Washington Trout: Preserve, Protect, Restore

SETTLEMENT AGREEMENT

May 9, 2003

Matters of Threatened Puget Sound Chinook, Washington Trout, and Native Fish Society 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, NO. CV-03-0687L (W.D. Wash.) (hereinafter referred to as “the Coho/Steelhead Hatcheries Lawsuit”) and Wild Puget Sound Chinook, Washington Trout, and Native Fish Society 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, NO. C02-1852L (W.D. Wash.) (hereinafter referred to as “the Chinook Hatcheries Lawsuit”)

WHEREAS, in the Chinook Hatcheries Lawsuit, Plaintiffs, Wild Puget Sound Chinook, Washington Trout and Native Fish Society (hereinafter collectively referred to as “Washington Trout” or “Plaintiffs”) on August 29, 2002, filed a Complaint against Defendants, Jeffrey P. Koenings, Washington Department of Fish and Wildlife (“WDFW”), 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 (hereinafter referred to as “Defendants”), alleging that operations of certain WDFW Puget Sound Chinook hatcheries violated the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, et. seq.;

WHEREAS, in the Coho/Steelhead Hatcheries Lawsuit, on March 19, 2003, Washington Trout filed a Complaint against Defendants, alleging that operations of certain WDFW Puget Sound Coho and Steelhead hatcheries violated the ESA;

WHEREAS on August 26, 2002, the Puget Sound Treaty Tribes and WDFW submitted a Joint Resource Management Plan (“Joint RMP”) for Puget Sound Chinook Salmon Hatcheries and 42 associated Hatchery and Genetic Management Plans (“HGMPs”) to the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (“NOAA Fisheries,” formerly “NMFS”) for review and approval under 50 C.F.R. §§ 223.203(b)(6) and 223.209;

WHEREAS on March 17, 2003, the Puget Sound Treaty Tribes and WDFW submitted HGMPs for sockeye salmon, chum salmon, pink salmon, coho salmon, and steelhead hatchery programs in Puget Sound to NOAA Fisheries for review and approval under 50 C.F.R. §§ 223.203(b)(6) and 223.209;

WHEREAS, Defendants vigorously dispute Plaintiffs’ claims;

WHEREAS, Washington Trout and Defendants have agreed to a settlement of the Chinook Hatcheries Lawsuit and the Coho/Steelhead Hatcheries Lawsuit, without any admission of fact or law, which they consider to be a just, fair, adequate and equitable resolution of the claims raised in these actions;

WHEREAS, by entering into this Settlement Agreement (“Agreement”), the Parties to this Agreement do not waive or limit any claim or defense by Plaintiffs or Defendants, on any grounds, related to any future agency action taken by NOAA Fisheries with respect to its review and approval under 50 C.F.R. §§ 223.203(b) and 223.209 of joint resource management plans or HGMPs for WDFW Chinook salmon, sockeye salmon, chum salmon, pink salmon, coho salmon, and steelhead hatchery programs in Puget Sound (collectively referred to as “WDFW PS hatchery programs”); and

WHEREAS, it is in the interest of the public, the Parties and judicial economy to resolve the issues in these lawsuits without protracted litigation;

NOW, THEREFORE, it is hereby AGREED as follows:

PARTIES

1. The Parties to this Agreement (hereinafter referred to as “Parties”) recognize that Washington Trout’s claims against the Washington Department of Fish and Wildlife, including the Washington Fish and Wildlife Commission, as a state agency, are barred by the Eleventh Amendment of the United States Constitution. See, e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Accordingly, Plaintiffs agree to dismiss with prejudice Defendants Washington Department of Fish and Wildlife and Washington Fish and Wildlife Commission from the Chinook Hatcheries Lawsuit and the Coho/Steelhead Hatcheries Lawsuit.

2. Washington Trout and Jeffrey P. Koenings, Russ Cahill, Will Roehl, Ron Ozment, Lisa Pelly, Dawn Reynolds, Fred Shiosaki, Bob Tuck , R.P. Van Gytenbeek, and Kelly White in their official capacities (hereinafter referred to as “Remaining Defendants”) hereby enter into this Agreement. This Agreement applies to, is binding upon, and inures to the benefit of Plaintiffs, Remaining Defendants and their successors, assigns, and designees.

TERMS OF AGREEMENT

3. The Parties agree that the operation of the WDFW PS hatchery programs will continue under HGMPs and Joint RMPs for such programs pending NOAA Fisheries’ final determination as to the applicability of the 4(d) Rule to the Joint RMPs and/or HGMPs for such programs, subject to such action as Washington Trout may take in the future after the expiration of the release and hold harmless provisions in paragraph 7 of this Agreement.

