Appeals Court Puts Oregon's Gill Net Fishing Rules on Hold – For Now
In last November’s election, Oregon voters overwhelmingly rejected Measure 81, which would have banned commercial non-tribal gill net fishing on Oregon’s “inland waters” and allowed the use of seine nets in their stead.
The Oregon Fish and Wildlife Commission (OFWC) overturned the resounding tally of 884,913 votes (66 percent) with just four votes of their own in December. In a controversial 4-2 decision, the commissioners opted to back Gov. John Kitzhaber’s plan to move commercial non-tribal gill-netters off the main stem of the lower Columbia River into off-channel sloughs and bays. Oregon Department of Fish and Wildlife (ODFW) officials promised to expand and enhance those areas and stock them with more hatchery fish to offset potentially devastating financial losses for the commercial fishery.
The plan, however, is currently dammed up by the Oregon Court of Appeals, which ordered the state to wait after two leading commercial gillnet fishermen filed a petition asking the court to invalidate Kitzhaber’s plan.
Filed by Eugene-based attorney Ben Miller on behalf of Astoria-based commercial fishermen Jim Wells and Steve Fick of Fishhawk Fisheries, the petition alleges that the OFWC violated several state laws, among them one that requires “optimum commercial and public recreational benefits” of food fish management. The petition notes that the new rules would take fish away from the commercial fisheries to add to the recreational fisheries, and “ultimately banning non-tribal gill nets from the Columbia River main stem for all species of fish, including sturgeon, smelt and shad, as well as salmon.”
Wells, president of Salmon for All –an association of gillnetters, fish buyers, processors and associated businesses founded in 1958, and Fick noted that commercial fisheries harvest fish for the consuming public, giving all Oregonians access to the Columbia River’s resources, and “for many generations,” Oregon gave the fishermen and public “a significant and equitable share” of those resources by allowing gillnetting.
“The ODFW Rules effectively abolish that tradition and cause irreparable economic devastation for these commercial fisheries and the coastal communities dependent on them,” the petition stated. “The ODFW Rules violate controlling Oregon law, and ODFW relied on flawed assumptions and inadequate analysis in its Statement of Fiscal Impact to promulgate them.”
Columbia River area tribes also question ODFW’s assumptions and the new rules’ consistency with court-supervised harvest management agreements in the region.
Fick, Wells and other commercial fishermen say the salmon in the river’s main stem are larger and more valuable than those in off-channel sections. They asked the court to declare the new rules invalid, and other commercial fishermen have vowed to take the challenge to the state legislature.
Noting that the petitioners showed “substantial likelihood” of winning the case and made a “prima facie showing that irreparable harm will result to themselves and others,” the appeals court ordered a stay on ODFW’s enforcement of the commercial gill net fishery modifications on the Columbia River, pending judicial review.
Neither ODFW officials nor anti-gillnetting groups opposed the stay, which remains in effect while the legal petition moves forward.
Outright Ban Versus Gradual Ban
ODFW staffers ventured into the well charted but controversy-infested waters based on Gov. John Kitzhaber’s proposal to reform fisheries management on the lower Columbia River. OFWC members opted to back Kitzhaber last August, focusing on the governor’s proposed solution to the on-going, complex and intense conflicts between commercial and recreational fishermen over salmon allocations in the lower Columbia River, as well as with conservation groups opposed to gillnetting.
Kitzhaber outlined a compromise for ODFW Director Roy Elicker and OFWC Chairwoman Bobby Levy, designed to phase gillnets out of the main stem Columbia rather than ban them immediately as Measure 81 would have done.
“Lower Columbia River recreational and commercial fisheries are vital to the social and economic fabric of our state and local communities, providing valuable jobs and millions of dollars of economic activity,” Kitzhaber noted at the time. He called “optimizing the economic value of these fisheries within a conservation-based framework” one of his priorities.
