Smith & Lowney, p.l.l.c.

2317 East John Street

Seattle, Washington 98112

(206) 860-2883, Fax (206) 860-4187

 

June 27, 2002

 

Via Certified Mail – Return Receipt Requested

Dr. Jeffrey P. Koenings, Director

Washington Department of Fish and Wildlife

600 Capitol Way North

Olympia, WA 98501-1091

 

Via Certified Mail – Return Receipt Requested

Russ Cahill, Chair

Washington Fish and Wildlife Commission

600 Capitol Way North

Olympia, WA 98501-1091

 

Re:      WDFW Puget Sound Chinook Hatchery Program; Notice of intent to sue for violation of Endangered Species Act

 

Dear Director Koenings:

 

This notice of intent to sue under the Endangered Species Act is provided on behalf of our clients Washington Trout, P.O. Box 402, Duvall, Washington 98019, (425) 788-1167, and the Native Fish Society, P.O. Box 19570, Portland, OR 97280, (503) 977-0287.  We allege that the Washington Department of Fish and Wildlife's operation of its chinook hatchery or artificial propagation program and of the individual hatchery facilities that the program comprises results in the unlawful take of threatened Puget Sound chinook salmon.  At the close of the sixty day notice period started by the mailing of this letter, Washington Trout and the Native Fish Society intend to sue you, the Department, and the Commission for violations of ESA section 4(d), 16 U.S.C. § 1533(d), authorized by the Endangered Species Act ("ESA") citizen suit provision, 16 U.S.C. § 1540(g), unless the violations cease without potential for reoccurrence within the sixty-day period.

 

The Department's program for the artificial propagation of chinook in the Puget Sound basin and the individual facilities that make up that program take threatened Puget Sound chinook in a number of ways that are described in four categories for the purposes of this notice of intent to sue:  1) the direct take of adult threatened Puget Sound chinook and their eggs at facilities that collect eggs; 2) the harm that results to threatened Puget Sound chinook due to the release of hatchery chinook, including competition with and predation upon protected chinook; 3) the deleterious genetic effects of the artificial propagation program on the threatened Puget Sound chinook; and 4) physical barriers to passage present at some Department facilities that are part of the artificial propagation program.  Hatchery operations have been widely recognized as a major factor for the decline of Pacific salmonids, including Puget Sound chinook, on the basis of these impacts.  See, e.g., 63 Fed.Reg. 11494-95; Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors For Decline Report, NMFS (June, 1998) at 7, 37-38, and 41-42; Hatchery Reform Recommendations, The Hatchery Scientific Review Group (Feb. 2002) at 1.  Following a discussion of the threatened Puget Sound chinook salmon ESU and the Department's artificial propagation program, the four categories of illegal take are described in more detail below.

 

Threatened Puget Sound Chinook Salmon

 

Chinook salmon (O. tshawytscha) are easily distinguished from other Onchorhynchus species by their large size.  Adults weighing over 120 pounds have been caught in North American waters.  All chinook in Puget Sound (with the exception of a land-locked population in Lake Cushman of the Skokomish River drainage) are anadromous, in that adults migrate from saltwater into rivers where they spawn, juveniles rear in freshwater, and then juveniles migrate back to Puget Sound and the ocean where most growth and maturation takes place.  There is substantial variation in survival rates in both the freshwater and saltwater life stages, and the time that fish spend at each life stage varies between fish.  Mature adults leave saltwater and return to the natal stream anywhere from early spring to mid fall.  Adults spawn from August through November by depositing and covering their eggs in depressions they dig in the gravel (redds).  Eggs incubate through most of the winter, and fry emerge from the gravel in spring.  Some fry migrate to the estuary shortly after emergence, while others rear in freshwater for varying lengths of time up to one year or more before migrating to saltwater.  During the juvenile rearing stage, juveniles that are actively feeding are known as fingerlings until they reach the stage of physiological readiness to migrate to saltwater.  This physiological transition for saltwater is referred to as smolting, and it may occur in the river or estuary.  After the juveniles make the transition to saltwater, they growrapidly and may reach maturity after one to five years at sea.  During this time, some fish migrate entirely within Puget Sound while most extend their migration into the ocean and north along the Canadian coast.  The majority of chinook are caught before spawning by sport and commercial fisheries in Puget Sound, the ocean, and their natal streams.  The life cycle is complete when mature adults return to freshwater.  All chinook die after spawning, and their carcasses serve as an important source of nutrients to the river ecosystem near spawning areas.

