At the hearing, PCFFA said it was time to stop blaming the law - the Sustainable Fisheries Act of 1996 (amending the Magnuson-Stevens Act) - that prohibits overfishing, or the lawsuits arising out of that legislation, and instead begin working to rebuild depleted stocks while allowing for fishing on the more abundant stocks. In its recommendations for the 2003 season, PCFFA said the Council needed to develop a recommendation to allow for the maximum amount of fishing available while meeting protection and rebuilding goals set forth in the law. It concluded saying that this did not mean a closure of the Huntington Flats to the remnant gillnet fleet from San Pedro. For more information on the PFMC proposed options for the 2003 groundfish fishery, go to the Council's website at: www.pcouncil.org.

6:04/02. GROUNDFISH FLEET BUYBACK FUNDING GUARANTEE PASSED IN HOUSE; EMERGENCY RELIEF APPROVED FOR NEW ENGLAND; GROUNDFISH RESCUE BILLS STILL PENDING: On 23 July, the U.S. House of Representatives gave final approval to a Supplemental Appropriations Bill (H.R. 4775) containing several provisions of interest to fishermen. Section 206 extends the time of the report for the U.S. Commission on Oceans Policy until 30 June 2003; Section 210 appropriates $11 million to provide economic assistance and disaster relief to New England groundfish fishermen as a result of closures and fishing restrictions; Section 211 provides $500,000 in loan guarantees for financing a revolving loan fund to support an industry paid-for buy-out and permanent retirement of groundfish permits in New England; Section 212 provides an additional $500,000 to secure loan guarantees for an industry paid-for groundfish vessel and permit buyback and retirement program for the west coast groundfish fleet. The bill was sent to the President on 27 July for an expected signature.

Two bills are still pending in Congress, both called the "Pacific Coast Groundfish Fishery Preservation Act" (H.R. 2376 and S. 973), that would formalize a groundfish capacity reduction program, initially to be funded with loans obtained from private banks using already appropriated Congressional funds as loan guarantees. These bills are considered more likely to pass now that initial funding has been secured. The loans to the fund would be financed through harvest or landings fees collected from within the industry over time from those fishermen remaining. However, many fisheries leaders, calling these amounts "a mere pittance" compared to the recently passed Farm Bill containing $190 billion in agricultural subsidies, have called for full Congressional funding of a much more aggressive capacity reduction program, instead of relying on repayment of loans through fees in an already overburdened, uncertain and largely closed fishery.

Both bills would also allow conversion of Capital Construction Funds (CCF) to Individual Retirement Accounts (IRAs) without tax penalties, to allow captains who have been paying into those funds for years to use them toward retirement instead of only for the construction of yet more boats in a grossly overcapitalized fishery. For more information on these bills see the THOMAS system for tracking bills through the Library of Congress at: http://thomas.loc.gov.

6:04/03. MLPA WORKING GROUPS FINISH FIRST SET OF MEETINGS: The working groups comprised of stakeholders, including fishermen, representing a broad range of constituencies in the implementation of California's Marine Life Management Act (MLPA) completed their introductory round of meetings 17-19 July. The working groups were created in the spring of 2002 in response to concerns about the initial attempt to implement the MLPA (see Sublegals 5:24/04) to set up a process for the establishment of marine protected areas (MPAS) along the California coast. The members were given an overview of the process, including their responsibilities and duties, which could last until 2005. The meetings included background on the MLPA, an overview of some scientific reports that have been conducted on Marine Protected Areas (MPAs), and some of the economic and social factors to consider during this process. The regional working groups will now focus on their respective areas, interpreting the goals and meaning of the Act. IFR will be developing a system to help facilitate this process, as part of its Sustainable Fisheries Program. Look for updates soon on the IFR website at www.ifrfish.org and in future issues of Sublegals. To read more, go to http://www.dfg.ca.gov/mrd/mlpa/working_group.html.

6:04/04. PFMC MARINE RESERVES COMMITTEE TO MEET IN SOUTHERN CALIFORNIA: The Pacific Fishery Management Council's (PFMC) Marine Reserves Policy Committee will meet 14-15 August at the Hilton Garden Inn in El Segundo, California. The meeting had originally been scheduled for 1-2 August. Its purpose is to consider policy recommendations for marine reserve proposals for California waters of the Channel Islands National Marine Sanctuary. For more information, go to: www.pcouncil.org.

6:04/05. MERCURY LEVELS IN TUNA POSSIBLE CAUSE FOR CONCERN: A scientific advisory panel to the U.S. Food & Drug Administration (FDA) recommended on 25 July, after three days of meetings in Beltsville, Maryland, that the FDA tell pregnant women to limit their consumption of tuna due to potential high levels of mercury contaminants. The FDA issued a warning last year that pregnant women and children should avoid shark, swordfish, king mackerel and tilefish due to high mercury levels. Critics charged that tuna steaks and canned tuna should be included on the list. In response to these complaints the FDA convened the scientific panel to review last year's warnings. High levels of mercury in mothers can cause birth defects in babies, and mercury at lower levels can result in lower IQ's and slower development in babies. Mercury from mining operations and other industries pollutes oceans and lakes, accumulating in larger fish such as sharks and tunas. Smaller tunas, such as albacore, should therefore have lower levels of mercury and be of less risk. These differences between fish, even species of the same family, further highlights the need for seafood labeling allowing consumers to distinguish between potentially harmful foods and those with the most health benefits.

One organization, the Environmental Working Group (EWG), has been advocating for the mercury warnings and claims that the FDA was influenced by industry lobbyists to specifically leave tuna off its avoid list. For more information from EWG about the FDA's mercury policies, go to: www.ewg.org. EWG recommends pregnant women replace tuna with other low-mercury level seafood such as wild Pacific salmon and farmed trout for their beneficial omega-3 fatty acids that help developing brains. This offsets some of the panelists' fears that these women will switch to other sources of protein such as bologna, missing out on the benefits of seafood consumption. The FDA said they would place these recommendations in top priority when setting guidelines this year. To see the San Francisco Chronicle article, go to: http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/ 2002/07/26/MN229793.DTL.

6:04/06. WASHINGTON STATE OYSTER GROWERS' DIRTY LITTLE BUSINESS: In the last issue of Sublegals, (6:03/07), it was reported that a Superior Court Judge on 19 July overturned a ban on the spraying of the pesticide carbaryl on tidal flats in Willapa Bay and Grays Harbor by oyster growers. Carbaryl, is used by the growers to kill burrowing shrimp that they claim threaten oysters. The pesticide is most toxic to arthropods including honeybees, Dungeness crabs, and shrimp though it is also moderately toxic to salmon and even to oysters. Objections to the 40-year old practice of spraying the tidal flats in mid-summer were initially raised by some organic oyster growers who complained that the pesticide was affecting their crops and making them unmarketable for at least part of the year. One of those growers was Larry Warnberg who at the time sat on the board of the Pacific Coast Shellfish Growers Association (not Pacific Coast Oyster Growers as incorrectly reported in the last Sublegals). As a result of his making an issue of the carbaryl spraying, Warnberg was removed from the Association's board and locals saw to it that some of his tidal leases were cancelled as well. The head of the Willapa Alliance also lost her job in 1994 in part because of concerns she raised about the spraying of carbaryl as well as an herbicide with a surfactant for spartina in Willapa Bay and Grays Harbor.

Following a 2001 federal court ruling that the Washington Department of Ecology had to issue a National Pollution Discharge Elimination System (NPDES) permit, pursuant to the federal Clean Water Act, for the carbaryl spraying, the state agency went ahead and issued a four-year permit to cover 800 acres. The Department of Ecology permit was appealed to the Washington Pollution Control Hearings Board where it was overturned and that 2-1 decision was subsequently overturned by Judge Paula Casey on the 19th, citing "economic hardship" and allowing the spraying to go ahead. Spraying began on the 22nd and the Department of Ecology increased the area to 1100 acres. Organic oyster growers and the Washington Toxics Coalition have a hearing in February to challenge the last three years of the permit. In addition, a recent court decision, where both PCFFA and the Washington Toxics Coalition were plaintiffs, requires the U.S. Environmental Protection Agency (EPA) to formally consult with NMFS on various impacts on salmon from pesticides, including carbaryl (See Sublegals 5:16/13).

Carbaryl supporters claim the pesticide breaks down quickly in the marine environment, posing little risk to non-target species. However, a 1999 EPA study showed carbaryl has the potential to disrupt the benthic food chain. Researchers found that it lasted longer than previously suspected, though they did not find it in historically sprayed sites. Some suspect also that the high rate of spontaneous abortions the Shoalwater Indian Tribe has experienced for the last 50 years is related to environmental toxins. The Tribe lives on the northeast shore of the Bay and relies heavily on the area's fish and shellfish. For more information on carbaryl, go to: http://www.epa.gov/iris/subst/0019.htm. The 1999 EPA study can be found at: http://www.ecy.wa.gov/pubs/99323.pdf; a 2001 EPA study: http://www.ecy.wa.gov/pubs/0103005.pdf. The question now is, how much longer can the Willapa Bay and Grays Harbor oyster growers hide behind the otherwise good image (i.e., environmentally benign, sustainable) of the rest of the oyster industry?

6:04/07. FARM BUREAU AND TIMBER INDUSTRY APPEAL PRONSOLINO CLEAN WATER ACT DECISION: The Farm Bureau, the American Forest & Paper Association and the California Forestry Association, representing agribusiness and industrial timber interests, have decided to appeal the landmark Ninth Circuit Court of Appeals Clean Water Act ruling in Pronsolino v. Nastri (No. 00-16027) handed down by the Court on 31 May that upheld the power of the federal government to regulate non-point source pollution (see Sublegals 5:22/03). The case was perceived as a direct landowner assault on the Clean Water Act's "TMDL" ("total maximum daily load") pollution control authority by which sediment, water temperature and various agricultural pesticides can be regulated under state and federal law. The plaintiffs in the case claimed that in spite of its plain language the Clean Water Act does not in fact give any regulatory authority over non-point source pollution, and that any effort by Congress to assert that authority would be unconstitutional. The three Judge panel of the Ninth Circuit, however, did not agree. 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 Ninth Circuit Court of Appeals decision, if it stands, settles the law on this issue throughout the western United States, including all states with salmon fisheries currently at risk from hot water pollution, silt and agricultural chemicals. The Plaintiffs are asking for a new hearing before the Ninth Circuit. The Ninth Circuit ruling can be found under "recent cases" for 31 May on the Internet at: http://caselaw.lp.findlaw.com/data2/circs/9th/0016026p.pdf.

6:04/08. CENTRAL CALIFORNIA IRRIGATION DISTRICTS JOIN ESA DELISTING SUIT FRENZY: On 19 June, the Modesto, Merced, Oakdale, South San Joaquin, Turlock and South Stockton Irrigation Districts of Central California all filed a joint 60-Day Notice to Sue against the National Marine Fisheries Service (NMFS), citing the Alsea Valley Alliance decision (see Sublegals 4:24/19; 4:20/08; 4:18/02; 4:11/02), claiming that not only are anadromous California Central Valley steelhead genetically indistinguishable from resident rainbow trout, but that wild fish of both species are genetically indistinguishable from hatchery fish. The irrigation districts are asking that NMFS set aside its listings of steelhead within the California Central Valley as arbitrary and capricious.

These irrigation districts are only the latest groups filing an "Alsea Valley look-alike" case seeking to overturn ESA protections for some or all of the 26 distinct stocks of salmon and steelhead that are now ESA listed in west coast waterways (see Sublegals 4:26/08; 4:13/01). Most of these cases are currently stayed, pending the outcome of the appeal of the original Alsea Valley Alliance decision to the Ninth Circuit Court of Appeals, which will be argued this fall. The irrigation districts are seeking a delisting of Central Valley steelhead to get out from under any obligations the ESA might require of them to change water diversion practices, screen irrigation ditches or to return more water to the Calaveras, Stanislaus or Tuolumne Rivers. Some of the irrigation districts also own their own reservoirs. For more information see the Stockton Record of 23 July at: www.recordnet.com/daily/news/articles/4new072302.html.

6:04/09. NMFS PUBLISHES DRAFT HATCHERY ESA LISTING POLICY: On 24 July, the National Marine Fisheries Service (NMFS) published its first draft of a new policy on how to treat hatchery fish populations of salmon and steelhead in considering listings under the Endangered Species Act (ESA). The previous policy had to be rethought in light of a federal District Court decision by Judge Michael Hogan in the Alsea Valley Alliance case which tossed out the ESA listing of the Oregon coast coho ESU ("evolutionarily significant unit," the genetic conservation unit upon which salmonid listings are based) because some, but not all, hatchery stocks in the Alsea Valley were afforded ESA protection (see Sublegals 4:24/19; 4:20/08; 4:18/02; 4:11/02), a ruling that was later stayed on an appeal still pending.

