Tough Questions for NMFS Representatives: Help Fight the Federal 4(d) Takeover
Over the next month, the National Marine Fisheries Service (NMFS) will be providing an opportunity for public comment on its new 4(d) rules; the rules and schedule of meetings may be found in NMFS Northwest Regional website.
The proposed rules were not finally published until January 3, 2000; collectively they comprise some sixty pages of triple-column fine print in the Federal Register. The public meetings started just seven days later, and will be completed by February 6th. Citizens ought to protest this schedule as making a mockery of the opportunity for meaningful public review and comment. The schedule demonstrates that NMFS has no sincere interest in revising its proposed rule in response to public comment.
More importantly, as previously noted, these proposed 4(d) rules represent the most sudden expansion of federal authority over matters traditionally (and Constitutionally) confided to states and localities since the aftermath of the Civil War. And, for the most part, they lack any basis in scientific evidence, discriminate in favor of fishing interests and against all other resource users, and discriminate further in favor of Northwest Tribes.
Citizens should attend these meetings, ask the questions below, and demand answers. Don't expect to get meaningful answers, but if enough citizens did show up and ask these and other questions, it would help educate the ignorant, and perhaps slow down the juggernaut toward a salmon recovery policy that is doomed to failure.
Questions Showing No Need for any 4(d) Rule
Background: The ESA defines a "threatened species" as one "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range"; it defines an "endangered species as one "which is in danger of extinction throughout all or a significant portion of its range" (16 U.S.C. § 1532(6), (20)).
1. Isn't it true that unless and until NMFS issues this rule, it will be legal to "take" threatened salmon?
2. Didn't NMFS list these fish as "threatened" because they are not "endangered" within the meaning of the ESA?
3. Does NMFS now believe these fish are endangered?
4. Isn't NMFS proposing to treat salmon stocks as endangered even though they are not "in danger of extinction throughout all or a significant portion of their range"?
5. Aren't chinook and other salmon species found from California to Alaska? Isnt there no chance at all that anything (other than overfishing) could exterminate chinook and other species throughout all or a significant portion of their range?
6. NMFS now says that additional protection must be provided for these threatened salmon because "habitat and harvest impacts have been important [reasons for the decline] for all [listed ESUs]" (65 FR 170). Under this reasoning, wouldn't threatened species always be treated as endangered?
7. Isn't NMFS supposed to exercise some discretion as to which threatened species are to be treated as if they are endangered? What distinguishes threatened species with 4(d) rules and threatened species without them?
8. NMFS now "concludes that threatened chinook, coho, chum and sockeye are at risk of extinction primarily because their populations have been reduced by human 'take'" (65 FR 170). Isn't it true that NMFS has never conducted a quantitative analysis of whether climate trends, predation and other natural factors are more important to salmon survival? Isn't it true that the effects of changing ocean conditions dwarf all human impacts?
9. NMFS declares that "assessing impacts on a population level [i.e., smaller groups than ESUs, and much, much smaller groups than species] is typically a more practical undertaking given the size and complexity of ESUs" (65 FR 173). Does this mean that NMFS can't really even figure out the risk that entire ESUs of salmon will go extinct?
10. Isn't it true that NMFS has no quantitative estimates of the risk that ESUs such as Puget Sound chinook will go extinct?
11. Isn't it true that sophisticated metapopulation studies of, for example, the Snake River spring/summer chinook ESU show no signifcant risk that the entire ESU will vanish?
12. Isn't it true that there is almost no chance that the thirty or so stocks of chinook salmon that make up the Puget Sound ESU are going to vanish from the face of the earth?
13. Isn't it true that NMFS determined in its ESU policy not to make listings of single populations? Has NMFS now changed its mind, and is NMFS now trying to protect each and every stream of salmon as if they were "endangered species"?
14. NMFS talks about "critical population thresholds" and "viable population thresholds" (65 FR 174). Does NMFS know what any of these thresholds are?
15. Shouldn't NMFS figure out what the thresholds are first, and issue rules afterwards?
16. Why is NMFS issuing 4(d) rules that cover the entire ESU which would regulate Northwest citizens even where the salmon they might affect are above viable population thresholds?
