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Court Battle Over The ESA Salmon Listing

by Jim Klauser
Construction & Development News, May 1999

We reported in our April 1998 and February 1999 issues of Construction and Development News on the subject of salmon preservation raising some questions that have recently come home to roost. For example, how can the federal government "list" salmon under the Endangered Species Act (ESA) while allowing fishing of this species by everyone from commercial fishermen to tribes to sport anglers? How can government adopt draconian land use and water use regulations affecting landowners, builders, and resource industries thus treating salmon like they were spotted owls?

Last month a lawsuit was filed in federal court raising these exact questions. Because the subject of this lawsuit is so broad and because the ESA salmon listing impacts all citizens, CDN reprints below the entire lawsuit complaint. We removed the legal citations and edited where necessary to make it more readable to non-lawyers. Of course, any complaint is just a set of allegations, so we don't take a position on them. It's the court's job to determine their truth.

If you have questions, contact CDN's Editor, land use attorney Jim Klauser, at (206) 285-4445.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMMON SENSE SALMON RECOVERY,
BUILDING INDUSTRY ASSOCIATION OF WASHINGTON,
WASHINGTON ASSOCIATION OF REALTORS,
WASHINGTON FARM BUREAU,
and WASHINGTON CATTLEMEN'S ASSOCIATION,
Plaintiffs,

v.

WILLIAM M. DALEY, Secretary of United States Department of Commerce,
NATIONAL MARINE FISHERIES SERVICE,
PENELOPE DALTON, NMFS Director,
and WILLIAM STELLE, NMFS Regional Director for the Northwest Region,
all in their official capacity;
Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Introduction and Summary

This is an action to enforce the legal obligations of the Secretary of Commerce and the National Marine Fisheries Service for the conservation of salmon of the Pacific Northwest. These statutory responsibilities require the protection and conservation of salmon so that these fish are not so reduced as to require listing as "threatened/endangered" under the Endangered Species Act ("ESA"). The Chinook salmon in question are anadromous fish, which means they spawn in rivers and hatcheries and then migrate to ocean waters where they spend most of their lives. In the ocean waters, salmon are subject to harvest by fishing operations and to predation by marine mammals. Congress has charged defendants with the responsibility for conserving and managing fishery resources (including the Chinook salmon) within the coastal ocean waters of the United States under the Magnuson-Stevens Act, and the Sustainable Fisheries Act.

Plaintiffs seek to end the over-harvesting and predation of all Northwest Pacific salmon, especially the Chinook listed as "endangered/threatened" species in Defendants' published Rules. Plaintiffs seek a common sense approach to conservation and management of the Chinook salmon, which will result in removal of these salmon as listed species under the ESA. Congress has required Defendants to implement such management by December 1998 through the Sustainable Fisheries Act. Defendants have failed to comply with this mandate.

Defendants' March 24, 1999 Final Rule listing salmon under ESA is also procedurally and substantively unlawful. That regulation was issued in violation of the Administrative Procedure Act, the Magnuson-Stevens Act, the Sustainable Fisheries Act, the ESA, and the National Environmental Policy Act. Defendants applied an unlawful designation, excluding identical hatchery salmon which are the majority of those fish. For these fish, Defendants failed to implement existing regulatory measures or control overutilization and predation which make listing unnecessary and unlawful. The Defendants' failures to perform their duties under law to conserve salmon include:

failing to take immediate action to develop and implement a plan to prevent excess ocean and other harvest on these salmon stocks, which would alone immediately avoid any justification for the listing of these salmon under ESA;

permitting and allowing excess harvest of these allegedly threatened salmon in inside waters of the Columbia River, Puget Sound and other fresh water fisheries, including nets in spawning and rearing areas;

allowing and not controlling the "take" of these salmon by known predators, especially marine mammals under the management and protection of Defendants; and

failing to protect necessary spawning, rearing and migrating salmon and take appropriate measures to conserve and rebuild these salmon stocks including passage and hatchery facilities.

A number of different salmon species originate in waters and hatcheries of Washington, Oregon and Idaho. Of those stocks, a number have declined because of Defendants' actions and previous mismanagement. The Upper and Lower Columbia River steelhead, Snake River sockeye, fall Chinook salmon, and spring/summer Chinook salmon have been previously listed under ESA as either threatened or endangered. On March 24, 1999, Defendants defined three additional Chinook salmon Evolutionarily Significant Units (ESUs) and listed them as "threatened." In the same rule, Defendants redefined one previously listed ESU to include additional Chinook populations and changed one ESU (Upper Columbia spring) from "threatened" to "endangered." Thus, Defendants' further mismanagement of this salmon ESU for six years under ESA resulted in it becoming endangered. In each Chinook ESU as defined, only naturally spawned Chinook salmon are considered (excluding hatchery salmon). There is no biological basis for distinguishing between natural and hatchery-produced Chinook of the same stocks, and returns to hatcheries of these Chinook stocks account for over half the total run. Defendants have directed the use of such hatcheries to replace losses to these same Chinook runs caused by U.S. Government constructed or licensed dams, and Congress has specifically required such hatchery production.