4. PUBLIC REVIEW PROCESS: The Parties agree that:

A. Within 30 days of the date upon which the Stipulated Order of Dismissal with Prejudice is entered by the Court, Koenings will submit for publication in the State Register a notice of the availability for public review and comment of the HGMPs for the WDFW PS hatchery programs. Koenings will later submit such notices as part of the development of future HGMPs for hatchery programs as provided in paragraph 8.

B. The State Register notice will provide for a public comment period on the HGMPs for the WDFW PS hatchery programs of no less than 30 days from the date of the notice and no less than 60 days for WDFW hatchery programs subject to Paragraph 8. Koenings will promptly post a prominent link to or the contents of the State Register notice and HGMPs for WDFW hatchery programs on the WDFW website.

C. Koenings will consider and cumulatively respond in good faith to the substance of any written comments on WDFW HGMPs, including any comments received from Washington Trout, which are received during the public comment period. Koenings will not be required to consider and respond to any written comment, including any comment received from Washington Trout, which is received outside the public comment period but may, in his sole discretion, do so. Koenings may, within his sole discretion, make changes to any WDFW HGMP as part of responding to comments but is not required to do so. Within 75 days of the close of the comment period referenced in paragraph 4.B. above, Koenings will submit any written comment received during the public comment period along with his responses, including any changes to the HGMPs, to NOAA Fisheries for its consideration.

D. With the submission of written comments and his responses, including any changes to the HGMPs, Koenings will transmit a letter to NOAA Fisheries clarifying that the submitted materials are an official supplement to the previously submitted HGMPs that NOAA Fisheries should consider in making any determinations or taking any actions pursuant to 50 C.F.R. §§ 223.203(b) and 223.209.

E. Not later than 20 days after his submission to NOAA Fisheries, Koenings will post the written comments and his responses on WDFW’s internet website, where they will remain until at least 90 days after NOAA Fisheries makes a final determination pursuant to 50 CFR § 222.203(b), 50 C.F.R. § 223.209, 16 U.S.C. § 1533, 16 U.S.C. 1536, and/or 16 U.S.C. §1539. These materials will be readily accessible and clearly identified.

F. For a period of 30 days following the Effective Date of this Agreement, Koenings will allow Washington Trout’s representatives reasonable access to WDFW PS hatchery facilities for the purpose of evaluation, including inspection, measurement, and photography, of passage barriers, intake structures, and bypass outfalls to facilitate Washington Trout’s development and submission of comments on these aspects of PS hatchery operations as part of the above-described process. Koenings will also allow Washington Trout’s representatives reasonable access, limited to one visit per hatchery, for 30 months following the Effective Date of this Agreement to the hatcheries listed in paragraph 8 for which no opt out has been exercised. All access is subject to the following: Washington Trout must provide 7 days’ notice of the date and time Plaintiffs desire to visit a WDFW hatchery; written consent of the owner of the facility for those hatcheries not owned by WDFW must be obtained; no minors will be permitted access to any WDFW hatchery; and each hatchery visitor must sign an appropriate release and hold harmless agreement before access to the hatchery will be allowed. Washington Trout hereby agrees to accept the risks of harm or injury to its representatives, third persons and property resulting from access to hatcheries provided under this Agreement. Therefore, Washington Trout agrees to indemnify, defend, release and hold harmless the Defendants (and any non-State owner of a hatchery), including but not limited to, their employees, officers, agents, affiliates, successors, and assigns from and against any and all personal and property losses, liabilities, damages, claims, fines, causes of action, deficiencies, costs, and expenses (including reasonably attorney’s fees and other litigation expenses) suffered by any person or party based upon, arising out of, or otherwise related to the access to hatcheries provided under this Agreement. In addition, Washington Trout agrees to maintain insurance in the minimum amount of $1 million dollars for 30 months from the Effective Date of this Agreement, and the State shall be named as an additional insured under such insurance policy.

5. Koenings will continue to cooperate with NOAA Fisheries in its review and potential approval under 50 C.F.R. §§ 223.203(b) for WDFW PS hatchery programs. The Parties will use good faith efforts to encourage NOAA Fisheries to complete this review and potential approval in a timely manner.

