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Delayed Gill-Net Ban Litigation Awaits Oregon Decision by Staff Columbia Basin Bulletin, May 3, 2013

A plan to revisit recently adopted Columbia River salmon harvest rules - which aim to phase out commercial use of gill nets on the mainstem and provide a bigger share of fish to recreational fishers -- has been pushed back by the Oregon Fish and Wildlife Commission to allow additional time for public input.

The discussion had been scheduled for the OFWC's May 10 meeting but, at the request of stakeholders, the topic has been deferred to the panel's June 6-7 meeting, according to the Oregon Department of Fish and Wildlife. The OFWC is the policy-making body for fish and wildlife issues faced by the state. The seven-member panel meets monthly.

The Commission had been scheduled next week to discuss Columbia River fish management and reform rules it adopted in December 2012, and the fiscal impact statement informing those rules. Those rules were challenged late last year in the Oregon Court of Appeals by commercial fishing interests.

In response to that petition to the court, ODFW of Feb. 21 filed a motion for an extension from the court-set deadline of March 4 to June 10 to file the agency record of actions and documents produced during its process for making the fishing rule change. The state agency asked for the extra time "in order to address petitioners' claims that the agency failed to comply with certain rulemaking procedures."

The court on Feb. 25 decided to treat that extension motion as a motion to hold the judicial review proceeding in abeyance - to suspend court proceedings -- "to give ODFW the time and opportunity to issue a new notice of proposed rulemaking and a new statement of fiscal impact, to provide interested persons with additional opportunity to comment, and to reconsider whether to repeal, readopt, or amend the rules that are the subject of this judicial review." In that order, the court ordered the proceeding held in abeyance until May 31 (to be reactivated on June 1).

That abeyance period was reiterated in the March 26 court order. As of midweek no new date had been set by the court for the filing of the administrative record. And no briefing schedule had been set to debate the issues. The court has in the meantime "stayed" implementation of those new fishing rules pending the outcome of the legal arguments.

The future course of legal action would depend on what the OFWC decides during that June meeting.

If the state commission adopts new rules, the court could allow time for the filing of a new/amended petition for judicial review of the newly adopted rules, according to Oregon Court of Appeals staff attorney Lora Keenan. If petitioners are satisfied with the new rules, they may elect not to file a new/amended petition.

It the state decides to stay with the rules it already had adopted in December, the judicial proceeding would probably be reactivated.

ODFW in a press release issued this week provided an internet link to its latest fiscal impact statement regarding the fishery reform proposals. The fiscal impact statement can be found on the ODFW website at: www.dfw.state.or.us/fish/OSCRP/CRM/LMCR_fisheries_mgmt_reform.asp

Additional materials for the June 6-7 Commission meeting will be posted on the ODFW website about one week before the meeting.

The fishing rules reform effort was instigated by a late summer proposal from Oregon Gov. John Kitzhaber. The Oregon and Washington fish and wildlife commissions in September established a work group made up of state fishery officials and representatives of fishing interest groups and tasked it with developing recommendations for management strategies for Columbia River recreational and commercial fisheries for 2013 and beyond.

A key element of the management framework recommended by the work group, and later adopted by both commissions, is phasing out the use of non-selective gill nets in mainstem Columbia River commercial fisheries. The two states co-manage Columbia mainstem waters the river represents the shared state boundary.

"To avoid significant economic harm to commercial fishers, the approach would include a transition period (2013-2016) as well as additional efforts to enhance salmon returns to off-channel areas," according to the fiscal impact statement. "After this transition period, only selective gear or techniques will be permitted for commercial use in the Columbia River mainstem, but gill nets would continue to be permitted in off-channel areas."

The basic idea is to outplant more hatchery reared fish in off-channel areas, so that the salmon return to those areas as adults. There they can be harvested with minimal impacts on wild salmon and steelhead, which for the most part course up the mainstem Columbia on their way to upstream spawning areas. Many of the wild upstream fish are protected under the Endangered Species Act, and the object of restoration efforts by the states.

The transition period is intended as a period of experiment during which "alternative" commercial fishing gear can be identified that can be employed on the mainstem. The goal is to find fishing gear and methods that cause lower impacts on wild, protected fish.

The fiscal report says that the annual ex-vessel value of commercial Columbia River salmon landings are estimated to increase by between 0.5 percent and 20 percent during the transition period, compared to the "current" period. Longer-term, it is estimated that the ex-vessel value could range from 6 percent to 14 percent increase from current levels, the report says.

