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Richard A. Smith, WSBA #21788
Smith & Lowney, PLLC
2317 East John Street
Seattle, Washington 98112
Phone: (206) 860-2883
Fax: (206) 860-4187
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
|
WILD PUGET SOUND CHINOOK; WASHINGTON TROUT; and NATIVE FISH SOCIETY,
Plaintiffs,
v.
JEFFREY P. KOENINGS; WASHINGTON DEPARTMENT OF FISH AND WILDLIFE; WASHINGTON FISH AND WILDLIFE COMMISSION; and RUSS CAHILL,
Defendants, ___________________________________ |
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No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
|
INTRODUCTION
1. This is an action brought under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., in which Plaintiffs Wild Puget Sound Chinook, Washington Trout and Native Fish Society seek to enjoin Defendants Jeffrey P. Koenings, sued in his official capacity as a state official, the Washington Department of Fish and Wildlife, the Washington Fish and Wildlife Commission, and Russ Cahill, sued in his official capacity as a state official, from conducting activities associated with artificial propagation of chinook salmon in the Puget Sound that result in the take of threatened Puget Sound chinook salmon in violation of the ESA. Such relief is necessary to preserve the status quo, prevent illegal action, and forestall irreparable injury to the Puget Sound chinook and Plaintiffs' interests.
2. Plaintiffs bring this suit in an attempt to reveal a "public secret": all informed parties know that Defendants' operation of numerous chinook hatcheries throughout the Puget Sound basin has been and continues to be a primary cause of the decline of the threatened Puget Sound chinook salmon. Since the listing of the Puget Sound chinook as a threatened species under the ESA, Defendants' hatchery and artificial propagation activities have continued. That unlawful take of threatened Puget Sound chinook is occurring has essentially been admitted by Defendant Washington Department of Fish and Wildlife and the National Marine Fisheries Service ("NMFS"). Defendants have failed to timely submit to NMFS proposed hatchery management plans that would substantially reform hatchery operations to reduce injuries to threatened chinook. Without NMFS' approval of such plans under its "4(d) rule," the take of threatened Puget Sound chinook caused by Defendants' hatchery operations continues to violate ESA. Plaintiffs now seek to do what NMFS should have done long ago -- enforce the ESA for the benefit of threatened Puget Sound chinook by forcing Defendants to reform chinook hatchery management to minimize harm to listed fish.
JURISDICTION AND VENUE
3. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory relief), and 2202 (injunctive relief), and 16 U.S.C. § 1540(g) (ESA citizen suit). As required by the ESA, 16 U.S.C. § 1540(g), Plaintiffs provided sixty days' notice of its intent to sue through a notice letter sent to Defendants on June 27, 2002. Attached as Exhibit A to this complaint is a true and correct copy of the June 27, 2002 notice letter. See Exhibit A. Venue is appropriate in this judicial district because the alleged ESA violations are occurring in the Western District of Washington, including Whatcom, Skagit, Snohomish, and King Counties. 28 U.S.C. § 1391(e); 16 U.S.C. § 1540(g)(3)(A).
PARTIES
4. Plaintiff Wild Puget Sound Chinook is the population of naturally-spawned chinook of the threatened Puget Sound chinook salmon ESU that suffers the most harm from defendants' actions and that may ultimately be extirpated as a result of these actions. Therefore, the Wild Puget Sound Chinook is listed as a named Plaintiff for the symbolic and actual importance of having the population be defended and protected by the ESA.
5. Plaintiff Washington Trout is a statewide, non-profit, nonpartisan organization devoted to protection of fish resources in the State of Washington. Its principal office is located in Duvall, Washington. Since its founding in 1989, Washington Trout has engaged in scientific research, educational, and advocacy activities to further the science and policy supporting conservation of biologically diverse fish resources. Washington Trout has approximately 2000 individual members.
6. Plaintiff Native Fish Society is an advocate for the conservation, protection, and restoration of native fishes in the Northwest. The goal of the Society is the development and implementation of conservation policy to protect and restore native fish populations. To accomplish this goal the Native Fish Society attempts to involve the public in policy decisions and to promote scientifically based management solutions. The Native Fish Society, founded in 1995, is a non-profit corporation under the laws of Oregon. The Society has approximately 400 members, including numerous members who reside in the Puget Sound region.
7. Plaintiffs' members use and enjoy rivers and streams throughout the Puget Sound basin, as well as Puget Sound itself, for recreational, scientific, aesthetic, and commercial purposes. Plaintiffs' members derive recreational, scientific, aesthetic, and commercial benefits from the existence of healthy aquatic and marine systems and wild salmon through water recreation, wildlife observation and study, photography, and fishing. Plaintiffs' members' enjoyment of these benefits is being and will continue to be harmed by Defendants' activities complained of herein. The injury to Plaintiffs and their members would be redressed by the relief sought herein.