 

Overall abundance of Puget Sound chinook salmon has declined substantially from historical levels, and many populations are small enough that genetic and demographic risks are likely to be relatively high.  Both long- and short-term trends in abundance are predominantly downward, and several populations are exhibiting severe short-term declines.

 

The National Marine Fisheries Service ("NMFS") proposed listing the Puget Sound chinook salmon Evolutionarily Significant Unit ("ESU") as threatened under the ESA on March 9, 1998.  63 Fed. Reg. 11482.  The listing was finalized on March 24, 1999.  64 Fed. Reg. 14308; 50 C.F.R. § 223.102(a)(16).

 

As defined by NMFS, protection under the ESA for the threatened Puget Sound ESU of chinook salmon extends to "all naturally spawned populations of chinook salmon from rivers and streams flowing into Puget Sound including the Straits of Juan De Fuca from the Elwha River eastward, including rives and streams flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia in Washington."  50 C.F.R. § 223.102.  In its listing decision, NMFS clarified that all naturally spawned chinook, regardless of parent origin (i.e., no matter whether either or both parents are wild or hatchery bred) are to be considered protected under the threatened Puget Sound chinook listing.  64 Fed. Reg. 14324.  Although chinook produced at numerous hatcheries are considered to be within the ESU, only five of these hatchery populations are considered to be essential for recovery and afforded protection under the threatened Puget Sound chinook listing.  64 Fed. Reg. 14313-14.  Chinook originating at the Kendall Creek hatchery (Spring run only), North Fork Stillaguamish River hatchery (tribal hatchery), White River (tribal hatchery), Dungeness River hatchery, and Elwha River hatchery are protected under the threatened Puget Sound chinook listing.  Id. 

 

            Department of Fish and Wildlife Puget Sound Chinook Hatchery Program

 

Approximately 55 salmon "hatcheries" are operated in the Puget Sound basin by state, federal and tribal governments, and private entities.  The allegations for which notice is hereby provided concern only those hatcheries owned and operated by the Department and that are part of the Department's Puget Sound chinook propagation program.  These hatcheries include the following:

 

Hatchery Name	WDFW Complex	Address
Bellingham	Nooksack	1700 Silver Beach Rd., Bellingham
Dungeness	Dungeness/Sol Duc	1261 Fish Hatchery Rd., Sequim
Elwha Channel	Dungeness/Sol Duc	326 Crown Z Water Rd., Port Angeles
Garrison	South Sound/Lakewood	Drwr A-9601 Steilacoom Blvd., Tacoma
George Adams	Hood Canal	W 40 Skokomish Valley Rd., Shelton
Hoodsport	Minter/Hood Canal	P.O. Box 606, Hoodsport
Hurd Creek	Dungeness/Sol Duc	911 Fasola Rd., Sequim
Issaquah	Cascade	125 W. Sunset Way, Issaquah
Kendall Creek	Nooksack	6263 Mt. Baker Hwy., Deming
Marblemount	Skagit	5937 Fish Hatchery Lane, Marblemount
McAllister	South Sound/Lakewood	10119 Steilacoom Rd. SE, Olympia
McKernan	Minter/Hood Canal	W. 411 Deyette Rd., Shelton
Minter Creek	Minter/Hood Canal	12710 – 124th Ave. Ct. KPN, Gig Harbor
Samish	Nooksack	5585 Old 99 N. Rd., Burlington
Soos Creek	Ranier	13030 Auburn-Black Diamond Rd., Auburn
Tumwater Falls	South Sound/Lakewood	114 Deschutes Way SW, Tumwater
Voights Creek	Rainier	19112 Pioneer Way, Orting
Wallace River	Cascade	14418 – 383rd Ave. SE, Sultan

 

The Department's artificial propagation program for chinook in Puget Sound is part of a highly efficient approach to producing salmon, which relies on a large number of sites, including those listed above, containing a diversity of facilities.  Only some of the sites fit the popular notion of a self-sufficient "hatchery" that contains all the essential facilities for spawning, incubating, rearing and release.  Most of the fertilized eggs are taken at sites that serve as distribution centers for other incubation and rearing facilities.  For example, in 1998, the George Adams hatchery was scheduled to provide chinook salmon eggs and fingerlings to two tribal and one private production site, as well as eight public and private incubation and release sites.  Some sites that take eggs have no incubation capacity, such as the Elwha River Rearing Channel.  Its eggs have been distributed to state, tribal and private production sites for incubation with some being returned as juveniles before release. 

