Washington Trout Sues NMFS Over Puget Sound Salmon-Harvest Plan

In November 2001, Washington Trout filed a lawsuit against the National Marine Fisheries Service over the agency’s approval of a Puget Sound salmon-harvest plan developed by the Puget Sound Tribes and the Washington Department of Fish Wildlife. The Joint Resource Management Plan, or RMP, will govern salmon-harvest activities impacting Puget Sound chinook, listed as Threatened under the Endangered Species Act. The Tribes and WDFW submitted the RMP to NMFS for approval in February 2001.

In March 2001, WT staff reviewed NMFS’s Evaluation and Recommended Determination of the RMP and submitted comments to NMFS detailing our objections to the Evaluation and the RMP (see "Harvesting Our Way to Recovery?"). In general, WT found the Evaluation and the RMP technically and legally inadequate. We believe that harvest activities carried out under the RMP could actually impede chinook recovery in Puget Sound.

In April 2001, NMFS issued first a Final Evaluation and Determination, and then a Determination Memorandum, approving the RMP for two years, without any significant revision.

Washington Trout’s complaint alleges that NMFS did not fulfill its legal responsibilities in approving the RMP. Under the National Environmental Policy Act (NEPA) and the ESA, NMFS is required to prepare a full Environmental Impact Statement and a complete Biological Opinion before approving any plan that could harm listed populations. Neither the Evaluation nor the Determination Memorandum adequately satisfies the federal requirements.

"NMFS approved the RMP without adequately assessing the potential risks posed by the proposal," says WT Executive Director Kurt Beardslee. "We believe any plan that includes harvesting listed fish is inherently risky, but we were most immediately troubled by NMFS’s own lack of compliance with NEPA and the ESA."

A Step Backwards
In January 2001, NMFS finally enacted a 4d Rule for Puget Sound chinook, almost two years after the listing decision. The 4d Rule defines how the ESA will be enforced in Puget Sound and elsewhere in Washington where different populations of salmon or steelhead have been listed as Threatened. Under the 4d Rule, local agencies or governments can submit plans to NMFS on a host of issues, including forest practices, development, hatchery programs, and commercial and sport salmon-harvest. If approved, these plans can limit governments’ and individuals’ liabilities under the ESA. This is a new approach in ESA enforcement, and it has been controversial. Local governments and some economic stakeholders like it because they say it allows flexibility. Washington Trout and many other environmentalists believe the approach will simply allow business as usual and dilute the power of the ESA to protect and recover listed species.

The Northwest Treaty Tribes and WDFW are charged with co-managing Washington’s salmon fisheries. They submitted the RMP to NMFS in order to exempt harvest activities in Puget Sound from ESA-enforcement, even if those activities wind up killing, or "taking" listed Puget Sound chinook. In order to qualify, the fishery activities carried out under the RMP should be conservative, and constructively integrated into the region’s other recovery-planning efforts. But instead, the RMP will likely slow chinook recovery, and could even lead to further declines. In many ways it represents a step backwards from the status quo.

We believe NMFS acted inappropriately by uncritically conceding the underlying premises of the RMP. The plan essentially dismisses the role of harvest as a factor in the decline of Puget Sound chinook, and asserts that if any harvest-management revisions are necessary, that they would be required only in reaction to other factors, most notably habitat loss and degradation. No one, least of all Washington Trout, denies that habitat loss has been an important factor in salmon declines, or that habitat needs to be protected and restored. But the RMP does not stop there. It makes the unsupported contention that freshwater habitat in the Puget Sound Basin has in fact become so limited that chinook are now fully utilizing what is left. It inappropriately argues that reducing harvest would provide no increased production, implying that status-quo harvest management can somehow be consistent with recovery.

By conceding the argument that continued harvest activities pose no biological risks to Puget Sound chinook, NMFS is acting inconsistently with its own science and past decisions. In its Status Review, Listing Decision, and in the 4d Rule itself, NMFS explicitly acknowledged the role of harvest in salmon-population declines. By now failing to acknowledge scientific evidence regarding the impacts of harvest, NMFS has not required the co-managers to adequately address those impacts.

