Wild Fish Conservancy - Notice of Intent to sue WDFW

Discussion in 'Steelhead' started by Chris DeLeone, Feb 1, 2014.

  1. Chris DeLeone

    Chris DeLeone Active Member

    You are here: Home » About » Press » Press Releases » Steelhead Hatchery Programs Violating ESA
    Steelhead Hatchery Programs Violating ESA

    Jan 23, 2014
    PO Box 402 Duvall, WA 98019 • Tel 425-788-1167 • Fax 425-788-9634 •
    Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
    Brian Knutsen, Smith and Lowney, PLLC, 971-373-8692​
    For Immediate Release: Thursday January 23, 2014​
    Steelhead Hatchery Programs Violating ESA

    Today, Wild Fish Conservancy, a Puget Sound-based conservation group, sent a 60-day notice of intent to sue the Washington Department of Fish and Wildlife (WDFW), alleging that the agency’s planting of “Chambers Creek” steelhead in Puget Sound watersheds is in violation of the Endangered Species Act (ESA). The group states that the widespread planting of the highly domesticated hatchery stock across Puget Sound watersheds harms wild Puget Sound steelhead, wild Puget Sound Chinook salmon, and bull trout. All three species are listed as “threatened” under the ESA. Since the 2007 listing of Puget Sound steelhead, WDFW’s Chambers Creek steelhead hatchery programs have continued to operate without permission from the NOAA Fisheries Service. The Chambers Creek fish are produced at numerous WDFW facilities across Washington.

    “The science is definite in that the planting of these domesticated hatchery fish is detrimental to protected wild fish,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Any release of Chambers Creek hatchery steelhead should be prohibited as incompatible with the recovery of wild Puget Sound steelhead and the perpetuation of their legacy. But at the very least any existing hatchery program must operate with an appropriate permit from NOAA Fisheries.”

    Recent research in the Skagit River watershed confirms that Chambers Creek hatchery steelhead are mating with wild steelhead. The offspring of hatchery steelhead and wild steelhead are substantially less likely to survive in the wild, further depressing the already low numbers of wild steelhead. The Skagit research is the latest of a growing number of studies that have concluded that the planting of domesticated hatchery steelhead has adverse effects on the health and resilience of wild steelhead. The hatchery steelhead program of the Skagit River watershed is the largest in the Puget Sound region.

    Because juvenile hatchery steelhead are far larger than their wild counterparts, they prey on the juveniles of listed salmonids, compete for food, and attract predators. Hatchery facilities that block habitat and degrade water quality also cause problems for wild fish.

    “WDFW has a split mandate between providing fishing opportunities and protecting wild steelhead,” Beardslee continued. “Ironically, what one hand of WDFW gives, the other takes away: the publically funded fish hatcheries undermine the publically funded wild fish recovery efforts, such as habitat restoration. Fully recovered wild steelhead populations would fulfill both mandates.”

    In 1969, the steelhead was declared Washington’s official “state fish.” Despite that recognition, wild Puget Sound steelhead populations have declined precipitously over the past thirty years: the average region-wide abundance between 1980 and 2004 was less than 4% of what it was in 1900. Since being listed as threatened under the ESA in 2007, Puget Sound wild steelhead abundance has continued to decline. The recent five-year average is less than 3% of what it was in 1900. In 2010, scientists from the regional science center of the NOAA Fisheries Service concluded “n our opinion… Chambers Creek steelhead have no role in the recovery of native Puget Sound steelhead.” The unpermitted Chambers Creek steelhead hatchery programs are the sole subject of the 60-day notice letter, because rather than aiding wild steelhead, these programs harm wild steelhead and prevent their recovery.

    The group is represented by Smith and Lowney, PLLC, of Seattle.


    Evan Burck likes this.
  2. Salmo_g

    Salmo_g Active Member

    While the Science Center may have concluded that Chambers Ck steelhead have no role in the recovery of wild Puget Sound steelhead (kinda' makes sense, doesn't it? Why would any hatchery fish have a role in recovering a wild population, except under exceptional circumstances?), they also have not concluded that Chambers Ck steelhead delay or prevent recovery of wild steelhead.

    Just because "A" is not good for "B" doesn't automatically lead to "A" being bad for "B." Yet another difference with a distinction.

    It's true that the state hatchery steelhead programs in Puget Sound don't have a NMFS approved HGMP (hatchery and genetic management plan). They have been in the works for a long time. Because they are the work product of state and federal bureaucracies, they move at near glacial speed.

    The paper work is one thing. The ecological and biological significance is another. While it's also true that genetics analysis indicates that some introgression of hatchery steelhead with wild Skagit steelhead has occurred, recent genetics works suggests that the extent of that introgression is small, and it looks to me like it isn't enough that it would have any measurable effect causing delay or prevention of the recovery of the wild steelhead.

    I have no problem with coming down hard on something that causes a problem, but this lawsuit is a good example of cherry picking data to make a point that isn't supported by a broader examination of all the applicable evidence.

