A federal court in Tacoma held on Wednesday that federal agencies violated the National Environmental Policy Act (NEPA) in approving plans to release hatchery fish to the Elwha River. U.S. District Court (Western Washington) Judge Benjamin Settle found that the agencies violated the statute by failing to adequately consider alternatives to the proposed large-scale releases of hatchery salmon and steelhead. The court was concerned that there was no consideration of smaller releases of hatchery fish. The hatchery programs approved by the National Marine Fisheries Service (NMFS) authorize the release of over 7.5 million hatchery fish each year into the Elwha River. NMFS only evaluated two different sized programs — one that would release the entire 7.5 million and one that would release zero hatchery fish. Judge Settle held that this violated NEPA, finding that NMFS’ contention that there is no other viable alternative was unsupported and arbitrary.
Further proceedings are necessary before the court rules on the proper remedies for these violations. However, Judge Settle indicated that he “is concerned with the spring coho [salmon] and steelhead releases” that are to occur imminently. He therefore directed the parties to immediately confer regarding Wild Fish Conservancy’s and co-plaintiffs’ request that those releases be reduced to only 50,000 smolts each, and he further stated that, pending further proceedings, such a reduction “would be a good starting point for an agreement.”
“The claim is that the Elwha hatchery is needed to help wild fish recover, but the facts already show something quite different,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “For example, over 82% of the coho and 40% of the steelhead died in the Elwha hatchery – not the river – before they could be released this year, due to faulty hatchery operations. Now couple that loss with the fact that released hatchery fish, even those from wild parents, are far less successful surviving and reproducing over time than wild fish. Left to their own devices, wild fish are already making it through the sediment plume and reaching spawning grounds. This NEPA process did not rationally consider the checkered history of hatcheries versus the ten-thousand-year history of wild fish success.”
In February 2012, Wild Fish Conservancy, The Conservation Angler, the Federation of Fly Fishers Steelhead Committee, and the Wild Steelhead Coalition (Plaintiffs) filed suit against the Olympic National Park, NMFS, the U.S. Fish and Wildlife Service, and hatchery managers for the Lower Elwha Klallam Tribe. The suit alleged that the agencies and Tribal officials (in their official capacities) were violating the ESA and ignoring the best available science by funding and operating fish hatchery programs in the Elwha River. In July of 2012, the Tribal officials submitted Hatchery Genetic Management Plans (HGMPs) for the steelhead and coho hatchery programs to NMFS, approval of which would provide ESA take coverage, subject to compliance with certain terms and conditions. In December 2012, NMFS issued hastily-prepared approval documents, noting that the hatchery programs did cause take of listed Puget Sound steelhead and Chinook salmon and identifying implementation requirements that the programs must comply with in order to be exempt from ESA take prohibitions. The District Court then dismissed the claim against the Tribal hatchery managers, finding that NMFS’ approval of the HGMPs rendered that claim moot. Plaintiffs then amended their claims to challenge NMFS’ December 2012 approval documents, alleging that they violate the ESA and the National Environmental Policy Act (NEPA). Federal Defendants and Plaintiffs briefing on those issues before the District Court was completed in August, 2013. In January 2014, plaintiffs filed a motion for a preliminary injunction to halt or reduce planned releases of hatchery coho salmon and steelhead and stop the planned taking of threatened adult steelhead for use as hatchery broodstock. That matter is now before the Ninth Circuit Court of Appeals on an emergency motion for injunctive relief, and the court is expected to rule by April 10, 2014.
The federal government is spending nearly $325 million for the removal of the Elwha and Glines Canyon dams, which will open nearly seventy miles of pristine riverine habitat in Olympic National Park, much of which is designated a wilderness area. Federal agencies and the Tribal officials are going ahead with a plan that will eventually allow the release of more than seven million juvenile hatchery salmonids annually. In contrast, the four conservation groups agree with a recent review by the Hatchery Scientific Review Group (HSRG) that restoration of the lower Elwha River and re-colonization of the pristine upper Elwha River should prioritize recovery of wild fish. The proposed reliance on large-scale hatchery releases undermines ecosystem recovery and violates the ESA, and threatens recovery of bull trout and Puget Sound Chinook salmon and steelhead, all listed as threatened species under the ESA.
In addition, expenditures for hatchery facilities and operations have contributed to inadequate funding for the research and monitoring activities that are necessary to evaluate whether restoration is succeeding and whether hatchery activities are harming restoration and resulting in take of listed fish. While the groups support the right of the Lower Elwha Klallam Tribe to harvest salmon and steelhead, spending $325 million to open a wilderness watershed but then stocking it with hatchery fish is poor public policy and will likely lead to skepticism over future salmon recovery efforts, especially dam removal projects.
The groups are represented by Smith and Lowney, PLLC, of Seattle.
Attachments: Elwha Ruling March 2014 – Judge’s Order