The Defendants have approved ocean fisheries that harvest these Chinook stocks. Despite a direct mandate from Congress to amend ocean Fishery Management Plans by December 1998, as necessary to prevent overfishing and rebuild overfished stocks, Defendants have not complied. To the contrary, Defendants have authorized increased ocean fisheries on these Chinook.

Defendants admit that ocean harvest takes 56 percent to 59 percent of all returning Puget Sound Chinook salmon and, if all fisheries are considered, up to 90% has been taken in some years. Since Defendants issued the proposed ESA listing of additional Chinook salmon on March 9, 1998, they have taken no effective steps to limit the ocean harvest of these Columbia or Puget Sound Chinook salmon, to protect these overfished stocks. Indeed, fisheries on Chinook off the Washington coast are proposed to increase more than three-fold for the 1999 season.

Defendants have also continued to allow additional Chinook harvest in the Columbia River and Puget Sound to reduce spawning populations of these Chinook. These fisheries often continue into the rivers in which spawning occurs. In the Columbia River, over 500 net fishing sites are allowed on federal lands in the lower reservoir areas, using access sites provided by the U.S. Government for tribal commercial fisheries, which take these Chinook salmon.

These Defendants have statutory authority under the Marine Mammal Protection Act to control predation by such animals on these same salmon stocks, but they have failed to do so. Instead, Defendants have managed to increase the numbers of these predators, including populations in areas where they are known to predate on these salmon stocks, and refused to allow effective controls even where the effect of predators on listed salmon is severe. But for the predations and improper harvest resulting from Defendants' actions and their other failures to perform statutory duties for conservation of salmon, the Puget Sound Chinook stocks and Columbia River Chinook stocks would not qualify for ESA listing.

The unlawful regulations challenged here will result in improper and severe injury to Plaintiffs. The ESA salmon listing results in severe legal restrictions on Plaintiffs including regulation and additional burdensome processes in conjunction with permitting of Plaintiffs' activities. Plaintiffs will also suffer substantial increases in costs, and delays in or denial of the approval of land, water and natural resource use and development activities. All of these impacts are due to Defendants' unlawful actions.

PARTIES

Plaintiffs:

Plaintiff Common Sense Salmon Recovery ("CSSR") is a non-profit corporation whose members include regional trade associations, organizations and individual citizens of Washington, Oregon, and Idaho who share a common interest in the preservation of salmon resources in the Pacific Northwest. CSSR seeks to achieve its objectives and those of its members in:

maintaining salmon populations at levels which will make the listing of salmon under the ESA unnecessary; and, thereby,

minimizing the restrictions that its members will suffer in the use and enjoyment of their land and water resources; and

maintaining the recreational, economic, civic and intangible benefits that CSSR members enjoy by reason of the presence of salmon and other natural resources in the Pacific Northwest.

Plaintiff Building Industry of Washington ("BIAW") is a trade association whose members include corporations, partnerships and sole proprietors who make their living constructing residential housing throughout Washington State. BIAW members will be injured by the challenged regulations because they will cause the curtailment and/or restriction of land use, water use, road building and other activities that are normal incidents of the construction industry. The restrictions that will be imposed on the use of private lands and related water resources imminently threaten members of BIAW with increased costs, adverse economic consequences and a decline in housing industry employment as construction is restricted and those consequences become manifest.

Plaintiff Washington Association of Realtors ("Realtors") is a trade association whose members include business entities and individuals who make their living selling real property in the State of Washington. Realtors will be economically disadvantaged because the land use restrictions that will flow from the regulations will reduce the number of properties available for sale, increase housing and construction costs, and lower the values and sales of properties where land use is restricted or blocked entirely.

Plaintiff Washington Farm Bureau ("WFB") is an organization that represents both family and corporate farms. Its purpose is to assist its members by promoting farming, conserving increasingly scarce farmlands, and generally furthering farming interests. The challenged regulations will cause additional restrictions to be imposed on farms, especially those located near the rivers used by the listed species. Such impacts include direct diversion of water available to satisfy water rights on which they depend and limits on agricultural activities that may affect natural runoff into the rivers, including restrictions on the use of herbicides and pesticides. This will not only burden the affected farmers individually, by limiting their income and causing resulting social dislocation, but will also cause the further erosion of the farm communities.

Plaintiff Washington Cattlemen's Association (WCA), represents the interests of those who make their living raising and selling cattle. Members will suffer the same detrimental affects as others listed above. The preamble to the challenged regulation specifically claimed cattle grazing as a factor that contributes to degradation of the habitat of the listed Chinook salmon.

