June 18, 2019 Update #4- Judge rules discovery and video depositions can move forward in the Advocacy's legal challenge to WDFW's co-management season setting practices
In the second round in Thurston County Superior Court, Judge Price set the structural process for the Advocacy legal challenge to North of Falcon season setting by WDFW. At the same time, he heard arguments regarding discovery and the Advocacy's ability to use video tape in depositions of WDFW staff.
WDFW argued that video taped depositions of individual employees such as Rules Coordinator Scott Bird were too hard on WDFW staff. Mr. Bird provided a declaration to the court explaining his concern over a recent correspondence between WDFW's Mike Grossman and Advocacy's Joe Frawley discussing the legal ramifications for someone altering the record. The idea "....I could be involved in criminal activity is very offensive and threatening to me." He added "This has upset me a great deal".
Advocacy President Tim Hamilton responded in opposition to Bird's declaration with an explanation of how WDFW depositions were required to lay out all the facts stating "WDFW will simply not disclose how the seasons are set and what occurs behind the scenes between WDFW, the Governor's office, the tribal co-managers and the federal agencies."
Judge Price then set the path forward noting that the Advocacy would be entitled to discovery over the public records related to the North of Falcon season setting process and be allowed video-taped depositions of WDFW staff.
The Bird declaration is available for view or downloading HERE. The Hamilton declaration is HERE.
June 3, 2019 Update #3- WDFW refuses to turn over records of salmon season setting, Advocacy responds with subpoena for WDFW Rules Coordinator Scott Bird to appear in a video deposition
The Administrative Procedure Act (APA) requires that WDFW maintain a record of rule making proceedings available for public review (RCW 34.05.370). On May 29, 2019, Advocacy attorney Joe Frawley notified AAG Mike Grossman that he and Advocacy President Tim Hamilton would be arriving at 3 o'clock the following afternoon at the office of Scott Bird located at 600 Capitol Way N. in Olympia to review the file for the 2018 and 2019 seasons. Both Grossman and Bird joined in asking the Advocacy to cancel the visit. The request was denied and both were notified the visit would take place as planned.
Upon arrival at Mr. Bird's WDFW office, counter staff informed the delegation that Mr. Bird was not in his office and Mr. Bird was in the Natural Resources Building behind the Enforcement Division Headquarters counter. The delegation proceeded to the location which has high security darkened windows with a microphone and security teller drawyer.
Mr. Hamilton asked to speak to Mr. Bird and the staffer went behind closed doors and returned with a letter addressed to Mr. Frawley containing a public document request form and a letter from Grossman making it clear we could not review the public file. The security glassed in counter with a locked door made it clear access to Mr. Bird was denied as well.
The following day, Frawley transmitted a letter to Grossman outlining the Advocacy's position that the Department was not operating in compliance with the public transparecy laws of the State of Washington. He attached a copy of a subpoena for Mr. Bird to appear in a video deposition on July 1, 2019 at 10 am in Olympia.
WDFW is expected to fight the subpoena of its staff. The Advocacy will likely have to file a motion with the court to compel his appearance. The Department would likely file a motion to quash.
One way or another, the Advocacy is committed to opening closed doors and blackened windows to allow the public the ability to see how WDFW and its co-managment partners are setting salmon seasons in Washington state. Frawley's letter to Grossman is available for viewing HERE. The subpoena issued to Bird is HERE.
May 24, 2019 Update #3- Judge grants two Advocacy's motions in legal challenge to WDFW's co-management season setting practices
In the first round in Thurston County Superior Court, Judge Price heard two motions filed by the Advocacy. Joe Frawley appeared for the Advocacy and AAG Michael Grossman argued for WDFW. WDFW opposed both motions.
The first motion was to consolidate the Advocacy case with a private citizen complaint (West) filed just prior to the Advocacy filing its petition. The Judge granted the Advocacy's motion to consolidate.
The second motion from the Advocacy was to continue a motion filed by WDFW asking the court to dismiss the West case. The Judge granted the Advocacy's motion which stands down the efforts of WDFW to get the West case thrown out while allowing an opening for WDFW to refile in the future.
The Judge further set up a schedule for conferences, etc. to start the process down the procedural path to trial.