17. NMFS concludes that "there are no legally viable alternative rules that would have less impact on small entities and still fulfill the agency's obligations to protect listed salmonids" (65 FR 189). How did NMFS determine whether or not alternative rules were "legally viable"?
18. Isn't it true that NMFS has not even tried to calculate the economic impact of its Rule? How can NMFS possibly conclude that the rule is "advisable" (as required by § 4(d)) without making that calculation?
19. On what basis did NMFS conclude that the alternative of issuing no rule was not legally viable?
20. Isn't it true that no court has ever second-guessed an agency's decision not to issue a 4(d) rule, and that no court would likely overturn NMFS' decision not to issue a 4(d) rule here?
21. Isn't it true that the ESA does not impose any mandatory obligations on NMFS with respect to conservation of "species" listed as threatened?
22. On what basis did NMFS conclude that deferring to state and local authorities would not be "legally viable" in the 4(d) context?
23. NMFS asserts that it "has a clear statutory responsibility to enact whatever protective regulations are necessary to provide for conservation of threatened species" (65 FR 189), but isn't it true that the ESA merely says that NMFS "shall issue such regulations as [it] deems necessary and advisable to provide for the conservation of such species" (16 U.S.C. § 1533(d))?
24. Isn't it true that NMFS could lawfully decide that any regulations or no regulations are "advisable"?
Questions Showing the Collapse of States' Rights
25. NMFS claims its proposed rule is consistent with Executive Order No. 13132 on federalism and states' rights, but that Order provides that "agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law". Does NMFS believe that Congress intended it to have the authority to preempt state law? Why? Didn't Congress declare the exact opposite in § 2(c)(2) of the ESA: NMFS was supposed to "cooperate with State and local agencies"?
26. Does NMFS believe that local zoning codes that allow homeowners to have lawns within 200 feet of a salmon-bearing stream "directly conflict" with the exercise of federal authority? Why?
27. On what basis does NMFS believe that the federal government has any authority to regulate lawn placement?
28. On what basis does NMFS believe that the federal government has the authority to regulate wells and groundwater usage? (See Question No. 43)
29. How does NMFS propose to compensate the holders of water rights when those rights are seized to be put to instream use? Doesn't the Fifth Amendment require such compensation?
30. Executive Order No. 13132 also provides that "to the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless . . . funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation are provided by the Federal Government." This rule is not required by the statute, is it? So is NMFS providing the necessary funds to state and local governments?
Questions Showing Discrimination in Favor of Harvest and Against Hatcheries
31. Why are hatchery fish excluded in calculating thresholds (65 FR 176)? What law gives NMFS the right to ignore hatchery fish in assessing extinction risk?
32. Isn't it true that hatchery runs cannot be distinguished from wild ones in mixed populations, and that there is no real risk of hatchery runs going extinct?
33. Why will NMFS allow harvest managers to continue to manage on the basis of "management units" (65 FR 176), rather than ESUs or the smaller populations comprising an ESU? Isn't mixed-stock management that wipes out weaker stocks a major factor in the listings?
34. NMFS declares that "harvest actions impacting populations that are functioning at or below critical thresholds must not appreciably increase the genetic and demographic risks facing the population and must be designed to permit the population's achievement of viable function, unless the plan demonstrates that such an action will not appreciably reduce the likelihood of survival and recovery of the ESU as a whole despite any increased risks to the individual population" (65 FR 176).
35. Didn't NMFS just tell us that a "critical threshold" meant that the "risk of extinction increases exponentially in response to any additional genetic or demographic risks" (65 FR 174), so that harvesting a critical ppulation would have to appreciably increase risk?
36. Isn't NMFS really saying that it's OK for overfishing to wipe out individual populations, but not for anyone else?
37. Why is NMFS requiring a fully approved Hatchery and Genetic Management Plan before any use of wild fish for hatchery broodstock? Won't inevitable delays mean that hatcheries will have to use hatchery broodstock, and delay improvements in hatchery genetics?
Questions Showing Discrimination in Favor of Tribes
38. NMFS says it developed its tribal 4(d) rule "in close coordination with tribal governments and organizations" (65 FR 110). Why didn't NMFS bother to consult [my organization] before publishing proposed 4(d) rules for [my organization]?