(Editor's note: This month, water rights to ranchers in Washington's Methow Valley were restricted by federal government agencies citing the ESA salmon listing).

Defendants:

Defendant William M. Daley is the Secretary of the United States Department of Commerce. His responsibilities include administration of the Magnuson-Stevens Act, the Sustainable Fisheries Act, the Marine Mammal Protection Act, and the ESA as it pertains to the species in question. Under the Magnuson-Stevens Act, he approves all ocean Fishery Management Plans before they become effective, and he is also responsible for promulgating regulations to conserve and manage fish resources in the oceans. Under the ESA, he has rulemaking authority that he exercised in adopting the challenged regulation.

Defendant Penelope Dalton is the Director of the National Marine Fisheries Service, an agency within the U.S. Department of Commerce. The Secretary has delegated most of his ESA, Magnuson-Stevens Act, and Marine Mammal Protection Act authority to Dalton, and that authority has been exercised both in adopting the challenged regulations and in the actions and derelictions under the Magnuson-Stevens Act.

Defendant William Stelle is Regional Director of the Northwest Region of NMFS. The Northwest Region encompasses California, Oregon, Washington and Idaho and generally acts with respect to each statute administered by the U.S. Department of Commerce in this area.

Defendants' Conservation Obligations:

The Magnuson-Stevens Fishery Conservation and Management Act and Marine Mammal Protection Act

In the Magnuson-Stevens Act, Congress established a regime for management of coastal ocean waters from 3-200 miles with the express purpose of creating a national program for the conservation and management of fishery resources of the United States. Congress especially applied this system to the anadromous species which spawn in United States rivers or estuaries. Chinook salmon and the other listed salmon species are such anadromous fish. By virtue of their typical migration to North Pacific waters, they are harvested in both the Pacific and North Pacific Management Council areas established under that Act. Defendants have voting members on each of these management councils.

The Magnuson-Stevens Act mandates that any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this title shall be consistent with the national standards and other applicable law, including ESA. Final responsibility for approving Fishery Management Plans and for annual regulations and enforcement of ocean fisheries under the Act rests with Defendant Secretary Daley. The Magnuson-Stevens Act requires Defendants to identify all overfished stocks and to implement measures to conserve and rebuild such stocks. Any fishery management plan shall contain the conservation and management measures, applicable to foreign and domestic fishing vessels, which are necessary for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.

The Sustainable Fisheries Act specifically required amendments to all existing Management Plans to specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished. In the case of a fishery which is approaching an overfished condition, contain conservation measures must be implemented to prevent overfishing. Such measures were required to be included in Plans or Plan amendments not later than 24 months after the date of enactment of this Act. The Act required Defendants to act to adopt such Plan or Amendment within 60 days of that two-year deadline or by December 1998. Alternatively, the Sustainable Fisheries Act provided:

"If the Secretary determines at any time that a fishery is overfished, the Secretary shall immediately notify the appropriate Council and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish."

Defendants have failed to comply with these alternative requirements with respect to the overfished stocks of salmon. Defendants have failed to carry out their duties relating to ocean harvest of these salmon stocks, in violation of the Magnuson-Stevens Act and the ESA. The deadline for such action has passed.

Under the Marine Mammal Protection Act, Defendants have authority and jurisdiction over marine mammals (shared with states). Defendants have continued to manage marine mammals to increase their numbers resulting in predation on threatened and endangered fish stocks. Defendants have refused to undertake or even permit control of marine mammals increasing the predation impact on salmon stocks, including Chinook.

Defendants' Statutory Obligations: The Endangered Species Act

Congress' express purpose in the Endangered Species Act was to "provide a program for . . . conservation of such endangered species and threatened species." Defendants' statutory authority for listing of species under the Act requires:

"The Secretary shall make determinations . . . solely on the basis of the best scientific and commercial data after conducting a review of the status of the species and after taking into account those efforts . . . to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas." 16 U.S.C. 1533(b)(1)(A).

On March 24, 1999, Defendants issued a Final Listing which defined three Evolutionarily Significant Units (ESUs) of Northwest Chinook salmon as threatened species, and one Chinook salmon ESU as endangered species under the ESA. Defendants designation is an unlawful alternative to ESA. Defendants ESU alternative does not represent a "species" under the ESA and was not properly adopted by regulation, as required by the ESA. Defendants' standards provided that a fish population constitutes an ESU only if it satisfies two criteria: (1) it must be reproductively isolated from other population units of the same species, and (2) it must represent an important component in the evolutionary legacy of the biological species. The Chinook salmon ESUs challenged here fail to meet these criteria

Under ESA, a species is "endangered" if it is in danger of extinction throughout all or a significant portion of its range. A species is "threatened" if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. These Chinook salmon are neither endangered nor threatened when identical and abundant salmon from artificial channels or hatcheries are included in the population. The ESA states:

"A species may be determined to be endangered . . . or . . . threatened because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or man-made factors affecting its continued existence."