    Being mindful of minutiae seldom, if ever, solves problems.

  3. Chris Johnson

    Chris Johnson Member: Native Fish Society

    If "A" is not good for "B" then why keep dumping millions of tax payer dollars into "A" ? Why not spend that $$ on things that will help recover wild steelhead?
    Phil Fravel likes this.
  4. Chris Bellows

    Chris Bellows Your Preferred WFF Poster

    they got burned hard the last time they cherry picked data and lost whatever credibility they had with any sportfishermen when they used rockfish catch data (using small gear and trying to state that high numbers of rockfish were caught for every lingcod caught... forgetting that those targeting lingcod do not fish tiny lures) to try to shut down lingcod fishing at neah bay.
  5. Cruik

    Cruik Active Member

    Even in the 9th circuit, courts usually smack lawsuits out of court on procedural or other grounds when the science behind issues are contested. Judges know they can't decide which science or data is correct amid disagreement by experts.

    But aside from the science, I'm very interested to see how this suit legally works and would be real interested to see the complaint. Generally, the Fed. prosecutes ESA violations, or approves/disapproves of states' cooperating conservation plans. There is a provision for citizen suit, but it looks mostly like what's envisioned by the act is suing the department secretary (commerce, I think in this case) for either a failure to perform the duties required in the act, or for a poor decision. This suit feels more natural as a suit against the secretary of commerce for NMFS incorrectly approving a state HGMP. Since, as SG says, there currently is one, there's not really an agency decision to be critical of. Alleging a section 9 taking by citizen suit against a state gov. is going to be really tough, and I can't remember it happening successfully before. Anyone know of any other examples? It's an interesting idea.
    Irafly likes this.
  6. Salmo_g

    Salmo_g Active Member


    That is an excellent question. Since A does no good for B, but neither does A limit B, then that makes A an independent variable, and it should be evaluated on its own merits instead of making up a story about A limiting B.


    As I understand it, the PS HGMPs are "in the pipeline" but have not yet been approved. So there is a procedural flaw, and WFC could win and collect damages for that. $$ that come out of taxpayers' and license buyers' pockets. If there were actual biological or ecosystem harm I would be less miffed.

  7. Cruik

    Cruik Active Member

    Interesting. It's hard for me to think of it as $$ damages in this case, since generally environmental lawsuits result in injuctions + attorney fees. But a ESA section 9 violation by the state is something pretty different than most enviro suits.

    I always thought that under the act, NMFS has a duty to protect endangered species, but may allow states to regulate and conserve, so long as their programs have been approved by NMFS. If the state hasn't coughed up or implemented an adequate plan to protect the species or DPS, then I thought it was NMFS' abdication of their duty, not the state, since it's NMFS' duty to ensure that there is a conservation plan, regardless of where it came from. I see in the press release, that they're alleging a direct section 9 violation (which would be a taking). The duty to protect the species and designate critical habitat are elsewhere in the statute. Alleging a section 9 violation doesn't mean that they're suing for a lack of appropriate conservation plan, but that they are alleging what would amount to a direct taking of the species (direct harm, like poaching). If they truly were suing because of a lack of HGMP or delay in the approval process, I think that would be an admin. law suit and I don't believe they could bring suit against the state directly, but would have to sue the DoC secretary since the protection of endangered species are the duty of the Fed under the act. I feel like this is a real weird one, but maybe I'm just talking out my ass. It's been a few years since I took that ESA class.
    Salmo_g likes this.
  8. Salmo_g

    Salmo_g Active Member


    My bad for not being legally correct. Injunctive relief and attorney's fees are the more likely objective, not damages.

    As far as I know, WDFW has submitted the HGMPs, but I guess they remain "draft" until approved, and NMFS may not have completed the approval process. I'm far from fully understanding this because I was informed that the state and tribes are drafting new, second round HGMPs, so naturally I figured that must mean the earlier versions had been approved and in place. One of the inherent problems in all this is that both the state and federal agencies have this ESA workload super-imposed on their regular day to day stuff, making it hard to comply with timelines specified in the law and regulations.

  9. Chris Johnson

    Chris Johnson Member: Native Fish Society

    I guess that will be the crux of the suit, can they show that "A" limits "B", and who is responsible.
  10. Chris Johnson

    Chris Johnson Member: Native Fish Society

    " ...it should be evaluated on it's own merits instead of making up a story about A limiting B".

    In my opinion that evaluation has been done, and it is a waste of tax payer dollars ( they are dumping 1.5 million into Kendal creek hatchery even as we speak).
  11. Rob Allen

    Rob Allen Active Member

    too bad the depression and in some cases extinction of our wild salmon and steelhead stocks has not moved at glacial speed.
  12. Smalma

    Smalma Active Member

    ChrisJ -
    If WFC does follow through with their threat to file the lawsuit and that suit goes all the way to a decision I would think they would likely win it. However as Salmo g. suggests I suspect will be on procedural issues rather than being able to prove that "A" limits "B".

