Feds, Oregon defend Sandy river hatchery plans

State salmon-steelhead hatchery management plans for northwest Oregon’s Sandy River basin are moving closer towards the goal of minimizing impacts on protected wild stocks and should be allowed to play out, according to legal briefs filed Wednesday in U.S. District Court in Portland.

Wild fish advocates have asked the court for an injunction prohibiting any releases of hatchery-produced spring chinook and coho salmon and winter and summer steelhead into the Sandy and its tributaries this year. They say human-reared fish pose risks to and cause “take” of naturally produced stocks that are listed under the Endangered Species Act.

In 2005 and 2006, NOAA Fisheries issued final ESA listing decisions designating 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.

In their Feb. 14 “Motion for Remedy and Injunctive Relief” and accompanying legal memorandum the Native Fish Society and McKenzie Flyfishers ask Judge Ancer Haggerty to declare illegal, and vacate, NOAA Fisheries’ approvals of Oregon Department of Fish and Wildlife “Hatchery and Genetic Management Plans” produced for the four species produced at Sandy hatchery.

HGMPs are produced to allow NOAA Fisheries to assess potential take of wild stocks resulting from hatchery operations. Those HGMP operations are designed to minimize take and promote conservation of the listed species that may be affected by the hatchery program.

The plaintiffs’ motion asks that the court order NOAA Fisheries to rework its decision approving the 2012 Sandy HGMPs during a remand, and that the federal agency produce a NEPA “environmental impact statement” regarding hatchery operations. The EIS process is more rigorous than the environmental analysis produced during the earlier HGMP process.

Meanwhile, NFS wants the court to enjoin the ODFW from releasing any hatchery-produced juvenile fish into the Sandy until an EIS and a new BiOp is produced, but require state defendants to continue to operate weirs to sort hatchery origin spring chinook from the naturally-spawning population and to conduct all monitoring required under the existing HGMPs.

The Native Fish Society and the McKenzie Fly Fishers say that the hatchery releases of 1 million or more artificially-bred fish into the Sandy River basin each year have significant negative effects on the productivity of wild native fish by competing with wild fish for food, habitat, and spawning space, preying on wild fish, diluting the fitness of wild fish when adult hatchery fish, spreading disease to wild fish and significantly reducing the likelihood of recovery of wild fish populations.

The groups say that past research confirms that returning hatchery fish that stray onto the spawning grounds and breed with wild fish diminish the genetic fitness and productivity of the wild population.

Defendants in the lawsuit, NOAA Fisheries and ODFW, this week filed responses with the court, saying 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 a brief filed this week 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. “In 2012, the Oregon Department of Fish and Wildlife began implementing other actions like improved acclimation at Cedar Creek, and a new acclimation facility at Bull Run, the results of which will fully accrue in 2015 and beyond.

“Perhaps more importantly, in 2013, ODFW reduced the release of juvenile hatchery smolts by roughly 40 percent from historical levels, reducing the overall number by approximately 400,000 juveniles,” the federal brief says. This same reduction is proposed for 2014.

“The additional actions provided in the 2012 Hatchery and Genetic Management Plans (“HGMPs”) build upon the downward pHOS trend, and purely as a function of math, there will be far fewer hatchery adults that return to the Sandy in 2016 and beyond as a result of reduced juvenile releases.

“The 2012 HGMPs are working and they are fulfilling the purpose of the National Marine Fisheries Service’s (‘NMFS’’) 4(d) Rule; namely to advance the conservation of these listed salmonids.”

In a Jan. 16 opinion Haggerty noted NOAA Fisheries failings under both the ESA and National Environmental Policy Act and ordered parties to the lawsuit to consider potential “remedies.” That discussion failed, so the judge ordered briefing on the topics.

In a brief filed Feb. 26 the state of Oregon, like the federal government, said that a remand is appropriate to correct errors outlined by the judge, but that the rescinding of the HGMPS and a total elimination of hatchery releases this year is not warranted.

“Last year, the court declined to enjoin the release of hatchery smolts, after the state voluntarily reduced its spring chinook release to 132,000 fish,” the Oregon brief says. “This year, the state proposes a release of the same size as the court allowed last year – and this year, the facts on the ground are substantially better, and the uncertainties substantially less.

“Although the court found that NMFS did not adequately explain its decision, the facts on the ground show that the program is working, and that the cooperative management between ODFW and NMFS under the HGMPs is having a positive impact in the Sandy Basin.

“Plaintiffs have not demonstrated that they are likely to succeed on the merits, nor have they demonstrated irreparable harm to naturally produced fish in the Sandy basin from the 2014 releases; in fact the relief they request would likely result in irreparable harm to the listed hatchery stocks, and would have dramatic impacts on the Sandy fishery and local economy,” the state’s filing says.

The state brief points out that the hatchery fish are included in the ESA listings, though without the take prohibitions in place to protect wild fish.

Those hatchery fish “are considered by NMFS to be a ‘gene reserve’ for the naturally produced populations,” the state says. “Preventing the releases this year would limit or potentially eliminate the ability of these hatchery stocks to act as gene reserves for the naturally produced populations.”

“Plaintiffs have made clear that they will never be satisfied with any level of hatchery program. Accordingly, they ask this Court to halt 100 percent of the hatchery releases, potentially for good, and substitute management by judicial injunction for the flexible, cooperative management that is currently working,” the Oregon brief says. “Like it did last year, this Court should decline to issue the extraordinary remedy of preliminary injunctive relief, and should allow the HGMP management regime the opportunity to continue to work.”

Plaintiffs have until March 7 to reply to the state and federal filings.

“The court will determine at a later date whether oral argument will be scheduled and will issue an order regarding remedies by March 14,” Haggerty said in his January order.

-- CBB, Feb. 21, 2014, “Groups Seek Court Order To Halt Oregon’s Sandy River Hatchery Releases Until New EIS, BiOp” http://www.cbbulletin.com/429787.aspx

-- CBB, Jan. 17, 2014, “Judge Rules NOAA Fisheries Violated ESA, NEPA In Approving Oregon’s Sandy River Hatchery Management” http://www.cbbulletin.com/429521.aspx