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September 26, 2001 Endangered Species Oregon decision could affect ESA listings in Methow County releases NMFS audit draft Salmon recovery: reviewing priorities - by Lee Hicks Publisher's Comment ~ by Lee Hicks Salmon recovery:reviewing priorities With the tragedy of September 11 it’s easy to overlook that the wheels of government process continue to churn. Several developments emerging in recent days illustrate this well. This Wednesday after the News’ deadline, the Forest Service will release the final report for its investigation of the July 10 deaths of four firefighters in the Thirtymile blaze. On Monday, as reported in this week’s issue, Okanogan County officials revealed audit documents highly critical of National Marine Fisheries Service’s handling of fish recovery in the Northwest. At a meeting this Wednesday of the Northwest Power Planning Council in Spokane, the top state official of NMFS and the head of the Methow Valley Irrigation District will discuss fish and water issues related to the consent decree with NMFS on operation of the Valley’s largest irrigation system. On Thursday, the Council will discuss the first steps to create plans for the Methow and dozens of other sub-basins in the upper Columbia River drainage. In the past week an Oregon federal court decision threw into doubt the way NMFS has listed wild and hatchery fish as endangered or threatened throughout the West. And a recent report of the Independent Scientific Advisory Board "advised" NMFS and the power council that, as now configured, various programs underway in the Northwest probably won’t succeed in saving salmon. Incoming NMFS regional director Bob Lohn will have an already cluttered desk with the various challenges to the way the agency has been managed. Apart from the Thirtymile investigation, the fish-related issues bring into sharp focus the country’s priorities. We should continue to seek ways to save salmon in the Northwest. But, given the hundreds of millions of dollars spent thus far—with dubious results—and a sagging economy, salmon programs will likely get much tougher scrutiny in relation to national security needs and the battle against terrorism. Oregon decision could affect ESA listings in Methow Judge says hatchery fish have to be considered by Lee Hicks In a decision that potentially affects endangered or threatened salmon decisions throughout the West, a federal judge has ruled that Oregon coho salmon listings under the Endangered Species Act must be revised to consider hatchery as well as wild fish. Federal District Court Judge Michael Hogan has ruled that National Marine Fisheries Service erred in 1998 by listing only wild coho as threatened. The ruling said that by including wild and hatchery fish as part of the "evolutionary significant unit," in its listing, NMFS could not list one without the other. The ruling could have implications for the upper Columbia basin, including the Methow. Unlike the coho listings, NMFS placed both wild spring Chinook defined as "Methow composite" stock—and hatchery fish on the endangered list for the ESU. However, the decision if upheld on appeal could affect the so-called Carson hatchery stock, which NMFS wants to phase out of the Methow basin. Hogan said NMFS improperly included only the wild Oregon coho in the ESA listing, although the hatchery fish were also part of the ESU as defined by the fisheries agency. An analysis of the decision prepared for officials of the Northwest Power Planning Council points out that Judge Hogan did not conclude there is no difference between wild and hatchery stocks. Instead, the report, prepared for a Sept. 26 meeting, notes the decision concludes that NMFS exceeded provisions of the ESA by making a distinction below the ESU designation. In the upper Columbia, which includes the Methow, the power council briefing paper explains that NMFS included wild and hatchery spring Chinook stocks in the ESU and the endangered listings. "This at least implies that NMFS considered the ESU (upper Columbia spring Chinook) as a whole in deciding whether to list the ESU," the power council report says. The Oregon coho listings grabbed attention when hatchery officials clubbed hatchery-reared fish returning to the Alsea River basin in western Oregon. The judge said the distinction between wild and hatchery fish in the Alsea basin of western Oregon was "arbitrary and capricious." Hogan’s ruling immediately lifted restrictions on coho fishing in Oregon coast waters and streams. The Oregon court decision could bring new attention to whether segregating the Carson stock from the composite fish, which have hatchery and wild genes, should be reassessed in the Methow ESA listings. As in the Methow stream system in 2000, Oregon hatchery officials wanted to prevent the spawning of returning hatchery salmon in order to reduce breeding with wild stocks. In the Methow, the NMFS listing of spring Chinook as endangered in 1999 included hatchery stock and "Methow composite" stock. The agency believes the composite are closer to historic wild populations whose genes give them greater long-term survival capability. In the Methow basin, NMFS has said it wants to phase out salmon with genetic links to the Carson hatchery on the lower Columbia to improve survival of the composite population. Nearly 900 spring Chinook were processed this summer at state and federal hatcheries in the Methow while thousands of others were allowed to spawn in the wild. Of those processed, 60 percent were Methow composite and the other 40 percent were of Carson origin, hatchery officials estimated. Incoming NMFS regional director Robert Lohn has reportedly acknowledged that the decision could have "far-reaching impacts." Lohn was on leave in transition to his first day on the job Oct. 1 and could not be reached. As to an appeal of the decision, NMFS spokesman Brian Gorman said Friday (Sept. 21), "We haven’t made that decision yet. We’re still debating exactly what the opinion means, what our options are." Gorman confirmed, "There would be questions (of the listings) in the bulk of the 26 populations of salmon and steelhead in California and the Northwest (as a result of the Oregon decision.)" He said NMFS would make recommendations to the Justice Department as to an appeal, which would have to be made by Nov. 9. Legal observers say that losing an appeal, in this case to the 9th Circuit Court of Appeals, would effectively jeopardize listings with similar hatchery-wild fish issues throughout the West. If not appealed, the decision would apply only to the Alsea basin listing, although similar litigation—including that already filed—could be expected to follow in other courts. The briefing paper for the power council observes that "assertions" from both sides of the listings of other ESUs will likely arise. Those supporting a listing are "likely to reach to find grounds" distinguishing the listing from the Oregon decision. On the other hand, those "interested in undoing a particular listing will undoubtedly find reasons why that listing decision raises the same concerns