A federal judge has dismissed a suit against the Lower Elwha Klallam Tribe’s hatchery plan as moot, and the tribe has terminated its plan to stock the Elwha with nonnative steelhead.
By Lynda V. Mapes, Seattle Times staff reporter
A federal judge has thrown out a suit against the Lower Elwha Klallam Tribe’s hatchery plan, and the tribe has backed away from stocking the Elwha River with nonnative steelhead.
The Elwha is at the center of the region’s long-running debate on hatcheries and their role in salmon recovery. A $325 million federal recovery project for the river is now under way, with one dam out of the river and another soon gone in the largest dam-removal project in history. With so much at stake, hatchery plans for the fish-recovery effort drew fire early.
Litigation was flying before the first chunks of concrete even came out. Advocates for wild fish filed notice of intent to sue in September 2011 over the new $16 million hatchery built as part of the recovery project. But portions of the lawsuit, filed in March against the Lower Elwha Klallam Tribe, were thrown out last week by Benjamin Settle, U.S. District Court judge for the Western District in Tacoma.
Settle found that the suit was moot because, since the suit was filed, the tribe had obtained permits from federal fisheries officials to carry out programs at its hatchery, leaving no question to settle.
“It speaks for itself,” said the tribe’s lawyer, Steven Suagee. “The initial complaint had been that the tribe didn’t have the approvals for these hatchery programs, and now we do.“
The new hatchery is to be used to supplement populations of fish that naturally recolonize the river as habitat becomes available. Ultimately, taking two dams out of the river will reopen 70 miles of habitat in the Elwha to salmon and steelhead spawning. But dam removal also is letting loose huge amounts of sediment, trapped behind the dams for a century. As the water gets muddy, the hatchery also is intended to provide a safe-harbor gene bank for four populations of fish listed for protection in the river, including steelhead.
The tribe backed away from one of the programs it sought to run at its hatchery: stocking Chambers Creek steelhead, which, while not native to the Elwha, have provided a fishing opportunity for tribal fishermen for years as native stocks in the Elwha declined because of the dams.
With the dams coming out, however, wild-fish advocates no longer wanted the nonnative fish stocked in the river. The tribe, while not conceding that the fish cause harm to wild stocks, announced in December to federal officials that it has ended its Chambers Creek program and will not be reviving it.
Instead, tribal members will mop up the fish returning from its last release from the hatchery in 2011 until no more of the nonnative fish come back. That will serve the needs both to avoid crossbreeding of the nonnative fish with fragile, rebuilding native runs and to provide a small fishing opportunity for the tribe.
A moratorium is in effect on fishing in the river for five years while populations rebuild. The tribe is negotiating with federal fisheries officials to be able to fish native Elwha steelhead after the moratorium even if those fish are still listed for protection under the Endangered Species Act, if doing so does not set back recovery.
Suagee said that those talks are still ongoing and that nothing is final.
Kurt Beardslee, of the Wild Fish Conservancy, said the nonprofit, which took the lead in the suit, intends to appeal.
Meanwhile, dam removal is on hold until repairs are made to a water-treatment plant built as part of the recovery project that clogged with leaves, sticks and mud during the first fall rains. The plant has not been providing the level of water quality expected nor functioning as planned.
Repairs are expected to put off resumption of work until at least April.