[Fishlink] ~~>FISHLINK SUBLEGALS 5/31/02<~~
bit-bucket@straylight.primelogic.com
bit-bucket@straylight.primelogic.com
Thu, 6 Jun 2002 16:28:50 EDT
PLEASE HELP SUPPORT THE SUBLEGALS NEWSLETTER.
To donate go to: www.sublegals.net. Sublegals is published free
of charge and is dependent on your contributions.
##########################################################
~~>FISHLINK SUBLEGALS 5/31/02<~~
##########################################################
A WEEKLY QUOTA OF FISHERY SHORTS CAUGHT AND
LANDED BY THE INSTITUTE FOR FISHERIES RESOURCES
AND THE PACIFIC COAST FEDERATION OF FISHERMEN'S
ASSOCIATIONS
VOL. 05, NO. 22 31 MAY
2002
##########################################################
This week's issue of Sublegals is available in PDF format on the web at
www.sublegals.net. We have also pasted the text below for those who
still wish to read it through your email. In the coming weeks we will be
posting all past issues as well as a search engine. In addition to this new
look, we are continuing our Sublegals Fundraiser to support the Institute
for Fisheries Resources and the Pacific Coast Federation of Fishermen's
Associations in publishing this weekly newsletter free of charge. We
have recently passed our 100th issue, with very little funding, and are
looking to our readers to sustain the continuation of this effort. Go to
www.sublegals.net to donate to this effort. Thank you for your support
of community fisheries education.
##########################################################
"I have accepted a seat in the House of Representatives, and thereby
have consented to my own ruin, to your ruin, and to the ruin of our
children. I give you this warning that you may prepare your mind for
your fate." ....... John Adams, later second President of the U.S.
##########################################################
IN THIS ISSUE.......
California Fish & Game Department Supports State
ESA Coho Listing. 5:22/01.
Clean Water Act Nonpoint Pollution Control Authority
Upheld. 5:22/03.
European Union Plans Major Cuts In Its Fishing Fleet. 5:22/04.
Pacific Groundfish Fleet Facing Major Closures As
Stocks Near Collapse. 5:22/06.
Hanford Nuclear Waste Disposal Draft EIS Out
For Comment. 5:22/10.
AND MORE......
##########################################################
5:22/01. CALIFORNIA FISH & GAME DEPARTMENT
SUPPORTS STATE ESA COHO LISTING: The California State
Department of Fish & Game (DFG) has recommended formal listing of
California coho under California's own Endangered Species Act (CESA)
in a report to its Fish & Game Commission filed in response to a petition
to list coho salmon. The petition was filed September 2000 by a
coalition of sportfishing, commercial fishing and conservation groups
(including PCFFA) (see Sublegals 3:14/02; 3:05/11; 2:13/11), but coho
have been federally listed for five years. Timber and agricultural
interests strongly oppose and are organizing landowners to oppose a
state listing, fearing further restrictions on activities by these industries
that are known to damage coho salmon in Northern California rivers and
watersheds. The Administration of California Governor Gray Davis is
reportedly working for a quiet resolution of the issue to avoid
election-year problems for his Administration. DFG officials have
proposed delaying the listing decision for another 12 to 18 months while
working toward a comprehensive recovery plan. Prior state recovery
plans were either never completed or never implemented. The Fish &
Game Commission is expected to take up the issue at its 1 August
meeting. For more information see the 2 June Santa Rosa Press
Democrat at:
http://www.pressdemocrat.com/local/news/02coho_b1empireb.html.
The Fish & Game Commission earlier classified coho salmon as a
"candidate species," triggering a Department status review which was
completed in April 2002. The status review concluded that coho salmon
were in serious trouble throughout their range, with wild coho down to a
few percent of historic numbers, and in danger of extinction from a wide
variety of factors, primarily loss of habitat from excessive logging,
agricultural pollution and the dewatering and damming of rivers.
