Well here is another legal battle shaping up and this time Eastern Washington on the Icicle. The thing is many pages long so if you want PM and I will send it I think it is online.

Jul 09, 2014
WILD FISH CONSERVANCY
PO Box 402 Duvall, WA 98019 • Tel 425-788-1167 • Fax 425-788-9634 •
info@wildfishconservancy.org

Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167
Brian Knutsen, Smith and Lowney, PLLC, 971-373-8692
Leavenworth Hatchery Violating Endangered Species Act
Wednesday July 9, 2014 - Today, Wild Fish Conservancy, a Washington-based conservation organization, sent a 60-day Notice of Intent to sue the United States Fish and Wildlife Service (FWS), the United States Bureau of Reclamation (BOR), and the Bonneville Power Administration (BPA) for violations of the Endangered Species Act (ESA) associated with the Leavenworth National Fish Hatchery.

The Hatchery harms and kills ESA-listed Upper Columbia River spring Chinook salmon and steelhead, and bull trout through a variety of mechanisms. This “take” of threatened and endangered species violates section 9 of the ESA. Indeed, the Hatchery has no ESA authorization whatsoever for the harm it causes to listed Chinook salmon and steelhead. The Hatchery is out of compliance with the incidental take statement authorizing harm to bull trout and causing more take of this species than permitted.

FWS, BOR and BPA are also in violation of section 7 of the ESA for failing to consult with the National Marine Fisheries Service on the effects of the Hatchery on Upper Columbia River spring Chinook salmon and steelhead and its critical habitat, and for failing to reinitiate consultation on the effects to bull trout. For nearly three-quarters of a century, the Hatchery has blocked over 25 miles of pristine habitat on Icicle Creek, the largest tributary to the Wenatchee River.

“Contrary to popular belief the Leavenworth National Fish Hatchery is not helping to recover wild fish. Rather, the Hatchery uses a non-native hatchery stock of salmon and research shows it has been harming wild chinook, steelhead, and bull trout for nearly 75 years and is now impeding their chances for recovery,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Over the past fifteen years we have worked with local citizens and representatives of state, federal, and tribal agencies to try to get the Leavenworth Hatchery to comply with state and federal law to protect and restore native fish species listed under the ESA and to restore the integrity of the Icicle Creek ecosystem. It is discouraging to realize that yet again the Hatchery blatantly disregards its legal obligations and the needs of the Icicle Creek ecosystem. The saddest part of this is the public is unknowingly paying for it.”

The Leavenworth National Hatchery was constructed between 1939 and 1941 near Leavenworth, WA and is located on the banks of Icicle Creek approximately three miles from the river’s confluence with the Wenatchee River. The Hatchery is operated by FWS and funded by BOR and BPA. The Hatchery has a long history of disregard for the wild salmonid populations in Icicle Creek and for its legal obligations under federal environmental laws. Despite repeated attempts, including litigation, the facility continues to be in violation of the ESA.

The group is represented by Smith and Lowney, PLLC, of Seattle.

AND MORE:


Dear Honorable Civil Servants:

This letter provides notice of Wild Fish Conservancy’s intent to sue the United States Fish and Wildlife Service, Daniel M. Ashe in his official capacity as the Director of the United States Fish and Wildlife Service and Dave Irving in his official capacity as the Leavenworth Fisheries Complex Manager (collectively, “FWS”), the United States Bureau of Reclamation and Lowell Pimley in his official capacity as the Acting Commissioner of the United States Bureau of Reclamation (collectively, “BOR”), and the Bonneville Power Administration and Elliot Mainzer in his official capacity as the Administrator and Chief Executive Officer of the Bonneville Power Administration (collectively, “BPA”) for violations of sections 7 and 9 of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1536, 1538, associated with operations and maintenance at and funding of the Leavenworth National Fish Hatchery (the “Hatchery”). This letter is provided pursuant to section 11(g) of the ESA, 16 U.S.C. § 1540(g).

The Hatchery has a long history of disregard for the wild salmonid populations in Icicle Creek and for its legal obligations under federal environmental laws. Individuals, organizations, and government entities have expended enormous efforts and resources during the last fifteen years seeking to lessen the unlawful harm caused by this facility and to bring it into compliance with its statutory responsibilities. These efforts have included extensive attempts at cooperation, including private funding for the removal of derelict Hatchery structures that blocked fish passage in the Icicle Creek. Litigation has also been employed to address the Hatchery’s unlawful conduct. Unfortunately, these

efforts have been unsuccessful in changing the Hatchery’s apparent contempt for its environmental and ecological obligations under the ESA.

The National Marine Fisheries Service (“NMFS”) issued a biological opinion (“BiOp”) consulting on the effects of the Hatchery in October 2003 (“NMFS 2003 BiOp”). That BiOp identified the Hatchery’s blockage of steelhead migration as a particular concern. NMFS 2003 BiOp, p. 4-25. NMFS did not render a jeopardy opinion on the effects of that barrier in the NMFS 2003 BiOp, but indicated its expectation, and included a requirement therefor, that fish passage be addressed and provided for through the Icicle Creek Restoration Project Environmental Impact Statement process that was ongoing at that time. Id. at pp. 4-25, 6-10. The NMFS 2003 BiOp further identified the lack of fish screens that comply with NMFS’ screening criteria at the Hatchery’s water intake structures as a particular concern and the incidental take statement required compliance with specified fish screening criteria. Id. at pp. 4-25 – 4-26, 6-7.
Remarkably, over ten years later, the Hatchery has not provided for the fish passage contemplated by the NMFS 2003 BiOp nor has it brought its water intake structures into compliance with NMFS’ screening criteria. Instead, the Hatchery continues to prioritize production of hatchery fish at the lowest cost possible while threatening the extirpation of native salmonids.