Advocacy President Tim Hamilton summed it up this way. "While its a long playoff, it's nice to start a series 2-0 versus the opposition."
More to come.......
May 22, 2019 Update #2- WDFW faces first obstacle in court
Just prior to the Advocacy filing a legal complaint in Thurston county over its season setting with tribal co-managers, a citizen (West) filed an action acting as his own attorney. Since both challenges were similar and before the same judge, the Advocacy moved to consolidate the two cases so they could be heard at the same time. WDFW then filed a motion opposing the consolidation. Today, the Advocacy filed a response and a hearing is set for this Friday.
The process allowed one to read the "nuts and bolts" of the legal fight. The Advocacy response is truly an interesting read. Here's some highlights:
WDFW’s motion to dismiss (WEST) is frivolous. It ignores that no facts need to be proven because Washington courts require only notice pleading, and it ignores the fact that a committee of the WDFW governing body admittedly conducted secret meetings at which they excluded the public and acted on behalf of the Commission.
E. The Process Used by WDFW Would be Akin the Court and the Undersigned Striking a Deal in Secret Dictating the Outcome of a Case.
In 2019, WDFW conducted meetings at a hotel in California to agree to the LOAF, which has already been codified into federal law. Frawley Decl., May 22, 2019, Ex. H. WDFW has already enacted “emergency” regulations to begin the fisheries that were agreed to. Id.,, Ex. I. As described above, the APA process and any public input is a charade, and WDFW has effectively enacted what will be the law when the LOAF was signed. Now imagine that process in a court setting.
If an analogous process were followed, the undersigned and the Court would meet at a hotel, perhaps a California hotel to ensure that the public was not present, and would enter into an agreement regarding the outcome of the case. The Court would then process the case, set deadlines, hear motions, and ultimately conduct a trial. At the end of the trial, the Court would announce its decision, entirely consistent with the Court’s agreement with the undersigned, and publicly announce that the decision was necessary to “implement the agreed-upon” result. Such a process would be preposterous and clearly illegal. It also mimics the process followed by WDFW.
The Advocacy's full response is available for review HERE
May 16, 2019 Update #1- Interrogatory filed, discovery into WDFW season setting practices begins
The Advocacy has filed its initial interrogatory opening the first round of discovery in the legal challenge to WDFW's tribal co-management season setting practices. WDFW has 30 days to respond and provide the information and documents requested. It's truly an interesting read. The interrogatory is available for viewing Here and the other court documents filed previously are available on the right.
Advocacy files legal challenge to WDFW setting of fishing seasons in Washington
Each year, the Department uses a process referred to as “North of Falcon” (NOF) to set recreational and commercial salmon fishing seasons within the state and its coastal waters. A key component is behind closed-door meetings with tribal co-managers resulting in an announcement of a “List of Agreed Fisheries” (LOAF) that is released to public. The department then installs seasons based on the LOAF and effectively denies the public an ability to participate in development of the season.
The Advocacy and others members of the public have repeatedly raised objections to the Department using behind-closed-door meetings in this process. Thousands have signed petitions, attended meetings of the Fish & Wildlife Commission and invested thousands of hours reviewing public records to determine why the Department reaches its season setting decisions. While the Commission passed a policy provision regarding increased transparency in NOF in 2019, the Department has been unwilling or unable to change its ways and in 2019, transparency nearly disappeared as the fishing seasons and regulations were agreed to in a closed-door meeting in California.
The legal action taken does not challenge tribal sovereignty. The state and the tribal governments are committed to co-management of our fisheries resources. That does not, however, exempt the NOF process and WDFW from transparency laws guarantying the citizens of Washington the right to participate and be informed.
The Advocacy believes this continuing controversy simply must come to an end. Fish runs are declining, conservation standards are left ignored, and ESA designation hangs over the state’s head as the Department continues to destroy the public’s confidence in the agency. Clearly, the Department is “in a state of denial” and it will require intervention by the courts effect changes needed to protect the resource and the public’s interest.
The legal filings are available for viewing on the right of this page. If you wish to contribute to the legal effort, your support would truly be appreciated. The Advocacy is a nonprofit organization operated by unpaid volunteers. Donations are not disclosed publicly and are tax deductible.