California commercial and recreational harvest of coho has been
completely prohibited since 1992 and 1994 respectively, well before any
current ESA listings, under weak stock management guidelines. DFG
biologists also found that coho have already become extinct in major
portions of their historic range. The "Status Review of California Coho
Salmon North of San Francisco" DFG report is available online at:
http://www.dfg.ca.gov/nafwb/coho_status_2002_04.html. A hard copy
of the report can be obtained by calling (916)653-2225 or emailing:
pmontalv@dfg.ca.gov. The 30 May DFG press release can be found at:
http://www.dfg.ca.gov/news/news02/02068.html. Written comments on
the status review can be directed to: California Fish & Game
Commission, 1416 Ninth Street, 13th Floor, Sacramento, CA 95814,
until July 26.
5:22/02. OCS OIL LEASE BUYBACKS IN FLORIDA DRAW
CALIFORNIA IRE: In what many consider an effort to provide political
support for his brother Jeb Bush's re-election as Florida Governor, on 29
May President Bush pledged up to $235 million to buy back highly
unpopular outer continental shelf (OCS) offshore oil leases just off the
coast of Florida. Development of these oils leases would risk important
Florida recreational fisheries as well as many of its prime tourist
beaches. The deal still has to meet Congressional approval, which is
facing stringent budget cuts in many social programs. Meanwhile,
California officials were miffed that no similar effort has been made to
retire 36 oil leases offshore its own coastline that the Administration is
defending. For more, see the 31 May San Francisco Chronicle article at:
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/0
5/31/MN98504.DTL. Oral arguments in the California appeals case have
been set for 10 June.
On 30 May, California Governor Gray Davis sent a letter to President
Bush urging him to help California the same way as Florida. The State of
California has been locked in litigation with the Bush Administration
over 36 old sales, which is also using ongoing court litigation over these
sales to undercut California's independent authority to deny future oil
development in its waters (see Sublegals 5:07/01). "Like Florida,
California is known worldwide for its beautiful coastal waters.... By
providing federal funds in an expeditious manner, you can bring about a
constructive resolution to this issue, and demonstrate to the American
people that you are equally concerned with the beauty and fragility of
California's Pacific Coast as you are with Florida's Gulf Coast
resources," Governor Davis said in the letter, available at:
http://www.governor.ca.gov/govsite/msdocs/press_release/
PR02_321_Letter_to_Bush.doc. California Senator Barbara Boxer has
also made a similar written request. Ever since the disasterous Santa
Barbara oil spill in 1969 Californians have been bitterly opposed to
offshore oil development, but the Bush Administration is still planning
for offshore oil development there as a future contingency (see Sublegals
3:01/13; 2:21/12). PCFFA and other fishermen's groups have urged
continuing the current moratorium on offshore oil development offshore
California and the west coast (see Sublegals 3:07/02).
5:22/03. CLEAN WATER ACT NONPOINT POLLUTION
CONTROL AUTHORITY UPHELD: On 31 May, the Federal Ninth
Circuit Court of Appeals upheld a lower court's decision in the
Pronsolino case, firmly confirming the authority of the U.S.
Environmental Protection Agency (EPA) and the states to control
nonpoint source pollution under the Clean Water Act. The original case,
Pronsolino v. Marcus (U.S. Dist. Court N.D. CA, No. C99-1828 WHA)
was a direct frontal assault by landowners and agricultural interests on
the federal Clean Water Act. Landowners claimed that the EPA did not
actually have the Constitutional power, under the Act, to require the
cleanup of nonpoint source pollution (such as frequently occurs from
agricultural runoff or industrial timber opertions) through what are
known as "total maximum daily load (TMDL)" stream pollution control
standards.
In 1995, after years of delay, California was finally compelled to set
nonpoint source pollution control standards as a result of a prior lawsuit
by fishermen, PCFFA vs. Marcus (U.S. Dist. Ct. ND CA, No.
95-4474MHP), which resulted in a consent decree requiring the State of
California to establish these limits in salmon bearing streams throughout
Northern California within 10 years. The Pronsolino case arose out of
the implementation by the State of California of its first major Northern
California TMDL, primarily to protect depleted salmon habitat in
Mendocino County's Garcia River. Thus PCFFA was also lead
Intervener in defending Clean Water Act authority in the Ponsolino case
before the Ninth Circuit Court of Appeals. Interveners against the Clean
Water Act authority included the California Farm Bureau Federation, the
American Farm Bureau Federation, the California Forestry Association
and the American Forest & Paper Association. These same industries
have also lobbied in the past, with other major industrial polluters, for
Congress to override TMDL pollution control authority entirely through
changes in the Clean Water Act itself (see Sublegals 2:06/09; 2:02/16;
1:14/01; 1:09/09).
