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.
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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.