CHAPTER 13: WHY FUNDAMENTAL STRUCTURAL CHANGE IN SALMON REGULATION IS NECESSARY FOR RATIONAL SALMON RECOVERY PLANNING

“. . . politics doesn’t work. Look at the parts of America where the government has had the most power, where government has spent the most money. Look at those housing projects we’ve got the poor people in. Then say to yourself, ‘What the government has done for folks in the inner cities, it can do that for spotted owls.’” P. J. O’Rourke, “Republicans Take Control of Congress”

“A plain husband-man is more Prudent in the affaires of his own house, than a Privy Counselor in the affaires of other men”. T. Hobbes, Leviathan

Every outside observer of salmon regulation has recognized for many years that the system is hopelessly broken. In 1983, a law review article pointed out that Congress and the courts “have unwittingly multiplied management authority to the point where the very institutions designed to protect the resource have now, by virtue of their numbers and their unwieldiness, become an additional threat.”1


As Judge Marsh observed, that was how things were before the salmon were listed under the Endangered Species Act, adding “yet another layer of regulatory restriction . . .”.2 By 1997, as Senator Gordon Smith recently pointed out, “[w]e have multi-layers of bureaucracy that are doing a lot of talking and stepping all over one another, but not saving any salmon.”3 State and tribal fishery managers are proliferating like the shad, their rise in numbers fueled by a river of money extorted from the Bonneville Power Administration.


The Fishery Agencies’ Fundamental Conflict of Interest in Salmon Preservation

Putting fishery managers in charge of the administration of the Endangered Species Act for fish was a colossal mistake. Fishery managers see salmon not as an endangered wild animal to be protected but as a natural resource to be fully exploited. In this respect, fishery managers are the guardians of the salmon just as federal and state forestry agencies are guardians of the forest. And the results have been the same: overfishing is the analogue to the massive clearcutting (without replanting) that has characterized much forestry management, at least until recently.


The National Marine Fisheries Service in particular has a built-in conflict of interest when it comes to protecting salmon as wild animals. Congress has charged NMFS to "promote" commercial salmon harvest under the Magnuson Act.4 Indeed, NMFS was formerly named the "Bureau of Commercial Fisheries".


NMFS has the authority, delegated from the Secretary of Commerce, to protect threatened and endangered salmon under the Endangered Species Act. The result is an endangered species program that is unique in the country: it is lawful to commercially harvest endangered salmon (NMFS issues so-called "incidental take statements" for commercial harvest), but unlawful to kill them by any other means. This has all the wisdom of the federal policy toward tobacco, which for many years subsidized its growth while at the same time discouraging its use.


Environmentalist and Oregon State University professor David Bella reportedly criticizes natural resource managers because “they tend to place first priority on their own survival”—“even if this means trouble for whatever or whomever they are supposed to protect. Organizations selectively produce and sustain information favorable to them . . . Contrary assessments tend to be systemmatically filtered out.”5 Although Professor Bella was talking about the resource agencies’ treatment of his ecological concerns, he describes precisely what has happened to the scientific information presented in this book. It has been simply “filtered out” by harvest managers.


Over the years, the harvest agencies have become more and more blatant about using their authority under the Endangered Species Act to extract money from dam operators. In one of the first biological opinions NMFS issued concerning operation of the Federal Columbia River Power System, NMFS demanded from the Bonneville Power Administration a $40 million slush fund for unspecified salmon programs, as a condition of granting a “no jeopardy” biological opinion. BPA paid up. (Luckily, after the states and tribes accelerated their efforts to shut down useful scientific research, some of the slush fund money kept worthy projects going.)


By 1997, NMFS had expanded the shakedown to the Oregon State Legislature. After threatening to list the Oregon coastal coho as endangered, Regional Director Will Stelle appeared before the Oregon Legislature on February 11, 1997 to tell them that Oregon’s plans to protect the coho needed a more solid financial base, and that they should raise taxes to pay for salmon recovery if they wanted to avoid an endangered species listing. Only one of the Oregon legislators, Sen. Ted Ferrioli of John Day, had the perspicacity to question Stelle’s demands, calling the process “extortionary”.6


Oregon’s timber industry, anxious to avoid a federal shutdown of coastal timber harvest, has been quick to cave into the blackmail, offering to pledge $15 million to avoid an endangered species listing for Oregon coastal coho salmon—provided that the Oregon legislature matches their pledge. But money is not enough for NMFS. They want additional regulatory authority to improve salmon habitat too. Only then might NMFS stop threatening a coho listing.7 But even after the timber industry and the Oregon legislature caved in, nothing stopped environmentalists from suing for a coho listing. As of 1997, the suit is pending.


NOTES TO CHAPTER 13

Wilkinson & Conner, Law of the Pacific Salmon Fishery, 322 Kansas L. Rev. 17, 104 (1983).

2 PNGC v. Brown, 822 F. Supp. at 1486 n.15.

3 Quoted in Northwest Salmon Recovery Report, Vol. 1, No. 1, at 1 (Feb. 14, 1997).

4 16 U.S.C. 1801(b)(3).

5 Reported in J. Cone, A Common Fate 26.

6 A. Green, “Plan to save coho must have plenty of fins, lawmakers told”, The Oregonian, Feb. 12, 1997.

7 See generally Editorial, “Rescuing a salmon plan”, The Oregonian, Feb. 28, 1997, at B8.

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