The Ninth Circuit Court of Appeals decision now settles the law on
this point throughout the western United States, including all states with
salmon fisheries currently at risk from hot water pollution, silt and
agricultural chemicals. The Court ruled: "Looking at the statute as a
whole, we conclude that the EPA's interpretation of the [Clean Water
Act] Sec. 303(d) is not only entirely reasonable, but considerably more
convincing than the one offered by the Plaintiffs in this case." The
ruling can be found under "recent cases" for 31 May on the Internet at:
http://www.findlaw.com/casecode/courts/9th.html, or directly at:
http://caselaw.lp.findlaw.com/data2/circs/9th/0016026p.pdf.
5:22/04. EUROPEAN UNION PLANS MAJOR CUTS IN ITS
FISHING FLEET: On 28 May, according to Associated Press, the
European Union announced plans for a major overhaul of its
100,000-vessel European fishing industry, including a call for cutting
some national fleets by as much as 60 percent. Industry leaders say this
could mean doom for thousands of fishery-dependent jobs throughout
Europe, but government officials call the reductions necessary measures
to prevent massive overfishing and promote recovery. "It is make or
break time," EU Fisheries Commissioner Franz Fischler said of the
proposal. "Either we make bold reforms now, or we watch the demise of
our fisheries sector. The desperate race for fish has to stop." The plan
would cut the total fleet of trawl vessels working Europe's waters as well
as those off Africa and North America by 8,600 vessels, or 8.5 percent.
For the story see:
http://www.nytimes.com/2002/05/29/international/europe/
29FISH.html?ex=1023690112&ei=1&en=7edd857a46197879.
5:22/05. EAST COAST GROUNDFISH CLOSURES LIFTED BY
FEDERAL JUDGE; CONSERVATIONIST AND FISHERMEN
SETTLEMENT AGREEMENT IMPLEMENTED INSTEAD:
Groundfish fishermen in New England are still facing closures and
delays in access to cod, haddock, yellowtail flounder and other
groundfish off the coast of New England as a result of a recent lawsuit,
though now with a ray of hope through a negotiated settlement with
conservationists that will reopen some, but not all, of these fisheries and
promote speedier rebuilding of still seriously depleted stocks.
The lawsuit (Conservation Law Foundation, et. al. vs. Evans, U.S.
Dist. Ct. DC, No. 00-1134 GK), was originally brought in May 2000 by
four marine conservation groups against the National Marine Fisheries
Service (NMFS), alleging that NMFS was continuing to allow serious
overfishing of these slowly recovering New England fisheries by
opening them too soon to be sustainable, threatening the rebuilding
process. Many fishing-dependent New England communities suffered
severe economic distress when these fisheries collapsed due to prior
overfishing several years ago, and depleted stocks are only now
beginning to recover. The federal judge in the case, Judge Gladys
Kessler, agreed with Plaintiffs, and on 26 April issued an order to NMFS
suddenly shutting most of these fisheries down, which would have
caused severe economic distress. One of the Plaintiffs, the Conservation
Law Foundation (CLF), then broke ranks with the other environmental
Plaintiffs and negotiated an alternative conservation plan with fishermen
restoring many of these fisheries, while still protecting them against
overfishing. Together with various fishing industry groups, cities and
four state governments, CLF then went back to court and requested
Judge Kessler reconsider her ruling, presenting the negotiated plan as an
alternative.
On May 23, Judge Kessler vacated her original ruling and adopted the
negotiated plan as her order, subject to periodic court review. The newly
negotiated plan requires at least a 20 percent reduction in the fisheries
from levels that would have been allowed by NMFS, with harvests
phased in over a longer period as stocks recover, and with various gear
changes and other conservation and monitoring measures to minimize
bycatch and other past problems. A copy of the Conservation Law
Foundation's press release, a history of the lawsuit and links to the
pleadings in the case are at: http://www.clf.org.