 

            Broodstock take

 

Many mature returning chinook are captured and their eggs and sperm are taken for use in the Department's Puget Sound chinook propagation program.  Large numbers of chinook are captured at the following Department hatchery facilities for this purpose:  Kendall Creek, Marblemount, Wallace River, Samish, Issaquah, Soos Creek, Minter Creek, Garrison, Voights Creek, McAllister, Tumwater Falls, George Adams, Hoodsport, Elwha, and Dungeness.  According to the Department's 2000-2001 Final Hatchery Escapement Report, the number of chinook captured annually at Department hatchery facilities is approximately 49,000.  Although a substantial portion of the chinook taken are chinook of hatchery origin, which are generally not protected under the threatened Puget Sound chinook listing, the Department has no reliable way to determine whether many individual adult chinook are of hatchery or natural spawn origin because marking of hatchery fish by adipose fin clipping has not been universally used by these facilities in recent years.  It is certain that protected naturally spawned chinook are taken for eggs and sperm despite any Department intention otherwise.  Threatened chinook captured at hatcheries for broodstock purposes are not able to reproduce naturally.  At hatcheries where only marked chinook are collected for broodstock purposes, unmarked fish protected under the threatened Puget Sound chinook listing are incidentally captured and subjected to stress before their release, which is likely to result in the injury or premature death of those fish after release in at least some instances.  Some Department hatchery facilities, including Marblemount (88 threatened fall chinook and 97 threatened summer chinook captured in 2000, none released), Soos Creek, and Dungeness, intentionally capture naturally spawned chinook of a non-hatchery stock.  In addition, hatchery origin fish taken at the Kendall Creek, Dungeness (or Hurd Creek), and Elwha facilities are protected under the threatened Puget Sound chinook listing.

 

            Competition and predation

 

NMFS has recognized that "[t]here is a substantial body of scientific evidence to show that hatchery fish can harm natural fish by preying on them, competing with them for food, shelter and mates, displacing them from their native habitats, and creating other effects."  65 Fed. Reg. 42446 (July 10, 2000).  Most of the hatcheries within the Department's artificial propagation program for chinook are located on or in the vicinity of protected threatened Puget Sound chinook spawning and rearing habitat.  Hatchery chinook released from the Department's hatcheries compete with juvenile protected threatened Puget Sound chinook in these areas for food and shelter, thereby reducing the probabilities for survival of the juvenile protected fish.  In addition, juvenile hatchery chinook are often released from a hatchery when they are larger in size than the juvenile protected threatened Puget Sound chinook.  As a result, the larger juvenile hatchery chinook actually prey upon the smaller juvenile protected threatened Puget Sound chinook.  Hatchery origin chinook also compete with protected threatened chinook for mates and suitable spawning space.

 

Competition and predation by juvenile chinook released from the Department's hatcheries are especially likely to be problems for juvenile protected threatened Puget Sound chinook in the vicinities of the Dungeness, Elwha, George Adams, Minter Creek, Hurd Creek, Issaquah, Kendall Creek, Marblemount, McAllister, Samish, Soos Creek, Voights Creek, and Wallace River hatcheries, although competition and predation are issues in the vicinity of other hatchery facilities and in estuaries and the Puget Sound as well.

 

            Genetic effects

 

It is widely recognized that artificial propagation programs are likely to have substantial adverse effects on the genetic fitness and diversity of wild salmonid populations.  E.g., Waples, R.S. 1999. Dispelling some myths about hatcheries. Fisheries. 24: 12-21; Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors For Decline Report. NMFS (June, 1998) at 7 and 38; 58 Fed. Reg. 17574 (Apr. 5, 1993) (NMFS concluding that "genetic and ecological risks of artificial propagation can pose serious threats to natural salmon populations").  Indeed, scientists have concluded that use of hatchery supplementation will always produce a significant decline in natural reproductive fitness.  E.g., Waples 1999; Burgert, R., et al., 1992. Lower Snake River compensation plan, Tucannon River spring chinook salmon hatchery evaluation plan. U.S. Fish and Wildlife Service; Fresh, K.L., et al., 2002. Evaluation of the Cedar River sockeye hatchery: analysis of adult otolith recoveries. Draft. WDFW.  Genetic effects of hatchery programs specifically on the threatened Puget Sound chinook ESU have also been widely recognized.  E.g., Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors For Decline Report. NMFS (June, 1998) at 42.  As NMFS concluded in its proposed listing of the Puget Sound chinook, "[t]here has also been widespread use of a limited number of hatchery stocks, resulting in increased risk of loss of fitness and diversity among [Puget Sound chinook] populations."  63 Fed. Reg. 11494 (Mar. 9, 1998). 

