One thing is for sure, there is no shortage of retards on this one...

retard sandwiches, all around!!!

And this is why I chimed in on this thread in the first place; laying it on only one agency without the facts is premature.

And while I understand the concept that at some point a lawsuit may be necessary I am also a believer in progressive steps. What actions, if any, has WFC taken to elevate this matter either to the State or Feds prior to actually filing suit? If they have sat on their hands for a number of years and then file suit (shortly before this year's production is ready for release) then they, too, are a part of the problem.

WDFW is the one who is supposed to have the permit...they are the one you have to sue if you want to make them get it.

They didn't "sit on their hands"...they settled out of court with WDFW when they sued them for this ten years ago, and said they would give them ten years to get it done before they'd sue them again.

The ten years are up.

When should they have sued them?

Fish on...

Todd

And I am back to the question of what has occurred during that ten years , if anything, and which agency currently has the ball in their court? If by chance WDFW has submitted the permit application and NOAA/NMFS has been sitting on it the scenario before the judge might be different than as described.

No, it won't...they have to have a permit, and they don't have one. If NOAA-F has been sitting on the application then WDFW needed to sue them to make them act upon it...that is their job.

WDFW is not excused for not having the required permit for the last 12 years if, hypothetically, NOAA-F has been sitting on it. NOAA-F has a statutory timeline they have to follow, and if they don't then it is WDFW's job to hold them to it, in court if necessary.

Regardless...it is not the WFC's fault in any way, in any scenario, ever, that WDFW has not obtained its permits.

Fish on ...

Todd

If WDFW had submitted all their permit apps and had all their ducks in a row, wouldn't it make sense for WDFW to simply bring NOAA into the lawsuit? That would certainly press NOAA to act, right?

I would think that if WDFW has done all it was supposed to do (besides demanding that NOAA-F do their legal duty, too) then yes, WDFW should absolutely try to get NOAA-F into the fray to explain why they have sat upon it.

My fear, as I stated above, is that neither WDFW, NOAA-F, nor the PS tribes wanted the permit application process to proceed in the manner it is supposed to...because all three feel that the programs will not be certified ESA-compliant, and would rather have gone along operating illegally rather than making them legal.

Fish on...

Todd

Lemme add some context and perspective.

WDFW is NOT at fault here. NMFS is. WDFW submitted everything they were supposed to seven years ago. NMFS sat on it. Why did they sit on it? NMFS has bigger things to deal with. Like getting ESA compliance for the Columbia River dams. And hundreds of hatchery programs in the Columbia Basin and on the Olympic Pen. Indeed, there are lots of ESA issues all around the PNW, and not alot of NMFS staff to deal with them. NMFS has budget cuts, just like every other Federal agency (remember the Sequester?).

Relativily speaking, Chambers Creek steelhead program is small potatos. Really small potatos. Plus nobody was beating on NMFS doors to complete consultation. But now they are. WDFW is caught in the middle. They are on the hook for not having completed the permitting process, not NMFS. But WDFW has done everything they've been asked to do. In my view, that is their defense in court. They've done what they are required to do by law. They cannot unilaterally determine that Chambers Creek steelhead adversely affect wild PS steelhead. Only NMFS can do that. And NMFS has NOT made that determination. So, at this point, nobody can say whether the stocking program has any effect on ESA listed species (except NMFS). Even the WFS cannot say that with any scientific authority. They are only guessing too.

As such, I'm puzzled by the reaction from WDFW. They are presuming that Chambers CReek steelhead have an adverse impact, so they are not going to release them. Seems like they're surrendering before the battle even begins.

Any idea of what WDFW would have to do to get the hatchery programs ESA compliant?

Inexact chronology:

2004, WT (now WFC) settles with WDFW over the hatchery permits (HGMPs) due to the chinook ESA listing.

WDFW drafts HGMPs and sends them to NMFS for review and hopefully approval.

NMFS sends the drafts back to WDFW with notes regarding deficiencies.

WDFW takes about a 40% whack to its budget, losing some staff and even reducing some hatchery production. (some of those lost staff now work at NMFS doing ESA consultations)

Hatchery HGMPs sit on back burner and eventually just fall off the stove entirely.

2014, WFC files notice of intent to sue, and then sues because HGMPs that should have been filed shortly after 1998 and 2007 have never been completed.

