the film forum library tutorial contact

Salmon Lawsuit: Common Sense Salmon Recovery v. NMFS by Common Sense Salmon Recovery, May 3, 1999

BACKGROUND

On May 3, 1999, Common Sense Salmon Recovery, a coalition of Washington State business groups filed suit in federal district court in Washington, D.C. against the National Marine Fisheries Service. The suit is based on NMFS mismanagement of Washington salmon. The agency has violated federal law by continually allowing overharvest and predation of Washington salmon. The suit also challenges the methodology underlying NMFS listing of numerous runs of Washington salmon under the Endangered Species Act. Common Sense Salmon Recovery is a coalition of business groups including the Washington Farm Bureau, Building Industry Association of Washington, Washington Cattlemen’s Association, and Washington Association of REALTORS®. Kittitas County is supporting our lawsuit as an amicus party. Our lawsuit has support from members of Washington’s congressional delegation, state legislators, local government officials, and citizens who seek a common sense approach to salmon recovery.

NMFS ALLOWS OVERHARVEST IN VIOLATION OF FEDERAL LAWS

• Harvest usually kills 56-59% of all returning Puget Sound Chinook salmon, and has killed up to 90% in some years. In 1996 (the most recent data available), more than 150,000 chinook were harvested in Puget Sound marine waters. In 1997, the commercial marine catch alone was increased 44% from 1996, to 112,700.
• Even after chinook salmon were listed as threatened under the Endangered Species Act in March of 1999, NMFS proposed to increase the Washington coastal harvest of chinook by over 300% during the 1999 fishing season, from 22,500 to 79,900.
• The Sustainable Fisheries Act, an amendment to the Magnuson-Stevens Act, required the Pacific Fisheries Management Council (a NMFS Council that allocates fish off Washington & Oregon) to develop a plan to prevent overfishing and rebuild over-fished stocks by December 1999. NMFS has failed to comply with this legal mandate.

NMFS HAS ALLOWED PREDATION TO DESTROY SALMON RUNS

• NMFS’ management of marine mammals has resulted in severe impacts on Washington salmon. Even though NMFS already has authority to manage marine mammal populations to protect salmon, a recent NMFS report to Congress asks for "a new framework" to control marine mammal predation as well as more research on the issue.

RECENT ESA LISTINGS VIOLATE THE ESA

• NMFS has excluded all hatchery-reared salmon from recent ESA listings. Ironically, NMFS has required the use of hatcheries as mitigation for federally-constructed or licensed dams over the past 50 years. There is no scientific information to distinguish between natural and hatchery produced stocks. In fact, NMFS has used captive breeding programs to supplement the populations of numerous ESA-listed species.
• NMFS’ recent ESA listings by "Evolutionary Significant Unit" violate both the ESA and APA. The ESA allows species to be listed either by species or sub-species. NMFS’ salmon listings by "Evolutionary Significant Unit" violates the ESA itself and contradicts NMFS’ own methodology in other salmon listings, which list by river (e.g.,Sacramento River Chinook or Snake River sockeye).
• By basing ESA listings on a geographic area (Evolutionary Significant Unit), NMFS failed to consider the best scientific information about each chinook run included in the listing.

IMPROPER STANDARD FOR ESA CONSULTATION AND "TAKE" ANALYSIS

• Fisheries with direct or incidental harvest of ESA-listed salmon will conduct harvests during the 1999-2000 fishing season with little or no delay due to ESA section 7 federal consultation requirements. This harvest of thousands of ESA-listed fish will also be exempt from ESA section 9 "take" prohibitions. However, numerous irrigation, homebuilding, and public works contracts have been delayed, modified, or prevented because of the time and expense of conducting ESA section 7 consultation. ESA Section 7 consultation and Section 9 "take" prohibitions must be applied equally to all activities. It is illogical that fisheries harvesting thousands of ESA-listed salmon are exempt from the ESA while upland land use activities are prevented because of the ESA.

WHAT IS COMMON SENSE SALMON RECOVERY ASKING FOR?

CSSR is seeking a common sense approach to salmon recovery including the following:

1. Fisheries directly or indirectly harvesting ESA-listed salmon must undergo the same ESA section 7 federal consultation and ESA section 9 "take" analysis as land use practices. Fisheries harvesting thousands of ESA listed salmon should not be granted Incidental Take Statements while land use activities are delayed or prevented even though no impact to salmon can be proven.
2. NMFS must immediately implement a program to prevent overfishing of Washington salmon as required by The Sustainable Fisheries Act.
3. The ESA listing of salmon by Evolutionary Significant Unit (ESU) must be set aside. Instead, the listing of salmon stocks must be done by species or sub-species as the ESA requires.
4. NMFS must utilize hatchery techniques to aid the recovery of Washington salmon. The ESA includes such practices as an example of possible recovery measures for listed species. In addition, hatchery fish must be included in determining total fish populations.

WHAT IS COMMON SENSE SALMON RECOVERY NOT ASKING FOR?

CSSR is not seeking any of the following remedies:

1. We do not believe in banning all salmon harvest. Instead, we believe that the overharvest of salmon must stop, as required by numerous laws, including the Magnuson Act, Sustainable Fisheries Act, and Endangered Species Act.
2. We do not advocate overruling the Boldt Decision governing salmon allocation. However, we believe that case law supports the regulation of all fisheries for conservation purposes and that all fisheries must undergo the identical section 7 consultation and section 9 "take" analysis applied to land use practices.
3. We do not believe that harvest and predation control is the only part of salmon recovery. Reasonable habitat protection and restoration measures, when coupled with harvest and predation controls, will recover Washington’s salmon.