And here is the attachment mentioned. Now the formatting is a bit rough and missing a couple paragraph headers but things like this I C&P only so no tidy up bit.

February 22, 2021

The Honorable Members of the Commission
Washington Department of Fish & Wildlife
600 Capitol Way N.
Olympia, WA 98501

RE: Notice of Breach of Settlement Agreement
The Twin Harbors Fish & Wildlife Advocacy ) is a WA based non-profit corporation with 501 (C)
(3) status issued by the IRS. The organization was formed to: Provide education, science, and
other efforts that encourage the public, regulatory agencies and private businesses to manage or
utilize fish, wildlife and other natural resources in a fashion that insures the sustainable of those
resources on into the future for the benefit of future generations.
The Department’s historical reluctance to follow transparency standards and
conduct its interactions with the public in an appropriate fashion on the Coast
The members of the Advocacy, along with family and neighbors, invested thousands of hours and
dollars over 3 decades trying to recover salmon runs in Grays Harbor and Willapa Bay. Those
activities included operation of volunteer hatchery programs, habitat restoration, and assisting
WDFW at its state operated hatcheries. The effort proved futile as salmon runs continued to decline
and fishing opportunities diminished.
In 2011, local citizens tried to figure out the problem to develop solutions. Instead of helping the
citizens, WDFW sought to block information from the public view. As a result, the first suit was
filed against WDFW for breach of the Public Records Act. A settlement was reached where the
public thought this issue was resolved. As you’ll read shortly, it wasn’t.
Review of the documents recovered found that WDFW was setting salmon seasons on the Coast
using Advisory Groups that met in secrecy with the understanding all participants could not speak
publicly about what went on behind closed doors.
Seasons set in Willapa Bay placed a harvest rate on
natural spawning Chinook in excess of 50%. Run
sizes continued to decline and escapement goals for
Chinook, Coho, and Chum were seldom reached in
Willapa Bay wherein the overwhelming share of the
harvest was provided to the commercial license holders.
The average percentage of the harvest in Willapa
from 1990-2009 for the commercial sector was 82%
for Chinook, 92% for Coho, and 98% for Chum. The recreational sector came in respectively at
18%, 8%, and 2%.1
1 Catch comparison commercial v sport 1990-2010 18 Oct 2011 kmh.xlsx
We could give them (commercials) every
fish that crosses the bar and it wouldn’t
be enough......They are simply trying to
perserve their way of life
WDFW Director Phil Anderson,
2013 settlement discussions
Page 2, Advocacy Notice of Breach of Settlement
The WDFW management philosophy that prioritized harvest over conservation and the ever-declining
runs reached the point where the coastal economy faced the economic threat of an endangered
species designation by the EPA for coastal fall Chinook. While WDFW managed Grays
Harbor for natural spawning, over in Willapa the Department “managed for hatchery fish”. Hatchery
operations in Willapa Bay and other functions of WDFW ignored the Hatchery Reform Policy,
Wild Fish Initiative, best available science, habitat functions and hydrology to the point the question
was asked “Is Willapa Bay in the state of Washington?” Since coastal fall Chinook found
along the Coast are considered jointly, WDFW management in Willapa Bay was threatening to
negatively impact the entire region in a fashion not seen since the “Spotted Owl Decision”.
In 2013, three local citizens challenged salmon seasons set in Willapa Bay and in Grays Harbor
arguing the secret process utilized by WDFW violated the Administrative Procedures Act (APA).
Again, a settlement was reached wherein the three plaintiffs would create a non-profit corporation
(Twin Harbors Fish & Wildlife Advocacy). The Department would seek an independent scientific
review of mortality rates of selective fishing with commercial gillnets and finally accept repeated
requests of members of the Commission to develop a salmon management policy for Willapa Bay.
Another outcome of this litigated step was development of a process wherein the public would be
notified of meetings of the Advisors and said meeting would be open to the public. An opportunity
for the general public to record their comments would be provided at the end of the meeting. At
that point the public believed the Department was adopting open meeting and transparency principals
when managing and setting seasons. Such was the case during the development and adoption
of the Willapa Policy and the two years that followed. By year three, Department staff and
Commission members turned over. WDFW subsequently began its return to the days of the past.