5:22/06. PACIFIC GROUNDFISH FLEET FACING MAJOR
CLOSURES AS STOCKS NEAR COLLAPSE: A near-total shutdown
of the entire west coast rockfish fishery may be necessary, according to
federal regulators, to avert total collapse of these stocks. Rockfish
quotas, really a complex of about 55 species generally sold as Pacific red
snapper, have already been cut back by as much as 85 percent from prior
years, but many of these species are still so depressed that even more
may need to be done. Years of fleet buildup paid for by government
loan programs, plus lack of monitoring to determine sustainable harvest
levels that resulted in setting quotas too high, have resulted in
overfishing that has left some rockfish species, such as bacaccio and
yelloweye, now so depleted that they are candidates for Endangered
Species Act protection.
Rockfish closures will not only put hundreds of boats off the water,
but may affect many other fisheries as well. The problem is that many of
these species, such as canary and yelloweye rockfish or bocaccio,
intermingle with much more abundant and commercially valuable
species such as halibut, squid and shrimp, and thus can become
unintended bycatch in these harvests. Rockfish stocks are so depressed
that even with no directed harvest, just this bycatch might be too much.
Severe limits on rockfish thus may trigger closures and restrictions on
otherwise abundant fisheries that are the mainstay of what is still left of
the west coast fishing fleet. Many rockfish are long-lived and do not
reproduce quickly: if all bocaccio harvest were stopped now, say
biologists, it would still take 90 years for the fish to rebound to healthy
population levels. Restoring other species could take even longer. The
only bright spot is that some vessels may still be able to fish much
further offshore, in much deeper water off the continental shelf, where
the most depressed species are not found. For more, see the 30 May
Oregonian article at:
http://www.oregonlive.com/news/oregonian/index.ssf?/xml/story.ssf/
html_standard.xsl?/base/front_page/1022759854296202.xml.
5:22/07. CONSERVATION AND FISHING GROUPS PETITION
TO CLOSE KLAMATH TO MORE WATER DIVERSIONS: On 28
May, the watchdog group Waterwatch of Oregon and 19 other fisheries
and conservation organizations, including PCFFA and IFR, formally
petitioned the Oregon Water Resources Commission to close the Oregon
side of the arid Upper Klamath Basin to any more water diversion or
groundwater permits, at least until a number of conditions are met and
ongoing aquifer studies completed. The conditions for reopening
proposed by the petitioners include: completion of a formal water
adjudication process; installation of measurement and reporting devices
in key areas; completion of a hydrological study showing what further
groundwater development is sustainable, and; provisions have first been
made for adequate instream flows for fish and wildlife.
For more information on the Petition, see the 29 May Oregonian
article located at:
http://www.oregonlive.com/environment/oregonian/index.ssf?/xml/
story.ssf/html_standard.xsl?/base/news/1022673424120191.xml. For
the Waterwatch press release on the Petition, see:
http://www.waterwatch.org/klamath/pressrelease5-28-02.htm. For a
copy of the Petition itself, go to:
http://www.waterwatch.org/klamath/petition.htm or contact Waterwatch,
Steve Pedrey, at (503)295-4039, x 26. The Oregon Water Resources
Commission will first review the petition at its upcoming meeting 7
June. For Information on the Commission see:
http://www.wrd.state.or.us/commission/index.shtml.
5:22/08. CALIFORNIA RELEASES DRAFT CHANNEL ISLAND
ENVIRONMENTAL ASSESSMENT FOR COMMENTS: On 28 May,
the California Department of Fish & Game released its draft
environmental assessment documents as part of its efforts to develop a
network of marine protected areas (MPAs) around the Channel Islands
National Marine Sanctuary off the coast of Santa Barbara, California,
and is now taking public comments on the various alternatives. The
environmental analysis is required under California state law as the final
step before action by the Fish & Wildlife Commission on the plan. The
Pacific Fisheries Management Council (PFMC) will evaluate the
proposed network of MPAs for those areas occurring in federal waters,
and the PFMC is expected to provide comments to the California Fish &
Game Commission prior to its adoption hearing, now scheduled for 6
December 2002. Commercial fishermen have been critical of many of
these proposals, but remain engaged in the stakeholder process, working
to develop alternatives that would help protect and restore, rather than
just limit, local commercial fisheries in these traditional fishing areas.
