News from the Front #46:  

NMFS Hypocrites Rubber-Stamp Sharp Harvest Increase on "Endangered" Salmon

In December 2000, less than four months ago, the National Marine Fisheries Service (NMFS) issued its "Final Basinwide Salmon Recovery Strategy" for conservation of Columbia Basin Fish.  While just one of many paper-building exercises, it was the culmination of an "All-H" process gigantic in scope, involving the coordinated efforts of no fewer than nine federal agencies that assert salmon recovery missions.  It was supposed to map out the Federal strategy for implementation of the Endangered Species Act.

In the Strategy documents, NMFS considered at length the effects of killing "endangered" salmon for commercial gain, including the spring season gillnet fisheries on Columbia River spring chinook.  NMFS declared that the fate of the springers was dire, and warned that "the overall harvest rate on Snake River and Upper Columbia spring chinook should continue to be capped at 6-9 percent, depending on the run sizes of the natural origin fish".  (Last year, NMFS limited the harvest rate on "endangered" spring chinook to 9 percent.)  NMFS also warned that "because even modest increases in harvest rates could easily thwart the overall recovery effort, especially in the next several years and no matter what is done in the other Hs, it will be necessary to cap harvest rates in spring fisheries for some time, while continuing to seek and take advantage of any opportunities for further reductions in harvest rates".  

One might suppose that the emerging drought conditions would make NMFS even more sensitive to "thwarting recovery efforts" by killing "endangered" salmon.  That would be based on the misconception that salmon recovery is about protecting salmon.  Salmon recovery is really about manipulating the levers of government to enrich the killers of salmon (fishing interests) and those building the Salmon Recovery Empire.  Thus a salmon policy of spending $50,000 a fish to make fish that get sold for cat food at 25 cents a pound. 

The true purpose of salmon recovery was confirmed yet again on March 21, 2001, when NMFS issued a biological opinion [848 kb, MS Word format] on the 2001 spring harvest.  NMFS now maintains that a harvest rate of 15 percent -- a 66 percent increase -- is just fine, because, after all, we expect more fish back this year.  If we got twice as many fish back this year, and we left the harvest rate fixed at 9 percent, the fishing interests would get twice as many fish.  But that's apparently not enough.  Now if twice as many fish come back this year, the fishing interests will get to kill more than three times as many fish.  

And on top of all that, true harvest rates are probably double the agency estimates, because a true harvest rate would include all the fish that fall off the gillnets dead or do not make their way onto the voluntary reporting forms -- issues about which NMFS dares not speak.  And, again, all this is to happen in a year when the salmon that successfully run the gillnet gauntlet will face hot, dry weather that may dramatically reduce spawning productivity.

The other day, I got a call from a federal employee wanting to know why I wasn't suing NMFS for issuing a biological opinion that was patently arbitrary, capricious and contrary to law.  I opined that if the courts actually enforced "the law", suing to set aside the biological opinion should be as easy as shooting fish in a barrel.  "The law" says that administrative agencies announcing dramatic changes in policy are required to offer a detailed explanation of the change. 

NMFS does offer an explanation.  NMFS initially admits that the 9 percent cap in the "Final Basinwide Salmon Recovery Strategy" was, "in effect, a jeopardy standard" -- a cap that cannot be exceeded without invoking the God Squad.  NMFS then says "it is necessary to consider whether the proposed agreement [allowing a 15 percent harvest rate this year] is at least as protective as a fixed 9 percent harvest rate".  What NMFS had previously decreed was not a "fixed 9 percent harvest rate", but a 6-9 percent rate, depending on run sizes.  After this little attempt to misdirect the reader, there follows a lot of verbiage which boils down to the idea that because under the proposed agreement, harvest rates in excess of 9% won't occur that often, the agreement "is at least as protective . . . as the 9% harvest rate developed in the All-H paper".  

NMFS relies upon the assumption that no federal judge will have the wit or will to observe that harvest rates higher than 9 percent, even if infrequent, cannot possibly be "as protective" as harvest rates equal to 9 percent, much less harvest rates equal to 6-9 percent.  If prior experience is any guide, NMFS' perceptions of the federal judges on the West Coast could well be correct:  they simply duck harvest questions by declaring that they are "scientific", and Congress charged NMFS, not the court, with resolving questions of science.  And as for the effects of the drought, ignored in the biological opinion, well, that would be another scientific question.  Thus the rule of law is replaced by the rule of "scientists".

Anticipating this little problem, I recently got a license to practice law in Washington, D.C., where greater familiarity with federal agency malfeasance has bred less deference to agency decisions, so if anyone wants to take a crack at NMFS, I am open for business.  NMFS warns right in the biological opinion about what will happen if they are allowed to get away with this nonsense:  "Increases in the harvest rate", says  NMFS, "will increase the level of survival improvements required in other sectors".   Just think how much more land in the Pacific Northwest will have to be seized without compensation and turned into Nature preserves to offset a 6 percent higher kill rate in the Columbia River.  

© James Buchal, March 29, 2001

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