to the Tribesâ assertion, the parties have resolved all but one of the 


issues that troubled the parties last year.  Oregon has agreed to allow all of the returning Imnaha 


hatchery produced steelhead a chance to spawn.  There are no ãsurplusä fish proposed  to be 


destroyed.  Oregon agrees that all fish, beyond those necessary to meet the requirement to produce 


330,000 smolts for harvest uses, spelled out in Appendix B, can be used for supplementation, in an 


effort to restore naturally spawning populations of these fish.  Oregon agrees that supplementation 


can occur in Big and Little Sheep creeks, and in Lightning Creek.  Apparently, the ONLY 


difference is in the partiesâ positions is that Oregon asks for an acceptable monitoring and evaluation 


plan to determine whether this proposal will actually assist in rebuilding natural runs, causes harm, 


or is neutral with respect to the goals of the CRFMP.





V.	The present dispute.





	The dispute this year is focused not on the ãbiological appropriatenessä of supplementation, 


but on whether supplementation must be consistent with the RASP guidelines, including the 


necessity of an acceptable monitoring and evaluation plan to assess the impact of the program.  As 


fully explained in the Affidavit of Bruce Eddy (ODFW Regional Supervisor for NE Oregon), 


Oregon has made continued, reasonable, good faith efforts to avoid having to present this dispute to 


the court for resolution.


	Oregon worked closely with the Tribe in an effort to coordinate steelhead production 


following the resolution of last yearâs dispute.  Oregon then contacted the Tribe last October to 


begin planning for the 1999 steehead management program.


	Extensive discussions, with submission of proposals and counter-proposals by both parties, 


occurred in December, 1998.  Oregon presented tow alternative proposals, both of which included 


outplanting adult hatchery-reared steelhead, in early January.  The Tribe responded with a counter-


proposal that indicated, for the first time, that the Tribe wanted to outplant 1000 adult hatchery-


reared steelhead in Lightning Creek.  Oregon expressed its objection, but the Tribe proceeded with 


formal notification  of its outplanting proposal in late January.


	Further discussions continued in February; on February 22, Oregon reaffirmed its 


willingness to work with the Tribe to develop a supplementation program that included a well 


developed monitoring and evaluation plan.  On March 5, the Tribe provided  (for the first time)  its 


monitoring and evaluation plan.  Oregon responded on March 23 with its comments on the Tribeâs 


monitoring and evaluation plan.  Oregon also proposed that a small work group of Oregon and tribal 


staffs work together to develop an appropriate monitoring and evaluation plan by July 3, 19999.    


Oregon also offered to submit differences of opinion  over what constitutes an acceptable M&E  


plan to the Scientific  Review Board for resolution.


	The Tribe responded by filing its motion for preliminary injunction.





ARGUMENT





I.	Monitoring and evaluation is required by the CRFMP.





	The CRFMP specifically requires ãresearch to determine the effectivenessä of 


supplementation programs.  The parties to the CRFMP have consistently interpreted and applied 


this provision to mean that appropriate monitoring and evaluation of supplementation programs is 


required.  Under subsections (a) and (b) of the CRFMP supplementation must be consistent with 


natural propagation and rebuilding natural spawning populations.  This cannot be accomplished 


without appropriate monitoring and evaluation.  the Tribe does not dispute that monitoring and 


evaluation is required.  It has submitted a monitoring and evaluation plan as part of its proposal. 


	The partiesâ dispute, therefore, is not over whether a generally-accepted monitoring and 


evaluation plan is required; clearly it is.  The dispute whether the Tribe will even continue 


discussions about how to make the tribal proposal acceptable.  The Tribe simply concludes that it is 


acceptable in its current form, but fish biologists who have carefully studied the Tribeâs monitoring 


and evaluation plan disagree, for the reasons set forth in their affidavits (Chilcote and Carmichael).


	The CRFMP does not require Oregon to approve a supplementation program that lacks an 


appropriate monitoring and evaluation plan, particularly where (as here), doing so would be contrary 


to the Planâs overall goal to rebuild fish runs.  





II.	The Tribeâs monitoring and evaluation plan is inadequate.





	The Tribe asserts in its brief that its monitoring and evaluation plan ãis a generally accepted 


protocol which meets or exceeds other monitoring and evaluation plans for adult steelhead 


supplementation releases.ä  That is simply not correct.


	The Tribeâs plan proposes to begin supplementation before release sites have been fully 


evaluated, and  before there has been any determination of the level of supplementation proposed is 


compatible with natural propagation in these streams.  There is no research monitoring or evaluation 


component in the Tribeâs proposal capable of determining whether these fish will help or hinder the 


restoration of naturally spawning populations. (Indeed, there is no evidence that supplementation 


programs at Little Sheep Creek or elsewhere has helped restore naturally spawning populations.)   


