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

2317 East John Street

Seattle, Washington 98112

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

 

January 16, 2003

 

To Each Of The Following Separately, Via Certified Mail – Return Receipt Requested:

 

Russ Cahill

Will Roehl

Ron Ozment

Lisa Pelly

Dawn Reynolds

Fred Shiosaki

Bob Tuck

R.P. "Van" Van Gytenbeek

Kelly White

Washington Fish and Wildlife Commission

600 Capitol Way North

Olympia, WA 98501-1091

 

Director Jeffrey Koenings

Washington Department of Fish and Wildlife

600 Capitol Way North

Olympia, WA 98501-1091

 

Re:      WDFW Puget Sound Coho and Steelhead Programs; Notice of intent to sue for violation of Endangered Species Act

 

Dear Dr. Koenings and Members of the Washington Fish and Wildlife Commission:

 

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 coho and steelhead hatchery or artificial propagation programs and of the individual hatchery facilities that these programs comprise results in the unlawful take of threatened Puget Sound chinook salmon.  As the Director and the Washington Department of Fish and Wildlife and the individual members of the Washington Fish and Wildlife Commission, you are responsible for the Department's operations.  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 programs for the artificial propagation of coho and steelhead in the Puget Sound basin and the individual facilities that make up that program take threatened Puget Sound chinook by releasing hatchery coho and steelhead into freshwater habitats where juvenile threatened chinook are present and where the hatchery coho and steelhead prey upon the juvenile threatened chinook.  Hatchery operations have been widely recognized as a major factor for the decline of Pacific salmonids, including Puget Sound chinook, in substantial part on the basis of predation impacts.  Following a discussion of the threatened Puget Sound chinook salmon ESU and the Department's coho and steelhead artificial propagation programs at issue, the illegal take is 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 Coho and Steelhead Hatchery Programs

 

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 and related facilities owned and operated by the Department and that are part of the Department's Puget Sound coho and/or steelhead propagation programs.

 

The Department's artificial propagation programs for coho and steelhead in Puget Sound are part of a highly efficient approach to producing salmon, which relies on a large number of sites 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. 

 

The following information is based on the 2002 Future Brood Document and is intended to identify the coho and steelhead releases that are the subject of this notice of intent to sue.  Although this represents the best information currently available to the notifiers, it may be incomplete or incorrect due to changes in hatchery management plans made by the Department.  This notice is of our intent to sue for all coho and steelhead hatchery releases that are substantially described by the tables below, whether or not the details included here, and derived from the 2002 Future Brood Document, are precisely correct.  As the officials responsible for the Department's hatchery operations, additional information about the Department's coho and steelhead hatchery releases is readily available to you.

 

                        RELEASES OF HATCHERY COHO

 

Receiving water	Release (or rearing) facility	Origin facility	Number to be released	Size (fish per pound)	Month of release
Nooksack R.	Kendall Cr. Hatchery	Kendall Cr. Hatchery	300,000	17	June
Baker R.	Lk. Shannon Net Pens	Baker R.	25,000	15	May
Skagit R.	Marblemount	Marblemount	250,000	17	May
Skykomish R.	Wallace R. Hatch.	Wallace R. Hatchery	150,000	17	May
Unnamed Skykomish trib.	May Cr. Hatch.	Wallace R. Hatchery	54,000	15	April
Purdy Cr.	George Adams	George Adams	500,000	17	April
Issaquah Cr.	Issaquah Hatch.	Issaquah Hatch.	450,000	17	April
Big Soos Cr.	Soos Cr. Hatch.	Soos Cr. Hatch.	600,000	17	April
Voights Cr.	Voights Cr. Hatch.	Voights Cr. Hatch.	390,000	17	April
Voights Cr.	Voights Cr. Hatch.	Voights Cr. Hatch.	390,000	17	May
Dungeness R.	Dungeness Hatch.	Dungeness Hatch.	500,000	17	June

 

 

                        RELEASES OF HATCHERY STEELHEAD (winter run, unless otherwise noted)

 