8. Defendant Jeffrey P. Koenings is the Director of Defendant Washington Department of Fish and Wildlife. He is sued in his official capacity. In that capacity, he is responsible for administering the activities of Defendant Washington Department of Fish and Wildlife, including the activities complained of herein.
9. Defendant Washington Department of Fish and Wildlife is an agency of the State of Washington and owns and operates the chinook hatcheries that are the subject of this lawsuit.
10. Defendant Washington Fish and Wildlife Commission is a commission of the State of Washington, responsible for overseeing the activities of Defendant Washington Department of Fish and Wildlife, including the activities complained of herein.
11. Russ Cahill is the Chair of Defendant Washington Fish and Wildlife Commision. He is sued in his official capacity.
BACKGROUND
I. LEGAL FRAMEWORK – ENDANGERED SPECIES ACT
12. The ESA, 16 U.S.C. §§ 1531-1544, was enacted, in part, to provide a "means whereby the ecosystems upon which endangered species and threatened species depend may be conserved … [and] a program for the conservation of such endangered species and threatened species …." 16 U.S.C. § 1531(b). To this end, the ESA requires that the Secretaries of Commerce and Interior protect such species by listing them as either "threatened" or "endangered", and by issuing protective regulations for each species listed as threatened. 16 U.S.C. § 1533.
13. The ESA defines a "species" to include any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature. For the purpose of listing and protection under the ESA, NMFS divides Pacific salmonids, including chinook salmon, into Evolutionarily Significant Units ("ESUs"). Each ESU is considered separately as a species for listing under the ESA. To qualify as an ESU, a population of fish must exhibit 1) a high degree of reproductive isolation from other populations of the same species, and 2) importance in the evolutionary legacy of the biological species.
14. The term "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). "Endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6).
15. The ESA provides two primary mechanisms for protecting listed species. First, under section 7, federal agencies must consult with NMFS or the U.S. Fish and Wildlife Service ("FWS") to "insure" that their actions are not likely to jeopardize the continued existence of listed species or adversely modify or destroy their critical habitats. 16 U.S.C. § 1536. The protections of section 7 extend to both threatened and endangered species.
16. Second, under section 9, any person – including federal, as well as state, local, and private entities – is prohibited from engaging in any activity that constitutes a "take" of an endangered species. 16 U.S.C. § 1538.
17. Section 9's take prohibition applies only to species listed as endangered, unless NMFS issues a protective regulation as required under section 4(d) of the ESA – termed a "4(d) rule" – extending the take prohibition to a particular threatened species.
18. NMFS has issued a 4(d) rule extending the take prohibitions of section 9 to the threatened Puget Sound chinook salmon ESU at issue in this suit.
19. "Take" is defined in the ESA as "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).
20. Congress intended the term "take" to be defined in the "broadest possible manner to include every conceivable way" in which a person could harm or kill fish or wildlife. S. Rep. No. 307, 93rd Cong., 1st Sess. 1, reprinted in 1973 U.S. Code Cong. & Admin. News 2989, 2995.
21. NMFS has recently defined "harm" in the context of "take" to mean "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.
22. Numerous cases have held that habitat modification can cause take in violation of section 9.
23. "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, 93rd Cong., 1st Sess. at 11; 50 C.F.R. § 17.3 (FWS 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.
24. Section 10 of the ESA permits a non-federal entity to take listed species incidental to an otherwise lawful activity only after obtaining an Incidental Take Permit in conjunction with a Habitat Conservation Plan. 16 U.S.C. § 1539.
III. FACTUAL BACKGROUND
A. The Puget Sound Chinook Salmon ESU and the role of hatcheries in its decline
25. Salmon and steelhead populations up and down the West Coast have been declining precipitously for decades. This decline has led to numerous ESA listings of salmonids as threatened or endangered.
26. The Puget Sound ESU of chinook salmon encompasses all naturally spawned spring, summer and fall runs of chinook salmon in the Puget Sound region from the North Fork Nooksack River to the Elwha River on the Olympic Peninsula, inclusive. Chinook salmon are found in most of the rivers in this region and at least 27 distinct stocks or populations, varying by river and run timing, have been recognized by management agencies. Hatchery spawned chinook are generally not protected by the threatened listing. Exceptions to this are the following hatchery stocks that NMFS has deemed essential to recovery and that are considered part of the ESU and listed as threatened: Kendall Creek (spring run), North Fork Stillaguamish River (summer run), White River (spring run), Dungeness River (spring run), and Elwha River (fall run).
