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Appeals Court Upholds Decision Allowing Hatchery Fish In Elwha River Salmon Recovery
Posted on Friday, April 28, 2017 (PST)

The Ninth Circuit Court of Appeals has upheld a lower court decision to allow hatchery salmon and steelhead in the Elwha River as part of a recovery effort following the removal of two dams in 2014.

 

Four conservation groups filed a suit in 2014 in the U.S. District Court in Western Washington claiming that three federal agencies, and officials of the Lower Elwha Klallam Tribe’s salmon hatchery on Washington’s Olympic Peninsula, violate Endangered Species Act provisions that prohibit the take of wild listed Puget Sound chinook salmon, steelhead and bull trout.

 

The Wild Fish Conservancy, The Conservation Angler, the Federation of Fly Fishers Steelhead Committee, and the Wild Steelhead Coalition filed the court action to stop the extensive use of hatchery fish in Elwha recovery efforts after the dams were removed, also challenging NOAA Fisheries, the National Park Service and the US Fish and Wildlife Service for approving and funding the programs.

 

According to the April 18 appeals decision by circuit court judges Susan P. Graber, Sandra S. Ikuta, and Andrew D. Hurwitz (https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/18/14-35791.pdf), the Wild Fish Conservancy and others claimed that the federal agencies violated the National Environmental Policy Act and the Endangered Species and that the Tribe’s hatchery operations were “taking” threatened fish in violation of the ESA.

 

Although the district court under Judge Benjamin H. Settle partially vacated one of NOAA Fisheries’ decisions, the appeals court said, the District Court otherwise entered judgment against the Conservancy after which the conservation group elevated the issue to the Ninth Circuit.

 

According to the groups, the federal government spent nearly $325 million for the removal of the Elwha and Glines Canyon dams on the Elwha, opening nearly seventy miles of pristine riverine habitat in Olympic National Park, much of which is designated a wilderness area.

 

Dam removal began on the Elwha River in mid-September 2011. Today, both the Elwha and Glines Canyon dams have been removed, the Lake Mills and Lake Aldwell reservoirs have drained, and the Elwha River flows freely from its headwaters in the Olympic Mountains to the Strait of Juan de Fuca for the first time in 100 years, according to the Park Service. Dam removal was complete in September 2014.

 

(See CBB, July 25, 2014, “Groups File Sue Notice over Elwha River Hatchery, Say Too Many ‘Maladapted’ Hatchery Fish,” http://www.cbbulletin.com/431575.aspx)

 

The appeals court sided with the federal agencies and Tribes and rejected the Conservancy’s 2015 appeal and upheld Settle’s U.S. District Court ruling. The decision will allow the Tribes to continue to add hatchery fish to the river in an effort to recover stocks of salmon and steelhead. Hatchery fish have been added to the river since 1976.

 

“We’re happy,” Lower Elwha attorney Stephen Suagee of Port Angeles said Monday, as was reported April 25 in the Peninsula Daily News. “It basically affirms the district court on all counts.”

 

Some 25,772 coho smolts were released March 29. The release of 175,000 steelhead smolts began April 12 and is ongoing, while a release of 71,248 chum salmon is planned for this week, according to Suagee.

 

The Conservancy in its original filing in the lower court sought limits of 50,000 hatchery steelhead smolts and 50,000 hatchery coho salmon smolts into the Elwha and its tributaries, and wanted no more than 60 adult steelhead, no more than 30 of which are female, to be removed annually from the river to provide broodstock, according to Peninsula Daily News.

 

“These hatchery fish will overwhelm the small, fragile wild fish populations that remain in the river, severely impeding or even preventing the full recovery of native anadromous fish,” the Conservancy said in its original court filing, claiming hatchery programs were implemented unlawfully without ESA authorization.

 

However, the appeals court said that NOAA had “previously endorsed the use of hatcheries in the Elwha River in a 1996 EIS and decision,” and found that a supplemental environmental impact statement was not required, as the Conservancy had asserted, when a previous EIS and comprehensive management plan “had already contemplated” agency actions of the type proposed.

 

“The subsequent EA reasonably concluded, after thorough analysis, that the risks posed by the hatchery programs were minimal and that approving the programs would have no significant impact on the environment,” the appeals decision said. “The EA also reasonably concluded that the programs were not highly controversial, and the existence of “some” uncertainty did not require an EIS.”

 

In its court filing (https://turtletalk.files.wordpress.com/2017/04/federal-answer-brief.pdf), the federal government also strongly endorsed the hatcheries’ usage.

 

The Conservancy “misses an important element of the context: hatcheries for most stocks are not new and were critical to conserving the remaining native Elwha fish while the dams were in place and natural survival in the lower river was gravely threatened,” according to the filing. It went on to say that about 95 percent of the most recent chinook salmon returns, listed as threatened under the ESA, are of hatchery origin from a program that has been in existence since 1976.

 

“We needed the hatchery to rear native fish to make sure the native species would survive the several years onslaught of all that sediment, and so far, so good,” Suagee told the Peninsula News.

 

Late summer last year, the Washington Department of Fish and Wildlife designated the Elwha River as a wild steelhead gene bank to help conserve wild steelhead populations. Under that designation, the river is off-limits to releases of steelhead raised in state hatcheries. Steelhead released into the Elwha this year are from the Tribes’ hatchery.

 

Also see:

 

--CBB, August 26, 2016, “WDFW Designates Elwha, Nisqually Rivers As Wild Steelhead Gene Banks Off-Limits To Hatchery Fish,” http://www.cbbulletin.com/437368.aspx.

 

--CBB, February 20, 2015, “Elwha: Several New Studies Detail Impacts Of Largest Dam Removal Project In US History,” http://www.cbbulletin.com/433197.aspx.

 

--CBB, January 31, 2014, “Wild Versus Hatchery: Groups Seek Preliminary Injunction To Halt Or Reduce Elwha Hatchery Releases,” http://www.cbbulletin.com/429637.aspx

 

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