ADVOCACY FILES PETITION IN THURSTON COUNTY TO OVERTURN "EMERGENCY RULE" ADOPTION BY WDFW IN WILLAPA BAY
The Advocacy filed a petition in Thurston County Superior Court on October 18, 2017 challenging a recent decision by WDFW to impose an emergency rule to the commercial fishing season underway in Willapa Bay. The petition is available for viewing HERE
The emergency rule passed by the Department on September 29, 2017 effectively suspended the requirement that Chum salmon encountered by a commercial fisher in its net and brought aboard had to be placed into a recovery box prior to release into the bay. The mortality rate for those fish treated in the recovery box was left unchanged after the requirement for revival was eliminated. This factor lead the emergency rule to quickly be referred to by local fishers as the "Chum Chuck."
When passing the emergency rule, the advisors and members of the public involved in fisheries management with the Department were "blindsided" by the Department's action. The historical use of conference calls with advisory groups and emails to interested party lists used in the past to provide input prior to a rule change decision by the Department were not utilized.
The Department's stated reason for the emergency rule was "This emergency rule is needed to lift the restriction that chum salmon must be placed in an operating recovery box prior to being released into the bay/river. The recovery box is prioritized for unmarked Chinook and steelhead encounters. The projected forecast of Chum in Willapa Bay is likely to lead to densities occurring in the recovery box that might be detrimental to the recovery of the prioritized species. There is insufficient time to adopt permanent rules."
The petition filed by the Advocacy raises four issues. First, the Department did not have any evidence or analysis known to the Advocacy that showed the projected forecast would lead to higher than expected densities in the recovery box. The weekly season progress reports on encounters and landings in the 2017 season circulated by the Department showed the opposite. Chinook, Coho, and Chum presence in the bay were well below the preseason forecast. Onboard observer reports from WDFW staff showed no instances, either before or after the passage of the emergency rule, wherein the recovery boxes were facing a density problem. Therefore, the Advocacy alleges the decision by the Department was arbitrary and capricious and therefore, contrary to the provisions of the Administrative Procedure Act (APA).
Secondly, the mortality rate used by the Department in its modeling when setting the original season was 59% with a gillnet and 34% for a tangle net. The mortality rates were reliant upon the requirement in the rule wherein all Chum encountered by either net would be placed in the recovery box prior to release back to the water. After the Department passed the rule eliminating the requirement Chum be placed into a recovery box, WDFW staff confirmed it continued to use the same mortality rate for those Chum released even though the recovery box requirement had been intentionally eliminated by passage of the emergency rule. The Advocacy alleges it is arbitrary and capricious for the Department to claim the mortality rate is the same for Chum whether revived in a recovery box or simply chucked overboard.
Thirdly, the APA specially limits the use of an emergency rule to those instances wherein "immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest" As referenced earlier, the Department had no reasonably reliable information or data to conclude an emergency of this nature existed. Having commercial fishers "chuck" stressed Chum overboard without time in the recovery box increases the number of dead Chum in the water. The Advocacy contests the notion that killing more Chum in this manner provides protection to the health, safety, or general welfare of the public. The Advocacy therefore alleges the use of an emergency rule in this case is also contrary to the provisions of the APA.
Finally, the Advocacy alleges WDFW does not have the legislative authority to decide which species to "prioritize" and which species to over harvest in order to allow additional harvest opportunities. WDFW's mandate is to first provide for conservation of all species and, where consistent with that goal, to allow commercial and recreational salmon fishing. WDFW exceeded its legislative authority and acted in a arbitrary and capricious fashion by prioritizing other salmon species over the survival of Chum salmon.
Editorial Note: The members of the Advocacy have always sought to find means of participation in the public process that avoid the need to seek intervention by the courts. In this case, no other avenues could be found.
Unfortunately, litigation of this nature is expensive and challenges the limited resources of the Advocacy members. Those wishing to help out with the legal costs of this effort can contribute either via check or credit card following the instructions on the right side of this page. The Advocacy is a non-profit organization carrying 501 (c) (3) status recognition by the IRS and all donations are tax deductible.
UPDATE #5- COURT REJECTS CHALLENGE BY THE WILLAPA BAY GILLNETTERS ASSOCIATION
Following a hearing in Thurston County Superior Court, Judge James Dixon dismissed the legal challenge filed by the WBGA. In doing so, the Judge ruled from the bench in a strong fashion rejecting the argument that the financial well being of commercial sector was on a par with managing for conservation. The final order signed on June 23, 2017 is available for viewing HERE.