Willapa Bay Gillnetter’s Association challenges the Willapa Policy
The Willapa Bay Gillnetters Association (WBGA) quickly filed numerous litigations challenging
the Willapa Policy and the Advocacy intervened to stand up for the conservation standards set in
the policy. In essence, WBGA objected to the Commission’s passage of a policy containing specified
harvest rates, etc. that were followed by WDFW setting seasons that were influenced by the
conservation standards contained in the new policy. It further argued that the economic wellbeing
of the commercial fleet was on an equal par with conservation. The court soundly rejected the
arguments and dismissed the case on June 17, 2013.2
At that point, the Advocacy thought the conservation standards were safely enshrined by the Court.
We were mistaken. The ruling stated the commercials were not entitled to any certain level of
economic well being that would come at the expense of conservation. It didn’t say the Department
couldn’t by its own actions set seasons that granted the commercials priority over conservation and
the rest of the citizenry. Which is exactly what happened.
The Department’s use (or misuse) of the Fish & Wildlife Commission when setting
annual deviations to the Willapa Policy
2 Willapa Bay Gillnetters Association -v Washington Department of Fish & Wildlife (Thurston County No. 15-2-
02078-34
The Willapa Bay Salmon Management Policy was adopted by the Commission in 2015. The
Adaptive Management section of the policy states “The Commission will also track implementation
and results of the fishery management actions and artificial production programs in the
transition period, with annual reviews beginning in 2016 and a comprehensive review at the end
of the transition period (e.g., 2019). Fisheries pursuant to this Policy will be adaptive and adjustments
may be made. Department staff may implement actions necessary to manage adaptively to
achieve the objectives of this policy and shall coordinate with the Commission, as needed, in order
to implement corrective actions. “
Here’s the unforeseen problem that developed. The Department continued to harvest at a rate that
exceeded the harvest rates set forth in the Policy. Achievement of escapement goals was a failure.
Completing a comprehensive review of hatcheries didn’t occur. The list goes on and on. Did the
Department coordinate with the Commission, as needed, in order to implement corrective actions
to its problems and failures to restore natural spawners? The answer is not to our knowledge.
However, the Department did approach the Commission in 2018, 2019, 2020, and now again in
2021 to acquire additional “guidance” under the concept of adaptive management. The presentations
to the Commission were obviously designed to convince the members of the Commission
that harvest rates and the recreational sharing component were creating a major hardship on the
commercial sector. The selective use of data and the omissions of material facts in these presentations
are reflective of what would come from a proponent seeking to convince uniformed policy
makers to change or adopt rules, etc. The term “snooker” was raised repeatedly by members of the
public that were aware of the factual record in Willapa Bay.
As a result, the public and even members of the Commission were confused over the action the
Commission had actually taken. Regularly, the intention of the deviation passed (increasing commercial
harvest) was not reflected in the motions and comments from the Commissioners. As an
example, the first deviation which was famously dubbed a “pickle” sought to increase harvest by
the commercial sector by cutting back harvest from the recreational sector. Problem was the Commissioners
did not receive the actual facts in briefings from WDFW staff regarding the harvest by
each sector which is tied to the impacts on natural spawners. Instead of increasing commercial harvest
for the commercials, the oral amendment by the first deviation actually reduced the commercial
opportunity. Just one example of the Department failing to properly support the Commission.
The “Chum Chuck” litigation and the revised use of Willapa Bay Advisors
During the season underway in 2017, the WDFW returned to its past practices of setting seasons
behind closed doors. Rather than having conference calls with all the advisors when considering
emergency rule changes inseason, the Department set an emergency rule change after private conversations
with the commercial sector. The rule adopted allowed the commercial fleet to “chuck”
non-retainable Chum salmon overboard without placing them in the recovery box required in
selective fishing protocols. Once again, the Advocacy had to seek out assistance from the court.
Once again a settlement was reach and once again, WDFW failed to respect the intent and expressed
terms of the settlement.
During settlement discussions, the problems created by the recent deviations to the policy and the
question over whether or not members of the Commission would be provided adequate staff brief-
Page 3, Advocacy Notice of Breach of Settlement
ings in its upcoming 2018 review of the Policy came front and center in the minds of the members
of the Advocacy. Then, the problems with WDFW setting flawed emergency rules behind closed
doors was fully recognized.
