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
“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
“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” http://www.cbbulletin.com/426821.aspx
-- CBB, March 29, 2013, “Judge Allows Oregon’s Reduced
Hatchery Releases In Sandy River; Formal Opinion Forthcoming” http://www.cbbulletin.com/425793.aspx
-- CBB, March 8, 2013, “Groups Ask Judge To Halt Sandy River
Hatchery Releases This Spring In Wild Vs. Hatchery Case” http://www.cbbulletin.com/425388.aspx