Text from Judge Marsh's decision on 1998 fall fishery





On August 28, 1998, the federal government and Columbia River Treaty Tribes


filed a motion seeking court approval of a "Stipulated Agreement for


Steelhead Harvest and Production Management of 1998 Columbia River Treaty


Indian Fall season Fisheries."  This agreement would permit a fall season


tribal commercial harvest on fall chinook to re-open during the week of


September 7, 1998.   During oral argument, the federal government confirmed


that despite its name, the proposed harvest is designed to target fall


chinook with incidental impacts upon listed steelhead.





On September 1, 1998, the states of Oregon , Washington and Idaho filed a


memorandum opposing the stipulated agreement, attacking the manner in which


the agreement was reached and asserting that no fishing season determined


through the Columbia River Fish Management Plan (CRFMP) process should be


allowed to proceed without a biological opinion.  The states noted that the


Technical Advisory Committee (TAC) to the CRFMP had issued a biological


assessment for fall season fisheries (analyzing impacts on ESA listed


steelhead) on June 10, 1998, but  NMFS had failed to issue a biological opinion.





The crux of this dispute centers upon concerns about impacts upon listed


Wild B Snake River steelhead.  At several points during the parties'


negotiations and during oral argument, the federal government has


acknowledged that if it were to issue a biological opinion on the proposed


fall fishery, it would probably have to issue a jeopardy opinion.  The


government has also acknowledged that to reach a no-jeopardy opinion would,


in all likelihood, effectively shut down the tribal commercial harvest.





The Tribes come to the forum asking for federal court approval of the


stipulated agreement on grounds that it meets tribal objectives within the


CRFMP for a fair allocation of the tribes' share of the fall chinook while


adequately addressing CRFMP conservation concerns.  The Tribes argue that


the states' ESA concerns are unfounded as the ESA does not apply to the


Tribes' treaty interests.  The Tribes accuse the states of unclean hands


since state fisheries have been open and operating for several months


without a biological opinion.  The States acknowledge that opening their


season without a biological opinion was in error and have advised the court


that both Oregon and Washington fisheries have been closed, effective


September 5, 1998.





The procedural posture of this dispute is somewhat awkward in that I have no


complaint or motion for a restraining order.  The federal government and


Tribes have simply asked that I sign off on a settlement agreement to which


the state parties do not agree.  This stipulated agreement would allow the


tribes to have an incidental harvest upon listed Group B steelhead of


15-20%.  The agreement says nothing about whether these impacts would avoid


jeopardy under the ESA or whether they would adequately conserve listed


steelhead under some other set of standards.  Paragraph 9 of the agreement


provides that, "the United States agrees, on behalf of the federal agency


parties to the CRFMP, upon entry of this order, that it will recognize


compliance with the terms and conditions of this Stipulated Agreement and


Order by any party to this litigation as full compliance with all relevant


provisions of the ESA for all harvest and production measures..."





The federal government now argues that no biological opinion addressing


impacts upon listed steelhead issued for fall season fisheries because there


was no federal agency "action" sufficient to trigger ESA compliance with


S7(a)'s consultation requirement.  This argument is made despite the fact


that the U.S. Fish and Wildlife department through the CRFMP Technical


Advisory Committee (TAC) issued a biological assessment addressing impacts


upon listed steelhead from fall fisheries on June 10, 1998.  In addition, a


3-year biological opinion for in-river fisheries was issued for listed


chinook.  Further, the U.S. has specifically acknowledged that its


involvement with state in-river is 


 " inextricably intertwined, providing a basis for section 7 consultations."


See also Ramsey v. Kantor, 96F. 3d434,442 (9th Cir. 1996) (acknowledging


that states under CRFMP must comply with ESA S7 in regulating state fishing


seasons to avoid S10 permit requirement).





Agency action is broadly defined under the ESA to include any action "


authorized, funded, or carried out by such agency."  S1536(a)(2): Conner,


S46 F. 2d at 1435.  Under the CRFMP, federal involvement in management of


in-river fisheries relative to the tribes, other than the trust


relationship, does not materially differ from federal involvement in


in-river fisheries relative to the states and thus, I cannot see a valid


distinction to justify non-compliance with the ESA.  Based upon the


government's significant involvement in in-river harvest management and


authorization through the CRFMP and past practice, I find that there is


federal agency action which triggers the need for ESA consultation to


respond to the BA issued by TAC.  Federal action also exists based upon


federal involvement in negotiating, approving and submitting the stipulation


authorizing the tribal season and setting production standards.  Thus, the


issue presented here is not whether the ESA applies directly to the Tribes,


but whether S7 of ESA applies to the federal agencies involved in the CRFMP


and harvest management.  I hold that it does.