These concerns were addressed in the settlement agreement as follows:
2. Revised Use of the Willapa Bay Salmon Advisory Group. WDFW agrees to modify the role of
the Willapa Bay Salmon Advisory Group (hereinafter the “Advisory Group”) as follows:
a. In addition to providing input on possible commercial and recreational salmon fisheries, the Advisory
Group will be tasked with providing recommendations to the WDFW Commission regarding
the Willapa Bay Salmon Management policy during the fall of 2018.
b. WDFW will seek recommendations from the Advisory Group regarding implementation of the
Policy regarding pre-season setting of fishing schedules, and in-season management actions (including
the promulgation of emergency regulations). The parties acknowledge that in-season
management sometimes needs to occur swiftly, and with short notice. The Department agrees
to use best efforts to convene the Advisor group as swiftly as possible after information becomes
available suggesting the need for in-season management actions. It will be the responsibility of
Advisors to react, as needed. The Department will not be responsible for the failure or inability
of Advisors to participate in scheduled meetings, including those called on short notice due to
emergent circumstances.
c. This revised role for the Advisory Group will be communicated to the Advisors as part of their
appointment letter. A copy of the letter is attached as Exhibit A.
The appointment letter to the Advisors (Exhibit A) stated:
Lastly, the Washington Fish and Wildlife Commission has directed the Department to conduct a
thorough review of the Willapa Bay Salmon Management Policy (C-3622), to be presented to the
commission in the fall of 2018. During a series of advisory meetings that will take place during the
fall of 2018, Willapa Bay advisors will be provided with review materials and be asked to provide
input as to format and relevant data to be included in the commission presentation.
Once again, WDFW did not honor the settlement agreement. First, it delayed the review scheduled
in 2018 on until 2020. Then, the Advocacy transmitted to the Commission a lengthy letter detailing
the debacle that WDFW created in meetings with the Advisors3. This communications explained
the hostile environment created by WDFW staff as non-commercial advisors were threatened
with “consequences” if they left their seat without permission. A college graduate interested
in habitat and conservation was told he was uneducated, didn’t know what he talking about and
letting him comment was a waste of the public’s time. When advisors tried to discuss habitat,
conservation and other subjects outlined in the Policy, staff stated “We aren’t going there” It was
clear the Department felt the role of the Advisors was limited to harvest issues and the Department
3 “Advocacy Comments.pdf” transmitted via email 10/09/20
Page 4, Advocacy Notice of Breach of Settlement
Page 5, Advocacy Notice of Breach of Settlement
had no intention to “.... conduct a thorough review of the Willapa Bay Salmon Management Policy
(C-3622)”.
The recent move to terminate the Willapa Bay and Grays Harbor Advisory Groups
When Willapa was on the agenda in a recent meeting of the Commission, Ron Warren was asked
what was going on with the advisors. He apparently explained that all of the advisors appointments
expired on Dec. 31, 2020 and the Advisory Group was being disbanded. Why? Mr. Warren
stated the advisors had gotten older and the Department wanted to increase the engagement with
the open public. This was the first the Advisors heard of this intention.
The Advocacy offers another rationale for this action. While the advisors have surely aged during
this nearly decade long effort to correct the mismanagement of the salmon in Twin Harbors, best
available science says Mr. Warren and other staffers did as well. Members of the Advocacy would
consider it disrespectful if not slanderous or discriminatory to make such a claim against him. We
also believe the real problem facing the Department is the fact that we’ve not only gotten older but
also wiser during this period.
As for this notion the Department is seeking enhanced public participation, since the 2013 settlement
all of the Advisory meetings were opened to the public and an opportunity for comment was
provided to all at the end of the meeting. Our interpretation of the rationale for this latest move is
the Department seeks to block experienced advisors from requesting data and information through
the advisor format which was helpful in all the public understanding the facts. Further, said advisors
and the public would then use this knowledge to offer comments to the Commission. By
disbanding the Advisor Group, the public will be limited to “dog and pony shows” wherein the
staff controls and limits in its sole discretion the information available to the public. A desire to
limit the public’s ability to communicate with the Commission and prevent Advisors from acting
as “fact checkers” seems to be the primary objective of this action by WDFW.