WDFW has 2 staff people for all ESA coordination work statewide, and they are busy just handling the day to day routine ESA activities.

Cohoangler,

I too am puzzled why WDFW is surrendering before any allegation is proven. The burden is on WFC to prove that WDFW doesn't have the HGMPs (it doesn't) and that HGMPs would conclude significant harm to wild chinook and wild steelhead, a significantly higher bar.

Sg

I think those are two separate issues...first they are in non-compliance if they do not have federally approved genetic management plans...period. The bar to prove this one is laying on the floor...barely have to step to get over it.

Second, once the plans are approved, then if someone wanted to challenge them as insufficient the burden of proof would be on them (the WFC, presumably) to show that the plans are inconsistent with recovery under the ESA...a very high bar to prove.

The day that PS Chinook were listed and there were not ESA approved plans in hand WDFW was in noncompliance...and every fish they release is in violation of the ESA. (Well, having the plans in a reasonable time, at least).

I suspect that what the WFC would love to do is to have federally approved HGMPs in place, and then sue everyone who came up with and/or approved them, and try to have the entire operation scrapped...but they can't do that until there are approved HGMPs.

I also don't think that playing "hide the HGMP" from the WFC is entirely on accident, either...as long as they weren't being sued the last thing they want is to have their HGMPs up for review by the federal courts.

WFC has forced their hand (after many years) and now it's either get the plans and open them up to scrutiny, or get shut down for not having the plans at all. Either way it is a tough position for WDFW to be in.

Usually sportfishermen are quick to claim that WDFW is violating about six thousand laws at a time every time they do something...here is a situation where they actually are and sportfishermen don't seem to mind one bit, and in fact are upset with what appears to be the only entity right now interested in actually having federally approved hatchery genentic management plans, if only so they can sue over them.

Fish on...

Todd

Todd,
Entire operation meaning close all hatcheries?
If so, how would this apply to tribal hatcheries?
SF

Not sure if it would, or would not...the State's genetic management plans wouldn't cover those hatcheries, either way. (I think).

Fish on...

Todd

Regardless of the issue having a divided sportsman camp is bad in the long term . If you look at hunting as an example the archery guys would not accept the cross bow hunters and lost opportunity consistently across he US to the rifle hunters. The division between the fly, gear and wild fish camps only benefits the tribes and commercials in the long term. The public in General will side with the wild fish just based on emotional appeal. We need to find a way to live in one big tent to effectively hold our ground against the other side.

Based on my understanding of the law, if WDFW has not gotten a permit, even if they applied, then they have *not* done everything they were asked to do.

That's like me applying for a drivers license, driving before I receive it, and claiming I didn't do anything wrong for driving without a license.

I agree with that, and I think that all sportfishermen should agree that if we are going to have hatchery programs that they should be in full compliance with the ESA.

Besides being the legal and ethical thing to do, it also would insulate the hatchery programs from challenges by those who would seek to eradicate them...and if they are in compliance with the ESA then there would be no real reason to even want to get rid of them.

Asking WDFW, NOAA-F, the tribes, or the WFC to just ignore the fact that there are no permits for the operation of the programs right now is just asking for anyone to challenge them.

Fish on...

Todd

There has been a lot of discussion here about when something happened, who did it?, who didn’t do it?, who’s responsible, etc. Some of the information provided has been accurate as far as dates. Some has not. To try to put things in perspective, I will try here to provide all the dates of actions or inactions about hatchery permits in Puget Sound of which I am aware. Hold on folks, the action you're going to see will be amazing!

1999 - Puget Sound Chinook listed as threatened under the ESA

1999 - Puget Sound Tribes through the Bureau of Indian Affairs provide NMFS with a Biological Assessment of their hatchery programs and begin Section 7 consultation

2002 - Washington Trout and other plaintiffs sue WDFW claiming that operations of certain WDFW Puget Sound Chinook hatcheries violated the ESA

2002 – WDFW and Tribes provide NMFS with a hatchery resource management plan (RMP) for Puget Sound Chinook hatcheries along with hatchery and genetic management plans (HGMP’s) for each program

2003 - Washington Trout filed a Complaint against WDFW claiming that operations of certain WDFW Puget Sound Coho and Steelhead hatcheries violated the ESA

2003 – WDFW and Tribes provide NMFS with a hatchery RMP for non-chinook hatchery programs along with HGMP’s for each program

2003 – NMFS begins draft Environment Impact Statement (EIS) to guide review of RMP’s and HGMP’s. EIS is to be completed by 2005.

