U.S. District judge this week set the stage for continued legal arguments about
what needs to be done by the state’s Fish and Wildlife Department and the
federal government to ensure that negative impacts on wild salmon and steelhead
caused by hatchery production in the Sandy River watershed are kept at legally
Ancer Haggerty directed plaintiffs and defendants to begin filing briefs on
arguments are playing out elsewhere. The McKenzie Flyfishers last month filed a
complaint asking that ODFW complete permit requirements – the development and
approval of a federal Hatchery Genetic Management Plan -- for operation of
McKenzie Hatchery on the McKenzie River near Eugene.
Sandy Hatchery lawsuit questions the legality of NOAA Fisheries Service
approvals of a recently completed HGMP, and the federal assessment – a
biological opinion – of whether planned hatchery operations jeopardize the
survival of wild stocks that call the river home.
HGMPs hatchery managers are supposed to evaluate impacts on wild fish. BiOps
can, and often do, allow certain levels of “take” of naturally produced salmon
and steelhead that are listed under Endangered Species Act.
complaint filed in August by the Native Fish Society and McKenzie Flyfishers
claims that approvals for the ODFW-run Sandy Hatchery violate the ESA, as well
as the National Environmental Policy Act and the Administrative Procedures Act.
last week ruled in large part for the plaintiffs. (CBB, Jan. 17, “Judge Rules
NOAA Fisheries Violated ESA, NEPA In Approving Oregon’s Sandy River Hatchery
asked in a Jan. 16 opinion and order that the involved parties confer on
potential “remedies” and/or suggest a schedule for debating the issues. A
report was due back to the court by Wednesday (Jan. 22).
discussions took place, but failed, according to a “status report” filed Wednesday
by the plaintiffs and the defendants, ODFW and NOAA Fisheries.
directed by the Court, the parties held a telephonic conference regarding
possible remedies on January 21, 2014. The parties were not able to reach
agreement on potential remedies, and Plaintiffs indicated that they would
likely seek to vacate the agency decisions and enjoin juvenile releases in
2014,” the defendants said in the status report.
plaintiffs asked that the court set a briefing schedule that would allow a
resolution before a scheduled “first round of hatchery smolt releases.” That
happening occurred March 23 last year.
wish to avoid having to file a motion for a Temporary Restraining Order
postponing the release by a few days to allow adequate time for briefing and
argument on remedy and injunctive relief, but will do so if the Court deems it
necessary,” according to the Native Fish Society.
Haggerty on Thursday established a briefing schedule aimed at reaching
“resolution of the remedies disputes” – what the level of hatchery output might
be and how the straying of any hatchery fish to natural spawning areas might be
plaintiffs' opening brief on remedy and injunctive relief is due Feb. 14. State
and federal defendants' response briefs are due Feb. 26. Plaintiffs' reply is
due March 7.
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. The
parties shall confer regarding discovery protocols and shall file a further
status report on January 29, 2014. The court will schedule discovery deadlines
if necessary following receipt of the status report.
defendants shall notify the parties of planned dates and quantities of smolt
releases by Jan. 31,” the judge said.
Sandy River flows from its headwaters on the west side of northwest Oregon’s
Mt. Hood to the Columbia River east of Portland. The Sandy River's watershed
encompasses approximately 508 square miles and includes the Bull Run River, the
Salmon River, the Little Sandy River, Cedar Creek, and the Zigzag River among
2007 and 2008, the Marmot Dam on the Sandy River and the Little Sandy Dam on
the Little Sandy River were removed, opening up an estimated 50 miles that had
been blocked off to salmon for 100 years. The Sandy River Basin is divided
between upper and lower basins delineated at the former site of the Marmot Dam.
The upper Sandy River Basin has been designated by ODFW as a wild fish sanctuary.
2005 and 2006, NMFS issued final ESA listing decisions designating four fish
species that use the Sandy River Basin as threatened: the Lower Columbia River
chinook Evolutionarily Significant Unit, the Lower Columbia River coho ESU, the
Columbia River chum ESU and Lower Columbia River steelhead Distinct Population
allege that the operation of the Sandy Hatchery causes harm to Lower Columbia
River Chinook, Lower Columbia River coho, Columbia River chum, and Lower
Columbia River steelhead from a number of vectors, including competition from
hatchety fish, introduction of disease, and genetic introgression,” Haggerty
said in his Jan. 16 order.
the Sandy River Basin supplied sizeable runs of native wild salmonids with as
many as 15,000 coho, 20,000 winter steelhead, 10,000 fall chinook, and 10,000
spring chinook. In 2010, there were an estimated 1,330 spring chinook, 901
coho, and 969 winter steelhead spawners, according to background provided in
Haggerty’s recent order.
Sandy Hatchery, which has been in operation since 1951, is operated with
‘harvest’ rather than ‘conservation’ goals in mind,” Haggerty said.
is very little evidence to suggest a hatchery can restore a wild population of
fish and the Sandy Hatchery is generally not intended to achieve any recovery
goals. Rather, it is undisputed that hatchery operations can pose a host of
risks to wild fish.”
Sandy Hatchery HGMP’s goal of sustaining hatchery production while minimizing
impacts to wild fish hinges on pre-release acclimation of juvenile fish at
sites, the lower Bull Run River in particular, where fish could be trapped with
cross-channel weirs and sorted, with marked hatchery fish removed from the
water and unmarked, presumably wild fish allowed to proceed to spawning
said in his opinion that the plan needed a more rigorous evaluation than the
NEPA environmental assessment that was conducted.
the use of weirs and acclimation was uncertain to reduce stray rates below
targets and because excessive stray rates are harmful to these threatened fish
species, it was arbitrary and capricious to conclude that the HGMPs would have
no significant impact without first producing
EIS [environmental impact statement].”
said that the BiOp, which judged that operations outlined in the HGMP would not
jeopardize listed stocks, fails to consider whether moving the acclimation
facility from Cedar Creek to the Bull Run River and using weirs will reduce
stray rates and prevent harm to wild fish.
judge said again that the federal agency needs to better validate its
the BiOp discusses weirs and acclimation, it does not provide a reasoned
explanation for why the use of weirs and the move to the Bull Run River for
acclimation would yield the needed improvements in stray rates,” Haggerty said
of the number of hatchery-origin fish that can interbreed with the wild stocks.
percent of hatchery stocks on the spawning grounds has continued to be well above
levels prescribed in the HGMPs.
the stray rates in recent years, the fact that acclimation and weirs are key to
reducing stray rates, and the fact that the success of weirs and acclimation at
the Bull Run River are uncertain, it is unclear why NMFS believed ODFW could
bring about the needed changes. While NMFS did not ignore weirs and
acclimation, it ignored the challenges facing ODFW in reducing stray rates.
This is clearly an important part of the problem and the success of those
strategies cannot be taken as a given.
discussed at length above, the court finds that NMFS failed to provide a
reasoned analysis of why weirs and acclimation would mitigate the problems
caused by stray rates. Without reasonable certainty that these mitigation measures
would reduce stray rates, it was arbitrary for NMFS to rely upon them.”
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