The Channel Island ED is available at:
www.dfg.ca.gov/mrd/ci_ceqa/index.html.
The draft "Environmental Document (ED)" details six major
alternatives for laying out marine reserve networks that would prohibit
fishing in from 12 to 34 percent of the Sanctuary. Written comments will
be accepted through 12 July and should be mailed to: Department of
Fish & Game, Channel Islands ED, 1933 Cliff Drive, Suite 9, Santa
Barbara, CA 93109. Comments must include a name and address, and
may also be emailed with "Channel Islands ED" as the subject line to:
Jugoretz@dfg.ca.gov. Copies of the alternatives, associated maps and
proposed regulations are available from the DFG website at:
www.dfg.ca.gov/mrd/channel_islands/index.html. PCFFA's policy
statement on MPAs generally is available at:
http://www.pcffa.org/mpa3.htm.
5:22/09. GROUPS ASK COURT TO BLOCK OREGON TIMBER
CLEARCUTTING THAT HARMS COHO: Following up on a prior
60-Day Notice to Sue (see Sublegals 3:21/06), and citing years of delay
by Oregon's Department of Forestry in dealing with inadequate salmon
protections, on 28 February a group of five conservation and fishing
organizations, including PCFFA, filed suit in U.S. Federal District Court
of Oregon (Pacific Rivers Council, et. al. vs. Brown, Civ. No.
02-00243BR) against the Oregon State Forester James Brown. The
lawsuit seeks to prohibit the State Forester from the current practice of
routinely approving clearcutting operations that denude steep and
high-risk coastal slopes, a practice that causes landslides that silt up
rivers and amount to an illegal "take" of downriver Endangered Species
Act-listed coho salmon. On 31 May, the groups petitioned the Court for
an injunction prohibiting this practice, which still occurs on between 5
and 15 percent of industrial timberlands along the Oregon coast.
Oregon's riparian protection rules for industrial timber operations lag
far behind those of California or Washington. The Oregon Board of
Forestry has known that Oregon's forestry practices destroy coho habitat,
pushing them toward extinction, since at least 1994, the last time
riparian protection standards of the Oregon Forest Practices Act were
revised. The National Marine Fisheries Service (NMFS) also advised
Oregon in February 1998 that state forestry riparian protections were in
need of major improvements. An independent scientific review
committee also concluded in September 1999 that current forest
practices were simply insufficient to prevent further salmon extinctions
in Oregon. An advisory committee appointed by the Board of Forestry
also made a number of recommendations for improvements in August
2000, but none of its recommendations have been adopted. The
Department of Forestry has generally taken the position that, as a state
agency and not a federal one, it has no legal obligation to abide by the
federal Endangered Species Act, and that it does not even have the legal
authority to deny any timber harvest plans on steep slopes just to protect
salmon streams.
However, actions which would violate ESA Section 9 "take"
prohibitions for coho salmon are now illegal, since the formal adoption
of "4(d) Rules" defining what constitutes "take," adopted by the National
Marine Fisheries Service (NMFS) on 8 January 2001. In case law from
other U.S. Circuits, in particular Strahan v. Coxe, 127 F.3d 155, 163 (1st
Cir. 1997, cert. denied, 525 U.S. 830 (1998)), federal courts have
repeatedly ruled that state agencies can become liable for ESA "take"
violations by permitting actions that amount to take, at least when the
agency has control over those actions. However, that line of cases has
not yet been applied in the 9th Circuit federal court system in which
Oregon sits. A hearing has been set on the Motion for Preliminary
Injunction for 17 October. For more information and a copy of the
pleadings in the case see: http://www.pacrivers.org.
5:22/10. HANFORD NUCLEAR WASTE DISPOSAL EIS OUT
FOR COMMENT, BACK TO TRENCH BURIAL?: The Hanford
Nuclear Facility sits next to the Hanford Reach of the Columbia River, a
70-mile stretch of river that is the only part of the Columbia still in a
wild state. Not surprisingly the Hanford Reach also contains key
spawning and rearing habitat for the only run of salmonids in the
Columbia River that is still relatively healthy and not listed under the
federal Endangered Species Act (ESA). Thus protecting the Hanford
Reach and its strong chinook salmon run, about 80 percent of all
chinook left in the Columbia, is vitally important to present and future
efforts to rebuild salmon runs in the Columbia River.
