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.
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.
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.
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.
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.
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.
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
CBB, July 25, 2014, “Groups File Sue Notice over Elwha River Hatchery, Say Too
Many ‘Maladapted’ Hatchery Fish,” http://www.cbbulletin.com/431575.aspx)
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.
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.”
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.
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.
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
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.
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.”
its court filing (https://turtletalk.files.wordpress.com/2017/04/federal-answer-brief.pdf), the federal
government also strongly endorsed the hatcheries’ usage.
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
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.
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.
August 26, 2016, “WDFW Designates Elwha, Nisqually Rivers As Wild Steelhead
Gene Banks Off-Limits To Hatchery Fish,” http://www.cbbulletin.com/437368.aspx.
February 20, 2015, “Elwha: Several New Studies Detail Impacts Of Largest Dam
Removal Project In US History,” http://www.cbbulletin.com/433197.aspx.
January 31, 2014, “Wild Versus Hatchery: Groups Seek Preliminary Injunction To
Halt Or Reduce Elwha Hatchery Releases,” http://www.cbbulletin.com/429637.aspx