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Judge Allows Oregon’s Reduced Hatchery Releases In Sandy River; Formal Opinion Forthcoming
Posted on Friday, March 29, 2013 (PST)

A request to stop hatchery salmon and steelhead releases this year into northwest Oregon’s Sandy River basin was denied March 21 by U.S. District Court Judge Ancer L. Haggerty.

But his ruling did take up the state of Oregon’s offer to reduce the number of spring chinook smolts to be released this spring from the basin’s new primary acclimation site – the tributary Bull Run River.

“In light of the fact that state defendants have voluntarily chosen to reduce Sandy Hatchery releases of spring Chinook to approximately 132,000 smolts, and because of the uncertain and possibly negative consequences of the available injunctive relief, the court finds that plaintiffs have not proven that irreparable harm will result in the absence of injunctive relief, that the balance of equities tips in their favor, or that an injunction is in the public interest,” the judge said in denying an injunction request from the Native Fish Society and the Willamette Flyfishers.

Those negative consequences could be a wasting of smolts raised at the hatchery that have spare opportunity for transfer to continue their life elsewhere, according to attorneys for the state of Oregon. The hatchery is operated by the Oregon Department of Fish and Wildlife, in large part with federal funding through Mitchell Act appropriations distributed by NOAA Fisheries Service. Foregoing releases this would also leave a gap in future returns of fish valued for hatchery broodstock and for harvest by anglers.

The plaintiffs in the ongoing lawsuit say the injunction is needed stop irreparable harm -- the “take” of wild fish that are protected under the federal Endangered Species Act.

“The Hatchery harms and harasses wild fish by releasing over a million hatchery-reared smolts into the system, which prey on wild fish, compete with them for food, introduce disease and pathogens, and reduce the fitness of wild populations when hatchery fish returning from their time in the ocean spawn together with wild fish,” according to a Feb. 19 memorandum in support of the injunction request. “And artificial barrier weirs installed in major spawning tributaries also harm, harass, trap, and kill wild fish.”

“An injunction against releases of hatchery-bred fish is necessary to protect wild fish from further harm,” the plaintiffs’ memo says.

The injunction was sought to stop the alleged irreparable harm until the underlying lawsuit can be argued. The complaint filed in October says that the ODFW and NOAA Fisheries are in violation of the ESA and the National Environmental Policy Act. NOAA Fisheries authorized through ESA processes the hatchery’s operation.

The hatchery produces spring chinook and coho salmon and winter and summer steelhead. The hatchery spring chinook, coho and winter steelhead are included in the ESA listings but not protected from take. Protections for wild fish are more stringent, with limits describing acceptable “incidental” take, such as that from hatchery fish.

The spring chinook, coho and winter steelhead are native to the basin. They, along with chum salmon, are ESA-listed species known to spawn in the basin.

The spring chinook have shown the most propensity to “stray” onto wild fish spawning grounds, with hatchery representation as much as 30 percent there last year. Goals set by NOAA Fisheries to control rates at 10 percent or less.

At the judge’s urging, Oregon Justice Department attorney Sarah Weston said the state was willing this year to pare back its planned hatchery spring chinook releases from the planned total of 200,000 to just over 132,000. A hearing was held in Portland March 20 to debate the merits, or lack thereof, of the injunction request.

David H. Becker, an attorney for the plaintiffs, argued that the best choice would be to cut off releases entirely, and not allow the harm to “continue to build up.

“The farther you get from zero the more potential harm you get,” he said.

Haggerty’s brief ruling issued the following day came with a cautionary note.

“Should state defendants choose, as is their right, to release more than 132,000 Chinook smolts, the court's calculus regarding the propriety of injunctive relief may be altered,” Haggerty wrote. The judge said he would “issue a formal opinion shortly.”

“At this time, the court finds that state defendants are not subject to ‘take’ liability” under section 9 of the ESA, Haggerty said. “However, plaintiffs are likely to succeed on the merits of their National Environmental Policy Act and § 7 ESA claims against federal defendants.

“As such, the court is empowered to issue an order suspending the National Marine Fisheries Service's approval of the Hatchery Genetic Management Plans or to prevent disbursement of Mitchell Act funding to the Sandy Hatchery.” The ESA HGMPs produced by NOAA Fisheries offer guidance, such as the stray rate limits, intended to limit impacts of the Sandy Hatchery’s product on wild fish returning to the basin.

Half of those 132,000 spring chinook were released shortly after last week’s hearing. A second batch of 66,000 is now being acclimated at the Bull Run site with their release scheduled April 12.

In April the ODFW plans to release 300,000 coho, 75,000 summer steelhead and 160,000 winter steelhead into the Sandy River basin.

For more information, see CBB, March 8, 2013, “Groups Ask Judge To Halt Sandy River Hatchery Releases This Spring In Wild Vs. Hatchery Case”

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