On March 26, 2014, the U.S. District Court for the Western District of Washington found that federal agencies violated the National Environmental Policy Act (“NEPA”) when they failed to adequately consider the impact of the release of hatchery fish on naturally spawning fish populations.
Previously, the Elwha River was one of the most productive fish streams in the Northwest, producing nearly 400,000 spawning fish annually. However, after the Elwha and Glines Canyon Dams were constructed, without fish passage structures, there was a decline to fewer than 3,000 naturally spawning fish. As part of the Elwha River Restoration the federal government agreed to remove both dams. (For more information on the Elwha River Restoration, click here.)
The dam removals required the preparation of certain environmental documents, including an Environmental Impact Statement (“EIS”), to determine the environmental effects of the project. The EIS determined that the project would negatively impact fish populations and suggested that hatchery support would be needed to ensure the protection of fish stocks.
Based on the EIS, the federal government released an Environmental Assessment (“EA”). The EA proposed releasing large quantities hatchery raised steelhead trout and coho salmon to supplement the fish population. However, the large release would ensure that the majority of fish that would return to spawn would be hatchery fish.
Four fish conservancy groups filed suit against five federal agencies, seeking declaratory and injunctive relief. The plaintiffs include the Federation of Fly Fishers Steelhead Committee, the Wild Fish Conservancy, the Wild Salmon Rivers, and the Wild Steelhead Coalition. The defendants include the NOAA Fisheries Service, the National Park Service, the United States Department of Commerce, the United States Department of the Interior, and the United States Fish and Wildlife Service.
The court found that the agencies’ proposed quantities of hatchery fish were “arbitrary” and that the court found it “suspect” that the agencies did not consider smaller releases of hatchery fish. The court found that the EA was inadequate and granted summary judgment to the plaintiffs on the issue. Because of the deficiency of the EA, the court ordered the parties to meet and confer regarding the plaintiffs’ proposed release of a smaller number of hatchery fish.
The Lower Elwha Klallam Tribe was initially named as a defendant, but the court dismissed the Tribe from the case, based on a lack of subject matter jurisdiction. The plaintiffs’ have stated that they support the Tribe’s right to harvest the coho salmon and steelhead trout. Additionally, the court found that decreasing the proposed releases of hatchery fish would not impact Treaty fishing rights, because there is a current moratorium on fishing, lasting through 2018 and after 2018, the Tribe agreed to base its catch on the number of returning fish. The initial Hatchery and Genetic Management Plan was developed collaboratively with the Tribe. However, to ensure tribal interests are represented, the parties are obliged to consult with the Tribe as they meet and confer regarding the amount of fish to be released and as they draft new portions of the EA.
The cross-motions for summary judgment and the court order can be found here.
Amber Penn-Roco's practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials. Amber is an enrolled member of the Chehalis Tribe. She can be reached at (206) 713-0400 or amber@galandabroadman.com.