 

Artificial propagation of chinook in the Puget Sound is likely to substantially harm natural, protected chinook populations long before there is any reasonable expectation of detection because differences in physiological or behavioral traits may not be discernable in an electrophoretic, nuclear DNA, or mitochondrial DNA analytical test, but may still have profound effects on genetic fitness and diversity.  Relaxed or altered selection of broodstock at hatcheries works to produce fish that are genetically optimized for hatchery conditions through alteration of the mortality regime (also known as domestication or domestication selection) whereas natural selective pressures optimize the genetic fitness of wild protected stocks in their natural environments. 

 

Most of the chinook raised in the Department's artificial chinook propagation program are derived from chinook originating in the Green River drainage from the Soos Creek hatchery.  Streams regularly planted with Green River stock fall chinook are spread throughout Puget Sound.  NMFS has concluded that, "[o]verall, the pervasive use of Green River stock throughout much of the extensive hatchery network that exists in [the Puget Sound] ESU may reduce the genetic diversity and fitness of naturally spawning populations."  Myers, J.M., et al., 1998. Status review of chinook salmon from Washington, Idaho, Oregon, and California. NMFS.  The widespread use of Green River origin hatchery stock and other aspects of hatchery operations continue to adversely affect the genetic fitness of the threatened Puget Sound chinook ESU.

 

Hatchery and listed Puget Sound chinook are different from each other in behavior, morphology, survival and reproductive ability.  As a result of the Department's artificial chinook propagation program, listed chinook are becoming more like hatchery chinook through interbreeding and genetic differences between individual populations of listed chinook are being diminished.  The loss in genetic diversity is detrimental to the threatened Puget Sound chinook ESU.  Hatchery fish are selected both intentionally and unintentionally for traits that do not favor survival in a natural environment.  When naturally spawned, ESA-listed chinook become more like hatchery fish, their ability to survive in a natural environment is diminished as well.

 

In terms of behavior, through interbreeding with hatchery fish, Puget Sound chinook are becoming less efficient foragers, more aggressive, more prone to higher social density, less prone to display territorial fidelity, more likely to congregate during migration, and more likely to prefer surface rather than bottom habitat.  Through interbreeding with hatchery fish, threatened chinook are also becoming less likely to display behaviors favorable for predator avoidance.  Because hatchery fish are more likely to be fed at the top of the water column, they tend to feed and swim near the surface of the stream, increasing their vulnerability to predators, such as other fish and birds.  Experiments have shown that when hatchery and wild fry are raised in the same environment, the risk-taking behavior prevails in the hatchery derived fish, indicating a probable genetic basis as opposed to just a hatchery management practice.  Thus, these undesireable traits are likely to be passed on to threatened chinook through interbreeding.  Other behavioral traits have been shown to be substantially genetically determined as well.

 

With respect to morphology, through interbreeding with hatchery fish, Puget Sound chinook are becoming less variable in juvenile shape, duller in nuptial coloration, and smaller in kype size.  Changes in nuptial coloration and kype may affect breeding success and genetic fitness.

 

Through interbreeding with fish of hatchery origin, threatened Puget Sound chinook are becoming less successful at reproduction and less likely to survive to adulthood.  Several studies have demonstrated that progeny of crosses between hatchery and natural fish actually do experience lower survival rates in the natural environment than their natural parents did.  See, e.g., Reisenbichler, R.R. and S.P. Rubin. 1999. Genetic changes from hatchery propagation affect productivity and viablilty of wild populations. ICES Journal of Marine Science, 56: 459-466;  Lynch, Michael and Martin O'Hely. 2001. Captive breeding and the genetic consequences of natural populations. Conservation Genetics. 2: 363-378.

 

            Passage barriers

 

A number of hatchery facilities within the Department's artificial chinook propagation program for the Puget Sound include physical barriers to passage for threatened Puget Sound chinook.  The allegations specific to individual hatcheries identified here are derived primarily from the Inventory of Fish Passage Barriers at WDFW Fish Hatcheries produced by the Department's Salmonid Screening, Habitat Enhancement and Restoration ("SSHEAR") Division in or about July 1997. 

