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Briefing Set For Sandy River Hatchery/Wild Case; Judge Wants More Details On How Weirs Reduce Strays
Posted on Friday, January 24, 2014 (PST)

An Oregon-based 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 acceptable limits.


Judge Ancer Haggerty directed plaintiffs and defendants to begin filing briefs on Feb. 14.


Similar 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.


The 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.


In 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.


The 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.


Haggerty 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 Management”


He 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).


Those discussions took place, but failed, according to a “status report” filed Wednesday by the plaintiffs and the defendants, ODFW and NOAA Fisheries.


“As 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.


The 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.


“Plaintiffs 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.


Judge 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 controlled.


The 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.


“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. 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.


“State defendants shall notify the parties of planned dates and quantities of smolt releases by Jan. 31,” the judge said.


The 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 its tributaries.


In 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.


In 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 Segment.


“Plaintiffs 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.


Historically, 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.


“The Sandy Hatchery, which has been in operation since 1951, is operated with ‘harvest’ rather than ‘conservation’ goals in mind,” Haggerty said.


“There 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.”


The 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 grounds.


Haggerty said in his opinion that the plan needed a more rigorous evaluation than the NEPA environmental assessment that was conducted.


“Because 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

an EIS [environmental impact statement].”


Plaintiffs 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.


The judge said again that the federal agency needs to better validate its assumptions.


“While 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.


The percent of hatchery stocks on the spawning grounds has continued to be well above levels prescribed in the HGMPs.


“Given 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.


“As 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”


 -- 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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