FNW files motion for summary judgment

Today, FNW filed a motion for summary judgment, putting us in the final stretch for our second lawsuit. The attorneys for NMFS will now file a cross-motion. Below I’ve included the scheduling order issued by the court the DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE. It shows the dates that the various motions and responses will be filed. Briefing will be done on May 20th. We don’t know if the court will order oral argument after that or when the court will issue a decision, but our attorneys anticipate fairly swift action given the nature of the violations.

Plaintiff’s motion for summary judgment
shall be filed by March 25, 2022

Defendants’ response to Plaintiff’s motion
for summary judgment shall be filed by April 22, 2022

Defendants’ motion for summary judgment
shall be filed by April 22, 2022

Plaintiff’s response to Defendants’ motion
for summary judgment shall be filed by May 6, 2022

Plaintiff’s Reply in support of its motion for
summary judgment shall be filed by May 6, 2022

Defendants’ Reply in support of their motion
for summary judgment shall be filed by 20 May 22

In the motion, FNW spells out how NMFS, by its actions, is knowingly putting the very survival of Puget Sound Chinook in question. The following is a summary:

Puget Sound Chinook salmon, are listed as threatened under the ESA. Despite being listed, many populations are routinely below the critical escapement threshold, which is the level at which the population is exposed to a heightened risk of extinction. In order to address recovery, NMFS has defined maximum harvest rates and acknowledged that all available science requires that hatcheries and harvest be managed to minimize the risks posed to listed salmon. The Puget Sound Salmon Management Plan (“PSSMP”) includes basic and critical management principles, which were reduced to Court order in U.S. v. Washington. These basic management principles, such as determining how many harvestable fish even exist each year as a prerequisite to setting salmon seasons, were and are intended to preserve Washington’s salmon and ensure harvest is not a factor preventing recovery. All of that is being ignored. Indeed, the facts and the record demonstrate that NMFS often ignores science and the law in pursuit of non-selective harvest. The PSSMP’s provisions are consistently ignored, and NMFS makes no attempt to ensure the resource management plans it approves comply with the court orders in U.S. v. Washington despite a clear legal requirement to do so.

With its 2021 Biological Opinion (BiOp), NMFS approved harvest, using non-selective methods, which results in exceedances of the “maximum” harvest rate by as much as 221 percent. Despite undisputed scientific evidence indicating that hatchery fish must be managed to be a small proportion of the fish spawning in the wild, ideally less than 10 percent but no more than 30 percent, NMFS approves stray rates (the proportion of hatchery fish spawning in the wild) of over 95 percent and makes no effort to encourage or require the use of selective harvest to manage stray rates.

Incredibly, because the scientifically defensible measures are not convenient for the approved non-selective harvest levels, NMFS goes so far as to support the extinction of some natural origin populations of Puget Sound Chinook. In some instances NMFS does this by ignoring the distinction between natural origin chinook and hatchery origin chinook when it suits their needs, and yet they maintain the distinction in other instances. This is accomplished by arbitrarily combining the two populations, native and hatchery, in order to artificially boost the numbers of returning chinook (referred to as escapement), and serves to justify certain non-selective harvests that otherwise would not be scientifically defensible. This arbitrary alteration of methods and standards by NMFS makes the actions of WDFW and the Treaty Tribes hardly defensible when large swaths of Puget Sound have been completely closed to mark-selective fishing, or severely restricted, in order to “protect” unmarked natural origin chinook. In these instances, fishermen have been told the mortality rates associated with releasing unmarked natural origin chinook put those stocks at risk of recovery. Consequently, many if not all recreational fisheries in Puget Sound have been severely curtailed, especially in recent years. There is no clearer example of this than the Stillaguamish where many Puget Sound fisheries have been shut down in order to conserve not only native fish but hatchery fish now re-classified as native. So which is it NMFS, are we managing for natural origin (native) fish, or are we managing for native and hatchery fish as one unit? Here it must be pointed out that more important than the opportunity imbalance this hypocritical and indefensible double standard creates is the fact that by employing these measures, the very survival of some Puget Sound chinook are put at risk as natural origin chinook are over-harvested using non-selective methods.

Lastly, NMFS admits that it did not seek to ensure “recovery” when it issued the 2021 Biological Opinion. Maybe unaware of the contradiction, but clearly in line with the legal requirements, NMFS’ expert witness Ms. Susan Bishop, the Branch Chief for National Marine Fisheries Services West Coast Region’s Anadromous Harvest Management Branch, acknowledges that “NMFS must determine if a proposed action would reduce appreciably the survival and recovery of the species in the wild.” Failing to fulfill its obligation to ensure recovery is clearly contrary to Congress’ intent. In enacting the ESA, Congress sought to “halt and reverse the trend toward species extinction, whatever the cost.” Congress has made clear that endangered species are to be afforded the highest of priorities. FNW has requested the court to make clear to NMFS that recovery is, in fact, a requirement of the ESA and that compliance with federal court orders is not optional. Again, simply adhering to the Puget Sound Salmon Management Plan (PSSMP) would dramatically increase the survival and recovery of the species in the wild by aiding in keeping hatchery fish off the spawning grounds.

A link to the motion summary judgment can be found here.https://secureservercdn.net/…/62-Motion-for-Summary-Judgmen…

Brett Rosson
President, FNW

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Brett Rosson