 

The Wallace River hatchery maintains temporary racks on the Wallace River and May Creek that block threatened chinook access to upstream spawning habitat.

 

The Issaquah hatchery maintains a dam with an inadequate fishway that interferes with threatened chinook access to upstream habitat in Issaquah Creek.  A primary problem for the fishway is poor attraction flow. 

 

The Voights Creek hatchery has two problem sites that interfere with threatened chinook access to Voights Creek.  The first is the hatchery rack, which has no built-in upstream fish passage facility.  Fish are expected to swim over the rack when it is down and not in operation.  The drop over the base of the rack is too high and limits access during lower flows.  The second is the intake dam fishway, upstream of the hatchery rack.  This fishway is undersized and becomes turbulent during higher flows.  The fishway is also difficult for fish to find, due to poor attraction flow, during some flow regimes.

 

The Samish hatchery maintains a fishway on a structure blocking threatened chinook access to Friday Creek.  The fishway is antiquated and does not meet the Department's fish passage criteria.  Some drops exceed twelve inches and, during high flows, the fishway pools are too turbulent. 

 

The Kendall Creek hatchery maintains a hatchery rack that totally blocks threatened chinook access to habitat in Kendall Creek.  It is passable only by some fish during flood conditions.

 

The Soos Creek hatchery maintains an intake dam that blocks threatened chinook access to habitat in Soos Creek.  The dam has a fishway, but a metal gate is lowered into the upper slot of the weir-pool designed fishway, precluding fish passage within the fishway.  The plunge area below the dam is lined with riprap, so access conditions to the dam face are poor.

 

The Dungeness hatchery maintains an intake dam that blocks threatened chinook access to habitat in Canyon Creek.  The dam has no fishway. 

 

The Minter Creek hatchery maintains a low head intake dam with no fishway.  It interferes with threatened chinook access to habitat in Minter Creek above the dam.

 

The Marblemount hatchery maintains an intake dam that blocks threatened chinook access to Jordan Creek.  The dam has an inadequate fishway.

 

The George Adams hatchery maintains a rack that blocks threatened chinook passage to habitat in Purdy Creek.

 

These passage barriers interfere with threatened chinook migration to preferred and, sometimes, natal spawning habitat.  These passage barriers also interfere with threatened chinook reproduction by limiting the habitat available for spawning.  This is especially the case if, as implicitly assumed by the Department in the 2001 Harvest Management Component of the Puget Sound Comprehensive Chinook Management Plan, threatened chinook currently fully utilize all available spawning habitat in the Puget Sound basin.

 

            The take prohibition

 

In place of the section 9 prohibition on take for endangered species, ESA section 4(d) directs NMFS to issue regulations deemed "necessary and advisable to provide for the conservation" of threatened species.  16 U.S.C. § 1533(d).  Under section 3(3), "conservation" means to use and the use of all methods and procedures that are necessary to bring any threatened species to the point at which ESA protection is no longer needed.  16 U.S.C. § 1532(3). 

 

NMFS proposed the general 4(d) rule for the Puget Sound chinook salmon ESU on January 3, 2000.  65 Fed. Reg. 170.  The rule was finalized on July 10, 2000.  65 Fed. Reg. 42422; 50 C.F.R. § 223.203.  This 4(d) rule applies the prohibition on take of ESA section 9(a)(1) to the Puget Sound chinook unless the take falls within one of thirteen specific exceptions, or "limits."  50 C.F.R. § 223.203. 

 

Limit 5 is designed to cover take caused by artificial propagation programs.  50 C.F.R. § 223.203(b)(5).  NMFS has explained this limit:

 

NMFS believes that in some cases it may not be necessary and advisable to prohibit take with respect to artificial production programs, including use of listed salmonids as hatchery broodstock, under certain circumstances.  This limit on the take prohibitions proposes a mechanism whereby state or Federal hatchery managers may obtain assurance that a hatchery and genetic management program is adequate for protection and conservation of a threatened salmonid ESU.  The state or Federal agency would develop a Hatchery and Genetic Management Plan (HGMP) containing specific management measures that will minimize and adequately limit impacts on listed salmonids and promote the conservation of the listed ESU, and then enter into an MOA with NMFS to ensure adequate implementation of the HGMP.  NMFS believes that with an adequate HGMP and an MOA in place, additional Federal protection through imposition of take prohibitions on artificial propagation activities would not be necessary and advisable for conservation of the threatened salmonids. 

