Page 1August , 2005

Murphy & BuchalLLP

2000 S.W. First Avenue, Suite 320

Portland, Oregon 97201

James L. Buchal

telephone:503-227-1011

fax:503-227-1034

e-mail:

August 2005 DISCUSSION DRAFT

BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Donald Evans
Secretary of Commerce
U.S. Department of Commerce
1401 Constitution Avenue, NW
Washington, D.C.20230 / D. Robert Lohn
Regional Administrator
Northwest NOAA Fisheries
7600 Sand Point Way NE
Seattle, WA98115-0070
Stan Speaks, Regional Director
Bureau of Indian Affairs
911 N.E. 11th Avenue
Portland, OR 97232 / David B. Allen, Regional Director
U.S Fish & Wildlife Service
911 N.E. 11th Avenue
Portland, OR 97232
Jeffrey P. Koenings, Director
Washington Department of Fish & Wildlife
600 Capitol Way N.
Olympia, WA 98501 / Lindsay A. Ball, Director
Oregon Department of Fish & Wildlife
3406 Cherry Avenue N.E.
Salem, OR 97303
Steven M. Huffaker, Director
Idaho Department of Fish & Wildlife
600 S. Walnut / P.O. Box 25
Boise, ID 93707

Re:Sixty-Day Notice of Intent to Sue for Violations of the Endangered Species Act

Dear Sirs:

This letter, submitted on behalf of ______constitutes notice of intent to sue the United States Secretary of Commerce (acting through, and described herein as “NOAA”), and ______for violations of §§7 and 9 of the Endangered Species Act (ESA) and arbitrary and capricious decisionmaking in violation of the Administrative Procedure Act (APA).

Specifically, the Biological Opinion on Impacts of Treaty Indian and Non-Indian Fisheries in the Columbia River Basin in Years 2005-2007, on Salmon and Steelhead Listed Under the Endangered Species Act, Conference on Lower Columbia Coho, and Magnuson-Stevens Act Essential Fish Habitat Consultation”, Consultation No. F/NWR/2005/00388, issued May 9, 2005 (hereafter the “Inriver Harvest BiOp”), is arbitrary, capricious and contrary to law for the reasons identified below, among others. In addition, certain aspects of the listing decisions and 4(d) regulations published at 70 Fed. Reg. 37160 (June 28, 2005) pertaining to harvest of listed species are also arbitrary, capricious and contrary to law for the reasons identified below, among others. Because of the unlawful nature of these determinations, they cannot provide an exemption from the anti-take prohibitions for those authorizing fishing seasons consistent with the Inriver Harvest BiOp or otherwise.

Background

All over the world, commercial fisheries have targeted particular populations of tasty fish, destroyed them, and moved on to the next species of interest. Historically, overfishing on the Columbia destroyed many runs long before the first mainstem dams were ever constructed. The warnings of fish biologists against overfishing were not heeded then, and they are not heeded now. Most recently, overfishing on abundant mixed stocks of coho exterminated the Snake River coho salmon. As the Salmon Recovery Science Review Panel (RSRP) recently advised NOAA, “[g]overnment agencies have historically done a rather poor job of preventing overexploitation of marine fish . . . [t]he same conclusion applies to the management of anadromous fish...”. (RSRP (2001), at 7.)

Fundamentally, the problem is that “allowable harvests are suggested by a consortium of harvesters, and then approved by NOAA”. Salmon Recovery Science Review Panel, Report for the Meeting held August 27-29, 2001, at 7 (hereafter RSRP (2001).) It is apparent throughout the Inriver Harvest BiOp that NOAA has simply abdicated its duty to enforce the Endangered Species Act to limit the intentional slaughter of listed salmonids for financial gain in favor of rubber-stamping the recommendations of those benefiting from the harvests. Indeed, at times the Inriver BiOp admits as much. See, e.g., BiOp at 99 (noting adoption of harvest limits “that had been defined by the tribes themselves during development of the CRFMP as an appropriate response to a significant conservation need”).