6. The Parties acknowledge that, with respect to the settlement of Plaintiffs’ claims (which were brought under ESA), this Agreement obligates Koenings to undertake certain procedural steps only. Koenings may in his sole discretion provide additional public review opportunities beyond that agreed to in this Agreement. The Remaining Defendants make no representation or commitment of any kind regarding the substance of any future decision on joint resource management plans or HGMPs for WDFW PS hatchery programs or any other hatchery program. Washington Trout agrees not to challenge the adequacy of any WDFW response to any written comment, including any comment received from Washington Trout, as an alleged violation of this Agreement provided Koenings has responded in good faith to the substance of the comments.

7. Upon the Effective Date, this Agreement shall constitute a complete and final settlement of all claims that were asserted, or could have been asserted, by Plaintiffs against Defendants in the Complaint filed in the Chinook Hatcheries Lawsuit, and Coho/Steelhead Hatcheries Lawsuit, with respect to WDFW PS hatchery programs. Pending NOAA Fisheries’ review and issuance of a final determination regarding approval of Joint RMPs, HGMP, or HGMPs for WDFW PS hatchery programs or program under 50 C.F.R. §§ 223.203(b) and/or 223.209, Washington Trout agrees to release and hold Defendants harmless, discharge, and covenant not to assert (by way of the commencement of an action, the joinder of Defendants in an existing action, or in any other fashion) any claims, causes of action, suits or demands of any kind whatsoever in law or in equity that it may have had, may now have, or may have during the term of this Agreement associated with the operation or existence of a WDFW PS hatchery or hatcheries. Once effective, this release and hold harmless agreement shall continue in force and with the same effect until such time as NOAA Fisheries completes its review and issues its final determination regarding approval under 50 C.F.R. § 223.203(b) and/or 50 C.F.R. § 223.209 of Joint RMPs, HGMP, or HGMPs for WDFW PS hatchery programs. This release and hold harmless agreement shall expire by its own terms upon completion of NOAA Fisheries’ review and issuance of its final determination regarding approval under 50 C.F.R. § 223.203(b) and/or 50 C.F.R. § 223.209 of the Joint RMPs, HGMP, or HGMPs for WDFW PS hatchery programs. “Final determination” means NOAA Fisheries determination regarding approval of a WDFW HGMP or HGMPs for a period of three years or more. Nonetheless, a second determination by NOAA Fisheries on a specific WDFW HGMP or HGMPs shall be considered a final determination regardless of the length or title of the approval.

8. DEVELOPMENT OF FUTURE HGMPs: Koenings anticipates using the public review process outlined in Paragraph 4 to develop HGMPs for the following hatchery programs in Washington State:

Sea Resources Fall Chinook; Columbia River Chum; Sea Resources Coho; Deep River Net Pen Spring Chinook; Deep River Net Pen Coho; Steamboat Slough Net Pen Coho; Grays River Coho; Grays River Winter Steelhead; Elochoman Fall Chinook; Elochoman Type N Coho; Elochoman Winter Steelhead; Elochoman Wild Winter Steelhead; Cathlamet ffa Coho; Cowlitz Sea-Run Cutthroat; Cowlitz Late Winter Steelhead; Cowlitz Summer Steelhead; Cowlitz Winter Steelhead; Cowlitz Fall Chinook; Cowlitz Spring Chinook; Cowlitz Type N Coho; Mossyrock Rainbow Trout; mrt Released Into Skate Creek; mrt Released Into The Tilton River; Cowlitz Game And Anglers Coho; Cowlitz Game And Anglers Summer Steelhead; Coweeman Pond Winter Steelhead; North Toutle Fall Chinook; North Toutle Spring Chinook; North Toutle Type S Coho; North Toutle Summer Steelhead; Friends Of The Cowlitz Spring Chinook; Friends Of The Cowlitz Coho; Friends Of The Cowlitz Summer Steelhead; Kalama Fall Chinook; Kalama Type N Coho; Kalama Wild Summer Steelhead; Kalama Spring Chinook; Kalama Summer Steelhead; Kalama Winter Steelhead; Kalama Wild Winter Steelhead; Lewis River Spring Chinook; Lewis River Type N Coho; Lewis River Type S Coho; Merwin Summer Steelhead; Merwin Winter Steelhead; Fish First Spring Chinook; Fish First Summer Steelhead; Speelyai Bay Net Pen Summer Steelhead; Fish First Wild Coho; ef Lewis River Winter Steelhead; ef Lewis River Summer Steelhead; Klineline Ponds Winter Steelhead; Washougal Fall Chinook; Washougal Type N Coho; Washougal Chum (Inc In Col R Chum HGMP); Skamania Summer Steelhead; Skamania Winter Steelhead; Washougal Coop Coho; Drano Lake Summer Steelhead; White Salmon River Winter Steelhead; Klickitat Summer Steelhead; Klickitat Fall Chinook; Klickitat Spring Chinook; Klickitat Type N Coho; Lyons Ferry Fall Chinook; Lyons Ferry Summer Steelhead; Touchet Summer Steelhead; Walla Walla Summer Steelhead; Tucannon Summer Steelhead; Tucannon Spring Chinook; Wallowa Summer Steelhead; Ringold Fall Chinook; Ringold Summer Steelhead; Priest Rapids Fall Chinook; Turtle Rock Summer Chinook; Wenatchee Summer Steelhead; Wenatchee Summer Chinook; Chiwawa Spring Steelhead; Lake Wenatchee Sockeye; Wells Summer Chinook; Wells Summer Steelhead; Carlton Pond Summer Chinook; Methow Spring Chinook.