Thirteen species of salmon and steelhead within the Columbia River Basin are listed under the federal Endangered Species Act (ESA), which means all fisheries face significant limits due to low abundance and required survival of ESA-listed fish. Oregon’s long-term plan is the recovery of ESA-listed salmon and steelhead populations to levels that would support what Kitzhaber called “robust fisheries” across the state. Unfortunately, it has resulted in what the governor termed as “perennial and divisive conflicts” between commercial and recreational fisheries over the allocation of harvest impacts, along with the use of gillnets in non-tribal commercial fisheries in the river’s main stem.
Attempts to reconcile those differences have proven almost futile, and many observers said Kitzhaber’s directive – based primarily on a compromise that sport fishermen put forward several years ago – was the governor’s answer to Measure 81’s attempt to ban all commercial gillnets and tangle nets in Oregon’s inland waterways. Under the motto “for salmon, for wildlife, for jobs,” members of Portland-based Stop Gillnets Now (SGN) and others gathered 142,000 signatures to get the initiative, also known as the Protect Our Salmon Act, on the ballot.
The measure’s supporters said it would ban the use of “indiscriminate” gillnets on the Columbia River, yet still allow commercial fishing using “more sustainable practices,” such as purse seines.
They said it would protect the river’s wild salmon and steelhead, keep tribal fishing rights intact, retain the allocations for both commercial and recreational fisheries, and preserve the commercial fishery through required alternatives, such as seine nets and other selective gear that allows for the harvest of hatchery fish and protects endangered wild salmon and steelhead populations.
Kitzhaber’s directive also featured the use of selective gear and fishing techniques “to minimize mortality of ESA-listed and non-target fish and optimize recovery.” The governor made it clear that he believes the use of gillnets in non-tribal main stem fisheries is at odds with that objective. He also said the matter was best resolved by a combined effort by the Oregon and Washington fish and wildlife commissions, not through a ballot measure.
Kitzhaber noted that he wanted “a long-term solution” that “enhances fisheries while minimizing mortality of wild fish to promote fish recovery, honors tribal commitments and optimizes economic benefits.”
“The long-term solution must enhance the economic vitality of both recreational and commercial fisheries, which provide the public with benefits, including recreation, family-wage jobs and businesses, local commerce and export economies, nationally-renowned culinary destinations and the Pacific Northwest’s uniquely high quality of life and culture,” the governor noted. “Proposals that fail to enhance benefits for both recreational and commercial interests in the lower Columbia within a conservation framework are an unacceptable solution, as is the status quo.”
Finding a workable solution has proved daunting in an issue rife with historical conflicts.
Both Oregon and Washington initiated measures to regulate the commercial salmon fishery as early as the 1870s, but conflicting regulations often hampered efforts to properly manage the resource. In 1915, the two states forged the Columbia River Compact. Adopted by the US Congress in 1918, the compact made the states co-managers of all Columbia River fisheries. It and the joint management staff from ODFW and WDFW still provide principal management of those fisheries, in consultation with NOAA Fisheries, the US Fish and Wildlife Service, Idaho Fish and Game, the four treaty tribes and the Columbia River Intertribal Fish Commission. During the ensuing decades, other commercial activities – mining, logging, grazing and irrigation diversions – led to pollution and ever-increasing conflicts with a full-scale commercial salmon fishery.
The river’s salmon fishery now is one of the world’s most highly regulated fisheries, and numerous attempts to reconcile conflicts and resolve the river’s “salmon crisis” via various committees, commissions and councils have fallen short. Oregon and Washington representatives were tantalizingly close to agreeing on new gillnet rules in 2008, but agency officials said the effort failed as the process broke down due to escalating tensions between and objections from commercial and recreational fishery groups.
Efforts were scheduled to resume in 2013, but the success of anti-gillnetting groups in getting Measure 81 on the November 2012 ballot spawned Kitzhaber’s intervention.
Basically, the idea is to phase out commercial gillnets from the river’s main stem during a three-year transition (2013 to 2016) and move them into off-channel areas that would be enhanced to raise more hatchery fish for commercial fishermen, who could only fish in the main channel if they use alternative or selective fishing gear.
A clear transition period, Kitzhaber noted, “is a central part of this solution…to span the time needed for the new investments in off-channel areas to occur and provide returns necessary to the vitality of the commercial fishery.”
