For those following Willapa this is interesting. Seems the rule making process was a little flawed.

Twin Harbors Fish & Wildlife Advocacy

October 18, 2017

To: WDFW Director Jim Unsworth
Cc: Select WDFW Staff
B cc: Interested Parties
The Twin Harbors Fish &Wildlife Advocacy (Advocacy) is a WA non-profit corporation holding a 501 (c) (3) status issued by the IRS. The purpose of the Advocacy is 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 manner that insures the sustainability of those resources on into the future for the benefit of future generations."
The Advocacy filed a petition in Thurston County Superior Court today challenging a recent decision by WDFW to impose an emergency rule to the commercial fishing season underway in Willapa Bay. The petition is attached in PDF format.
The emergency rule passed by the Department on September 29, 2017 effectively suspended the requirement that Chum salmon encountered by a commercial fisher in its net and brought aboard did not have to be placed into a recovery box prior to release into the bay. The mortality rate of 59% for those fish treated in the recovery box was left unchanged after the requirement for revival was eliminated. This factor lead the emergency rule to quickly be referred by local fishers as the "Chum Chuck."
When passing the emergency rule, the advisors and members of the public involved in fisheries management with the Department were "blindsided" by the Department's action. The historical use of conference calls with advisory groups and emails to interested party lists used in the past to provide input prior to a rule change decision by the Department were not utilized.

The Department stated the reason for the emergency rule was "This emergency rule is needed to lift the restriction that chum salmon must be placed in an operating recovery box prior to being released into the bay/river. The recovery box is prioritized for unmarked Chinook and steelhead encounters. The projected forecast of Chum in Willapa Bay is likely to lead to densities occurring in the recovery box that might be detrimental to the recovery of the prioritized species. There is insufficient time to adopt permanent rules."

The petition filed by the Advocacy raises four issues. First, the Department did not have any evidence or analysis known to the Advocacy that showed the projected forecast would lead to higher than expected densities in the recovery box. The weekly season progress reports on encounters and landings in the 2017 season circulated by the Department showed the opposite. Chinook, Coho, and Chum presence in the bay were well below the preseason forecast. Onboard observer reports from WDFW staff showed no instances, either before or after the passage of the emergency rule, wherein the recovery boxes were facing a density problem. Therefore, the Advocacy alleges the decision by the Department was arbitrary and capricious and therefore, contrary to the provisions of the Administrative Procedure Act (APA).

Secondly, the mortality rate used by the Department in its modeling when setting the original season was 59% with a gillnet and 34% for a tangle net. The mortality rates were reliant upon the requirement in the rule wherein all Chum encountered by either net would be placed in the recovery box prior to release back to the water. After the Department passed the rule eliminating the requirement Chum be placed into a recovery box, WDFW staff confirmed it continued to use the same mortality rate for those Chum released even though the recovery box requirement had been intentionally eliminated by passage of the emergency rule. The Advocacy alleges it is arbitrary and capricious for the Department to claim the mortality rate is the same for Chum whether revived in a recovery box or simply chucked overboard.

Thirdly, the APA specially limits the use of an emergency rule to those instances wherein "immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest" As referenced earlier, the Department had no reasonably reliable information or data to conclude an emergency of this nature existed. Having commercial fishers "chuck" stressed Chum overboard without time in the recovery box increases the number of dead Chum in the water. The Advocacy contests the notion that killing more Chum in this manner provides value to the health, safety, or general welfare of the public. The Advocacy therefore alleges the use of an emergency rule in this case is also contrary to the provisions of the APA.

Finally, the Advocacy alleges WDFW does not have the legislative authority to decide which species to "prioritize" and which species to over harvest in order to allow additional harvest opportunities. WDFW's mandate is to first provide for conservation of all species and, where consistent with that goal, to allow commercial and recreational salmon fishing. WDFW exceeded its legislative authority and acted in a arbitrary and capricious fashion by prioritizing other salmon species over the survival of Chum salmon.

In closing, the members of the Advocacy have always sought to find means of participation in the public process that avoid the need to seek intervention by the courts. In this case, no other avenues could be found.


Twin Harbors Fish & Wildlife Advocacy
Dazed and confused.............the fog is closing in