Forty-two of the WDFW HGMPs listed above will be submitted to NOAA Fisheries within 18 months of the Effective Date of this Agreement unless Koenings opts out as set forth below. The remainder for which no opt out is exercised will be submitted within thirty months of the Effective Date of this Agreement. Upon written request to Koenings, Koenings will provide Washington Trout with twice yearly progress reports on the development of the future HGMPs listed above for which no opt out has been exercised.

Washington Trout agrees that if Koenings incorporates the public review process outlined in Paragraph 4 into the development of a HGMP or HGMPs for a WDFW hatchery program or programs on this list, Washington Trout shall release and hold Defendants harmless, discharge, and covenant not to assert (by way of the commencement of an action, the joinder of Defendants in an existing action, or in any other fashion) any claims, causes of action, suits or demands of any kind whatsoever in law or in equity that it may have had, may now have, or may have during the term of this Agreement associated with the operation or existence of such hatchery or hatcheries. Once effective, this release and hold harmless agreement shall continue in force and with the same effect until such time as NOAA Fisheries completes its review and issues its final determination regarding approval under 50 C.F.R. § 223.203(b), 50 C.F.R. § 223.209, 16 U.S.C. § 1533, 16 U.S.C. § 1536, and/or 16 U.S.C. § 1539 of Joint RMPs, HGMP, or HGMPs for such WDFW hatchery program or programs. This release and hold harmless agreement shall expire by its own terms upon completion of NOAA Fisheries’ review and issuance of its final determination regarding approval under 50 C.F.R. § 223.203(b), 50 C.F.R. § 223.209, 16 U.S.C. § 1533, 16 U.S.C. § 1536, and/or 16 U.S.C. § 1539 of Joint RMPs, HGMP, or HGMPs for the WDFW hatchery program or programs. “Final determination” means NOAA Fisheries determination regarding approval of a WDFW HGMP or HGMPs for a period of three years or more. Nonetheless, a second determination by NOAA Fisheries on a specific WDFW HGMP or HGMPs shall be considered a final determination regardless of the length or title of the approval. Koenings will notify Washington Trout if he will not be using the public review process outlined in Paragraph 4 above for the development of any future WDFW HGMP and the release and hold harmless provisions set forth above will no longer be effective as to such HGMP or HGMPs. Upon a determination by NOAA-Fisheries or WDFW that the HGMP process will not be used for a hatchery program listed above, the release and hold harmless agreement of this paragraph shall no longer be effective as to such hatchery program.

9. LITIGATION COSTS: In order to settle this case, the Remaining Defendants will pay the negotiated sum of $58,000 to compensate Plaintiffs for attorney fees, expenses, and costs incurred in litigation of their claims in this Lawsuit. Plaintiffs agree that this payment shall extinguish Plaintiffs’ claims for fees and expenses for all work, incidental expenses, and court costs performed or incurred for this action, including the negotiation, finalization, and execution of this Agreement and any work associated with entry of the Stipulated Order of Dismissal. This payment shall be in the form of a check in the amount of $58,000 made payable to Smith & Lowney, PLLC, and delivered to Plaintiffs’ counsel within 30 days of the Effective Date of this Agreement.

10. SECURING COURT APPROVAL: Plaintiffs and Koenings agree to join in and support such legal proceedings as are necessary to consolidate the Coho/Steelhead Hatcheries Lawsuit and the Chinook Hatcheries Lawsuit and secure the Court’s entry of the Stipulated Order of Dismissal with Prejudice in the form attached to this Agreement as Exhibit 1.