Specifically, the Inriver Harvest BiOp is the product of consultation on the “2005-2007 Interim Management Agreement for Upriver Chinook, Sockeye, Steelhead, Coho and White Sturgeon” (hereafter IMA). It “bind[s] the parties to the specific harvest and production [hatchery] actions contained herein”. (IMA at 2.) Though it is entered as a stipulated order in U.S. v. Oregon, No. 68-513-KI (D. Or.), the harvest and hatchery actions it contains remain subject to applicable federal environmental laws. SeeRamsey v. Kantor, 96 F.2d 434, 443 n.16 (9th Cir. 1996). Unfortunately, the IMA continues its longstanding focus upon allocation of fish runs between upriver and downriver harvest interests, and ignores almost entirely the need to protect all listed stocks; despite the listings of numerous lower river stocks, the parties signing the IMA continue to regard “upriver stocks of salmon and steelhead” as “presently constrain[ing] fisheries”. (IMA at 34.)

Failure to Utilize the Best Available Scientific and Commercial Data

The Endangered Species Act requires NOAA to utilize the “best available scientific and commercial data” in its §7(a)(2) consultation, and strictly forbids what NOAA acknowledges has occurred: “a willingness to accept a level of risk associated with tribal fishing greater than the biology might strictly imply” (BiOp at 100; see also id. at 114.) NOAA’s willingness to accept risks “greater than the biology” supports extends to all harvest decisions within the Inriver Harvest BiOp, not merely tribal harvest. We list below some of the more striking failures.

Irrational conclusions. The Independent Scientific Advisory Board recently concluded in its June 21, 2005 Report on Harvest Management of Columbia Basin Salmon and Steelhead that NOAA’s no jeopardy conclusion in the Inriver Harvest BiOp and concluded that it “does not appear to be well supported by the analysis provided” (ISAB (2005), at 32). NOAA’s application of science to harvest has been the subject of even more strenuous criticism from the RSRP, which pointedly advised NOAA that “[d]espite hours of presentations and numerous probing questions from the RSRP panel, we remain somewhat mystified concerning the scientific justification for current allowable harvests, especially the continuation of substantial or high allowable harvest rates on listed salmonid ESUs”. (RSRP (2001), at 7.)

The RSRP told NOAA in no uncertain terms that it “should develop a rational [harvest] policy that does not demean scientific common sense”. (Id. at 13.) The RSRP suggested that considering harvest in isolation, without reference to other biological opinions (such as the 2004 BiOp on FCRPS operations), “led to some counterintuitive recommendations, such as to continue the harvesting of declining populations”. (RSRP (2001), at 11.) The RSRP concluded that harvest rates with respect to several listed ESUs are “biologically unsustainable”.

In general, the Inriver Harvest BiOp concludes that

“... given all the factors for decline—even taking into account the corrective measures being implemented—it is still clear that the affected ESU’s [sic] biological requirements are currently not being met under the environmental baseline. . . . circumstances are such that there must be a continued improvement in the environmental conditions (over those currently available under the environmental baseline). Any further degradation of the environmental conditions could have a large impact because these ESUs are already at risk.” (BiOp at 85.)

NOAA ultimately offers no rationale for continued harvest of listed species in a context where their “biological requirements are currently not being met”.

For example, NOAA approves a harvest rate of up to 8% on endangered Snake River sockeye. (BiOp at 110.) NOAA recognizes that the Snake River sockeye run is at “near-extinction levels”, with only one year of substantial return from an experimental program to rebuild the run. (Id.) Yet NOAA concludes that the sockeye harvest does not jeopardize the continued existence of sockeye for two reasons that are irrational. First, NOAA argues that the “low level of harvest associated with the proposed fisheries does not affect the ability of the broodstock program to produce fish for release. ..”. (BiOp at 111.) If that were the general criterion for assessing jeopardy to stocks produced by artificial production, virtually no federal action would be restricted by § 7 of the ESA so long as sufficient hatchery fish can be produced. Yet NOAA repeatedly takes the position within the Inriver Harvest BiOp that hatchery production is no substitute for natural production.

Second, NOAA argues that “the proposed harvest rate is also too low to make a substantial difference in the number of returning adults”. (Id.) NOAA appears to be suggesting that because so few adult Snake River sockeye return, the magnitude of the take of sockeye is not significant. Under this theory, the fewer fish that were left, the higher the harvest rate could be. Alternatively, NOAA may be suggesting that an 8% adverse impact cannot, per se, “reduce appreciably the likelihood of both the survival and recovery of a listed species” within the regulatory definition of “jeopardize the continued existence of”. 50 C.F.R. §402.02. Insofar as NOAA and the courts routinely find jeopardization based upon far smaller impacts to small fractions of a listed ESU, this is presumably not what NOAA means; indeed, beginning on the very next page of the Inriver Harvest BiOp (BiOp at 112), NOAA refers to extensive analysis attempting to show that an even smaller harvest rate will not result in jeopardy without any mention of any per se standard.