After many years of the Hatchery harming threatened bull trout without any ESA authorization whatsoever, Wild Fish Conservancy sued the Hatchery in 2005. That litigation resulted in FWS’ issuance of a BiOp in 2006, consulting on the harm the Hatchery inflicts on bull trout, which FWS voluntarily withdrew after Wild Fish Conservancy’s challenged that document. FWS issued a new BiOp in 2008, which the Ninth Circuit Court of Appeals found unlawful in a challenge brought by Wild Fish Conservancy. FWS issued another BiOp in 2011 (“FWS 2011 BiOp”), evaluating the effects of Hatchery operations on threatened bull trout and imposing various protective terms and conditions. FWS has identified Hatchery Structures 2 and 5 as a particular concern, noting the harm caused by the Hatchery’s blockage of bull trout migration for spawning and foraging. FWS 2011 BiOp, pp. 37-38, 45-46, 54-55, 67-68, 70-74, 84-85, 115, 128-29, 134. During its ESA consultation with FWS, the Hatchery represented that it would leave these two structures open except under five discrete conditions. Id. at pp. 8-11. Unfortunately, the Hatchery has not kept to this commitment but has instead lowered Structure 2 and thereby unlawfully harmed threatened bull trout.

WFC is absolutely out of control...Need we say more?

so they have proof that its the hatchery thats doing all the damage and none of it is the dams?

then i guess its problem solved, the fish will recover by next year, and we will all be able to harvest wild native fish instead of hatchery fish...

pay attention to these people, pay close attention to what they look like, someone WILL come across them some day... when that happens, pay attention to what they do, and if you can, take pictures of it... they themselves violate WDFW laws and act like they are superior anglers and it doesnt apply to them...

get em where it counts, make their points redundant, make their work worthless...

This is just like when they sued WDFW about not complying with the law and having permits. In this case, the hatchery apparently agreed to comply and then didn't. Do that and you paint a bullseye on your head with a sign "shoot here".

By not complying with the law you give WFC carte blanche to take action and to ignore other problems. That hatchery is not the only problem those fish face but it apparently has a set of conditions to meet and they didn't. You set the bar on the ground and somebody will step over it.

Perfectly legitimate suit.
Policy says "thou shall"... that means YOU WILL or be prepared for the consequences of non-compliance.

The bigger question is why WDFW and USFWS purposefully leave themselves so wide open.

I guess my question is just why in the hell do hatcheries be it state / fed / tribal keep violating protocols ? It is a open invitation to drag them into court you win and they pay or rather the tax payer does. As one who has sued them it is pretty simple BUT expensive & time consuming and one has to ask what part of government agencies ARE NOT above the law do they fail to grasp?

Might be that "we can't afford to comply" has been used more than once.

Same thing I was thinking. Their budget's been gutted every year for the last 5+ years by the legislature. They're probably overwhelmed at this point.

Speaking of budgets....there is a congressman from Arizona that introduced a bill that prohibits the USFWS from closing hatcheries or propagation programs without permission from Congress. Of course, the bill does not include any provisions for funding of operational costs.

It would be very Congress-like to pass a law prohibiting closing hatcheries while failing to fund the hatchery programs.

WDFW isn't the problem on this one, it's the two or three federal agencies that run the Leavenworth National Fish Hatchery. I again wonder aloud why the affected tribe(s) haven't used their power to get this fixed. I guarantee we will hear outrage from the Yakamas just as we did from PS tribes, yet the Yakamas dipnet/snag 20 feet from the illegal structure... it's not like they didn't know this would happen.

Fish on...

Todd

I'm pretty certain that the USFWS agrees that its hatchery intake should be properly screened and that the migration barrier should be removed. But with agency budget cuts that doesn't mean those actions will get funded. The lawsuit most likely won't result in a budget increase, but money will get transferred from another needed activity to fund the squeaky wheel of a lawsuit.

Leavenworth National Fish Hatchery was constructed around 1940 in response to the development of Grand Coulee Dam, before the Mitchell Act began providing funding for hatcheries to mitigate fisheries damaged by federal dams on the Columbia River. There were no standards for fish screening in 1940.

So why doesn't dam mitigation money fix all these hatchery flaws? It should be on them right?

Very true.

When Grand Coulee Dam was built on the Columbia River in the 1930s, salmon migration above the dam was brought to an abrupt halt. Due to the loss of hundreds of miles of salmon spawning habitat, the federal government built and began operating fish hatcheries to lend a helping hand to the salmon of the Columbia River system. Funded by the Bureau of Reclamation (BOR) and managed by the U.S. Fish & Wildlife Service (FWS), Leavenworth National Fish Hatchery (LNFH) is located in north central Washington State. More...


Copied from Leavenworth's own website.

JB,

The Mitchell Act and other funding streams cover the cost of ordinary hatchery O&M. Major renovations, upgrades, and correcting obsolete fish screens, or lack of screens, and barrier removal are a separate line item, for which only a small % of the budget is allocated. For all I know, the money to upgrade Leavenworth might already be in the que, but who knows how many budget years will go by before it moves to the front of the line?

Sg

Do we really want to support the idea that lack of money is sufficient excuse not to comply with the law? If so, the why not apply that to, say, DOT and culverts, BPA and spill or screening, Weyco or any logger and leave strips? This list is long. Why should I have to buy a hunting or fishing license; it's too expensive!

If WDFW or USFWS or any government entity is going to require compliance with environmental rules then they need to lead the way. Not in compliance then shut it down. Better make sure, though, that you can prove you actually asked for the money and included the consequences of non-compliance in the request.

its a walk off