as the Oregon coho listing." The Oregon decision represents a victory for the Bellevue-based Pacific Legal Foundation, which represented the Alsea Valley Alliance. The foundation has challenged the way agencies have listed salmon in the Northwest, arguing for an approach that balances fish recovery with economic considerations. County releases NMFS audit draft Commissioners say final report "whitewashed" by Lee Hicks Okanogan County wants more information related to an audit of National Marine Fisheries Service in the Northwest, charging that a highly critical draft was reduced to a "whitewash" in a final report. On Monday the county commissioners said the Secretary of Commerce, whose department oversees the fisheries agency, should "fully disclose the results of the audit, including interviews and research that led to its damning conclusions." The commissioners released a copy of a draft audit and a "management memorandum," which they said were obtained from an "anonymous source." County commissioner Craig Vejraska said the county formally requested this audit five months ago through the Freedom of Information Act. "They told us they didn’t have it, but they did." The draft report, dated Aug. 10, 2000, describes an agency lacking internal focus, unable to meet deadlines and beset by confrontational, inadequate communication with other entities involved in endangered fish issues. The draft title "Leadership Lacking in Northwest Salmon Recovery Effort," gives a clear clue to its conclusions. The later document is identified as a "Management Memorandum on Review of the National Marine Fisheries Service’s...Role in Salmon Recovery Efforts in the Columbia River Basin." Stamped "for official use only" and dated April 27, 2001, it is from Larry B. Gross, acting deputy assistant inspector general for auditing, to Dr. William Hogarth, who was then acting assistant administrator for NMFS and now heads the agency. The memorandum says NMFS needs to complete detailed salmon recovery plans and improve collaboration with other agencies, tribes and the public involved in salmon issues. Unlike the draft audit, the memorandum does not refer to specific examples. In the draft, however, are extensive comments related to NMFS actions in the Methow basin, which began with the agency’s 1997 listings of steelhead-rainbow trout as endangered in the upper Columbia River and its tributaries. In late 1999 and early 2000, an auditor with the inspector general’s office of the commerce department conducted interviews of Methow Valley irrigators, county officials and others. The auditor, Michelle Paratte, also contacted the Methow Valley News on one visit and set up a meeting to discuss NMFS-related activities. She later called to say her supervisors had asked that she not visit the News, although a reporter did talk with her off the record after a public meeting in the Valley. Much of the draft audit contains statements from those interviewed concerning NMFS management and communications. But there are a number of specific cases including biological opinions for endangered fish in the Methow basin. The draft concluded that NMFS had "been consistently tardy" in producing biological opinions and other documents related to fish recovery. "An especially egregious example of NMFS failure to meet its obligations regarding biological opinions occurred in the Methow Valley...," the draft says. The Forest Service initiated the consultation process required of federal agencies under the Endangered Species Act in April of 1998 in an attempt to have biological opinions prior to the 1999 irrigation season. These would have allowed the Forest Service to issue special use permits for irrigators withdrawing water on federal land. The draft report notes that: "Despite numerous attempts to expedite matters by the Forest Service, Washington state agencies and residents of the valley, NMFS has not yet issued the biological opinion some 26 months later." The report also said that as the result of a court decision, NMFS agreed to issue a biological opinion for effects of Snake River dams by the fall of 1999, but did not complete it until July of 2000. The delay forced the Bonneville Power Administration to raise power rates because of uncertainty over potential costs of future fish mitigation programs, the report says. In other cases, the draft report says NMFS’ failure to work collaboratively has caused fragmentation in recovery efforts. One example, the report says, was in Oregon where a committee of environmentalists, the timber industry and the state forestry agency has worked for months to craft the Salem Timber Plan. NMFS asked to submit its own proposal, which committee members feared would be disruptive, and suggested the agency wait until their proposal was completed. But the agency intervened with proposed stream buffer requirements that led to a breakdown of the consensus-driven process. Among observations drawn in the audit: • (those interviewed) believe NMFS is "unnecessarily and unproductively arrogant and confrontational." Some NMFS managers, not identified, were called, "unusually and unprofessionally abrasive in their relationships with participants." • "...confused internal organization within NMFS is reflected in its communications with outside groups." • "NMFS inability to communicate effectively and productively with other participants has had a corrosive effect on progress of the salmon recovery effort." • "Federal state and tribal interviewees have expressed their concern over NMFS’ lack of an open scientific process. Despite a 1995 court order to work collaboratively with state and tribal scientists, NMFS latest scientific process....remains internal and closed." The field auditor who conducted interviews in the Methow no longer works for the Department of Commerce. It’s unclear what happened after the draft report was issued. County commissioner Craig Vejraska called the management memorandum "a whitewash," and said the county wants to know "what happened to the audit—the real one." Vejraska also said the county welcomes a fresh start for salmon recovery with new NMFS regional leadership. Robert Lohn, formerly fish and wildlife director for the Northwest Power Planning Council, assumes the regional director’s position at NMFS on Oct. 1. The National Marine Fisheries Service has added a link on its web page that makes available the complete text of several documents pertaining to the agency’s interaction with the Methow Valley Irrigation District. Available for review for interested people are the consent decree filed with U.S. District Court. The consent decree spells out the requirements that the district must meet in order to turn on its water next spring. Also included are letters from NMFS to the MVID board of directors expressing concern that the district is not moving fast enough to meet the requirements and assure users of water next April. Not included on the site are the MVID’s responses to NMFS correspondence. The site is located at www.nwr.noaa.gov Hit the link to Methow Valley Irrigation District.
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