Failure to regulate harvest by ESU or production unit. The ISAB noted that “establishing quantitative indicator systems within ESUs is required for a credible harvest management system” (ISAB (2005), at vi). Unfortunately, first amongst the ISAB’s most “significant concerns” was “insufficient quantitative data for analyses by production units” (Id. at 3). But even where the Inriver Harvest BiOp does consider specific components of listed ESUs, and discusses relevant population data, such data has not been integrated into the harvest analysis at all.

For example, with respect to the Upper Columbia River spring chinook salmon, the BiOp reports “cautionary” levels for three populations (Wenatchee, Entiat and Methow), two of which are below that level. (BiOp at 16.) Yet the BiOp nowhere reports stock-specific harvest rates for these three stocks, and nowhere presents any specific rationale for permitting harvest on some units, such as Wenatchee, that have only exceeded the “cautionary” level once in the last dozen years. (Id.)

Some “31 extant demographically independent populations” (BiOp at 24; but see id. at 27 (39 local spawning populations)) have been identified for Snake River spring/summer chinook salmon, divided into “five major groupings (id.; but see id. at 28 (seven “index stocks”)), but harvest management has made only a distinction between the spring and summer runs (id. at 24-25).

The Lower Columbia River chinook salmon is reported to “need a number of viable populations in each of” three groups: fall-run populations (tules), late fall-run populations (brights) and spring-run populations. (BiOp at 30.) Lower Columbia River coho exhibit similarly complex population structure, but there are “only two populations within the ESU with significant natural production” (Sandy and ClackamasRivers). (Id. at 47.) Lower Columbia River steelhead also have at least 14 remaining winter populations. (Id. at 60.)

Snake River steelhead are discussed in terms of A-run and B-run fish (BiOp at 53) as “biologically significant and distinct component[s] of the Snake River [steelhead] ESU” (id. at54). “B-run steelhead ... represent at least one third and as much as 55% of the production capacity of the ESU and, for consultation purposes, are considered [a] significant portion of the ESU.” (Id. at 58.) However, some 24 distinct populations have been identified. (Id. at 55.) The “decline for B-run steelhead has been most significant”. (Id.)

Snake River steelhead are one of the few stocks for which NOAA has reported “maximum sustained yield estimates”. The BiOp reports that adult escapements at Lower Granite Dam “associated with maximum sustained yield were in the rage of 25,000 to 50,000”, but that “additional escapements in the range of 40,000-80,000 or more would help better define the production dynamics of the system”. (BiOp at 57.) NOAA concludes that “[m]aximizing escapement of natural-origin steelhead in the near term is essential”. (Id. at 9.) The proposed harvest rates do not accomplish this.

With respect to Lower Columbia River steelhead, only 14 winter steelhead populations remain from an ESU formerly composed of 17 winter runs and 6 summer runs. (BiOp at 60.) Ten of the remaining runs are described as “indicator stocks”. (Id. at 61.) Half the indicator runs remain below goals associated with “a viable state for the population”. (Id.) The majority of the populations are “in decline”. (Id. at 62.) Yet NOAA approves a tripling of the harvest rates on these fish.

Ultimately, because of NOAA’s failure adequately to consider the impacts of tributary harvest, the Inriver Harvest BiOp does not contain a reasoned assessment of the total harvest impact on particular ESUs at all. All that the Inriver BiOp does is note the existence of tributary harvest (BiOp at 10), without any analysis of the levels thereof or impacts on affected ESUs. In some cases, the harvest managers themselves seem to pay more attention to the protection of weak stocks than NOAA. The IMA notes that DeschutesRiver fall chinook stock is of “special concern” (IMA at 14), but NOAA makes no mention of the issue in the Inriver Harvest BiOp.

Failure to account for density dependence. As the ISAB noted, “fishing is frequently targeted as a first management action [in conservation] because it removes mature salmon that would otherwise return to reproduce” (ISAB (2005), at ii). Indeed, “harvest management is much more likely to be able to be capable of preserving options for recovery than other types of measures that may be involved, such as habitat improvements or modification of flows and dam passage facilities” (Id. at viii).

