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600 Capitol Way North, Olympia, WA 98501-1091

This document is provided for archival purposes only.
Archived documents do not reflect current WDFW regulations or policy and may contain factual inaccuracies.

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March 16, 2000
Contact: Jeff Weathersby, (360) 902-2256,
Tim Waters, (360) 902-2262 or
Anne Pressetin, (503) 872-5264, ext. 5356

Federal agency administers species protection law unfairly, states say

OLYMPIA--The decision by Oregon and Washington to end a commercial hatchery salmon fishery and a recreational fishery on the Columbia River today sharply focuses the question of how much authority the states' have to regulate fishing where some stocks are protected by the federal Endangered Species Act (ESA), according to Washington and Oregon officials.

At issue is whether the National Marine Fisheries Service (NMFS) and U.S. Department of Justice should enforce the federal Endangered Species Act for Washington and Oregon in the same way it enforces it for Columbia River treaty Indian tribes. The issue could determine not only how fish are allocated in major spring, summer and fall fisheries on the Columbia, but also how the ESA is administered for fisheries elsewhere.

"NMFS should be applying the ESA process equally to the state and tribal fisheries, allowing the states and tribes to use the existing cooperative management forums to share the harvestable fish and meet the conservation goals for endangered fish. Instead, the ESA was used to shut down state fisheries," said Jeff Koenings, director of the Washington Department of Fish and Wildlife. The director said the states will seek clarification of how the ESA will be applied through in-depth discussions with NMFS and the tribes.

"The ESA should be an even-handed law aimed at protecting stocks in trouble and not interfering with court-mandated fish allocation," Koenings said. "It should not be an allocation weapon."

Jim Greer, director of the Oregon Department of Fish and Wildlife, warned that NMFS' uneven administration of the ESA on the Columbia River could mean serious disruptions of responsible fisheries planned for the spring, summer and fall, when the bulk of coho and chinook salmon will be returning from the ocean.

Here's what has happened:

  • From 1988 to 1998, the states and tribes shared salmon fishing opportunities on the Columbia River using a management plan agreed to by both sides.

  • For annual spring fisheries, upper Columbia River spring chinook are protected by the ESA. Even inadvertent harvest is not allowed if it jeopardizes the survival and recovery of these fish.

  • Since the early 1990s, the states and tribes negotiated fisheries that protected ESA-listed salmon. NMFS used a consultative process known as "Section 7" of the ESA to review and approve both state and tribal fisheries.

  • Last fall, NMFS unexpectedly changed its position and asserted only the tribes could obtain ESA approval for its fisheries under the Section 7 process. State fisheries, NMFS asserted, must obtain a separate permit under ESA's Section 10. The Section 10 process is much more procedural and time-consuming.

  • Using Section 7, the tribes asked NMFS to approve upriver Indian fisheries that incidently take 9 percent of returning endangered fish. The states, under protest, applied for the Section 10 permit to approve fisheries that were designed to take less than 2 percent of returning endangered fish while harvesting healthy Willamette River hatchery chinook in the lower Columbia. In subsequent discussions, they even offered to take less than 1 percent of endangered fish. (In comparison, NMFS allows the Columbia hydropower system to kill approximately 22 percent of the returning endangered fish).

  • NMFS issued the Section 7 permit to the tribes on Feb. 29, allowing tribes to fish. NMFS added a condition to that permit saying the tribal and state fisheries combined could not take more than 9 percent of the endangered salmon. Since the tribal and state plans added up to 11 percent, this initial NMFS decision seemed to require both fisheries to lower their impacts on protected fish to achieve 9 percent.

  • NMFS issued the Section 10 permit to Washington and Oregon on March 15. During the delay caused by the separate processes mandated by NMFS, the states were forced to shut down a small commercial fishery that targeted a Willamette River hatchery chinook run. The states also closed their lower river recreational salmon fishery targeting on the Willamette River hatchery fish.

  • However, the permit allowed remaining state fisheries to use 0.5 percent of the total 9 percent impacts, thus allowing tribal fisheries to use 8.5 percent of the impacts. This severely constrains the ability of the states to allow spring and summer fisheries on various healthy runs, forcing them to choose between commercial and sport fishers.
"The fishing allocation issue between NMFS, the states and tribes is extremely important for future Columbia River fisheries management. We need to take the time to work this out right now," Greer said. "The process of harvest management allocations here on the Columbia could have further precedent in other waters of both states."

In contrast to the Columbia River where NMFS is using the ESA to allocate salmon, Koenings emphasized that WDFW and Puget Sound tribes have developed an effective co-management relationship that addresses salmon harvests.