No estimates are provided regarding the estimated cost to commercial fishers for re-equipping themselves with alternative gear.

"Given that the permissible gear or techniques have yet to be determined and that it is unclear how commercial fishermen will respond to the new management rules, it is not possible to estimate the level of new expenditures and thus the economic impact they may have at this time," the report says.

"An important portion of the local economic impacts relate to the wholesale dealers and processors who process and retail the commercially landed salmon. Given that more fish landed and greater ex-vessel values are forecast for the commercial non-tribal Columbia River salmon fisheries for both the transition period and the longer term, no overall adverse impacts to local dealer/processor businesses as a whole would be expected if this plan were adopted," according to the fiscal and economic statement.

Costs for the changeover, which would include beefed up enforcement for what is expected to be an increased sport fishing effort on the mainstem, as well as more complicated regulation of commercial fisheries, would be borne in some part by a fee on anglers.

"A fee similar to Washington's Columbia River Endorsement is proposed for Oregon recreational anglers in the Management Plan," the fiscal statement says. "It is anticipated that recreational anglers may be required to pay an $11 fee to fish on the Columbia River. Estimating that about 50 percent of Combined Angling Harvest Tag purchasers fish the Columbia River, then about 90,000 anglers would pay the fee.

"Revenues associated with this new fee would be approximately $1 million per year, or $2 million per biennium. These revenues would be used to help implement Columbia River fishery management and reform rules, to enhance fisheries, economic benefits, and native fish conservation. It is possible that a portion of anglers may forego fishing the Columbia River due to the increased cost to do so, but it is difficult to estimate the magnitude of this effect."

"With potentially more fish available to recreational anglers in the mainstem in the transition and long-term periods, it is forecasted that the number of angler trips would increase in response.

Relative to current conditions, it is projected that there would be 45,061 and 75,091 more angler trips per year on average in the transition period and longer term, respectively," the fiscal and economic report says.

Other fishing topics will be addressed when the Oregon commission meets next week.

The ORWC will during its May 10 meeting in Salem consider the 2013 ocean salmon and halibut seasons

The Commission will be asked to adopt regulations for ocean coho and chinook salmon fishing in Oregon's territorial waters from shore to three miles out. The seasons for ocean waters beyond three miles were set by the Pacific Fishery Management Council in early April and the Commission will be asked to adopt similar regulations for state waters.

Recreational and commercial troll chinook salmon fishing on the central and south coast looks especially good thanks to strong returns to the Sacramento and Klamath rivers. Anglers on the north coast also can expect good returns of chinook to the Columbia River.

Managers are also predicting a strong Oregon coastal wild coho return and the opportunity for sport anglers to harvest wild coho in September south of Cape Falcon, which is located just north of Manzanita on the state's northern coast.

The proposed 2013 sport ocean salmon seasons are posted on the ODFW's web site: www.dfw.state.or.us/MRP/salmon/Regulations/docs/2013_Sport_Ocean_Salmon_Regs.pdf

Those seasons were approved by NOAA Fisheries effective May 1.

The OFWC also will be asked to adopt 2013 sport and commercial Pacific halibut seasons that are concurrent with those recently adopted by the International Pacific Halibut Commission and NOAA Fisheries.

The Halibut Commission approved a sport and commercial Pacific halibut quota of 990,000 pounds for 2013 for the U.S. West Coast, a 1,000-pound increase from 2012.

In addition, the Halibut Commission and NOAA Fisheries adopted some changes to the Columbia River and Central Coast subareas that will affect Oregon anglers. In the Columbia River subarea the early season will remain open until 80 percent of subarea's quota is reached, rather than automatically closing the third Sunday in July. Sport fishing days also will change from Thursday through Saturday to Friday to Sunday.

Both of these changes are designed to give anglers more opportunity to harvest the entire early season quota, something that has not happened in recent years.

In the Central Coast Subarea nearshore (inside 40 fathoms)sport fishery, the days open will be reduced from seven days a week to Thursday through Saturday in order to extend the season later into the summer months.

The proposed 2013 Pacific halibut sport season are available at: www.dfw.state.or.us/MRP/finfish/halibut/seasonmaps/2013%20recommendation.pdf

The Oregon panel will be asked to set the 2013 commercial sardine season and consider a number of administrative rule changes for the commercial ocean fisheries.

Finally, the Commission will be asked to adopt a permanent rule that specifies that in the case of an unattended vehicle on an ODFW wildlife area which requires a parking permit, a citation will be issued to the registered owner of the vehicle.