    Let's take a quick look at the issues raised in WFC's news release. Remember the yard stick typically used in the ESA arena for these issues does the action under consideration significant raise the risk of extinction to unacceptable levels.

    1) The hatchery steelhead program on the Skagit basin is the largest in Puget Sound region." If we are talking just Chamber's Creek fish the Skagit program has not been the largest since 2008. If we are talking domestic hatchery steelhead in general (winter and summers combined) not sure that the Skagit has every had the largest Puget Sound program.

    2) The recent Skagit studies - Today that study does not confirm that those hatchery are spawning with the wild fish. In fact the closer one looks at that study the more likely it becomes that there is virtually no interaction under current conditions between those hatchery and wild fish on the spawning grounds. As Salmo g alluded to earlier emerging analysis of that data maybe interesting.

    3) The questions regarding siting of the hatchery, water quality issues, predation, completion and attraction of predators across the DPS do not appear to have the impacts that would raise above commonly accepted risk thresholds.

    One of the things that has long amused me is that in spite of the commonly accepted position that hatchery steelhead are inferior in virtual everyway (except for maybe producing fish to harvest) that when it comes to ecosystem interactions they sudden become super fish and in hatchery/wild interactions on the spawning grounds the become the pron stars of the fish world.

    Gary Knowels, Steve Call and KerryS like this.
  13. Smalma

    Smalma Active Member

    Rob -

    There really frustrating aspect of the topic is how suits such the current WFC one continues to place the focus on issues that are no longer significantly limiting Puget Sound steelhead away and from the ones that truly the drivers in the status of those steelhead. The status of our steelhead will never improve over the long term until the discussion of their recovery moves from what now are side issues to the "biggies".

    Gary Knowels and KerryS like this.
  14. Chris Johnson

    Chris Johnson Member: Native Fish Society

    I am not opposed to hatcheries completely they certainly have their place. I just don't understand the reluctance to move away from the hatchery model, it's not like it's providing us with great fishing opportunities for steelhead in Puget sound rivers. I'd love to hear some alternatives, I'm pretty open minded, I just feel like we need to get off the dime and do something. It feels like a funeral march right now.
  15. Rob Allen

    Rob Allen Active Member

    Curt, what makes you believe that hatchery fish are only a small issue? is working on a small issue better than doing nothing at all?
  16. sleestak240

    sleestak240 Active Member

    I've always been curious about the concept of a "designer hatchery". One that moves away from mass producing low-quality specimens in concrete raceways and tries to produce fewer, but higher-quality broodstock specimens in a more "natural" environment. Do away with concrete raceways and create some sort of miniature stream environment with dynamic flow/structure, some amount of natural food sources supplemented by artificial feed...something that produces smolts that are better suited to what really exists in nature while still maintaining some of the advantages of "controlling" the reproduction process. Not sure if anything like this exists in the anadromous fish world or not. It's pretty utopian and maybe the costs would be so astronomical that it just couldn't be done.
    Bob Triggs likes this.
  17. Andrew Lawrence

    Andrew Lawrence Active Member

    I am still somewhat curious as to why the WFC didn’t include the Skamania origin summer run program in Puget Sound tributaries on this list. Considering the fact that they are in our rivers for a much longer period of time, they have a much greater opportunity to stray and potentially interact with wild steelhead. (As a side note, this was not intended as a display of support for, or against the WFC lawsuit.)
  18. Smalma

    Smalma Active Member

    I attempted to post a detailed response as to why I thought hatchery steelhead and their interactions (both at the genetic and ecosystem level) are not a problem on the Skagit in particular and Puget Sound in general; the system gave me a error message and would not allow me to post it.

    You will have to accept that I consider each to the commonly discussed interactions and found due to the temporal spawn timing separation of the hatchery and wild fish and the high spring flows from the snow melt run-off hydrographs they are much of an issue.

    This continued effort to eliminate/reduce hatchery releases on PS rivers has the potential to produce limited benefits that detracting energy or attention from addressing the larger issues is a negative.

    Gary Knowels and Cruik like this.
  19. Cruik

    Cruik Active Member

    The Nez Perce have a similar sort of idea going on the Snake, but not to the extent that you're talking about. They're still fed pellets, I think, though. Of course, the tribe then plops them down on spawning grounds so that they come back to spawn with wild fish.

    Woah. Good point. Those Skamania summers end up everywhere. They counted over 400 Reiter fish at the sunset falls trap this year. I know they usually drop back down to the hatchery, but I've gotta figure some fall in with a pod of wild fish and spawn in the tribs.
  20. Rob Allen

    Rob Allen Active Member

    My problems with the temporal spawning time separation is that I commonly see hatchery fish in rivers well above the hactheries at the same time I am catching wild fish. Is it uncommon to see hatchery fish outside of the hatchery area or after the hatchery season in Puget Sound systems?

    I believe it to be a rather large problem here on the Lower Columbia.

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