27. Puget Sound chinook generally exhibit an ocean-type (i.e., sub-yearling smolt emigration) life history. That is, smolts under one year of age migrate from fresh water rivers and streams to spend the majority of their lives in marine waters, returning to spawn in their natal fresh waters at the end of their lives. Puget Sound chinook mature at 3 to 6 years of age, though the majority of adult returns are comprised of 3 and 4 year olds. Ocean migration patterns extend from northern California to southeast Alaska coastal waters, however harvest is primarily by marine fisheries of British Columbia and the Puget Sound.
28. Overall abundance in the Puget Sound chinook ESU has declined substantially from historical levels, and many populations are small enough that genetic and demographic risks to viability are high. Both long- and short-term trends in abundance are predominantly downward, and several populations are suffering severe short-term declines.
29. In addition to the degradation of freshwater habitat from many causes, harvest practices have constituted a major cause of the decline of the Puget Sound chinook over the past century. Exploitation rates have continued to be quite high, with some populations subject to exploitation rates exceeding 90 percent of returning fish in recent years.
30. In an attempt to mitigate the loss of habitat and to provide fish for harvest, extensive hatchery programs have been implemented within the range of the Puget Sound chinook by the Defendants and their predecessors, and by federal and tribal governments and private entities. While some of these programs have succeeded in providing fishing opportunities, their impacts on native, naturally-reproducing stocks has been largely deleterious.
31. Defendants' artificial propagation program for chinook in the Puget Sound is part of a highly efficient approach to producing salmon, which relies on a large number of sites containing a diversity of facilities. The hatcheries operated by Defendants include the following, all of which have a role in chinook propagation: Bellingham, Dungeness, Elwha Channel, Garrison, George Adams, Hoodsport, Hurd Creek, Issaquah, Kendall Creek, Marblemount, McAllister, McKernan, Minter Creek, Samish, Soos Creek, Tumwater Falls, Voights Creek, and Wallace River. Only some of these 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.
1. Broodstock take
32. Many mature returning chinook are captured and their eggs and sperm are taken for use in Defendants' Puget Sound chinook propagation program. 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, Defendants have 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 in recent years. It is certain that protected naturally spawned chinook are taken for eggs and sperm despite any intention otherwise.
33. 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.
34. 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.
2. Competition and predation
35. 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. Most of the hatcheries within Defendants' artificial propagation program for chinook are located on or in the vicinity of protected threatened Puget Sound chinook spawning or rearing habitat. Hatchery chinook released from Defendants' 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.
36. 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 small juvenile protected threatened Puget Sound chinook.
37. Hatchery origin chinook also compete with protected threatened chinook for mates and suitable spawning space.
3. Genetic effects
38. 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. Some scientists have concluded that use of hatchery supplementation will always produce a significant decline in natural reproductive fitness. Genetic effect of hatchery programs specifically on the threatened Puget Sound chinook ESU have also been widely recognized. 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.
39. 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.
40. Most of the chinook raised and released in Defendants' 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." 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.
41. Hatchery and listed Puget Sound chinook are different from each other in behavior, morphology, survival and reproductive ability. As a result of Defendants' 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.
42. 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 undesirable 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.
43. 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 (lower jaw) size. Changes in nuptial coloration and kype may affect breeding success and genetic fitness.
44. 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 parents did. Genetic changes from hatchery propagation affect productivity and viability of wild populations.
4. Passage barriers
45. A number of hatchery facilities within Defendants' artificial chinook propagation program for the Puget Sound include physical barriers to passage for threatened Puget Sound chinook.
46. Defendants' Wallace River hatchery maintains temporary racks on the Wallace River and May Creek that block threatened chinook access to upstream spawning habitat.
47. Defendants' 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.
48. Defendants 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.
49. Defendants' 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.
50. Defendants' 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.
51. Defendants' 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.
52. Defendants' Dungeness hatchery maintains an intake dam that blocks threatened chinook access to habitat in Canyon Creek. The dam has no fishway.
53. Defendants' 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.
54. Defendants' Marblemount hatchery maintains an intake dam that blocks threatened chinook access to Jordan Creek. The dam has an inadequate fishway.
55. Defendants' George Adams hatchery maintains a rack that blocks threatened chinook passage to habitat in Purdy Creek.
56. 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.
B. Listing of the Puget Sound chinook ESU
57. NMFS proposed listing the Puget Sound chinook ESU as threatened on March 9, 1998. 63 Fed. Reg. 11482. The listing was made final on March 24, 1999. 64 Fed. Reg. 14308; 50 C.F.R. § 223.102(a)(16). In its proposal for this listing, NMFS identified hatchery impacts as a cause of decline. 63 Fed. Reg. 11494-95.
