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Judge Rules NOAA Fisheries Violated ESA, NEPA In Approving Oregon’s Sandy River Hatchery Management
Posted on Friday, January 17, 2014 (PST)

U.S. District Court Judge Ancer Haggerty in a Jan. 16 ruling said that NOAA Fisheries Service violated the Endangered Species Act and the National Environmental Policies Act when it approved the state of Oregon’s management plan for the operation of the Sandy River Hatchery.


Haggerty ordered the federal agency and Oregon Department of Fish and Wildlife, which operates the hatchery, and the plaintiffs in the lawsuit to confer regarding remedies for coming into compliance with the two federal laws.


“If the parties are unable to reach agreement, the parties must propose a briefing and discovery schedule that will allow this court to resolve any remedies disputes prior to the 2014 release of hatchery smolts,” the judge said.


Plaintiffs in the lawsuit are the Native Fish Society and the McKenzie Fly Fishers. They say that the hatchery releases of about 1.3 million 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.


“It is undisputed that hatchery operations can pose a host of risks to wild fish…it is clear that the Sandy River Basin is of particular importance to the recovery of the four [Endangered Species Act] listed species and is an ecologically critical area,” the judge wrote.


Native Fish Society, an Oregon City-based conservation group working to recover self-sustaining populations of wild fish throughout the Northwest, along with Eugene-based McKenzie Fly Fishers, sued NMFS in an effort the groups say aims to prevent the extinction of chinook, steelhead and coho in the northwest Oregon’s Sandy River.


The plaintiffs say that the conclusions in a NOAA Fisheries biological opinion that judges potential impacts of the Sandy Hatchery program on wild stocks falsely concluded that the hatchery actions are not likely to jeopardize the continued existence of any endangered or threatened species or to destroy or adversely modify designated steelhead critical habitat and were not based on the best available science, as required by the ESA.


The plaintiffs also said that adopting the challenged decisions without taking the requisite “hard look,” which is required by NEPA, at all the significant and potential environmental impacts of the proposed action was arbitrary and capricious.


The state of Oregon had received NMFS’ blessing under the ESA to continue to drown the river with over a million hatchery fish,” said Mike Moody, executive director of Native Fish Society. The judge found fault with NMFS because it “treats the success of the [hatchery] programs as a given, an issue called into doubt by ODFW’s miserable track record of containing stray rates.”


“The science is irrefutable. The law is irrefutable. And, Judge Haggerty affirmed this. It is the most significant decision benefitting wild fish in Oregon in over a decade,” said Moody.


The Native Fish Society and McKenzie Fly Fishers argued that NMFS should have analyzed a broad range of alternatives and prepared an environmental impact statement under the National Environmental Policy Act.


The groups also argued that the agency allowed too many hatchery fish to interbreed with the wild fish, and that weirs and acclimation ponds – man-made structures in the river that were supposed to prevent the interbreeding -- were not likely to succeed so NMFS was wrong to approve them under the Endangered Species Act. 


Historically, runs of native fish in the Sandy River basin once ranged as high as 20,000 winter steelhead, 10,000 spring chinook, 15,000 coho, and 10,000 fall chinook.


Wild winter steelhead now average less than 970 spawners annually; wild spring chinook now average less than 1,300, and wild coho now average about 900 each year. The runs of fish returning to the Sandy River basin are now dominated by artificially bred fish produced by the hatchery.


-- CBB, May 31, 2013, “Judge Explains Sandy River Hatchery Release Ruling; Expresses Concern Over High Hatchery Stray Rates”


-- CBB, March 29, 2013, “Judge Allows Oregon’s Reduced Hatchery Releases In Sandy River; Formal Opinion Forthcoming”


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



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