This is contrary to the requirements of the CRFMP.


	The CRFMP does not expressly state what type of ãresearchä must be conducted  ãto 


determine the effectiveness of [supplementation] programs, but some generally accepted protocols 


have been developed over the years in connection with RASP and other projects.  As explained 


below, the Tribeâs  plan does not comply with those protocols in a number of key respects. These 


requirements are not a ãployä to hide a more sweeping agenda.  Oregon has consistently required 


compliance with RASP guidelines for other supplementation programs.  Indeed, last yearâs failed 


supplementation program highlights the importance of an appropriate M&E program developed and 


agreed upon before the supplementation activities occur.





A.	The Tribeâs proposal does not comply with generally accepted protocols for and an 


	appropriate M&E program.





	The Oregon Department of Fish and Wildlife believes, consistent with RASP, that an 


acceptable monitoring and evaluation program must contain these elements to provide information 


that will be useful in assessing the effectiveness of a supplementation program:


? Use a paired control-treatment experiment scheme to control for external factors that influence 


results;


? Clearly define measures of success.  Factors include post-release performance, reproductive 


success, long term fitness and ecological interaction;


? Establish baseline environment conditions and population characteristics in both control and 


treatment systems through pre-supplementation surveys; and 


? Operate the experiments over a defined time frame (e.g. two generations or more) with defined 


intermediate checkpoints.





	In addition, the program should use a stream-specific endemic stock to a treatment system 


to reduce risk and improve likelihood of success.  These elements are consistent with generally 


accepted standards developed several years ago in the Regional Assessment of Supplementation 


Project.  The proposal offered by the Tribe fails to satisfy these requirements in several key 


respects.


	First, the Tribeâs proposal does not clearly state the objectives of the evaluation.  The 


objective of the evaluation should be to determine if outplanting adult hatchery steelhead and the 


use of hatch boxes with hatchery eggs are effective tools to increase the self-sustaining abundance 


of wild steelhead in the Imnaha basin.  All study components and associated activities should 


contribute  to the achievement of this objective.  The Tribeâs plan does not even acknowledge this 


objective.   The Objectives that are stated in the Tribeâs plan are insufficient to provide any 


information that will be useful in evaluating the effects of their supplementation proposal.


	Second, the evaluation plan contains no definition of success.  As proposed, the Tribeâs 


plan would generate several unrelated data sets that would not provide adequate information and 


without any structure for interpretation.  Success should be defined as specific terms such as ãthe 


density of wild steelhead spawners will be statistically greater after two generations in the streams 


that were supplemented with hatchery fish compared to streams that were  not supplemented.ä  


From such a definition of success an experimental design would logically flow.  As the evaluation 


plan developed by the Tribe currently exists, the experimental design has no logical flow.


	Third, the evaluation plan relies largely on information being generated from ongoing (and 


somewhat unrelated) research projects and activities.  Such information may be useful, but only if a 


Îstand aloneâ supplementation evaluation project also exists.  Currently, all indications suggest the 


Tribe is unwilling or unable to secure the proper technical and financial resources to develop and 


implement such a supplementation evaluation project.


	Fourth, information collection activities are proposed without any explanation of their 


purpose.


	Fifth, the Tribeâs plan has never been submitted for independent scientific review.  Oregon 


believes that the Tribeâs plan would fail such a review because it is incomplete, vague, and without 


any logical integration.  In short, the ãinformation needed to assess the critical supplementation 


program performance will not be provided from the Nez Perce Tribal monitoring and evaluation 


planä (Carmichael affidavit). 





B.	Oregon has consistently required this type of M&E plan for supplementation 


	programs.





	The Tribe suggests that Oregon raised these issues at the last minute, as a ãployä to reargue 


the issues raised in last yearâs dispute.  That is simply not true.  Oregon has consistently urged these 


elements for any M&E program, consistent with RASP guidelines developed in 1992.  In fact, the 


specific elements of an acceptable M&E plan that Oregon requested of the Tribe in February, 1999 


were taken from a study plan completed in 1995.  Moreover, when these elements, as applied to 


Lightning Creek, were presented at a February 22, 1999 meeting on CRFMP re-negotiation, Oregon 


specifically proposed ãworking with the Nez Perce Tribe, Fish and Wildlife Service, and National 


Marine Fisheries Service to more fully develop the specifics of this program.


	Rather than accept this offer, the Tribe chose to proceed with its preliminary injunction 


motion.  The Tribe provided Oregon with the general parameters of its supplementation program in 


December, 1998, but its M&E  plan were not provided until March 5, 1999.  Under the 


circumstances, Oregon was well justified in not agreeing to the Tribeâs proposal.