11. EFFECTIVE DATE: This Agreement shall become effective upon the Court’s entry of a Stipulated Order of Dismissal with Prejudice dismissing all counts of Plaintiffs’ Complaint in the Chinook Hatcheries Lawsuit and Coho/Steelhead Hatcheries Lawsuit with prejudice in the form attached to this Agreement as Exhibit 1. If for any reason the Court does not enter the Agreed Order of Consolidation and Order of Dismissal with prejudice, or a mutually agreeable similar order, this Agreement shall not become effective.

12. DISPUTE RESOLUTION AND ENFORCEMENT: In the event of a disagreement between the Parties concerning the implementation or interpretation of any aspect of the Agreement, the dissatisfied party shall provide the other party with written notice of the dispute and a request for negotiations. If the Parties cannot reach an agreed resolution of the disagreement within thirty (30) days after receipt of the notice by the other party, then either party may petition the Court for an order to enforce the terms of the Agreement. The Parties reserve their defenses to any claims made in any such petition. The Parties may not seek the remedy of contempt for any alleged violation of this Agreement, although such remedy may be available on a subsequent motion concerning alleged violation of an order of the Court enforcing the terms of the Agreement. Plaintiffs may not, under this Agreement, request that the Court review any determination, finding, or other final agency action by the Remaining Defendants. The Parties specifically recognize that these restrictions on available remedies are not intended to limit the remedies available for failure to comply with a court order enforcing the terms of the Agreement. The prevailing Party may recover the reasonable costs incurred in bringing or defending against a petition to enforce the terms of this Agreement unless substantial injustice would result as determined by the Court.

13. For any alleged violation by Defendants of the ESA, if any, not covered by this Agreement, Plaintiffs’ sole remedy shall be to bring a new lawsuit against the Remaining Defendants.

14. NOTICE: Any notice required or made with respect to this Agreement shall be in writing and shall be effective upon receipt. The contact persons are:

For Plaintiffs:

Richard A. Smith

Smith & Lowney, P.L.L.C.

2317 East John Street

Seattle, WA 98112

Phone: (206) 860-2124

Fax: (206) 860-4187

For Remaining Defendants:

Ernest L. Rushing

Senior Assistant Attorney General

Washington Attorney General’s Office

1125 Washington Street SE

PO Box 40100

Olympia, WA 98504-0100

Phone: (360) 753-2496

Fax: (360) 586-3454

15. REPRESENTATIVE AUTHORITY: Each undersigned representative of the Parties to this Agreement certifies that he or she is fully authorized by the party to enter into and execute the terms and conditions of this Agreement and to bind legally each such party to the Agreement.

16. ENTIRE AGREEMENT: This Agreement is the entire agreement between Plaintiffs and Remaining Defendants in this case. All prior conversations, meetings, discussions, drafts and writings of any kind are specifically superseded by this Agreement.

17. MUTUAL DRAFTING: It is hereby expressly understood and agreed that this Agreement was jointly drafted by Plaintiffs and Remaining Defendants. Accordingly, the Parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Agreement.

18. COUNTERPARTS: This Agreement may be executed in any number of counterpart originals, each of which shall be deemed to constitute an original agreement, and all of which shall constitute one agreement. The execution of one counterpart by any party shall have the same force and effect as if that party had signed all other counterparts.

19. USE OF AGREEMENT: This Agreement shall not constitute an admission or evidence of any fact, wrongdoing, misconduct, or liability on the part of Defendants, their officers, or any person affiliated with them, or an interpretation of any applicable provision of law.

20. THIRD-PARTY BENEFICIARIES: WDFW (including the Washington Fish and Wildlife Commission) is a third-party beneficiary of this Agreement. Nothing in this Agreement shall be construed to make any other person or entity not executing this Agreement a third-party beneficiary to the Agreement, other than WDFW (including the Washington Fish and Wildlife Commission). Washington Trout shall make no effort to encourage and shall in no way assist, any other entity or person in the filing of a similar lawsuit against Defendants during the term of this agreement.

21. SUPPORT: The Parties agree to support this Agreement and not make public statements inconsistent with the spirit of this Agreement.

22. TERM OF THE AGREEMENT: This Agreement shall remain in force and effect for ten years from the Effective Date. It shall then expire automatically.

IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement on the dates(s) indicated.

______________________________ ______________________________

Jeffrey Koenings, Director Kurt Beardslee, Director

Department of Fish and Wildlife Washington Trout

Date:__________________________ Date:_______________________

______________________________ ______________________________

Will Roehl, Commission Chair Bill Bakke, Director

Date:__________________________ Native Fish Society

Date: _________________________

______________________________

Ron Ozment, Commissioner