The Hanford Nuclear Facility is now closed and highly contaminated,
containing 177 underground liquid waste tanks containing 54 million
gallons of highly volatile radioactive waste, all sitting very close to the
Columbia River. At least 1 million gallons of liquid chemical and
radioactive waste has already leaked into the groundwater near the river.
An estimated half a trillion gallons of contaminated liquids from
reprocessing spent nuclear fuel rods were also dumped directly into the
soils during Hanford's 45 years of operation. There are also numerous
unlined dirt trenches in which radioactive waste barrels were dumped by
the thousands, many of them now leaking. Unusual sex changes have
been observed in some of the Hanford Reach chinook salmon, and traces
of radioactive wastes are now reaching the river, though they do not as
yet pose a health danger (see Sublegals 2:24/06). Preventing these
wastes from getting in the river in the future is the main purpose of
current cleanup and decontamination efforts.
The Department of Energy (DOE) has spent billions of dollars trying
to decontaminate these sites, but is now considering the option of
"accelerated cleanup" which, among other actions, would return to the
practice of importing waste from other places and using the Hanford
facility as permanent storage, plus once again burying barrels of waste in
unlined dirt trenches and in cement tanks on site. The "Draft Hanford
Site Solid (Radioactive and Hazardous) Waste Program Environmental
Impacts Statement" (DEIS) has now been issued, and comments on this
DEIS will be taken until 22 August 2002. The DEIS and related
documents are not on the DOE web site, for "security reasons," and must
be ordered, but information about them is available at:
http://www.hanford.gov/spannounce.html. A number of public meetings
on the new cleanup plan will also be held, as described in the
announcement. A critical assessment of this "accelerated cleanup"
program and more information about the Hanford cleanup problem is
also available from the citizen's group Hanford Watch, from their web
site at: http://www.hanfordwatch.org, or contact Paige Knight at:
paigeknight@msn.com.
5:22/11. UPCOMING CONFERENCES: There are a number of
important upcoming conferences on ocean and coastal issues to put on
your calendars, including:
** American Shore & Beach Preservation Association, 2002 Annual
Meeting. To be held 15-18 September, 2002 in Portland, OR. For more
information see: http://www.asbpa.org/2002conf.html.
** California and the World Ocean 2002. To be held 27-30 October
2002, in Santa Barbara, CA. For more information see:
http://resources.ca.gov/ocean/CWO_02/Call_index.html.
** 4th World Fisheries Congress. To be held 2-6 May 2004, in
Vancouver, British Columbia, Canada. This is also the first time the
Congress has met in North America. The theme will be "Reconciling
Fisheries With Conservation: The Challenge of Managing Aquatic
Ecosystems." For more information see: www.worldfisheries2004.org.
NEWS, COMMENTS, CORRECTIONS: Submit your news items,
comments or any corrections to Allison Vogt, Editor at:
ifrfish@pacbell.net or call the IFR/PCFFA office with the news and a
source at either: (415) 561-FISH (Southwest Office) or (541) 689-2000
(Northwest Office).
##########################################################
"Sublegals" are a weekly fisheries news bulletin service of Fishlink. To
find out more about Fishlink, list information can be viewed and you can
subscribe yourself automatically at:
http://straylight.primelogic.com/mailman/listinfo/fishlink
If you have any trouble subscribing or unsubscribing, contact
PCFFA/IFR directly at: <fish1ifr@aol.com>.
##########################################################
"Fishlink" and "Sublegals" are registered trademarks of the Institute for
Fisheries Resources. All rights to the use of these trademarks are
reserved to IFR. This publication, however, may be freely reproduced
and circulated without copyright restriction. If you are receiving this
as a subscriber, please feel free to pass this on to your colleagues.
Subscribers who wish to post or circulate hard copy of Sublegals or
have no access to the Internet may receive fax subscriptions by faxing
their request, with their fax number to: (415) 561-5464. Thanks!
##########################################################