39. Why can't non-Tribal organizations offer plans to manage natural resources that can go forward if they do not "appreciably reduce the likelihood of survival and recovery of the listed salmonids" (65 FR 111)?
40. Will NMFS offer "technical assistance in examining impacts on listed salmonids and other salmonids" (65 FR 111) for all citizens managing natural resources, and not just Tribes? If not, where does NMFS get authority to discriminate in favor of Tribes in providing its technical services?
41. The Treaties guarantee the Tribes the right to fish "in common with all citizens" (65 FR 109), so why should Tribes get special rights to kill listed fish?
Questions Highlighting Specific Threats to Northwesterners
42. NMFS says that "water withdrawals that impact spawning or rearing habitat" may violate its proposed rule (65 FR 172). Can NMFS provide more specificity as to which withdrawals "impact habitat" and which don't?
43. Isn't it true that NMFS believes that any water withdrawal from a salmon-bearing stream or river violates the rule?
44. NMFS says that local governments must not allow new housing and other developments unless the development "can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals" (65 FR 185). Where have groundwater withdrawals ever posed a significant threat to Northwest Salmon?
45. NMFS says that "land-use activities that adversely affect salmonid habitat (e.g. logging, grazing, farming, urban development, or road construction in riparian areas) may violate the rule (65 FR 172). Can NMFS provide more specificity as to which land-use activities violate the rule?
46. Isn't it true that NMFS believes that any land-use in the vicinity of salmon-bearing streams or rivers violates the rule?
47. NMFS suggests that where "water availability is a limiting factor", "users will quickly gain a clear picture of any immediate adjustments that must be made in order not to create a high risk of harming salmonid eggs, juveniles or adults" (65 FR 173). Why can't NMFS provide clarity as to where it believes water availability is a limiting factor?
48. NMFS declares that if irrigators operate diversions meeting NMFS criteria, "NMFS concludes that adequate safeguards will be in place such that no additional Federal protection (with respect to method of diversion) through imposition of take prohibitions is necessary and advisable (65 FR 181). Isn't NMFS really saying that even if irrigators put in perfect screens, they may still be liable for take merely by diverting water?
49. NMFS lists a number of "activities that might or might not be pursued by NMFS as constituting a take of listed salmonids" (65 FR 173), including "individual decisions about energy consumption for heating, travel, or other purposes" (65 FR 173). Is NMFS really asserting the authority to prosecute any Northwest citizen who keeps their house warmer than NMFS believes prudent?
50. Is NMFS really asserting the authority to prosecute any Northwest citizen who goes on trips that NMFS does not believe are necessary?
51. NMFS lists a number of "activities that might or might not be pursued by NMFS as constituting a take of listed salmonids" (65 FR 173), including "individual maintenance of residences or gardens" (65 FR 173). Is NMFS really asserting the authority to prosecute any Northwest citizen who fertilizes their garden?
52. NMFS will allow the Oregon Department of Transportation an exemption from the take rules even though its plan offers salmon protection "where possible", "where feasible", or "where practicable" (65 FR 181). Why won't NMFS give the same flexibility to private citizens?
53. NMFS is now undertaking to review county and city zoning ordinance to determine whether they are "adequate to help conserve anadromous salmonids" (65 FR 184), and sets forth 12 requirements for such ordinances, including set-backs of at least 200 feet or "the break in slope for steep slopes", with the first 50 feet to be "protected from any mechanical entry or disturbance, structures, or utility installations" and the outer 100 feet to be "entirely in native vegetation (not in maintained lawn)" (65 FR 184). What evidence does NMFS have that homeowners having lawns 100 feet away from a stream has any adverse effect upon salmon? Will NMFS send lawn police to measure lawns of new homes?
54. On what basis does NMFS discriminate against new homes and in favor of existing one? Doesn't NMFS believe it has authority to require existing homeowners to plow up existing lawns that are too close to salmon-bearing streams and plant "native vegetation"?
 Citations to "U.S.C." refer to the United States Code; citations to "FR" refer to the Federal Register.
 ESU is NMFS' term for an "Evolutionarily Significant Unit", the smallest unit of fish NMFS chooses to protect under the ESA.
James Buchal, January 11, 2000
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