UPDATE #4- JUDGE REJECTS GILLNETTERS ATTEMPT TO BLOCK INTERVENTION BY THE ADVOCACY AND CCA
On March 4, 2016, Judge Anne Hirsch heard the motion from the Advocacy and the CCA to jointly intervene in the challenge to the 2015 commercial season in Willapa Bay filed by the Willapa Bay Gillnetters Association. In its response to the joint motion, the WBGA asked the court to reject the intervention claiming we would slow down the process and prejudice their case. If the court did allow the intervention, the WBGA then asked that the two be required to use a single attorney and help the WBGA pay the costs of producing the extensive record of the public proceedings that resulted in the passage of the WB Salmon Policy in 2014 by the DFW Commission and the subsequent gillnet season that followed in 2015.
Advocacy counsel Joe Frawley drafted the reply for the two groups and argued before the court. He pointed out to the court that his clients had already conducted an extensive review of the record and were waiting on the gillnetters attorney to do the same. Then, he pointed out the inappropriateness of one side trying to chose or limit the counsel representing another. He then qouted the Administrative Procedures Act being litigated to show the statute did not allow for one side to require the other to pay their costs of producing the record as a condition of participation.
State Assistant Attorney General Michael Grossman appeared on behalf of the Department of Fish & Wildlife. He confirmed the state's position was the Department was not opposing the motion to intervene.
Judge Hirsch listened and then ruled from the bench. The WBGA's opposition to the joint intervention was rejected and the motion to jointly intervene was granted. The attempts by the WBGA to limit the counsel to only one representing the two groups and to transfer costs of producing the record from the WBGA onto the intervenors were likewise rejected. From our prospective, it was pretty much a "clean sweep.
The next step will be reaching agreement on how to reduce the size of the record down to a volume that the court can absorb. Currently, it takes familiar with all the proceedings about 48 hours to review the electronic files. Then, approximately 30 hours of audio tapes of public meetings will have to be reviewed to determine which one's need to be converted into written text by a court reporter. While this significant task is being completed, a schedule for the hearing before the Thurston County Court will be set.
UPDATE #3- ADVOCACY AND CCA FILE JOINT MOTION TO INTERVENE IN PETITION FILED BY WB GILLNETTERS
In response to the petition filed by the Willapa Bay Gillnetters Association (WBGA) challenging the 2015 commercial gillnet season for Willapa Bay, the Advocacy has joined ranks with the Coastal Conservation Association (CCA) and filed a joint motion to intervene on behalf of both organization's members and supporters. Joe Frawley of the Olympia law firm Schefter & Frawley is representing the Advocacy. Former state Supreme Court Justice Phil Talmadge of the Seattle firm of Talmadge, Fitzpatrick and Tribe will represent the CCA.
The jest of the petition by the WBGA is an effort to invalidate the new Willapa Bay Salmon Management Plan passed in 2015 by the Fish & Wildlife Commission that is designed to manage the resource on a conservation first and harvest second basis. The petition further attempts to creatively argue a scenario wherein the Department (i.e. the rest of the citizens and the state treasury) has some legal duty to provide a level of profitability acceptable to the holders of commercial gillnet licenses, regardless of the number of fish available for harvest.
The joint motion to intervene is scheduled for arguments before a judge in Thurston County on March 4, 2016 to determine whether the court will allow the intervention and if so, under what terms or conditions. The motion is available for viewing or downloading here. A link to the petition filed by WBGA is posted below.
UPDATE #2- GILLNETTERS FILE YET ANOTHER SUIT, THIS TIME IN THURSTON COUNT
On September 25th, Pacific County Judge Michael J. Sullivan granted the state's motion to dismiss the first legal challenge to the new Willapa management policy filed by the Willapa Bay Gillnetters Association. As expected, the WBGA moved to Thurston County challenging the 2015 commercial season rule or "WAC" that was adopted by the Department with the policy guidenance provided by the Commission. The latest petition filed reads closely to the one filed earlier in Pacific County. Bottom line is the WBGA is arguing the Department is required to provide a commercial gillnet season that provides a profit level its members find acceptable. The Advocacy is preparing to once again file a motion to intervene to represent the interests of its members and others that have supported the Commission's efforts to manage fishing harvest in Willapa Bay in a responsible fashion. The latest petition filed by the WBGA is available for viewing or downloading here. A list of the different court filings are available on the right side of this page.