C. The 4(d) rule
58. NMFS proposed a generally applicable 4(d) rule for threatened Puget Sound chinook, along with several other threatened salmonid species, on January 3, 2000. 65 Fed. Reg. 170. On June 19, 2000, NMFS promulgated the final generally applicable 4(d) rule, with an effective date for protection of Puget Sound chinook of January 8, 2001. 65 Fed. Reg. 42422; 50 C.F.R. § 223.203.
59. In proposing and finalizing the 4(d) rule, NMFS concluded that threatened chinook are at risk of extinction primarily because their populations have been reduced by human "take." Id. NMFS determined that "[i]t is, therefore, necessary and advisable to put into place ESA section 9(a)(1) prohibitions to aid in their conservation." Id. at 42472. The 4(d) rule makes the take prohibition applicable to Puget Sound chinook, effective January 8, 2001. Id. at 42475; 50 C.F.R. § 223.203(a).
60. In conjunction with this 4(d) rule, NMFS issued take guidance identifying the types of activities "most likely to cause harm and thus violate this rule." Id. at 42472. "Releasing non-indigenous or artificially propagated species into a listed species' habitat or where they may access the habitat of listed species" is highlighted as such an activity, as are "… maintaining barriers that eliminate or impede a listed species' access to habitat or ability to migrate" and "… operating dams or water diversion structers with inadequate fish screen or fish passage facilities in a listed species' habitat." Id.
61. The 4(d) rule strictly prohibits take of Puget Sound chinook salmon by any means unless the activity resulting in take is covered by one of thirteen "limits," or exceptions, identified in the rule. These exceptions provide that take of Puget Sound chinook incident to artificial propagation activities may be exempt from the general prohibition on take if such activities fall within the scope of an incidental take permit issued under the authority of ESA section 10 (under the rule's first exemption), within the scope of a NMFS-approved Hatchery Genetic Management Plan ("HGMP") (under the fifth exemption), or within the scope of a NMFS-approved resource management plan ("RMP") developed jointly by the State of Washington and the Puget Sound Treaty Tribes (under the sixth exception). Id. at 42475-78; 50 C.F.R. § 223.203(b)(1), (5), and (6).
62. Defendants have not obtained an incidental take permit from NMFS for the take of threatened Puget Sound chinook incident to Defendants' operation of artificial chinook propagation activities in the Puget Sound.
63. Defendants have not secured NMFS' approval of any HGMP for operation of any chinook hatchery in the Puget Sound.
64. Defendants have not secured NMFS' approval of any RMP for operation of any chinook hatcheries in the Puget Sound.
CLAIM FOR RELIEF
FIRST CLAIM FOR RELIEF – VIOLATION OF ENDANGERED SPECIES ACT
65. Plaintiffs incorporate by reference all preceding paragraphs.
66. As alleged in the preceding paragraphs, Defendants operate chinook hatchery facilities and an artificial chinook propagation program in the Puget Sound basin in a manner than has caused, and will foreseeably continue to cause, take of threatened Puget Sound chinook salmon in violation of ESA section 9, 16 U.S.C. § 1538, and regulations promulgated under section 4(d) of the ESA, 16 U.S.C. § 1533(d). See 65 Fed. Reg. 42422 (July 10, 2000); 50 C.F.R. § 223.203.
67. Plaintiffs are injured by Defendants' ongoing violations of the ESA as herein alleged.
68. Plaintiffs are authorized by the citizen suit provision of the ESA to bring this action and obtain injunctive relief to remedy Defendants' ongoing violations. 16 U.S.C. § 1540(g).
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
(a) Declare that Defendants are in violation of the "take" prohibitions of the ESA and the 4(d) rule with respect to the threatened Puget Sound chinook by operation of Defendants' artificial chinook propagation program in the Puget Sound;
(b) Enjoin Defendants from continuing to violate the ESA through further "take" of threatened Puget Sound chinook as a result of Defendants' artificial chinook propagation program;
(c) Enter such other temporary, preliminary, or permanent injunctive relief as specifically prayed for by Plaintiffs hereinafter;
(d) Award Plaintiffs their reasonable fees, costs, expenses, and disbursements, including attorneys fees, associated with this litigation as authorized by the ESA, 16 U.S.C. § 1540(g); and
(e) Grant such other and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED this 29th day of August, 2002.
Smith & Lowney, p.l.l.c.
By: __________________________
Richard A. Smith, WSBA #21788
Attorneys for Plaintiffs