CHAPTER 10: LAWLESSNESS IN THE MANAGEMENT SALMON HARVEST
“Power tends to corrupt, and absolute power corrupts absolutely.” Lord Acton
While the courts have been willing to distort environmental laws to limit the use of federal land and water projects in the West, they have not been willing even to apply those laws in order to limit destructive mixed-stock salmon harvest practices. The failure of the judicial branch to redress violations of law in the harvest context is perhaps the greatest human failure in salmon recovery. If the same laws that restricted logging in the Pacific Northwest had been applied to salmon fishing, there would be a lot more salmon running in the rivers of the Pacific Northwest.
By the time the federal, state, and tribal fishery managers had gotten through the cases discussed in this chapter, their lawyers were advising them—and telling me privately—that there was nothing they couldn’t do, at least as long as we were the only people complaining about it.
Large numbers of endangered Snake River fall chinook are caught in a large number of commercial fisheries protected and supported by federal, state and tribal fishery managers. Even among those managers, however, there seems to be a consensus that harvest rates on endangered Snake River fall chinook salmon are too high. Independent scientists have prepared papers demonstrating that harvest rates on endangered Snake River fall chinook are significantly understated because they are based on questionable assumptions.
Yet the most recent biological opinion issued by the National Marine Fisheries Service authorizes an in-river harvest of ranging from 24.4% to 29.4%.1
The Idaho Department of Fish and Game reports that current guidelines permit a cumulative harvest rate for all fisheries on endangered fall chinook of 47-52%, a harvest rate they admit is “excessive”.2 The true harvest ratios are doubtless higher. Even the proposed Recovery Plan published by the National Marine Fisheries Service would permit continued commercial harvest of endangered Snake River fall chinook salmon at rates of around 50%.
In 1997, the Pacific Fishery Management Council finally trimmed ocean salmon harvest on account of listed Snake River stocks, admitting candidly that “[f]or the first time, impacts of Council-area fisheries on the endangered Snake River fall chinook stock have played a critical role in the season-setting process”.3 This, coming years after the listings, was no great victory for the salmon. The Council’s proposed regulations called for increased chinook harvests for the third year in a row—albeit to a level below that which had prevailed years ago.4
Total ocean harvest of endangered Snake River fall chinook salmon was expected to remain at 70% of 1988-1993 levels.5 From 1988 to 1993, the average harvest rate on endangered Snake River fall chinook salmon was 63%.6 Tribal harvest in 1996 took 367 chinook, leaving only about 600 to make it all the way back above Lower Granite Dam.7
Interestingly, some of the entities advocating measures to save endangered Snake River salmon will privately discuss "writing off" the fall chinook salmon, including the National Marine Fisheries Service and the State of Idaho. Yet the fall chinook apparently have the easiest time of any of the chinook navigating dams and reservoirs, and by 1996 were at the highest levels in nearly ten years, despite the highest official harvest rate of any of the endangered salmon species. “Writing off” the fall chinook would be a tragic mistake, because they may be a more viable salmon population in warmer, slower rivers.
There is a consensus among fishery managers that harvest rates on endangered Snake River spring/summer chinook salmon are not too high. As of 1996, the National Marine Fisheries Service had issued an “incidental take statement” that allows in-river harvest rates from 9.1 to 11.1 percent of the run.8 This, of course, is the amount of legal harvest in the river. There are many, many fisherman who are out on the river in the springtime. Many can't tell a chinook from a steelhead. Many of them, if they catch a spring chinook will keep it. There are occasional estimates of illegal harvest, but the legal harvests have not been limited because of total (legal and illegal) harvest impacts.
The endangered Snake River spring/summer chinook salmon are also caught in the ocean. NMFS’ official position is that “there is little evidence that [endangered spring/summer and sockeye salmon are] affected significantly in ocean fisheries”.9 This is largely because the fishery agencies do not collect the data that one would need in order to make any reasonable estimate of the harvest impacts.