2004 – NMFS files notice of intent to prepare a Puget Sound hatchery EIS in the Federal Register

2007 – Puget Sound steelhead listed as threatened under the ESA

2008 – WDFW Commission adopts statewide steelhead management plan that addresses natural production, fishery management and artificial production among other things. Requires the development of regional management plans with tribal co-managers.

2009 – WDFW Commission adopts Hatchery and Fishery Reform Policy. Requires hatchery programs to meet HSRG broodstock management standards by 2015, develop wild salmonid management zones and watershed management plans to meet conservation and harvest goals at the ESU and watershed levels.

2011 – NMFS again files notice of intent to prepare a Puget Sound hatchery EIS in the Federal Register. EIS to be completed by 2013.

Time Passes

Lawsuits are filed

To date as of April 2014 – No comments from NMFS on EA provided by Tribes in 1999, RMP and HGMP’s provided in 2002 and 2003. NMFS EIS that was going to be developed in 2004 and 2011 to guide review of Puget Sound hatchery programs is not complete.

April 2014 – WDFW director blames NMFS, saying WDFW provide them the information in 2005 (actually provided in 2003). A day or so later, WDFW Fish Program Manager says that on or about April 10th WDFW provided NMFS with updated HGMP’s for 6 of the 7 WDFW steelhead programs. At this moment I cannot say if NMFS has received an updated HGMP for Marblemount hatchery on the Skagit River (the largest steelhead program in Puget Sound?)

So what happened? Who is to blame? Feel free to make the call.

In summary:

1) NMFS has not responded to program evaluations beginning in 1999, and following in 2002 and 2003. NMFS has not completed the EIS that was going to guide hatchery reviews even after starting in 2003 and re-starting in 2011.

2) What is the most definitive thing you can find that NMFS has to say about hatchery programs 15 years after listing Puget Sound Chinook and 7 years after listing Puget Sound steelhead? Well here it is:

“Based on the current scientific information, NOAA Fisheries believes that artificial breeding and rearing of salmon and steelhead is likely to result in some degree of genetic change and fitness reduction in hatchery fish and their progeny when they interbreed with fish from natural populations. Hatchery best management practices harmonize conservation goals with the implementation of treaty Indian fishing rights and other applicable laws and policies.”

3) On WDFW’s side, (in my opinion) the RMP and HGMP’s provided to NMFS early in the process were nothing more than a description of how the programs currently operated and really did not reflect any effort to modify hatchery programs to reduce risks to listed population. The steelhead HGMP’s that WDFW provided NMFS just a few days ago, probably finally reflect the changes that they made in response to the two commission policies identified above. Under the commission directions they have one year to complete watershed management plans with tribal co-managers to meet conservation and harvest goals and to meet HSRG broodstock management standards.

Personally, given the break-neck speed that things have been accomplished since 1999, I won’t hold my breath for anybody to get it together.

A lack of NEPA documentation through EAs or EISs does not put programs in violation of the ESA. WDFW has to actually be in violation of the ESA in order for them to violate ESA regulation. Can you suggest a way that their programs are in violation? Most people cannot. As mentioned several times before, WDFW did everything necessary required by the federal government. They follow their HGMPs per HSRG recommendations and guidelines and in most cases, the early steelhead programs show surprisingly low rates of introgression. In some systems, their is hardly any indication of introgression, exceeding PNI guidelines for listed stocks several-fold.

Why then is WDFW running scared? They simply didn't want to enter into litigation, although this is presently not an option for them at this point. Their initial thoughts were to payoff WFC and lose the million or so dollars invested in the Chambers steelhead to avoid going to court. As of right now, they've done both but will still go to court unless they settle by paying a inordinate amount of money for WFC lawyers.

Accepting what OncyT has provided as being reasonably accurate then I will opine that this tidbit is the critical no-go factor:

"1) NMFS has not responded to program evaluations beginning in 1999, and following in 2002 and 2003. NMFS has not completed the EIS that was going to guide hatchery reviews even after starting in 2003 and re-starting in 2011."

I don't care how great or crappy WDFW's submittals may have been - when the governing agency has failed to establish the criteria by which reviews will be conducted they leave WDFW in a no win position.

I think WFC picked on the wrong folks on this one.....