Receiving water	Release (or rearing) facility	Origin facility	Number to be released	Size (fish per pound)	Month of release
Middle Fork Nooksack	McKinnon Ponds	Kendall Cr. Hatchery	50,000	5	May
Nooksack R.	Kendall Cr. Hatchery	Kendall Cr. Hatchery	100,000	5	May
Skagit R.	Barnaby Slough Pond	Marblemount	150,000 to 200,000	5	April/May
Skagit R.	Marblemount	Marblemount	330,000 to 400,000	5	May
Stillaguamish R. (summer)	Whitehorse Ponds	Arlington Hatch.	70,000	8	April
Stillaguamish R.	Whitehorse Ponds	Arlington Hatch.	150,000	5	May
Snohomish R.	Tokul Cr. Hatch.	Tokul Cr. Hatch.	185,000	5	May
Wallace R.	Wallace R. Hatch.	Tokul Cr. Hatch.	20,000	6	May
Skykomish R. (Summer)	Reiter Ponds	Wallace R. Hatch.	250,000	6	May
Skykomish R.	Reiter Ponds	Tokul. Cr. Hatch.	250,000	6	May
Hamma Hamma R.	Hamma Hamma	Hamma Hamma	3,700	8	April
Dosewallips R.	Eells Springs	Puyallup	12,500	5	April
Duckabush R.	Eells Springs	Puyallup	10,000	5	April
Skokomish R.	Eells Springs	Puyallup	50,000	5	April
Green R. (Summer)	Palmer Ponds	Soos Cr. Hatch.	70,000	5	May
Green R.	Palmer Ponds	Soos Cr. Hatch.	115,000	5	May
White R.	Voights Cr. Hatch.	Voights Cr. Hatch.	20,000	7	April
Voights Cr.	Voights Cr. Hatch.	Voights Cr. Hatch.	180,000	9	April
Dungeness R.	Dungeness Hatch.	Hurd Cr. Hatch.	10,000	5	June
Elwha R.	Elwha R. Hatch.	Lower Elwha Hatch.	60,000	5	June

 

 

            Predation on threatened chinook

 

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). 

 

Coho salmon are opportunistic feeders and highly successful predators on smaller fish.  Predation by hatchery coho on wild juvenile chinook has been documented by scientific studies.  E.g., S. Hawkins and J. Tipping, Predation By Juvenile Hatchery Salmonids On Wild Fall Chinook Salmon Fry In the Lewis River, Washington, California Fish and Game 85(3): 124-129 (1999); T. Pearsons, Chronology of Ecological Interactions Associated with the Life-span of Salmon Supplementation Programs, Fisheries 27 (12): 10-15 (2002).  Juvenile coho will prey upon chinook that are up to 47% of their length.  T. Pearsons and A. Fritts, Maximum Size of Chinook Salmon Consumed by Juvenile Coho Salmon, N. Am. Journal of Fisheries Management 19:165-170 (1999).  Juvenile coho released from the Department's facilities at sizes of 15 to 17 fish per pound are, on average, significantly larger than natural origin coho that would be found in freshwater habitat.  The relatively large size of juvenile hatchery coho compounds the predation problem by increasing the maximum size of the juvenile threatened chinook that may be taken as prey.  The large numbers of hatchery coho releases over a short time period creates an unnaturally high density of chinook predators.  Native, surviving populations of threatened chinook are present in all of the freshwater habitats identified as hatchery coho receiving waters in the table above.  Hatchery releases of tens of thousands or hundreds of thousands of coho to these waters during the spring, when threatened chinook fry are emerging from the gravel and using their freshwater habitats, is certain to result in predation on threatened chinook by hatchery coho. 

 

Similarly, steelhead are opportunistic feeders and capable predators of smaller fish.  Predation by hatchery steelhead on wild juvenile chinook has been documented by scientific studies.  E.g., Hawkins and Tipping (1999), supra; Pearsons (2002), supra.  Native, surviving populations of threatened chinook are present in all of the freshwater habitats identified as hatchery steelhead receiving waters in the table above.  Hatchery steelhead released to these habitats during the spring at the size of 5 to 9 fish per pound will be much larger than threatened chinook fry that are emerging from the gravel and using their freshwater habitats during that time.  The release of tens or hundreds of thousands of these large hatchery steelhead is certain to result in predation on threatened chinook by the hatchery steelhead.  The large numbers of hatchery steelhead releases over a short time period creates an unnaturally high density of chinook predators.  Some of the hatchery steelhead will remain in the freshwater systems to which they are released for months or years beyond the time of their release.  This residualization results in the continued presence of large and growing hatchery steelhead in the habitat of threatened chinook and continual predation on the juvenile chinook as they grow and migrate. 

 

            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 programs for coho or steelhead 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 coho and/or steelhead 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 coho and/or steelhead propagation programs 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).  Modification of a species' habitat by the introduction of predators constitutes harm.

 

"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 programs for artificial propagation of coho and steelhead in Puget Sound and the hatcheries that make up these programs take threatened Puget Sound chinook salmon.  The release of hatchery coho or steelhead constitutes take when those hatchery coho or steelhead prey upon threatened Puget Sound chinook because it is the Department's programs and activities that form the proximate cause of the killing, pursuing, harassment, hunting, wounding, and harming of the listed fish by the hatchery fish.  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