One of the positive contributions of the conservation biologists’ Return to the River manifesto was a frank discussion of this problem. The Independent Science Group warned that the “impact of ocean fisheries on spring chinook salmon is uncertain due to an almost complete lack of information on stock composition of undersized chinook or chinook incidentally killed in the Pacific Ocean fisheries”.10 “It is therefore not inconsistent with available data”, they say, “to postulate that substantial numbers of immature spring chinook salmon of Columbia Basin origin could be killed each year in the Pacific Ocean fisheries”.11 I have spoken to a prominent fisheries scientist, who would only speak off the record, who is convinced that harvest rates on endangered Snake River spring chinook are very significantly understated. When I asked him whether he would be willing to prepare a scientific paper on this question for my clients, he refused. It would, he said, terminate his consulting career with the fisheries agencies.
The ISG also pointed out that NMFS estimates the catch of endangered spring/summer salmon through Coded Wire Tag recoveries in fish landed in selected ocean fisheries. They suggested that if one took account of the fish that were caught but not landed, it was possible that the additional “annual loss in adult equivalents to the Columbia River basin would be 1,500 to 3,000” stream-type fish.12
Some biologists now believe that it is possible that endangered Snake River spring/summer chinook are now turning south at the mouth of the Columbia, exposing them to fisheries (and warmer ocean conditions with increased predation) where they were previously not thought to exist.
As of 1997, the Pacific Fishery Management Council maintains that ocean harvest has a small effect on upriver spring chinook stocks, but candidly notes that its Salmon Technical Team still “has not undertaken a review or assessment of the abundance estimation methodologies for these stocks”.13
There are computer models using the available data on salmon harvest. Even though the data understate harvest impacts, the models readily predict positive effects of reducing harvest on populations of endangered species. During the Idaho Fish and Game case, we arranged for Dr. Anderson to come down to Portland with his laptop and a projector and use computer modeling to demonstrate the effect of harvest cuts. He pressed the buttons for a 25% harvest cut on fall chinook, and the population trends turned from down to up. But the harvest managers were not impressed. They continue to tell gullible journalists that the effect of stopping all fishing “would be very small and would not reduce the downward trend”.14
NMFS, “Biological Opinion on Impacts on Listed Snake River Salmon by Fisheries Conducted Pursuant to the 1996-98 Management Agreement for Upper Columbia River Fall Chinook”, July 31, 1996, at 14; see also Letter, R. Holt (NMFS) to M. Spear (USFWS), Sept. 23, 1996, at 3.
2 Letter, S. Huffaker (Chief, Bureau of Fisheries) to J. Blum (NMFS), Feb. 27, 1997, at 1.
3 PFMC, Council News, Vol. 21, No. 2, at 1 (April 8-11, 1997 Meeting Summary).
4 Id. at 4 (Chinook harvest, in numbers of salmon, was 31,700 for 1997; 12,600 for 1996; and 9,700 for 1995; harvest levels averaged 334,700 from 1976 to 1980).
6 NMFS, “Biological Opinion on Impacts on Listed Snake River Salmon by Fisheries Conducted Pursuant to the 1996-98 Management Agreement for Upper Columbia River Fall Chinook”, July 31, 1996, at 7.
7 B. Rudolph, “Fall Harvest Cuts Pay Small Dividend to Northwest Fishers”, Clearing Up, Dec. 16, 1996, at 7.
8 NMFS, “Biological Opinion on Impacts of the 1996-98 Management Agreement for upper Columbia River spring chinook, summer chinook and sockeye on listed Snake River salmon”, Feb. 16, 1996, at 8.
10 ISG, Return to the River 63.
12 ISG, Return to the River 365 (Pre-pub. ed. 1996)
13 PFMC, “Preseason Report I: Stock Abundance Analysis for 1997 Ocean Salmon Fisheries”, at II-15 (Feb. 1997).
14 Jim Coon, who works for the Pacific Fishery Management Council, quoted in B. Harden, A River Lost 219.
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