C.	The Tribeâs proposal could seriously hamper efforts to restore naturally spawning 


	populations.





	The results of last yearâs failed supplementation program, the growing body of scientific 


evidence on the effects supplementation will have on naturally spawning populations, and the 


unique features of Big Sheep and Lightning creeks all point to one conclusion:  implementing the 


Tribeâs supplementation program in that area without an appropriate M&E plan could irreparably 


harm efforts to restore naturally spawning populations, contrary to the CRFMP.


	The Stipulated Order resolving last yearâs dispute required the Tribe to monitor and 


evaluate the effectiveness of last yearâs supplementation program.  This was not done. Oregon has 


not seen the results of any monitoring and evaluation that was actually done, if any was done.  One 


lesson from last yearâs dispute should be that monitoring and evaluation plans must be developed in 


advance.


	This conclusion follows from the mounting scientific evidence that supplementation is 


unproven at best in helping to restore depleted fish stocks.  Oregon has serious concerns about 


proceeding with any supplementation programs in light of this new scientific evidence, but is willing 


to proceed with such programs, on condition - that it proceed in accordance with guidelines for 


determining the effectiveness of supplementation on the recovery of depleted fish populations.  An 


effective monitoring and evaluation plan must be part of the program.


	This is especially true for Lightning Creek, which presents a unique opportunity for 


assessing the effectiveness of supplementation programs.  Lightning Creek is unique because 


Lightning and Horse creeks are ideal for utilizing the control/treatment type of evaluation that is 


appropriate to successfully determine the true effectiveness of a supplementation program.  


Especially in Lightning Creek, if supplementation proceeds before an M&E program is in place, this 


unique opportunity will be lost forever.





III.	A preliminary injunction requiring supplementation without an adequate   


	monitoring and evaluation plan is not in the public interest.





	In order to qualify for preliminary injunctive relief, ãthe moving party must demonstrate 


either (1) a combination of probable success on the merits and the possibility of irreparable injury or 


(2) that serious questions are raised and the balance of hardships tips sharply  in its favor.ä  (case 


law cited but omitted; see original).  In assessing the balance of hardships, the court must consider 


whether ãthe public interest weighs on the side of issuing the injunction.


	The Tribe does not meet its burden here.  The Tribe cannot show probable success on the 


merits because the scientific evidence demonstrates that the Tribeâs monitoring and evaluation plan 


is inadequate.  The Tribe, not Oregon, seeks to include Big Sheep and Lightning creeks in its 


supplementation program without any way of determining whether the program will be detrimental 


to fish recovery efforts.  Therefore, it is the Tribeâs burden to demonstrate that its supplementation 


program, including its monitoring and evaluation plan, satisfy all the requirements of the CRFMP.  


The Tribe has failed to meet its burden.  Indeed, the Tribeâs proposal actually violates CRFMP 


because it lacks the critical research component required by the Plan.


	The Tribe also cannot show irreparable harm from taking the time to develop an 


appropriate M&E plan, as Oregon has suggested.  The only ãharmä that will occur is speculative 


harm to tribal harvests that could result if the supplementation program for the Imnaha River 


Subbasin proceeds without outplanting 100 adult hatchery-reared steelhead in Lightning Creek, 


since all returning adults are proposed for spawning.


	Any harm to the Tribe ãis greatly outweighed by the harm to the fish (and the public) that 


will occur if supplementation proceeds without an appropriate monitoring and evaluation plan.  In 


light of the growing scientific evidence that supplementation does not benefit-and indeed, will likely 


harm - the restoration of naturally spawning populations, and the unique opportunity that a will-


designed program presents for assessing the true effectiveness of a supplementation program, 


proceeding with a hastily and ill-conceived supplementation program  at this time would be contrary 


to the public interest.





CONCLUSION





	Oregon is not seeking to re-litigate issues that were resolved last year.  To be sure, Oregon 


remains skeptical that the outplanting of these hatchery-reared fish is biologically appropriate in this 


region, but Oregon is committed to implementing a supplementation program that contains an 


appropriate research program to obtain useful information for assessing the effectiveness of 


supplementation, as required by the CRFMP


	The Tribeâs proposal does not pass the test.  Implementation of its proposal without an 


acceptable monitoring and evaluation plan does not comply with the CRFMP, leading to the 


irreparable loss of a unique opportunity to assess the effect of unproven and risky supplementation 


programs, all to the detriment of the recovery of depleted fish populations.  


	Accordingly, for all the foregoing reasons, the Tribeâs motion for preliminary injunction 


should be denied.





	DATED this 9th day of April, 1999





	Respectfully submitted, 





	Hardy Myers


	Attorney General











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