Demeaning Scientific Common Sense
Washington Trout is not alone in our concern over the NMFS approach. Virtually everyone agrees that salmonid populations in Puget Sound and elsewhere have been depressed by a complex combination of factors, including poor hatchery practices, overharvest, and habitat loss. Many conservation ecologists now also agree that many runs of wild salmon, particularly some Puget Sound chinook populations, have declined so far that harvest-related impacts will impede their recovery. Even harvest aimed at hatchery stocks imposes unacceptable risks to threatened wild stocks mingled in with the hatchery fish.

This view is shared at the highest scientific level. The Salmon Recovery Science Review Panel was convened by NMFS, and appointed by the National Academy of Science to evaluate salmon-recovery planning and regulation under the ESA. In November the Review Panel severely criticized NMFS’s approach to harvest-management.
The panel of nationally recognized experts said it was "mystified concerning the scientific justification for current allowable harvests." After calling it "clear" that harvest had contributed significantly to salmon declines, the panel noted that NMFS continues to permit "biologically unsustainable" harvest levels of listed salmon. They bluntly admonished NMFS to develop a policy that "does not demean scientific common sense." (See RSRP Report Criticizes NMFS Over Salmon Harvest).

Two Critical Fallacies
The management approach advocated in the RMP is based on two critical fallacies. First, the RMP asserts that chinook productivity is not affected by "fishery actions;" but is driven only by habitat quality and reproductive fitness. But this ignores the ways that fishery actions influence both habitat quality and reproductive fitness. It fails to acknowledge the contribution to habitat productivity of ocean-derived nutrients from salmon carcasses. Allowing only the minimum-necessary number of spawners to "escape" harvest robs instream habitats of a good deal of these nutrients, reducing their quality and productivity.

It also ignores the way that fishery actions compromise the way salmon populations can utilize their freshwater habitats. By systematically selecting for larger fish, harvest activities have over time decreased the average age and size of chinook salmon. Smaller females lay fewer, smaller eggs in shallower nests, obviously affecting their "reproductive fitness." Smaller fish are also less well adapted to occupy spawning-habitat niches (higher flows, larger substrates, etc.) that chinook have evolved for over time, compromising spawning success, and making otherwise suitable habitats now unavailable or less productive. Finally, less complex population age-structures compromise genetic diversity and decrease a populations’ resilience to cyclical or catastrophic environmental changes, like fluctuating ocean conditions, droughts, floods, or the sudden loss of habitats from man-made influences.

The second fallacy of the RMP is its proposal to manage harvest within limits "appropriate to the productivity" of each stock. On its face, this sounds like a reasonable and appropriate admission that harvest rates should not exceed the "productivity" of the stock, but the RMP actually implies that only some well-defined, finite number of fish can use any currently existing amount of habitat. Under this implication, reducing harvest can provide no recovery-benefit once that defined habitat "productivity" is met. In fact the RMP goes as far as asserting that the currently available spawning and rearing habitats within the Puget Sound Basin are completely occupied. This effectively shifts the responsibility for chinook declines and the burden for recovery entirely to habitat loss and restoration, respectively, and excuses the co-managers’ past inability to meet their escapement goals. The RMP actually uses this argument to and justify lowering future spawning objectives.

However, the RMP offers no data to support the hypothesis that chinook spawning and rearing habitats in Puget Sound are being occupied at or near their capacities. The co-managers simply cannot credibly argue that allowing more fish to escape harvest and reach their home river to spawn would not generate larger run sizes. To adequately test that hypothesis, escapements would have to exceed current goals for at least two chinook generations, approximately ten years. For the past 20 years, Puget Sound spawning levels have never consistently exceeded escapement goals. In fact, the goals have consistently not been met. Furthermore, there is not sufficient data available to quantify the current extent of available habitat throughout the Puget Sound Basin, nor to demonstrate that those habitats are occupied to capacity.