In making this determination, the Secretary must rely solely on the basis of the best scientific and commercial data available. With respect to these listed salmon, any problems of factors (B) "overutilization," (C) "predation," and (D) "inadequacy of existing regulatory mechanisms" are all within the control of these Defendants. Defendants have acted arbitrarily and capriciously in listing these stocks of Chinook salmon as "threatened/endangered."

These Chinook salmon populations -- including hatchery salmon -- are admitted by Defendants to be abundant in the Puget Sound ESU: "Hatchery Chinook salmon are widespread in the Puget Sound ESU." 64 Fed. Reg. 14319. Defendants also have admitted that if all Chinook are considered, total abundance in the [Puget Sound] ESU is "relatively high;" in the Lower Columbia River ESU, abundance in this ESU is "relatively high;" in the Upper Willamette River ESU, total abundance is "relatively high." The Upper Columbia Summer and Fall runs are "quite high." Status Review of Chinook Salmon, NMFS-NWFSC-35, Table 6.

The current populations of these Chinook salmon ESUs are within naturally fluctuating historical abundance and carrying capacity of the habitat. Defendants have acted arbitrarily and capriciously in naming the subject Chinook salmon as "threatened/endangered" when their own records indicate that the populations-- if including hatchery fish -- are stable within ranges of historical variation. Defendants have also acted arbitrarily and capriciously in defining ESU species to exclude hatchery-produced salmon because naturally spawning salmon are indistinguishable from the hatchery salmon and are therefore required to be considered part of the same species-distinct population segment by the ESA. The NMFS Biological Review Team noted that they "could not tell the difference between hatchery and naturally produced fish." Final Rule, 64 Fed. Reg. 14311. With respect to federal dams, Congress has directed that hatcheries will be used to replace natural production and directed these Defendants to implement through funding or operating hatcheries. Defendants have required or agreed to the implementation of these hatcheries to replace natural production of Chinook

Puget Sound Chinook salmon is not reproductively isolated from hatchery produced fish in the same ESU, and thus does not represent a distinct population as required by the ESA. Hatchery-produced fish and naturally spawning fish have been reproducing since 1899, when hatchery production began. Puget Sound populations have continuously interbred with populations from neighboring ESUs and so fail to meet the criteria of a distinct population segment under the ESA. Defendant Secretary of Commerce does not have authority to delegate his statutory authority to tribes or other entities involved in harvest or to exempt any such entity from ESA provisions, but Defendant has done so expressly by Order. Defendants have also violated the ESA by allowing salmon listed as threatened or endangered to be possessed and distributed in interstate commerce.

FIRST CAUSE OF ACTION:

The Challenged Listing Regulation Violates The APA

The ESA authorizes Defendant Secretary Daley to determine whether any "species" is endangered or threatened. This evaluation determination must be made by regulation. Under ESA, the term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature. Despite the statutory definition, the challenged regulation does not list either a species, subspecies, or a distinct population segment that interbreeds when mature. Instead, it lists four Evolutionarily Significant Units (ESUs) of Chinook salmon. ESU is not an authorized listing subject under the ESA, nor is it a term or concept that the ESA even recognizes. It is, instead, a creature of NMFS policy. The Administrative Procedures Act (APA) requires that an agency promulgating a rule must comply with public notice and comment rulemaking procedures. Since ESUs are part and parcel of the challenged regulations and NMFS intends the ESA to be applied and enforced on the basis of ESUs, Defendants were required to comply with the APA notice and rulemaking procedures before adopting such definition of "species."

SECOND CAUSE OF ACTION:

Violation of the National Environmental Policy Act

Defendants' authorization of harvest of salmon listed under the ESA represents a major federal action significantly affecting the environment, under the National Environmental Policy Act (NEPA).

Defendants actions to authorize harvest and by-catch of salmon listed for protection under the ESA causes direct, indirect, and cumulative effects that have not been disclosed, analyzed, and discussed in an adequate environmental impact statement pursuant to NEPA. Defendants have failed to fully implement hatchery production and other measures that Congress has directed to conserve these salmon. Such alternatives to protect these salmon must be disclosed, analyzed, and discussed in an Environmental Impact Statement. Because Defendants have authorized salmon harvest and predation on salmon listed under the ESA without an adequate EIS, NEPA and regulations implementing that Act require that Defendants cease such actions until there has been adequate compliance with NEPA because such authorization has an adverse environmental impact and limits the choice of reasonable alternatives.

PRAYERS FOR RELIEF

Plaintiffs pray for the following relief from this Court: