This year's forum will feature discussions on the budget crisis facing fishery programs and a proposal to establish a national trust fund for fisheries research and management. On the agenda are a number of key issues facing California's fisheries including proposed trap limits for the Dungeness crab fishery, collaborative fisheries research, a planned pre-assessment of the lobster fishery for Marine Stewardship Council (MSC) certification, the establishment of the new sea urchin marketing commission, the status of the herring resource, maintaining access to the sea cucumber trawl grounds, oversight of the expenditure of federal Sportfishing Restoration Funds by the state and a proposal for the private Hubbs Sea World to raise white sea bass in netpens in San Francisco Bay.

The afternoon session of this year's forum will be devoted entirely to Klamath and Trinity River issues. The Klamath fishery has reached a crisis stage since 3-year old Klamath River chinook numbers this year are the second lowest on record, while the same year class for all other river systems are way up. The cause of the Klamath decline was the spring fish kill in 2002 when the river's baby chinook were migrating downstream to sea (see Sublegals, 5:18/01). The 2002 juvenile fish kill, which went largely unnoticed - unlike the massive fish kill of returning adults that fall (see Sublegals, 6:12/07; 6:13/01), will take a large toll, even if the predictions are low, on commercial, sport and tribal fisheries in 2005 and likely for the following two years thereafter; this could include closures of much of the Oregon coast and California well south of San Francisco. PCFFA Vice-President Dave Bitts will be on hand to address the Joint Committee on the issue in addition to tribal, sportfishing and agency representatives. For more information on the Forum, contact Mary Morgan, Consultant, Joint Committee on Fisheries & Aquaculture at: Mary.Morgan@asm.ca.gov.

9:09/02. NINTH CIRCUIT DISMISSAL OF ALSEA VALLEY APPEAL MAY LEAVE OREGON COASTAL COHO UNPROTECTED, MAY LEAD TO OTHER SALMONID JUDICIAL DELISTINGS: On 24 February a three-judge panel of the Ninth Circuit Court of Appeals summarily dismissed, though on purely jurisdictional grounds rather than on the merits, the appeal of PCFFA/IFR and other Intervenor-Appellants from a lower court ruling by Oregon District Court Judge Michael Hogan, issued September 10, 2001 (see Sublegals, 4:11/02), that entirely dissolved Endangered Species Act (ESA) protection for the Oregon Coastal ESU ("evolutionarily significant unit," i.e., the genetic unit to which the listing applies) of coho salmon. The Ninth Circuit panel's dismissal was based on a confusing theory that Intervenors lacked standing to appeal Judge Hogan's order because it was not a "final order" in the case after a trial, but rather an "interlocutory" or interim order. The Intervenors maintain, and considerable case law supports that assertion, that since the effect of the Hogan order was to entirely and permanently dissolve ESA protections for the Oregon Coastal coho, and that since there is likely to be no further formal proceedings in the case since the plaintiffs obtained the relief that they sought, that the permanent effect of this order is the equivalent of a "final order" for purposes of an appeal. The Intervenors appealed because the federal government refused to appeal the lower court delisting decision, a listing it imposed only after a prior lawsuit and court order. The Ninth Circuit case file is Alsea Valley Alliance vs. Evans, No. 01-36071.

The main effect of the Ninth Circuit's dismissal of the appeal was to dissolve the stay that suspended Judge Hogan's original order judicially delisting the coho. When the order was appealed, the stay went into effect, thus de facto reinstating ESA protection for the coho for nearly two and a half years. Lifting the stay plunges Oregon Coastal coho salmon into an ESA limbo, with the listing still technically in place, but legally unenforceable. However, according to the Ninth Circuit's Federal Rules of Appellate Procedure Rule 41, the decision to lift the stay does not actually take effect until the Ninth Circuit issues its "mandate," which cannot be issued until 7 days after the deadline for parties to request a rehearing. Because the jurisdictional ruling itself was confusing and ambiguous, and because there is other case law that takes just the opposite position, the Intervenors will be requesting a rehearing of the panel's decision en banc (of the full Court rather than just a 3-Judge panel) for clarification and potential reversal of the original ruling, and have informed NMFS and the State of Oregon that the coho listing remains in effect until such time as the situation is clarified by the Ninth Circuit Court. If successful on rehearing, then the stay remains in effect and the Ninth Circuit still has to decide the appeal on the merits, rather than simply on jurisdictional grounds.

The original case (Alsea Valley Alliance vs. NMFS, Oregon Dist. Ct., Civ. No. 99-6265-HO) was brought by Oregon coastal landowners and Pacific Legal Foundation to delist coho on the grounds that NMFS did not also list hatchery fish (only wild) even though both were considered to be part of the same ESU. Landowers have long tried to define hatchery fish and wild fish as legally equivalent for listing purposes in hopes that NMFS would then have to count the large numbers of artificially produced hatchery fish in the same population base as the far rarer wild fish, thus moving population numbers above listing thresholds. Some timber companies have even invested in fish hatcheries in the past, hoping to avoid a listing by simply increasing hatchery production. The original Alsea Valley Hogan decision was based on his finding that making that distinction (between hatchery fish and wild fish) within the same ESU was a distinction without support in the statute, which talks only of species or subspecies, not fractional ESUs. NMFS also failed to present evidence in the Alsea Valley case of the genetic differences between the two types of fish. The original Alsea Valley Alliance District Court ruling can be found at: http://www.law.uoregon.edu/resources/9_12_01/ava_evans_r.pdf. 24 February Ninth Circuit panel ruling is available at: http://www.pacificlegal.org/rulings/alsea_win.pdf.

The problem with the Alsea Valley decision is that most ESUs of salmon and steelhead have both hatchery and wild components, and hatcheries are very common as mitigation for stream habitat lost behind dams or through dewatering of rivers. Agribisness, timber and development interests hope, by extending the Alsea Valley ruling as far as possible, to force judicial delisting of endangered and threatened salmon and steelhead all across the landscape, freeing them of ESA restrictions.

There are a number of Alsea-type cases or delisting petitions wending their way toward the courts, but their next delisting target, according the Pacific Legal Foundation (PLF) press releases, is the case Grange vs. NMFS, in which PLF used the same argument in the same court before the same judge (Hogan), seeking to delist the Southern Oregon/Northern California (SONC) Coho ESU that covers the Klamath Basin. It is this listing that has driven much needed water reforms in the Upper Klamath Basin necessary to get enough water from these headwater into the lower Klamath River to support commercial, Tribal and recreational fisheries, not to mention the threatened coho. Lack of this water during September 2002 (the water was diverted for Klamath Federal Irrigation Project use during a drought year) resulted in the worst adult fish kill in western U.S. history, killing more than 34,000 adult spawners before they could reach the spawning grounds (see Sublegals, 6:12/07; 6:13/01; 6:14/01; also see: http://www.klamathbasin.info/fishkill1.htm). That case is also currently stayed, pending the outcome of the Ninth Circuit appeal in the Alsea Valley case, but with a status conference scheduled in mid-June.

However, the Alsea Valley line of cases might also soon be moot. The National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service are about to issue new joint national guidelines for how to treat hatchery fish in all future ESA listing decisions. That new national policy would overcome the fatal flaw that Alsea Valley was based on, and remove the basis for similar future cases. A draft NMFS policy was issued on 23 July 2002 (see: http://www.nwr.noaa.gov/HatcheryListingPolicy/DraftPolicy.pdf). The final policy is expected by the end of March or early April this year.

9:09/03. GREAT BARRIER REEF CORAL DIE-OFF APPEARS INEVITABLE, GLOBAL WARMING BLAMED: Recent studies of Australia's Great Barrier Reef show increasing damage and projections are that it will lose most of its coral cover by 2050 and the world's largest coral system could collapse completely by 2100 because of global warming. The study was reported in an article by Reuters on 23 February.

The study, by Queensland University's Centre for Marine Studies, said that the destruction of coral on the Great Barrier Reef was now inevitable due to global warming, regardless of what actions are taken now. "Under the worst-case scenario, coral populations will collapse by 2100 and the re-establishment of coral reefs will be highly unlikely over the following 200-500 years," said the report "Implications of Climate Change for Australia's Great Barrier Reef." The Great Barrier Reef is the world's largest living reef formation, stretching 2,000 km (1,300 miles) north to south along Australia's northeast coast. "Only if global average temperature change is kept to below two degrees Celsius can the Reef have any chance of recovering from the predicted damage," the report said. Coral has a narrow temperature comfort zone and is highly stressed by a temperature rise of less than one degree Celsius. However, scientists project ocean water temperatures in the area to rise this century by between two and six degrees Celsius. The report also estimated that destruction of the Reef's coral could end up costing the Australian economy A$8 billion and more than 12,000 jobs by 2020. The Great Barrier Reef supports huge regional fishing and tourism industries. For the full 23 February Reuters story see: http://www.planetark.com/dailynewsstory.cfm/newsid/23923/story.htm.

9:09/04. COAL BOOM MEANS MANY NEW COAL-FIRED POWER PLANTS ON THE HORIZON: A February 26 article in the Christian Science Monitor highlights the results of a current boom in coal: plans are in the works to build some 94 new coal-fired power plants in 36 states. Growth in coal-fired power plants is fueled by coals easy availability, plus the rising costs of other fuels and dependence for oil on other countries. The U.S. has a large remaining supply of its own coal, and is expected to rely far more in the future on coal for power production than other forms of energy.

Planning for future coal power plant expansion has, thus far, been kept within utility company planning staff and many are far from being revealed to the public for comments. The burning of coal produces far more airborne mercury, sulfuric acid (an element of acid rain) and greenhouse gases than any other form of energy. Greenhouse gas emissions are rising rapidly and are the cause of global warming. For the Monitor story see: http://www.csmonitor.com/2004/0226/p01s04-sten.html.

9:09/05. CRITICS BLAST NEW AK PROCESSOR CRAB QUOTAS IN CONGRESS; CRAB CARTEL NOW THE LAW: In a Congressional hearing on 25 February before the Senate Commerce, Science & Transportation Committee, J. Bruce McDonald, Assistant U.S. Attorney General for Antitrust, told Senators that the new processor quotas for Alaska's crab harvest "will produce anti-competitive results" and "would eliminate beneficial competition between processors and inhibit product innovation and efficient use of resources," according to an article in the 26 February Seattle Post-Intelligencer. The guaranteed processor quotas (up to 90 percent of the Bering Sea/Aleutian Island king and tanner crab harvest) were signed into law by way of a small last-minute "crab rationalization" rider placed by Alaska Senator Ted Stevens in the 1,182 page Omnibus Spending Bill that became law last January (see Sublegals, 8:22/01; 8:18/07; 8:17/01; 8:13/04; 8:10/01). Because the provision was inserted in the budget bill as a rider, rather than a stand-alone bill, there were never Congressional hearings on the concept.

Under the quota plan, which went into effect on 1 January, fishermen will be now be required to sell 90 percent of their crab catch only to a small number of specific processors. Only the remaining 10 percent could be sold on the open market. Each processor's share would be determined by how much crab it handled in previous years. Critics include the U.S. Justice Department, the General Accounting Office and many fishermen, who said that guaranteed processor shares would distort the market and allow processors to set artificially low prices. "Processor quotas will turn fishermen into a form of indentured servant," California fisherman Richard Young told the Committee. "Because processor quotas will be codified in federal law, these servants will never have any hope of satisfying their indenture and escaping to the free market. They will be condemned to trade at the company store forever."

A number of fiscally conservative Congressmen also opposed the provision, but could not get it removed from the final "must pass" spending bill. "If we told farmers they had to sell their products to a handful of agribusinesses, there would be a revolt," said Committee Chairman Senator John McCain, R-Arizona. "The planners in the old Soviet Union couldn't have done better than this plan. I really feel sorry for fishermen who come to you to sell their catch instead of going to somebody outside your cartel. That's what you've done here, create a cartel." For the full 26 February Post-Intelligencer story see: http://seattlepi.nwsource.com/national/162166_crabquotas26.html. For a Committee hearing witness list and transcripts of testimony see: http://commerce.senate.gov/hearings/witnesslist.cfm?id=1066.

9:09/06. KLAMATH HYDROELECTRIC PROJECT RELICENSING APPLICATION FILED; NO FISH PASSAGE PROPOSED, NO DECOMMISSIONING CONSIDERED: On 25 February, PacifiCorp, the owner and operator of the Klamath Hydroelectric Project (and now a subsidiary of the giant international energy company Scottish Power) filed its Final Licensing Application (FLA) for the Project with the Federal Energy Regulatory Commission (FERC). The Klamath Hydropower Project's seven units include (from highest to lowest in the watershed) the small Eastside and Westside units at the intake to Upper Klamath Lake (next to the A Canal), J. C. Boyle, Copco 1 & 2, Fall Creek and the lowest in the Klamath River, Iron Gate Dam. Iron Gate Dam has no fish passage and now blocks salmon and steelhead at River Mile 190 that once occupied all the upper Klamath Basin in the tens of thousands.

The FLA was filed without any recommendations on fish passage and with no consideration of, or plans to study, alternatives such as decommissioning of Iron Gate Dam. PacifiCorps intends to decommission only the Eastside and Westside units, threatened with suit for violations of the Endangered Species Act (ESA) because of large mortalities of endangered sucker fish due to entrainment in these unscreened diversions. The company concluded that the value of the minor amounts of power generated by these two very old units did not justify the cost of screens. The company also intends to exclude Keno Dam, which generates no electricity, but was included in the original FERC license as a flow re-regulation dam and now supplies some irrigation water to the Klamath Irrigation Project. The last 50-year license, issued in 1956, expires in March 2006. Since 1956 many things have changed, including passage of the federal Endangered Species Act, Clean Water Act and National Environmental Policy Act (NEPA), as well as major changes in public attitudes toward dams that block river systems and destroy valuable fisheries.

The National Research Council (NRC), in its October 2003 report, "Endangered and Threatened Fishes in the Klamath Basin: Causes of Decline and Strategies for Recovery," recommended serious consideration be given to decommissioning of Iron Gate Dam because of the problems it creates with water quality for the lower river's salmon and steelhead populations.

The public has until 26 April 2004 to make comments on the FLA as well as request additional studies to ascertain the impacts of the dams on public resources. The Project Number for FERC file reference is No. 2082-027 and the FLA and public record is available online from the FERC Public Reference Room, at http://www.ferc.gov using the "eLibrary" link and reference number. The FLA and all supporting studies and documents are also available from PacifiCorp on its Klamath Relicensing website at: http://www.pacificorp.com/Article/Article1152.html.

9:09/07: EMBREY DAM GOES DOWN IN GROWING DAM REMOVAL TREND: On 23 February, the U.S. Army Corps of Engineers gleefully blew up the Embrey Dam in Fredericksburg, Va., allowing the Rappahannock River to flow freely from the Blue Ridge Mountains to the Chesapeake Bay for the first time since 1910, making it the longest free-flowing river feeding into the Chesapeake and a renewed migration route for fish that live in the bay but swim upriver to freshwater to spawn. The dam was originally used to generate power, and then to create a drinking-water reservoir, but for the past five years has been essentially useless. The removal of Embry dam highlights a growing dam removal trend, as the value of free-flowing rivers has been more fully recognized by society. Presently there are more than 70,000 existing dams in the U.S., approximately one built for every day since the signing of its Declaration of Independence. Many of these dams no longer serve any clear function, and most are up for once-in-a-generation relicensing in the next 20 years. For more information see the 24 February Los Angeles Times story by Elizabeth Shogren, "Virginia Dam Latest in Growing Trend," from the Times archives, available via: http://www.latimes.com.

9:09/08. NW ATLANTIC OCEAN ZONING WORKSHOP SET FOR HALIFAX 10-11 MAY: A workshop entitled, "Ocean Zoning: Can it Work in the Northwest Atlantic?", will be held at Saint Mary's University, in Halifax, Nova Scotia from May 10-11, 2004. The workshop is designed to explore the concept and effectiveness of ocean zoning as a tool for integrated management of marine resources and activities. It will provide an important opportunity for marine resource managers, policy makers, ocean users and stakeholders with an interest in integrated ocean management to learn from ocean zoning experiences internationally and to consider its application to the Northwest Atlantic region, including waters off Atlantic Canada and New England. For further information, visit http://www.oceanzoning.ca or contact the Workshop Secretariat at 902-429-1335 or email to ceanzon@dal.ca.

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