UPDATE #1- JUDGE IN PACIFIC COUNTY DISMISSES SUIT BY GILLNETTERS
On September 25th, Pacific County Judge Michael J. Sullivan granted the state's motion to dismiss the first legal challenge to the new Willapa management policy filed by the Willapa Bay Gillnetters Association. The WBGA has allowed the time to appeal to expire and is expected to file another petition, this time in Thurston County challenging the actual commercial season WAC.
Gillnetters file legal challenge, Advocacy counters with motion to intervene
On June 30, 2015, the Willapa Bay Gillnetters Association (WBGA) filed a legal petition in Pacific County Superior Court challenging the new policy for salmon management in Willapa passed by the Fish & Wildlife Commission. The gillnetters association argues that the new policy reduces its members historical profitability on salmon harvest in Willapa Bay and the Commission exceeded its authority when adopting the policy. The state responded defending the actions of the Commission. The Advocacy has filed a motion to intervene to protect its interests and defend the new policy. All of the legal filings are available for viewing and downloading in the column on the right side of this page.
The policy in question was adopted after a long drawn out process of public meetings that incorporated scientific review and indepth analysis into the current state of hatchery production and historical harvest impacts on natural spawning salmon populations in the bay (see review of process here). Conservation was placed as a priority over harvest and avoiding intervention such as ESA reviews was a prioritized goal.
Further, the policy contains guidelines on hatchery operations. The goal was to bring the hatcheries in Willapa Bay into compliance with "Hatchery Reform" standards and follow recommendations provided by the Hatchery Scientific Review Group commonly known as HSRG. Hatchery problems identified in Willapa included large numbers of hatchery Chinook and Coho straying out into the gravel and commingling with natural spawning populations at levels that are recognized to be potentially damaging to the genetics of the natural spawners. The problem with the hatchery on the Naselle was found to be lack of an adequate weir to prevent hatchery fish from moving up river to the spawning grounds. Over at Forks Creek on the Willapa River, Chinook were reluctant to enter the smaller stream and instead were spawning out in the main stem at 4 to 5 times the numbers of natural spawners present.
The problem for the commercial sector that arose during the process was the acknowledgment that the historical commercial net seasons set by the Department targeting hatchery Chinook and Coho resulted in the fleet inflicting up to 90% to 99% of the impacts (killed fish) on natural spawning Chinook and Chum populations. While the seasons set recently by the Department awarded commercial interests a huge advantage over the recreational sector and impressive profits, extensive AHA modeling showed restoration of natural spawning populations in 21 years would require reduced harvest impacts on natural spawners. Since the impacts were overwhelming occurring in the nets, the reductions in harvest had to come from the nets.
Throughout the process, the representatives of the commercial sector opposed any policy language that would somehow reduce commercial catch and reduce profits for gillnetters. The opposition was loud and repeatedly inserted the threat of litigation if the Commission adopted a policy that the gillnetters opposed. Therefore, the filing of the petition did not surprise anyone involved.
The policy was adopted after years of controversy over the commercial seasons set in Willapa by WDFW. Literally thousands of hours were invested by WDFW staff and many in the public that joined with the members of the Advocacy to make trip after trip to attend meetings in Raymond and Olympia. The result was the adoption of a policy that while not perfect, lays out a vision from the Commission that prioritizes conservation over harvest and balanced allocation of harvest between the commercial and recreational sectors (Willapa Bay Salmon Management Policy C-3621)
While the Advocacy members respect the rights of the gillnetters to file a legal challenge, we are not going to "sit idly by" now that a legal petition has been filed. To do so would leave this issue in the hands of the commercial interests that promoted and the Department that adopted, past commercial seasons that led to a steady decline of natural spawning populations to the point where the condition of the runs in Willapa now threaten the citizens of the coastal region with the potential for federal ESA review. The goal of our intervention is to insure that the interests of the Advocacy members along with our neighbors and family members that don't share the profits of commercial fishing are adequately represented before the courts.