It is also noteworthy to point out what happened at the last meeting of the Advisory Group. Commercial
advisors expressed dissatisfaction that the other advisors would not endorse changes they
wanted which included:
• repealing the Policy entirely or, modifying it to eliminate:
• the recreational priority for Chinook
• spawner escapement goals for natural spawners
• all harvest rate caps
• the application of HSRG or other state standards to hatcheries in Willapa Bay
When it was clear the non-commercial advisors were unwilling to return to the days of “managing
for hatchery fish for commercial harvest”, the concept that dug the hole this deep in the first place.
Page 6, Advocacy Notice of Breach of Settlement
The commercial advisors then suggested elimination of the Advisory Group entirely. Recently,
the public and the Commission learned the Department apparently agreed to honor their request.
The role played by the members of the Commission
The Commission was established by a vote of the people and was provided millions of taxpayer
dollars in annual operating budget, scores of office buildings and thousands of employees. Additionally,
the Commission was granted the authority to delegate season setting and other functions
downward to the Director.
While the members of the Advocacy recognize and appreciate the challenges facing the members
of the Commission, the enacting legislation did not grant the Commission the ability to delegate its
responsibilities of oversight down to others. As the old saying goes, “the buck stops on your desk”.
We also believe the Department will continue failing to perform and our resources will continue to
decline unless intervention occurs. Without accountability, the public will get more of the same.
As for the Department seeking “guidances” from the Commission once again this year, the Advocacy
asks the following questions of the Members:
1. Do you know where the Smith Creek boat ramp is located?
2. Do you know where the dispersion line is that defines the changes in the water flow in
Willapa Bay?
3. Do you know the “carrying capacity” of the habitat in streams in the Willapa?
4. Where is Marine Area 2M, 2U, and 2T?
5. What are the capital improvements needed at each hatchery in Willapa?
6. What was the decline in natural spawning Chinook in the Naselle over the last 3 years?
7. What was the redd counts by stream for salmon species found in Willapa Bay?
The point is the Commission should be seeking guidance from the staff not the other way around.
With the huge number of issues and diverse situations in this state it is impossible for a Member to
have the kind of knowledge needed to provide this function and the Department is fully aware of
that fact. Why doesn’t the Department develop proposed guidance options and present them to the
Commission? We suggest the staff doesn’t want to be face an astonished local public who understands
the facts on the ground and will have to live with the results. So the Department tries to use
the old Flip Wilson routine “The devil (Commission) made me do it” as cover for its not-so secret
goals to increase harvest and avoid managing the resource for the future generations. The success
of the strategy is determined by the ability to control the data and limit the information presented to
the Commission. We state this with strong conviction because the public has repeatedly watched
staff successfully use this strategy to maneuver decisions it desires out of the Commission.
Request to each individual member of the Commission
As the Commission proceeds with considerations regarding the Willapa Bay Salmon Management
Policy, the Advocacy members submit a list of requests to each serving on the Commission as follows:
• If a WDFW presentation does not provide you with the information you need to make a
knowledgeable decision, delay voting until the Department takes care of the problem;
• If you don’t fully understand how passage would change WDFW future
actions (what they would do with it), vote no;
• If you can not clearly determine the ramifications or potential unintended consequences
of the future actions to be taken by WDFW, vote no again;
• Whether introduced by WDFW or by a fellow member of Commission, insist that the
proposal and any amendments to the proposal be published in entirety and made available
for public comment before a vote is taken.
Members of the Commission have recently inquired about the intent of the Policy. We again point
to the first paragraph that states: The objective of this policy is to achieve the conservation and
restoration of wild salmon in Willapa Bay and avoid ESA designation of any salmon species. That
threat existed in 2015 and due to actions or inactions of WDFW and the enabling of the Commission,
its even greater today.
The members of the Advocacy and our families and neighbors would never support a measure that
placed that kind of threat on those who live in the areas where the individual members of the Commission
reside. We simply ask for the same consideration in return.
The three members of the Advocacy are retired on fixed incomes. We surely hope this issue can
be resolved without further involvement of the courts.
We await your response.
Tim Hamilton Art Holman Ron Schweitzer
President Vice-President Secretary/Treasurer
cc: Director Kelly Susewind, WDFW
Ron Warren, WDFW
Joe Panesko, ATG
Joe Frawley, Esq.
WDFW Region 6 Staff
Chad Herring, WDFW