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Groups Seek Court Order To Halt Oregon’s Sandy River Hatchery Releases Until New EIS, BiOp
Posted on Friday, February 21, 2014 (PST)

To help cure what they say is certain harm to wild salmon and steelhead, fish conservation groups last week asked a federal court to order the state of Oregon to end releases of juvenile fish into the Sandy River, at least for now, and enjoin NOAA Fisheries from dispersing federal funds that help hatchery operations in the northwest Oregon river basin.


In their Feb. 14 “Motion for Remedy and Injunctive Relief” and accompanying legal memorandum the Native Fish Society and McKenzie Flyfishers ask Oregon U.S. District Court Judge Ancer Haggerty to declare illegal NOAA Fisheries’ approvals of Oregon Department of Fish and Wildlife plans for Sandy Hatchery operations.


"NFS respectfully moves for an order vacating and setting aside NMFS’s approval of the four HGMPs (“2012 HGMPs”) for the Sandy Hatchery and ordering NMFS to prepare an EIS before approving the four new HGMPs (“2013 HGMPs”) for the Sandy Hatchery. The “Hatchery and Genetic Management Plans” are for four species – spring chinook and coho salmon and summer and winter steelhead -- produced at Sandy hatchery, " the motion says.

The “Environmental Assessment, Finding of No Significant Impact, and Biological Opinion (“BiOP”) relied on for that decision, because they are arbitrary and capricious, an abuse of discretion, and not in accordance with law,” should also be vacated the motion says.


The EA and FONSI are National Environmental Policy Act assessments of planned actions; BiOPs judge whether actions jeopardize the survival of species listed under the ESA. The BiOp issued by NOAA Fisheries declared no jeopardy.


The plaintiffs’ motion asks that the court order the federal agency produce a NEPA “environmental impact statement” regarding future hatchery operations. The EIS process is more rigorous than the EA process.


Meanwhile, NFS wants the court to enjoin the ODFW from releasing any hatchery-produced juvenile fish into the Sandy until an EIS and a new BiOp is produced, but require state defendants to continue to operate weirs to sort hatchery origin spring chinook from the naturally-spawning population and to conduct all monitoring required under the existing HGMPs. The plaintiffs say that stray hatchery spawners reduce the genetic fitness of the wild fish.


Plaintiffs also allege that illegal “take” of listed wild fish results for a number of reasons, including competition from hatchery fish, introduction of disease, genetic introgression, and the use of native spawners to supplement the hatchery's genetic pool.


A previous request to have stopped hatchery salmon and steelhead releases into northwest Oregon’s Sandy River basin was denied March 21, 2013 by Haggerty.


But his ruling then did endorse an Oregon offer to reduce the number of spring chinook smolts to be loosed that spring from the new primary acclimation site – the tributary Bull Run River. At the time the NEPA-ESA approval process for hatchery operations had not been completed.


After those processes were completed, a complaint in the lawsuit was filed in August by the Native Fish Society and McKenzie Flyfishers that claim approvals for the ODFW-run Sandy Hatchery violate the ESA, as well as NEPA and the Administrative Procedures Act.


Judge Haggerty in a Jan. 16 opinion and order ruled in large part for the plaintiffs and asked the parties involved to confer on potential “remedies” and/or a suggest schedule for debating the issues.


(See, CBB, Jan. 17, 2014, “Judge Rules NOAA Fisheries Violated ESA, NEPA In Approving Oregon’s Sandy River Hatchery Management”


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


The plaintiffs asked that the court set a briefing schedule that would allow a resolution before a scheduled “first round of hatchery smolt releases” this year. That happening occurred March 23 last year.


The court then 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 was delivered 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 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 of habitat that had been blocked off to samon 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.


Meanwhile, in California, the California Department of Fish and Wildlife personnel at Mad River Hatchery began allowing wild origin steelhead and hatchery origin steelhead to enter the hatchery Feb. 4, to start spawning operations. The hatchery action is based on an amended court-ordered stay, signed by Judge M.M. Chesney, allowing hatchery operations to proceed with conditions agreed to by CDFW and the plaintiff Environmental Protection Information Center.


The court action allows Mad River Hatchery to collect, trap and spawn wild origin steelhead for brood stock for one year. Two of the main conditions of the action were the belief by National Marine Fisheries Service that progress was made on the development of an HGMP and agreement on the collection of natural origin steelhead trout in the coming year.


“Collection operations went very smoothly today,” said Shad Overton, Mad River hatchery manager. “It is critical we include both wild and hatchery origin fish to ensure the best genetic diversity of eggs possible for future releases. Our goal is to release 150,000 yearlings next year.”


Trapping, collection and egg take were delayed due to litigation. Spawning usually starts in January and continues through March. This time window allows the hatchery to spawn returning fish throughout the run. This year’s later start is not expected to affect overall spawning operations.


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