Hoopa Valley Tribe warns of lawsuit over salmon fishing rules
focus on Klamath and Rogue fishery

by Will Houston, Eureka Times Standard July 19, 2018

The Hoopa Valley Tribe notified federal agencies Wednesday of its intent to file a lawsuit claiming the agencies failed to follow their own protocols that are meant to protect Endangered Species Act-listed coho salmon when they approved this year’s salmon fishing regulations.

“Whether it’s in the ocean or in the river, we’re going to hold the federal agencies accountable,” Hoopa Valley Fisheries Director Mike Orcutt said Wednesday. “If it’s affecting these species that are [on] the brink of being extirpated, then we’re concerned about it and I think you need to reconsult, you need to have dialogue directly with the tribe so we understand the overall effects that it’s going to have on the fish that we’re dependent upon.”

The tribe claims the Pacific Fishery Management Council — which makes recommendations to federal agencies on West Coast fishing rules and catch limits — deviated from historical precedent this year in how it calculates the amount of salmon that are allowed to be harvested and also how that harvest affects species listed under the Endangered Species Act, specifically coho salmon from the Rogue and Klamath rivers.

While coho salmon are a protected species under the act, the federal government allows a certain amount of them to be killed incidentally.

The Hoopa Valley Tribe’s attorney Thomas Schlosser told the Times-Standard that a 1999 biological opinion by the National Marine Fisheries Service allows for only 13 percent of returning coho salmon from the Klamath and Rogue rivers to be killed, which includes deaths caused by fish harvesting.

Back in March, the Pacific Fishery Management Council released a preseason report that determined its proposed fishing regulations would cause up to 12.9 percent of coho salmon would be killed if it allowed up to 9 percent of returning Chinook salmon to be harvested.

The tribe claims in its notice that after seeing these numbers, the council’s salmon technical team made a “sudden change” to its calculation methods. This produced more favorable numbers in an April report, with the number of Chinook salmon being harvested increasing to 11 percent and the number of coho salmon being killed dropping to only 5.5 percent.

The tribe argues that had the council used its original calculation method and allowed for 11 percent of Chinook salmon to be harvested, the number of coho salmon that would killed would be “in excess” of what’s allowed.

But the alleged violation of the Endangered Species Act is not in the numbers themselves, but rather because the agencies didn’t follow protocol when it decided to alter its calculation methods.

Schlosser said the 1999 biological opinion requires the National Marine Fisheries Service and Pacific Fishery Management Council to consult with one another if new information is made available about the potential impacts to these listed coho salmon.

Schlosser said the council’s salmon technical team might have been right to change the calculation method, but because it was new information, it required reconsultation under the protocol the National Marine Fisheries Services and the council operates under.

The tribe is calling on the National Marine Fisheries Service, the U.S. Department of Commerce and the council to rescind the approval of these fishing limits and instead adopt catch limits using the same methods used in the past — which would mean a lower harvest than is already allowed.

Salmon fishing in local ocean water began in May. The National Marine Fisheries Service and Department of Commerce declined to comment.

Contacted by the Times-Standard on Wednesday, Pacific Fishery Management Council Executive Director Chuck Tracy said it was the first he had heard about the tribe’s intent to file litigation.

Tracy said the council itself technically cannot be sued because it is managed under the National Marine Fisheries Service. Schlosser said this might be “wishful thinking” on Tracy’s part.

Tracy and other council staff did not provide further comment regarding the tribe’s claims.

The Endangered Species Act requires a 60-day notice to be given to an agency accused of violating the Endangered Species Act before a lawsuit can be filed.

Will Houston can be reached at 707-441-0504.

====================================================

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml