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

 

THREATENED 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; RUSS CAHILL; Will Roehl, Ron Ozment, Lisa Pelly, Dawn Reynolds, Fred Shiosaki, Bob Tuck, R.P. Van Gytenbeek, and Kelly White,   Defendants, ___________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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 Threatened 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, Will Roehl, Ron Ozment, Lisa Pelly, Dawn Reynolds, Fred Shiosaki, Bob Tuck, R.P. Van Gytenbeek, and Kelly White, sued in their official capacities as state officials, from conducting activities associated with artificial propagation of coho salmon and steelhead trout 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 address an overlooked and ignored but serious problem for salmon recovery: all informed parties know that Defendants' operation of numerous coho and steelhead hatchery programs throughout the Puget Sound basin has been and continues to be a substantial contributing cause of the decline of threatened Puget Sound chinook salmon.  The problem is that the Defendants’ release of hundreds of thousands of juvenile coho and steelhead from hatcheries to Puget Sound freshwater habitats results in the loss of many juvenile threatened chinook to direct and indirect predation by these larger hatchery fish.  Since the listing of the Puget Sound chinook as a threatened species under the ESA, Defendants' hatchery and artificial propagation activities have continued.  Defendants have failed to timely submit to the National Marine Fisheries Service (“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 coho and steelhead hatchery management to minimize harm to threatened chinook.

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 their intent to sue through a notice letter sent to Defendants on January 16, 2003.  Attached as Exhibit A to this complaint is a true and correct copy of the January 16, 2003 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 Threatened 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 Threatened 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 native 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 coho and steelhead 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.       Defendants Russ Cahill, Will Roehl, Ron Ozment, Lisa Pelly, Dawn Reynolds, Fred Shiosaki, Bob Tuck, R.P. Van Gytenbeek, and Kelly White are the members of Defendant Washington Fish and Wildlife Commision.  They are sued in their official capacities.

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.  50 C.F.R. § 223.203.

            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, 93^rd Cong., 1^st 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, 93^rd Cong., 1^st 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

            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.  These fish are approximately 30 mm (1.18 inches) on average when they emerge from the gravel and 60 mm (2.36 inches) on average when they migrate to the Sound.  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 constitute a major cause of the decline of the Puget Sound chinook, as well as other salmonid species, 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.

B.         Defendants’ coho and steelhead hatchery programs and effects on Threatened Puget Sound Chinook

 

30.       In an attempt to mask the effects of habitat loss 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 programs for coho and steelhead 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. 

32.       On information and belief, Defendants’ artificial propagation program for coho includes the following releases planned for 2003:

 

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

 

            33.       On information and belief, Defendants’ artificial propagation program for steelhead includes the following releases planned for 2003:

 

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	150,000	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

 

34.       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. 

35.       The releases of hatchery coho and steelhead described above are located on or in the vicinity of protected threatened Puget Sound chinook spawning and/or rearing habitat.  Juvenile coho and steelhead released from Defendants' hatcheries prey upon juvenile protected threatened Puget Sound Chinook and cause indirect predation by rendering them subject to increased predation by other aquatic and avian predators by displacing them from preferred resting and rearing habitats in these areas. 

36.       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.  Juvenile coho will prey upon chinook that are up to 47% of their length.  Juvenile coho released from Defendants’ facilities at sizes of 17 to 15 fish per pound (equivalent to approximately 123 to 129 millimeters, or about 4.8 to 5.1 inches, in length) 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 both direct and indirect predation on threatened chinook by hatchery coho and to impair the continued survival and recovery of the threatened Puget Sound chinook ESU.

37.       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.  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 9 to 5 fish per pound (equivalent to approximately 166 to 200 millimeters, or about 6.5 to 7.9 inches, in length) 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 direct predation on threatened chinook by the hatchery steelhead and to cause indirect predation by rendering threatened juvenile chinook further subject to predation by other aquatic and avian predators by displacing them from preferred resting and rearing habitats in these areas.  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 direct and indirect predation on the juvenile chinook as they grow and migrate.  Predation by hatchery steelhead impairs the continued survival and recovery of the threatened Puget Sound chinook ESU.

C.        Listing of the Puget Sound chinook ESU

38.       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.

D.        The 4(d) rule

39.       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.

40.       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).

41.       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.  Id. 

42.       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).

43.       Defendants have not obtained an incidental take permit from NMFS for the take of threatened Puget Sound chinook incident to Defendants' operation of artificial coho or steelhead propagation activities in the Puget Sound.

44.       Defendants have not secured NMFS' approval of any HGMP for operation of any coho or steelhead hatchery in the Puget Sound.

45.       Defendants have not secured NMFS' approval of any RMP for operation of any coho or steelhead hatcheries in the Puget Sound.

CLAIM FOR RELIEF

 

FIRST CLAIM FOR RELIEF – VIOLATION OF ENDANGERED SPECIES ACT

 

            46.       Plaintiffs incorporate by reference all preceding paragraphs.

            47.       As alleged in the preceding paragraphs, Defendants operate coho and steelhead hatchery facilities and artificial coho and steelhead propagation programs in the Puget Sound basin in a manner that 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.  This take is likely to jeopardize the continued survival of the threatened Puget Sound chinook ESU and to retard its recovery.

            48.       Plaintiffs are injured by Defendants' ongoing violations of the ESA as herein alleged.

            49.       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 coho and steelhead propagation programs 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 coho and steelhead propagation programs;

(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 __^th day of March, 2003.

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

 

 

 

 

By: __________________________

      Richard A. Smith, WSBA #21788

Attorneys for Plaintiffs