In its draft policy, NMFS took a middle ground between those who want only wild fish to be considered in ESA listings and those, including some property rights advocates, who are pushing for all hatchery fish to be considered the legal equivalent of wild fish in order to invalidate ESA listings because of huge hatchery production. NMFS proposed to list hatchery populations also under the ESA (together with the wild stocks) where they may be helpful in conserving the wild stocks, but to craft different protection rules for each through the use of separate 4(d) Rules. Separate 4(d) rules could allow selective harvest of hatchery stocks and provide for different levels of protection.

NMFS also proposes to assess hatchery practices as a gene conservation tool, but also assessing any adverse effects on wild stocks that hatcheries might also have, on a case-by-case basis. The proposed policy would also allow NMFS to require specific hatchery reforms when those reforms are necessary to avoid impacts on wild populations. NMFS will consider comments submitted by states, tribes and other federal agencies until 16 August, then release a revised draft in September for public comment. To see the draft policy: www.nwr.noaa.gov/HatcheryListingPolicy/HatcheryListingPolicy.html.

6:04/10. GROUPS THREATEN SUIT OVER WASHINGTON STATE HATCHERY IMPACTS ON WILD FISH: On 27 June, two Northwest regional fishery groups, Washington Trout and the Native Fish Society, filed a 60-Day Notice to Sue with the Washington State Department of Fish & Wildlife (WDFW).

The groups claim Washington State's state-run chinook hatcheries throughout the Puget Sound are currently violating the federal Endangered Species Act (ESA) by harming federally protected wild Puget Sound chinook populations. The groups claim that ESA protected chinook are harmed by hatchery practices in a variety of ways, including through increased predation, competition, dilution of the genetic integrity of wild fish gene pools through straying and inbreeding, and by fish passage barriers.

The 18 facilities of the Washington State hatchery system are vulnerable to criticism because of many past reports of problems at these hatcheries and recent recommendations for reform from a Congressionally-chartered independent scientific review panel, the "Hatchery Scientific Review Group." Those recommendations, which were issued in a 19 February report, recommended 218 changes at the WDFW hatcheries, and the closure of at least one of them, in order to minimize adverse impacts on wild stocks (see Sublegals 5:08/07). An earlier 1997 report also contained a prioritized list of fish passage barriers at WDFW hatcheries which also block ESA-protected fishes stream passage, but that have still not been corrected. For more information see: www.washingtontrout.org/hatchnoticepr.shtml.

6:04/11. CORRECTIONS AND CLARIFICATIONS: The following corrections have been brought by readers to the attention of Sublegals staff:

• In "New Study Links Delayed Mortality and Dam Stress" (Sublegals 5:26/10), in characterizing a study to ascertain the impact of dam passage and delayed salmon mortality in the Columbia's Snake River, that study was characterized as finding a "direct link" when the authors of that paper stated "different types of evidence discussed here suggest that the delayed mortality of Snake River salmon is related to the hydro system," a conclusion that is far less categorical and more accurately reflects the degree of scientific uncertainty still surrounding the issue. Other studies of the problem indicate contradictory or inconclusive results, and research on the issue continues.
• In the article on the problem with illegal harvest of Chilean seabass (Patagonia toothfish) (Sublegals 5:26/10), it was stated: "Unlike U.S. longliners in the North Pacific, for example, the toothfish fishery does not use methods and devices to prevent the hooking of albatross and other sea birds." Actually, there has been considerable high quality research on the seabird bycatch issue in the Southern Ocean and there are now regulations in place to help prevent seabird bycatch in the legal toothfish fishery. However, there is an illegal harvest that may be far larger than the legal harvest and it is highly doubtful that the seabird regulations imposed by CCAMLR are implemented on these illegal vessels. Also, it is incorrect to imply that the seabird bycatch problems in the Alaska longline fishery have been finally solved. Rather, U.S. longliners are in the process of developing effective seabird bycatch avoidance strategies, some of which are now required by regulations, but only years of statistically rigorous observer data will reveal the effectiveness of these methods and those used in other fisheries.
• In the last week's issue on the oyster industry (6:03/07) scientist Bill Kier's letter was sent 30 June 2000, not 2002.

NEWS, COMMENTS, CORRECTIONS: Submit your news items, comments or any corrections to Michelle Wallar, Editor at: mw_ifr@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).

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