The next issue is whether I should approve a stipulation that anticipates a


fall tribal harvest absent the preparation of a biological opinion and


absent any evidence that the proposed fishery will either avoid jeopardy or


adequately conserve the species.  While the Tribes argued that it should be


the states' burden to show that the proposal threatens conservation, I find


that as the moving parties, it is the federal government and Tribes' burden


to show the absence of a conservation concern or threat of jeopardy.  At


oral argument, the government conceded that there was no evidence before the


court that would enable me to make such a determination.





The federal government also argues that I should sign this agreement and


allow the agreement to act in lieu of a biological opinion because I have


signed two similar agreements in 1994 and 1995.  As to the 1994 agreements,


I note that it says nothing about replacing compliance with the ESA.  AS to


the 1995 agreement, it also fails to specify that it supplants ESA


compliance.  Further, both agreements were reached through a consensus with


all parties to the CRFMP, a condition which no longer exists.  Where one


party raises an objection, that objection must be addressed and cannot be


circumvented simply because the parties were able to reach an accord in the


past.  I note that the 1995 agreement expressly states that its terms "are


not precedent and do not bind the parties with regard to any claims that can


be made in the future."  Based upon this language in the 1995 agreement, the


states are not precluded from raising ESA concerns relative to this harvest


season.





The parties have not cited, nor have I been able to find any authority which


would permit a stipulation or settlement agreement to take the place of a


biological opinion.  To the contrary, in Conner v. Burford, 848F.2d 1441,


1454 (9th Cir. 1986), cert. denied, 489 U.S. 1012 (1989), the court held


that stipulations reached between federal and private parties could not


substitute for comprehensive biological opinions.  See also Bob Marshall v.


Hodell, 853 F.2d 1223, 1227 (9th Cir. 1988), cert. denied, 489 U.S. 1066


(1989).  Further, the ESA expressly provides that an action agency "shall


consult" with NMFS for any agency action likely to jeopardize the listed


species, NMFS "shall use the best scientific and commercial data available"


and NMFS "shall" issue a timely biological opinion with an incidental take


statement.  See also Ramsey, 96F.3d at 442.  Thus, the unambiguous language


of the statute directs that NMFS must issue a biological opinion responsive


to the biological assessment provided by the U.S. Fish and Wildlife Service


through TAC.  Once the government determined that the proposed action will


likely jeopardize the listed steelhead, it was beyond prudence to then claim


that the Act no longer applies.





Even assuming that the ESA did not apply to this proceeding, I would still


have to find that the proposed stipulation was reasonable, consistent with


the CRFMP and legally defensible before I would sign.  In light of the


objections raised by the state parties to the CRFMP and given the federal


government's acknowledgment that the proposed tribal fishery will likely


jeopardize the listed B steelhead, I cannot in good conscience sign the


agreement.  Throughout all of the disputes that have arisen within U.S. v.


Oregon and other cases involving listed salmon, the court's primary concern


has been with the long-term preservation of the listed species and my


decisions have been made with that central concern in mind.  While I am


highly sensitive to the importance of the Tribe's (sic) treaty fishing


rights, I am also mindful of the fact that no one will be fishing if the


resource is depleted to the point of extinction.  At least one court has


noted that, "[W]here the Secretary has acted responsibly in respect of the


environment, he has implemented responsibly, and protected, the parallel


concerns of the Native Alaskans.  In sum the substantive interests of the


Natives and of their native environment are congruent.  The protection given


by the Secretary to one , as we have held, merges with the protection he


owes to the other."  North Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C.


Cir. 1980).





Perhaps the process of preparing a biological opinion could have led to


reasonable and prudent alternatives relative to timing or the manner of


fishing that could have permitted this tribal fishery to proceed.  However,


by bypassing the process and taking a calculated risk towards a global


settlement with court approval, we may never know.





When I decided IDFG v. NMFS, CV S3-1603 (Opinion, March 28, 1994), I found


that the federal agencies failed to comply with the ESA in issuing a


biological  opinion because they focussed upon what the hydropower system


could handle rather than the needs of the listed species.  I see some of the


same lack of focus here in that within the ESA process, the federal


government appears to be more concerned with what the Tribes are willing to


accept in reduction to their fall commercial harvest than they are with the


needs of the listed species.  A biological opinion under the ESA places the


focus of analysis upon what the species needs to avoid jeopardy; whether as


a policy matter that determination should fall to a later balance against


Tribal treaty rights is a matter that should be taken up either by the


agencies or by Congress.  Federal agencies may not circumvent the


unambiguous statutory mandate of the ESA simply to avoid more difficult


issues or to appease an interested party at the expense of others.


Regardless of the result, the process must comply with the law and I find


that the proposal submitted to me for my signature fails in that respect.


Accordingly, the federal and Tribes' motion to approve their stipulation


(32254) is DENIED.





	IT IS SO ORDERED, 





	DATED this 3 day of September, 1998.





			signed by Malcom F. Marsh


				    United States District Judge