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Tribes May Head to Court Over Salmon

by Bill Monroe
The Oregonian, April 30, 2009

This letter from Kathryn Brigham, chairwoman of the Columbia River Inter Tribal Fish Commission, pretty much speaks for itself.

Biologists are less and less hopeful the spring chinook run will materialize as promised, and the tribes have had tough going to catch fish for members. Almost no fish were available for seasonal ceremonies, among the most sacred to basin Natives.

729 NE Oregon, Suite 200, Portland, Oregon 97232 Telephone 503 238 0667
Fax 503 235 4228
April 28, 2009

Phil Anderson, Acting Director
Washington Dept. of Fish & Wildlife
600 Capitol Way N.
Olympia, WA 98501-1091

Roy Elicker, Director
Oregon Dept. Fish & Wildlife
3406 Cherry Avenue NE
Salem, OR 97303

Dear Directors,

We received your letter of April 20, 2009. The letter outlines the states' approach to spring Chinook management in 2009. The status of the 2009 Upper Columbia River spring Chinook return continues to alarm our member tribes.

The circumstances of the 2009 upriver spring Chinook return are similar to last year, when the return was late and smaller than forecasted, resulting in a catch imbalance and fisheries that exceeded allowable ESA impacts. Yet, the states chose to prosecute fisheries downstream of Bonneville without taking that into account.

In anticipation of the run size being substantially less than the preseason forecast, the tribes recommend that the states' close all remaining mainstem and tributary fisheries including those upstream of Bonneville Dam. In the event that the run size comes in large enough to meet allocation and ESA considerations, then these fisheries can be reinstated.

For the past six months the tribes have repeatedly encouraged the states to take a precautionary approach to the management of 2009 spring Chinook fisheries. We also discussed 2009 spring Chinook management at the January, 2009 U.S. v. Oregon Policy Committee meeting. Many of these concerns were also expressed at the end of the 2008 season as well, with no resolution. The tribes appreciate the states' efforts to employ harvest rate buffers in an effort to protect against errors in the preseason forecast.

However, despite unusually low adult fish counts at Bonneville Dam, the states prosecuted fisheries assuming that the preseason forecast and the buffers were still appropriate. The tribes believe that the current information indicates that a more conservative approach to fisheries was warranted.

The spring Chinook count at Bonneville Dam is poor. The cumulative count of spring Chinook adults through April 26 was only about 59% of the 2008 count and about 17% of the recent ten-year average. Based on the low cumulative count to date, it is highly unlikely that the preseason forecast of 298,900 upriver adult spring Chinook will be achieved.

Despite the poor returns non-treaty fisheries continued to be prosecuted. The tribes testified about our concerns at several Columbia River Compact hearings and recommended that non-treaty fisheries be reduced or closed until the biologists can provide a reliable update of the preseason forecast.

The tribal recommendations were ignored.

Perhaps of greater concern is the states' apparent disregard for risk management in setting its lower river fisheries. It is evident that the states have chosen to reverse the "burden of proof" by requiring proof that the pre-season forecast is not accurate, rather than verifying with in-season evidence that it is. In the absence of reliable statistical tools with which to update and verify the upriver spring Chinook run size, and in full knowledge that available information on the run size provided no indication that the run would be strong enough to support additional non-Treaty catch while complying with the U.S. v. Oregon Management Agreement, the states authorized additional fishing periods for April 15-18 and April 22.

The states have taken the position that there is no compelling evidence at present that the upriver run will not meet the pre-season forecast, but with each passing day of low counts at Bonneville Dam it becomes less likely that the exceptional run timing needed to support the states' lingering hope of a strong run will materialize.

The timing of the 2009 run is obviously late. The timing of recent returns appears to be later and later. There are many potential factors related to the shift in the timing of the return at Bonneville Dam including cold water temperatures, increased pinniped predation, and increased fishing downstream of Bonneville Dam. A joint investigation into the causes for the apparent timing shift, the failure of the preseason forecast, and whether the timing shift will persist in the future is necessary.

One consequence of the delayed migration is that tribal ceremonial fisheries caught very few fish for the first salmon ceremonies and only about 1,000 to date. The highest cultural priority for the tribes is the spring ceremonial fishing and due to the current set of circumstances we can not fill the need for ceremonial fishing.

We appreciate the efforts to provide the tribes with a few fish from the lower river commercial test fishery, but it is not enough. Many of the most sacred tribal feasts have had to make due with little or no fresh fish. In the meantime our people watched the non-Indian fishery catch 19,000 upriver fish with the recreational fishery setting record boat counts with more than 100,000 angler trips.

It is clear to us, that the states were so single-minded about achieving a successful recreational fishery that the needs of the tribal fishery and the needs of the resource were deliberately put at risk. Also, the good faith commitment and obligation to equally share the resource in the agreement has been relegated to the dustbin in the wholesale rush to catch as many sports fish as possible.

This is not acceptable, nor was it contemplated by the parties who worked so hard on this issue.

The current situation of late timed runs coupled with increased recreational fishing is unacceptable and is not what the 2008-2017 U.S. v. Oregon Management Agreement was based on. The tribes believed that the parties negotiated, in good faith, a fair sharing agreement for spring Chinook in the Management Agreement.

Based upon two years of data, it is now apparent that the assumptions underlying the spring Chinook management and the catch sharing agreement were incorrect. Circumstances initially thought to achieve the catch sharing concept have changed dramatically in favor of the non-treaty fisheries and the catch sharing is not balanced as anticipated by the Agreement.

As this occurred last year as well, it is apparent that the underlying management principles simply do not achieve what we all agreed to in the Management Agreement. Instead, the tribes can not achieve their highest fishing priority and our people must shoulder the burden of conservation.

This is contrary to treaty fishing case law principles and specific rulings in U.S. v. Oregon, Civ. No. 68-513, and needs to be corrected. The tribes hope that we can work with the states to identify the factors that created the current situation and then make the appropriate corrections under the modifications section of the Management Agreement.

The tribes plan to inform the Court of this situation at the April 309 U.S. v. Oregon status conference.

If we cannot agree upon mutually satisfactory amendments to remedy this terrible situation, the tribes will, well before the 2010 spring season, take the necessary steps under the Agreement to insure that this does not happen for a third year in a row.

N. Kathryn Brigham, Chair

Bill Monroe
Tribes May Head to Court Over Salmon
The Oregonian, April 30, 2009

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