 

65 Fed. Reg. 177 (Jan. 3, 2000).

 

No HGMP for any part of the Department's artificial propagation of chinook in the Puget Sound has been approved by NMFS as contemplated by the 4(d) rule.  50 C.F.R. § 223.203(b)(5)(i). 

 

Alternatively, it may be possible that coverage for the Department's artificial propagation of chinook in the Puget Sound could be obtained under Limit 6, which contemplates NMFS approval of a resource management plan developed jointly by the State of Washington and the Puget Sound Treaty Tribes.  50 C.F.R. § 223.203(b)(6); 65 Fed. Reg. 178.  However, no resource management plan including the Department's Puget Sound chinook propagation program has been approved by NMFS.

 

Under the ESA, "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."  16 U.S.C. § 1532(19).  This is the broadest take prohibition in any federal wildlife statute:  "'Take' is defined … in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."  S.Rep. No. 307, 93d Cong., 1^st Sess. 14 (1973), reprinted in 1973 USCCAN 2989, 2995. 

 

By regulation, NMFS has defined "harm" to specifically encompass activities that modify a protected species' habitat:

 

Harm in the definition of "take" in the Act means an act which actually kills or injures fish or wildlife.  Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering.

 

50 C.F.R. § 222.102; 64 Fed. Reg. 60727 (11/8/99).  Among the examples of habitat-modifying activities that "may be most likely to cause harm" and thus constitute "take" identified by NMFS in its Federal Register notices for both the "harm rule" and the 4(d) rule are "constructing or maintaining barriers that eliminate or impede a listed species' access to habitat or ability to migrate" and "constructing or operating dams or water diversion structures with inadequate fish screens or fish passage facilities in a listed species' habitat."  64 Fed. Reg. 60730; 65 Fed. Reg. 42472.

 

"Harassment" in the context of "take" includes unintentional acts that make it more difficult for a protected species to breed, feed, shelter, reproduce or raise its offspring.  H.R. Rep. No. 412, 93d Cong., 1^st Sess. at 11 (1973); see 50 C.F.R. § 17.3 (Fish & Wildlife Service regulatory definition).  The legislative history explains that the word "harass" allows the agencies "to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it more difficult for them to hatch and raise their young."  H.R. Rep. No. 412, supra, at 11.

 

            Violations and notice of intent to sue

 

As described in this letter, the Department's operation of its program for artificial propagation of chinook in Puget Sound and the hatcheries that make up that program take threatened Puget Sound chinook salmon.  The capture (or trapping or collection) of adult threatened Puget Sound chinook salmon at the Department's hatchery facilities constitutes take regardless of whether eggs and sperm are taken from them (and they are killed) or they are simply released after capture.  The release of hatchery chinook also constitutes take when those hatchery chinook compete with or prey upon threatened Puget Sound chinook because it is the Department's program and activities that form the proximate cause of the killing, pursuing, harassment, hunting, wounding, and harming of the listed fish by the hatchery fish.  The Department's program is also the proximate cause of the deleterious genetic effects suffered by the threatened Puget Sound chinook salmon ESU as a result of interbreeding of natural, protected fish with hatchery fish.  Finally, the blockage of passage and access to spawning habitat for threatened chinook caused by the Department's facilities constitutes harm to and harassment of threatened chinook.  This take is prohibited by the 4(d) rule and the ESA.  50 C.F.R. § 223.203; 16 U.S.C. § 1538(a)(1)(G).

 

At the close of the sixty day notice period started by the mailing of this letter, or soon thereafter, Washington Trout and the Native Fish Society intend to file a lawsuit in federal district court under the ESA citizen suit provision, 16 U.S.C. § 1540(g), for these violations unless they are remedied within this time period.  As authorized by the ESA, Washington Trout and the Native Fish Society will seek injunctive and declaratory relief, as well as recovery of litigation expenses, including reasonable attorney and expert witness fees.

 

If you believe that the factual or legal claims described in this letter are incorrect, or if you wish to discuss any aspect of this matter, including the potential for settlement, please contact the undersigned counsel for Washington Trout and the Native Fish Society.

 

                                                                        Very truly yours,

 

                                                                                                Smith & Lowney, p.l.l.c.

 

 

 

                                                                        By: __________________________

      Richard A. Smith

 

c:         Hon. Donald Evans, Secretary of Commerce

            D. Robert Lohn, Administrator of the National Marine Fisheries Service, Northwest Regional Office

John Ashcroft, U.S. Attorney General