Latest in hatchery case says smolts cause"Unacceptable Harm"

Posted on Friday, March 14, 2014 (PST)

“The release of hatchery smolts this year, even with some reductions in two of the programs, still is likely to cause unacceptable harm to wild fish in the Sandy River,” according to a reply brief filed March 9 in federal court by the Native Fish Society and McKenzie Flyfishers.

They say hatchery fish compete with wild fish for food, habitat, and spawning space, prey on wild fish, dilute the fitness of wild fish when they interbreed, spread disease to wild fish and significantly reduce the likelihood of recovery of wild fish populations.

The plaintiffs in the latest brief continue to press for a court injunction stopping planned 2014 releases of juvenile chinook and coho salmon and winter and summer steelhead from northwest Oregon’s Sandy Hatchery into the Sandy River or its tributaries. Those releases are scheduled to begin this month.

The groups also say that “NMFS’s unlawful decision to approve HGMPs for the Sandy Hatchery should be vacated and remanded to the agency with instructions for it to – finally -- conduct public scoping and prepare an EIS that any proposal to operate artificial propagation programs in Sandy River basin clearly warrants.”

The brief filed this past Sunday ends the most recent round of briefing on Sandy Hatchery operations. U.SD. District Court Judge Ancer Haggerty, who is presiding in the case, has said that “The court will determine at a later date whether oral argument will be scheduled and will issue an order regarding remedies by March 14.”

NOAA Fisheries, also known as the National Marine Fisheries Service, approved Oregon Department of Fish and Wildlife “Hatchery and Genetic Management Plans” for the four species produced at the ODFW’s Sandy Hatchery. HGMPs are produced to allow NOAA Fisheries to assess potential take of wild stocks resulting from planned hatchery operations. Those HGMP operations are to be designed to minimize take and promote conservation of the listed species that may be affected by the hatchery program.

In 2005 and 2006, NOAA Fisheries issued final ESA listing decisions designating naturally produced Lower Columbia River chinook, Lower Columbia River coho and Columbia River chum salmon and Lower Columbia River steelhead as threatened. All four species have been spawned in the Sandy basin.

The plaintiffs say a completed Environmental Impact Statement is needed to satisfy National Environmental Policy Act requirements. They believe the Environmental Assessment completed as part of NOAA Fisheries’ assessment of the HGMPs was not adequate.

“NFS has demonstrated that any artificial-propagation program that adds hatchery fish that exist solely for harvest to a basin that could -- in the absence of hatchery fish --be a haven of wild fish recovery ‘may’ have significant effects on those wild fish,” the March 9 brief says. “Therefore NMFS must follow the procedures required by NEPA to prepare an EIS before approving any hatchery programs affecting wild-fish runs in the Sandy River.

“NFS has asked for no more than this: not for an advisory opinion and assuredly not for the Court to be the long-term manager of the Sandy Hatchery. An injunction suspending smolt releases and protecting wild fish from the imminent harm such releases would likely cause will allow the parties to proceed to adjudicate the ESA § 9 claims, which likely then could be resolved on summary judgment or in a negotiated settlement.

“… the protection and recovery of wild fish in the Sandy River and the vindication of the public’s interest in a full and fair EIS process are too important not to ask this Court for an order protecting those fish from more harm from hatchery smolts until the agencies complete an adequate, public review of the hatchery’s operations.”

Defendants in the lawsuit, NOAA Fisheries and ODFW, in a brief filed with the court in late February, said that vacating NOAA’s approvals is inappropriate, as is a total end to hatchery releases this year. The hatchery fish fuel popular sport fisheries in the basin.

Hatchery stray rates that have been of concern are, over time, being pulled within limits described in the HGMPs as acceptable, according to the brief filed by the U.S. Department of Justice for the federal defendants.

“In 2010 the percentage of hatchery origin spawners (‘pHOS’) for spring chinook was 77.1 percent. For coho it was 12.4 percent, and for winter steelhead it was 28.5 percent,” the federal brief says. “Today, the most recent data demonstrate that pHOS for spring chinook is 9.3 percent, for coho it is 2.8 percent, and for winter steelhead it is 6.4 percent.

“The significant downward trend is largely the result of modified and improved weirs that control the number of hatchery strays on the spawning grounds in the upper tributaries of the Sandy River,” the federal brief says.”

ODFW had a scaled-down release plan approved by the court last year, and offered to again send out fewer hatchery fish this year.

Haggerty in a Jan. 16 ruling opinion said that NOAA Fisheries Service violated the ESA and NEPA when it approved ODFW’s Sandy Hatchery management plan.

Haggerty ordered the federal agency and ODFW and the plaintiffs in the lawsuit to confer regarding remedies for coming into compliance with the two federal laws. The parties failed to reach an agreement, so Haggerty ordered the now completed round of briefing.

McKenzie River Reflections