PORTLAND– The states of Washington and Oregon plan to file papers in federal court here today in an attempt to prevent the federal government from using endangered species protection provisions to allocate Columbia River fish between tribal and non-tribal fishers.
The two states are seeking an injunction from U.S. District Court Judge Malcolm Marsh to bar the U.S. Secretary of Commerce — who directs activities of the National Marine Fisheries Service (NMFS) — from using incidental-take provisions of the federal Endangered Species Act (ESA) as a tool to divide fishing opportunity between the states and Indian tribes.
The Washington Department of Fish and Wildlife (WDFW) and the Oregon Department of Fish and Wildlife (ODFW) contend that state and tribal fish managers must be allowed to determine how ESA harvest provisions, developed to protect dwindling fish stocks, should be divided between tribal and non-tribal fishers.
The states believe that the authority of NMFS should be limited to determining the levels of protection for ESA-listed fish when conducting fisheries on other healthy fish stocks.
"Our concern is ensuring wild fish are protected before we set fisheries and that the federal government role is clear in establishing that protection standard for fish listed under the ESA," said Jim Greer, director of ODFW. "The lawsuit is not about achieving a higher level of fishing but simply a fair way of allocating what fishing does occur."
In recent months, NMFS applied separate procedural requirements of the ESA to the tribes and the states, as each sought permission to conduct spring salmon fisheries on the Columbia River. This action resulted in a delay that forced Washington and Oregon to close all recreational and commercial non-tribal salmon fisheries in the mainstem Columbia River last March. Those closures remain in effect.
NMFS ruled that tribal and state fishers together could take no more than 9 percent of endangered upper Columbia River spring chinook incidentally in the course of winter and spring fisheries. The NMFS permit allowed the tribes to use 8.5 percent of that impact, and the states were allowed 0.5 percent.
The two state agencies are taking today's legal step after federal officials failed to provide the states with assurance that they would not repeat their spring action for the upcoming fall fisheries.
With fall Columbia River fisheries scheduled to open in early August, and little progress made in resolving the issue, the states decided to proceed with legal action.
"The incidental-take provisions drive harvest opportunity," said Larry Peck, deputy director of the Washington Department of Fish and Wildlife. "We feel that this provision of the ESA should be placed in the hands of state and tribal managers to determine the most appropriate division of the incidental take."