The primary reason this is so, although the ISAB does not draw this link, is that mortality on returning adults causes more harm to salmon populations than mortality in other life stages, particularly juvenile mortality, because mortality is “density dependent”. (ISAB Report at 56.) Put another way, reductions in juvenile mortality reduce density, leading to better survival for the surviving juveniles. Thus a 10% impact on smolt mortality has a much less than 10% impact on the number of returning spawners, while a 10% impact on returning adults has a much closer to 10% reduction in the number of returning spawners. NOAA ignores the effects of density dependence entire in assessing harvest and other impacts on listed species. Available scientific evidence, such as C. Greene & T. Beechie, “Consequences of potential density-dependent mechanisms on recovery of ocean-type chinook salmon (Onchorynchus tshawytscha)”, 61 Can. J. Fish. Aquat. Sci 590-602 (2004), suggests that harvest impacts are much more important.

Failure to account for inability to constrain harvest. The ISAB concluded that the third “primary component” of any “effective harvest management system” is the “capacity to constrain total fishing mortality on a population to a level that proves sustainable after accounting for all sources of mortality throughout the population’s life cycle” (ISAB (2005), at iii). The “capacity to constrain” in turn depends upon “(1) consistent quality-assured data for pre-season planning and in-season monitoring; (2) clear management objectives and timely in-season decision processes; and (3) management accountability”. (Id. at iv.)

Unfortunately, the ISAB found that “the ability to constrain total mortality on specific production units remains less than necessary, unless very broad-based harvest restrictions are implemented in times and areas where the stock is expected to be present” (p.36). For example, NOAA admits in the Inriver Harvest BiOp that “[t]here are no specific harvest rate constraints on tribal fisheries [for steelhead] during the spring or summer seasons”. (BiOp at 95.) Instead, NOAA relies upon the Treaty Tribes to “manage mainstem treaty subsistence fisheries in good faith to remain within harvest guidelines” (IMA at 6), such that NOAA is not consulting on a specific action at all, but on a promise to craft future actions to fall within general guidelines. Reliance upon future promises is not a “capacity to constrain” harvest.

NOAA’s reliance upon the good faith of harvest interests to regulate their fisheries within general guidelines is arbitrary and capricious. This was recently demonstrated when a Makah tribe winter troll chinook fishery, scheduled from October 1, 2004 to April 15, 2005, harvested in excess of 20,000 chinook despite expected impacts of less than 1,600 fish. Biologists have been quoted in the sports press saying that not only winter chinook but also native steelhead have been the subject of large and unregulated harvest. See, e.g., “Tribal Fishers Abuse Rights”, The Reel News, March 2005.

More importantly, significant harvest of listed salmonids occurs in tributaries to the mainstem Columbia and Snake River. For example, 2004 tributary harvest for the Mid-Columbia steelhead ESU reached roughly a thousand fish, for an ESU that had as few as 3,000 wild fish in 1995. (See FCRPS AR Doc. B.82, at 25.) Harvest rates of up to 27% have been reported for some components of the ESU, such as the KlickitatRiver. The Inriver Harvest BiOp reports that there is not even any incidental take limit for Tribal fisheries, only non-Tribal fisheries. (BiOp at 89 (Table 29 & nn. 3, 5.) NOAA cannot properly determine that a proposed fisheries does not jeopardize the continued existence of a listed ESU when the fishery managers do not even propose a binding incidental take limit.

Failure to consider effects of specific harvest practices. It is well known that gillnets, by selectively removing the largest specimens in a population, tend to decrease the size of affected salmonids. And of course gillnets do not discriminate amongst stocks of fish swimming past them. Yet NOAA approves the IMA in a context where the IMA declares that “actual fishing dates, gear restrictions, and other shaping measures with respect to this fishery [Zone 6] shall be defined by tribes in-season as the fishery progresses”. (IMA at 15-16.) NOAA’s failure to consider specific impacts of specific gear types renders its decision arbitrary and capricious.

Inadequate Accounting for Uncertainty. The ISAB found, as a general matter, “limited evidence of accounting for uncertainty in management plans”. (ISAB, at 3.) The RSRP was harsher in their criticism, noting that

“[i]n response to our questions it became apparent that NMFS, state and tribal personnel involved in setting allowable harvests were not making use of basic theories of harvesting fluctuating populations, in which stochasticity and uncertainty in population dynamics strongly support the precautionary principle for setting conservative allowable harvests, nor were they familiar with the advantages of threshold harvesting to reduce risk of population collapse or extinction and to increase average sustainable harvests”. (RSRP (2001), at 8 (citations omitted).)