Kitzhaber asked the OFWC commissioners to initiate the public rulemaking process to work toward adopting “a solution that achieves the key elements” of his proposal. He also directed them to work with their counterparts in Washington, and to begin the process immediately to complete the needed rulemaking before the end of 2012.
The Oregon commission agreed and followed through in December 2012. Their Washington counterparts did the same in January.
Follow the Money
Because the fishery is regulated jointly by Oregon and Washington, the Washington Fish and Wildlife Commission (WFWC) voted to phase out gillnet fishing on the Columbia’s main stem by 2017 as part of similar management objectives adopted by Oregon’s commission. The Washington contingent did so, despite a letter from Wells’ and Fick’s attorney Miller asking them to delay a decision “for at least another month” due to the anticipated ruling from the Oregon appeals court.
“I suspect knowing whether the rules will actually take effect in Oregon is something that you would want to consider before voting on such a drastic change to the commercial fishery on the Columbia River,” Miller noted.
Despite the request and heads-up about the legal action, the nine members of WFWC unanimously approved the most extensive changes in Columbia River salmon fisheries in decades. WFWC Chairwoman Miranda Wecker called it a “bold but practical move.” The commissioners said they would review the plan annually, and were open to allowing use of gill nets if alternative selective gear is neither available nor practical for fall chinook and coho. They and others said commercial gillnetters must adapt to changing times.
The Oregon vote was divided, with Chairwoman Bobby Levy and commissioners Bob Webber, Holly Akenson and Michael Finley in favor of it, commissioners Laura Anderson and Gregory Wolley opposed.
The plan, at its most basic, is virtually identical to Oregon’s, with a phase-out of gillnets in the main stem by 2017, moving commercial gillnetters into off-channel sites stocked with more hatchery salmon, allowing commercial fishermen to fish the main channel using “selective gear” such as purse seines or beach seines, and shifts the spring Chinook allocation sharply in favor of recreational anglers. Initially, the ratio was 70 percent to 30 percent, but the Washington commissioners dropped it to 65-35 for the current season.
Until now, the allocation stood at 60-40 in favor of sports fishing. Commercial fishermen like Fick and Wells want a 50-50 split.
It all boils down to money and livelihoods.
Ed Bowles, ODFW fish division director, told the OFWC that the “reasonable objectives” in the Oregon plan “can be met.” WDFW Director Phil Anderson said the key to the effort lies in developing and using alternative selective gear.
At the moment, seine nets are illegal per Oregon law for catching salmon, and commercial fishermen said the cost for making the switch and moving out of the river’s main stem – where salmon are larger and more valuable - could put the fleet out of business.
Washington officials said there is no guarantee of funding becoming available to help with the transition. Kitzhaber earmarked $5.2 million in the 2013-2015 beleaguered biennial state budget – $2 million from general funds, $1.6 million from lottery-backed bonds, and $1.6 million from an endorsement fee paid by Columbia River recreational anglers.
Fick and Wells said the fishery is sustainable as is, and the economic assumptions made by ODFW – especially the assumption that seine netting might be allowed – were flawed.
The wild salmon among the 1.43 million hatchery and wild salmon that enter the river every year provide the determining factor on the where, when and how of salmon fishing, both commercial and recreational. In 2011, the 200 gillnet boats caught 137,000 salmon valued at $4.72 million. Sports anglers reeled in 142,000 fish, but they said their efforts provide a bigger financial boost, and state statistics claim that 350,000 recreational fishing trips on the lower Columbia in 2011 landed an estimated $22 million for the economy as anglers spend money on lodging, food and tackle. Commercial fishermen noted that the non-fishing public also has a right to access salmon for food – something they provide to restaurants, fish markets and other outlets that also boost the state’s economy. They said the proposed off-channel sites are too small for the fleet, and adopting new gear and being forced to chase after hatchery fish that might or might not be there is too expensive and ephemeral.
For now, the courts have stopped the phase-out from moving forward, but as of press time, the outcome of the legal process, or how long it might take to move through the court system, remained unknown.