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Oregon 'Re-Adopts' Lower Columbia Commercial Gill-Net Ban by Staff Columbia Basin Bulletin, June 7, 2013

Slew Of Uncertainties Remain

The Oregon Fish and Wildlife Commission heard public testimony pro and con from mid-morning Thursday until past quitting time (5:30 p.m.) before opting to readopt lower Columbia River fish management rules focused on phasing out mainstem commercial gill-net fishing and shifting most of the salmon harvest allocation there to recreational fishers.

The strategy intends to more than make up for that lost mainstem commercial harvest by boosting returns of hatchery origin fish to estuary off-channel sites, where gill nets would still be allowed. The plan calls for the transition to be complete in three years.

Sport fishing interests, including a spokesman for Oregon Gov. John Kitzhaber, and the Oregon Department of Fish and Wildlife, say the new plan will provide an economic boost for both sport and commercial fishing industries, and support efforts aimed at conserving wild salmon and steelhead populations.

Brett Brownscombe, a Natural Resources policy adviser on Kitzhaber's staff, said that "this is an approach that can meet your objectives."

"He feels it's time to move forward," Brownscombe said of the governor, who instigated the lower Columbia fishing reform process late last summer with a letter to the commission and the ODFW chief. The OFWC approved a reform package in December, and complementary regulations were approved in January by the Washington Fish and Wildlife Commission. The two states co-manage fisheries on the Columbia River mainstem where it represents a shared boarder.

Commercial fishing interests came to the microphone Thursday to discredit the plan, saying its economic and biological underpinnings were uncertain at best, and would likely be a death knell for the industry and thus cut the main supply line to the non-fishing public.

The Oregon commission's decision throws the argument back into the courts. Attorneys representing commercial fishing interests on Jan 4 filed a "petition for judicial review" asking the Oregon Court of Appeals to rule as invalid what the petition calls a "radical reallocation plan" that was adopted Dec. 7 by the commission.

The court on Feb. 11 ordered that implementation of the new Oregon rules be delayed until the legal issues were settled, and later put court proceedings in abeyance until a state-requested reconsideration of related issued could be completed. Thursday's OFWC decisions included an endorsement of a revised "fiscal impact statement." In the appeal court process the petitioners alleged that the FIS advising the Dec. 7 decision was "vague and inadequate" and that the public participation process prior to the decision failed to meet state requirements.

State law requires that such statements be prepared and that they 1) accurately portray the likely economic effects well enough to inform those whose interests will be affected by the rule that they have an opportunity to make their case to the Commission; and 2) that the FIS is adequate, when taken in the context of the Commission's rulemaking record (which now includes additional public comments and further economic analysis of the original model and proposed changes), for the Commission to determine that it understands the likely fiscal effects of the rules it adopts.

The Commission decided to revisit the rules in order to consider updated fiscal information, provide additional time for public input and address alleged deficiencies in either the process or economic analysis.

The new fish management strategy calls for a transition during the 2013-2016 period away from mainstem gill netting to using those nets exclusively off-channel areas that are to be added to in terms of fishing area and the provision of more hatchery fish. Existing "select areas" in the lower estuary are equipped with net pens used for the final rearing of young hatchery fish, which when released will flock to the ocean to grow, and then presumably return to spawn at those acclimation sites. The idea is to offer commercial fishing areas where few of the wild, protected fish venture.

The plan also calls for the continued assessment of alternative commercial gear, such as seines, that it is hoped can be used in the mainstem with lesser negative effects – mortalities – on wild fish surging up the river.

"The off-channel 'select areas' that now exist would be supplemented with the outplanting of additional chinook and coho to help make up for the loss of mainstem catch," according to the new fishing regulations adopted by the OFWC.

The adoption of the new management framework in December was the culmination of several months of work by a two-state work group comprised of members of the Oregon and Washington fish and wild commissions, advisers and staff. The two states co-manage sport and commercial fisheries on the Columbia where the big river represents the Oregon-Washington border.

The approach to developing and implementing an alternative management framework for non-tribal Columbia River recreational and commercial fisheries includes most of the concepts proposed by Kitzhaber in a late summer directive to OFWC. It also incorporates additional details developed by Oregon and Washington staff and refined through the workgroup.

Attorney Ben Miller, who represents the commercial fishers in the state appeals court petition process, told the OFWC Thursday that the renewed fish rulemaking process was also flawed, and the update fiscal impact statement portrays numerous uncertainties as fact.

While the FIS points to increased benefits for both sport and commercial fishers as a result of the new management strategy, only time will tell. The alternative gear proposed to replace gill nets is illegal under state law and state legislation proposed to change that status may or may not be approved, Miller said. Neither are the seines covered by a federal ESA biological opinion that aims to limit "take" of wild, protected fish.

And use of those alternative gears is still experimental, unproven as to their effects on wild fish, yet presumed by the states to have a higher survival rate for wild fish netted and then released.

Those alternative gear uncertainties make the economic assumptions shaky, said Miller and others testifying Thursday in opposition to the new rules.

Also uncertain is funding, both short and long-term, for the proposed off-channel enhancements and other elements of the plan. Legislative budget requests for the next two years are now pending.

"There are still fundamental flaws" in the plan and FIS that are vulnerable to legal challenge, Miller said. "Put me out of a job… rescind these rules."

State officials stressed that the three-year transition period is designed to allow time to resolve those uncertainties, and to change course if biological and economic assumptions are not working out as envisioned. Adaptive management provisions are built into the new management framework.

The commission approved the new rules and adequacy of the revised FIS, while acknowledging the uncertainties.

"We can revisit this at any time," said Commissioner Michael Finley.

Among the measures re-adopted Thursday are the barbless hook requirement on the Columbia River and selected tributaries, and the closure of all sturgeon retention on the Columbia River below Bonneville dam, the Willamette River and in all coastal waters beginning Jan. 1, 2014.

For more information see CBB, Feb. 22, 2013, "Oregon Appeals Court Halts Implementation Of Lower Columbia Gill-Net Ban, Will Hear Legal Arguments"