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Order on Sum Judg McKenzie Salmon Case_150313

McKenzie Flyfishers’ Statement on McKenzie Salmon Lawsuit Court Decision

On Friday, March 13, 2015, the federal district court in Eugene ruled on the McKenzie Flyfishers’ and Steamboaters’ (Plaintiffs) lawsuit against ODFW concerning management of hatchery Chinook salmon in the McKenzie River. The Court denied Plaintiffs’ motion for summary judgment and injunctive relief, finding that ODFW is protected from liability under the Endangered Species Act by a clause in a federal document that governs operation of the McKenzie Hatchery. The ruling allows ODFW to proceed, for now, with its planned release of 605,000 hatchery smolts, rather than the lower number sought by Plaintiffs. However, the Court acknowledged (as in the similar Sandy River case, where McKenzie Flyfishers was also a plaintiff) that interbreeding between straying hatchery salmon and wild salmon threatens the continued existence of the latter. Accordingly and very importantly, the Court ordered ODFW to consult with the National Marine Fisheries Service (NMFS), and within 90 days to come up with a deadline to reduce hatchery salmon straying to the level that NMFS had specified in 2008.

Plaintiffs claimed that ODFW is harming wild McKenzie River Chinook salmon by excessive release of hatchery Chinook salmon. Large numbers of hatchery salmon stray onto the McKenzie River’s natural spawning grounds, where they interbreed with wild salmon and reduce their productivity. Plaintiffs had filed suit in December 2013 against the Army Corps of Engineers, which owns the McKenzie Hatchery, and ODFW, which operates it. Plaintiffs maintained that Defendants were violating the Endangered Species Act by operating the hatchery for many years without the required federally-approved Hatchery Genetic Management Plan (HGMP), and by exceeding the federally required limit for straying hatchery salmon by at least 400% for more than a decade. Plaintiffs asked the Court to require the Corps, as the hatchery owner, to submit an HMGP to NMFS; and to order a large reduction in the release of hatchery salmon smolts into the McKenzie River until it is proven that straying is reduced to required levels.

In Sept. 2014 the Corps settled with Plaintiffs, agreeing to submit an HGMP within 45 days, which it subsequently did. The Corps also acknowledged that annual release of 360,000 hatchery smolts is sufficient to meet legitimate conservation goals in the McKenzie River, and agreed to fund and release no more than that number prior to HGMP approval. (For some historical context, the McKenzie Hatchery had released into the McKenzie River approximately 1.2 million smolts annually during 2001-2011; 1 million in 2012; 868,000 in 2013; and 854,000 in 2014. It originally planned to release 787,000 in 2015. After refusing to accept the terms of the settlement agreed to by Plaintiffs and the Corps, in October 2014 ODFW indicated in court filings that it then planned to release 605,000 smolts in 2015.)

In its ruling, the Court found that ODFW was shielded from liability for harm to wild salmon caused by its release of hatchery salmon, due to a provision in the 2008 Biological Opinion issued by NMFS. Interpretation of the wording of that section (called an Incidental Take Statement) had been a matter of contention between the parties. But the Court did not consider or rule on the contrasting biological arguments presented by each side to justify their proposed smolt release numbers, as that issue was rendered moot.

Significantly, the Court noted in its ruling that all parties “are in general agreement that a ten percent or less pHOS is an appropriate goal to avoid harm to the wild Chinook”. (pHOS means Percent Hatchery Origin Spawners, a measure of hatchery salmon straying.) Despite exceeding that goal for more than a decade, ODFW contended that there is no deadline for it to achieve the goal; a position that Plaintiffs argued was untenable. In agreeing with Plaintiffs, the court ruled that “a pHOS target of less than ten percent that is indefinite in terms of a time frame is too elusive to be effective as a proxy regarding harm to the wild Chinook…The defendants in this action need to understand that this may not be kicked down the road endlessly. Accordingly, the court intends to oversee this process to ensure that the target is met in a realistic time frame.” The Court stated that its ruling in favor of ODFW is “contingent upon defendants consulting with NMFS to establish a time frame for defendants to achieve a ten percent or less pHOS and submitting a proposal of the deadline to this court for approval. Defendants have ninety days to submit the proposal to the court.”

In conclusion, we are disappointed that the Court did not find ODFW liable for its actions in managing the McKenzie Hatchery, and did not order it to immediately reduce smolt releases to the level we believe is appropriate. But we are gratified that the Court acknowledged that excessive hatchery salmon straying harms wild fish and that reducing such straying to less than ten percent is required. We are very pleased that the Court has retained jurisdiction over the case and is taking action to ensure that exceeding that level does not continue indefinitely, by requiring ODFW to present a timetable that the Court determines is acceptable.