Exploitation Rates and Low Abundance Thresholds
Salmon harvest in Washington has generally been managed for "Maximum Sustained Yield" escapement goals. In other words, managers attempt to allow some minimum number of fish to "escape" harvest and reach their rivers to spawn. This "escapement goal" is the minimum number of spawners needed to sustain the population at a given rate of harvest. In the past, WT has challenged co-managers over the fundamental premises of MSY management, and whether target escapement goals were adequate to conserve salmonid populations. At any rate, actual escapement levels have often been well below the target numbers. NMFS explicitly cited the inability of many Puget Sound chinook populations to meet their escapement goals when it listed them as Threatened.

Rather than revise MSY practices or increase escapement objectives, the RMP abandons escapement goals for "exploitation-rate management." Under exploitation-rate management, rather than setting a numerical escapement-target, a fixed percentage of the predicted run-size is allocated to harvest, or "exploitation." Its proponents contend that exploitation-rate management can allow for larger escapement when abundance is high, because a fixed proportion of the run size is always allocated to escapement regardless of run size. However, they conveniently ignore the flip side of the argument; in periods of low abundance, much more likely under current population conditions, a fixed proportion of the run size is always allocated to harvest, regardless of actual escapement numbers. In other words, it’s just as likely that escapements will go down, and the RMP makes no commitment to attaining current escapement targets.

As it turns out the RMP will replace existing escapement targets with something called "Low Abundance Thresholds." The Low Abundance Thresholds are the level of spawners that the co-managers imply they will not allow populations to fall below, but some of these thresholds have been set at less than half the current escapement goals. In any event, the plan makes no commitment to any specific management action even if populations fall below the Low Abundance Thresholds.

The bottom line is that exploitation-rate management assures fishing opportunity regardless of run size. It is hard to escape the conclusion that the co-managers apparently have little confidence in their ability to meet established escapement objectives, but do seem comfortable with new "low abundance" targets that in some cases reduce those goals by more than half.

No Challenge to Treaty Rights
The law suit does not mean that Washington Trout opposes commercial salmon-harvest in all cases, and we do not intend to challenge tribal fishing rights. In Septmeber, when WT filed its 60-day Notice of Intent to Sue, Executive Director Beardslee sent letters to the Northwest Indian Fisheries Commission and all leaders of the Puget Sound Treaty tribes, notifying them of our action, and assuring them of our support for their fundamental treaty fishing-rights.

"(We are not) challenging the Northwest Treaty Tribes’ continued treaty-right to fish in all usual and accustomed places for half of any harvestable surplus of salmon and steelhead, for ceremonial, subsistence, and other purposes," Beardslee wrote. "In any and all instances where clear scientific evidence demonstrates that a surplus of salmon exists in Puget Sound or any other waters in Washington, and that it can be harvested responsibly without risks of unacceptable impacts to weaker stocks, we strongly support the Northwest Tribes’ priority right to prosecute those fisheries."

Insisting on Comprehensive Recovery
If wild-salmon runs in Puget Sound and elsewhere are going to recover to healthy levels, all of the factors contributing to their decline, including forestry, agriculture, dams, development, poor hatchery practices, and overharvest will have to be addressed in a comprehensive manner. Avoiding risk in recovery management will require caution in the face of uncertainty or insufficient data. In its haste to accommodate various stakeholders and approve salmon harvests, NMFS uncritically accepted the assertions of the entities it is supposed to regulate, not merely approving the RMP despite its uncertainty; but allowing uncertain and insufficient data to justify harvest actions.

It is true that the biological recovery-requirements of salmon do not exist outside of social and historical contexts. Washington Trout recognizes that the Tribes have certain rights, and other stakeholders have legitimate needs. But it will be in no one’s long-term interest to risk the recovery of Puget Sound chinook by allowing politics and bureaucratic expediency to trump science. By filing this suit, WT is insisting that that all the risks be fully assessed and minimized before any salmon-harvest plan is implemented.