the film

Steelhead Season Gets
Snagged on a Legal Barb

by Eric Barker
Lewiston Tribune, November 16, 2018

State's lack of permit and the threat of a lawsuit force Idaho Fish and Game to suspend season after Dec. 7

Graphic: Snake River Steelhead have triggered the Early Warning Indicator of the Federal Columbia River Power System's 2014 Supplemental Biological Opinion Idaho's steelhead fishing season will end, at least temporarily, in three weeks.

The Idaho Fish and Game Commission voted this week to suspend the season after Dec. 7. It's an unprecedented situation linked to the threat of a lawsuit from six conservation groups and, of course, the second consecutive year of poor returns of both hatchery and wild fish.

Here is a rundown on what it means and how it came to this.

The Clearwater, Salmon and Little Salmon rivers will be closed to steelhead fishing without exception, as will the tributaries of the Clearwater.

The Snake River will be closed to steelhead fishing for all anglers who hold only an Idaho fishing license. Those who are licensed by the states of Oregon and Washington will still be allowed to fish for steelhead in areas of the Snake River that border Idaho, depending on how and where they fish.

In general, where the Snake River forms the border between Idaho and Washington or Idaho and Oregon, the middle of the river is considered the actual state line. But the states don't require anglers to determine where the middle of the river is while fishing. Instead, they allow anglers in boats who are licensed in one state to fish anywhere in the river, even if it's just a few feet off the shore of the other state.

The same is not true for anglers who are fishing from shore or those who are wading. They must be licensed by the state from which bank they are fishing.

So boat anglers licensed in Washington could fish anywhere in the Snake River from the Idaho-Washington state line near Clarkston to the Washington-Oregon state line in Hells Canyon. But they could not fish in the Clearwater or Salmon rivers. Keep in mind that no part of the Clearwater River, including its mouth at the confluence with the Snake River, is in Washington. Oregon licensed anglers could fish for steelhead in the Snake River from the Oregon-Washington state line, upstream to Hells Canyon dam.

That could be changing. David Moskowitz, executive director of the Conservation Angler, one of the groups that threatened to sue Idaho over its lack of an Endangered Species Act take permit, said the groups are urging Washington and Oregon to suspend steelhead fishing as well. Idaho Deputy Attorney General Kathleen Trevor told Idaho Fish and Game Commissioners that Washington has an updated take permit but Oregon does not. Moskowitz said it's possible his groups and others could take similar action against Oregon. It would seem that Washington is in good shape and is unlikely to suspend fishing.

The season is closed, but I can still catch-and-release fish for steelhead right?

No. The season was suspended because the state lacks a permit from the federal government to incidentally harm wild steelhead protected by the Endangered Species Act during the course of fishing. That permit allows anglers to handle the wild steelhead they catch while fishing. So even in a catch-and-release season, the state would be liable for any wild steelhead that might be harmed while being handled during fishing.

Can I use a license from the Nez Perce Tribe to fish for steelhead?

No. The Nez Perce Tribe does sell recreational fishing licenses to nontribal members. The licenses allow holders to fish on rivers, lakes and streams within the Nez Perce Reservation. However, the licenses only allow nontribal anglers to fish in seasons that are open by the state of Idaho. Since the Idaho steelhead season will be closed, holders of recreational licenses from the tribe would not be able to fish for steelhead.

Members of the tribe are unaffected by the closure and would still be allowed to fish for steelhead.

Will the annual volunteer collection of localized brood stock on the South Fork of the Clearwater River be disrupted?

Probably not, but it could be altered.

The Idaho Department of Fish and Game has enlisted the help of anglers in recent years to collect, by fishing, steelhead from the South Fork of the Clearwater River. Agency officials are attempting to develop, through spawning, a strain of steelhead that are honed into that river. Currently, steelhead released as juveniles in the South Fork are mostly the offspring of adults that are collected at Dworshak Hatchery on the North Fork of the Clearwater. But that is changing. Steelhead collected in the South Fork brood stock program with help of anglers are segregated at the hatchery and spawned together with the idea that their offspring will return at higher rates to the South Fork.

Butch Suor of Stites is a fan of the program who frequently participates. When Suor learned the season was being suspended, his first worry was that it would interrupt the localized brood stock program.

"What are they going to do for brood stock in the South Fork when the only way of collecting them is fishing? That is my concern," he said. "What are they going to do -- let a whole breeding season go by?"

It's unclear how the state will respond, but state fisheries officials believe the hook-and-line effort to catch steelhead from the South Fork for the sole purpose of bringing them into a hatchery for spawning can continue in some fashion. At the very least, Fish and Game officials will be able to fish for and collect steelhead on the South Fork. It's possible the agency would be able to sign up anglers to also fish for steelhead during the collection effort. There is a slim chance the steelhead season could reopen by the time that program takes place.

"We are not going to give up on that localized brood stock because of this issue," said Lance Hebdon, salmon and steelhead manager for the Idaho Department of Fish and Game at Boise.

Will this effect the Rogers Dodge Steelhead Derby?

No, see related story.

How did it come to this?

The conservation groups sent Idaho a 60-day notice of intent to sue last month and asked the state to shut down the steelhead fishing season. They believe the return of wild fish is so low that angling poses a threat to the fish that are listed as threatened under the Endangered Species Act. They have leverage because Idaho's Fisheries Evaluation and Monitoring Plan and associated incidental take permit expired in 2010. Although the state submitted a new plan the same year, the federal government only recently began to review it.

In the intervening years, Idaho operated its steelhead fishery in accordance with the updated plan it submitted and communicated with officials at National Oceanic and Atmospheric Administration Fisheries who were aware the state was continuing to hold steelhead seasons.

"We have been in continuous contact with NOAA on that since the permit lapsed. We submitted the paperwork in 2010, prior to the expiration of the previous permit. The necessary permit was not issued at that time," said Hebdon. "We have continued to conduct the fisheries with NOAA's understanding and we continue to communicate with them, so this has not been done under the cover of darkness; it's been done with full and transparent knowledge and with NOAA, and they have chosen to address their resources to other higher-priority permitting issues and put our steelhead fishery permit on the back burner."

In particular, those other more pressing issues include reviewing similar permits that allow states and tribes to operate steelhead and salmon hatcheries in rivers with listed fish.

Allyson Purcell, branch chief for anadromus fisheries and inland fisheries for NOAA at Portland, said the federal agency is confident the state's fishery is not harming wild fish.

"Based on the information we have, the impacts of this fishery are very low," Purcell said.

Department officials and leaders of the group met last week in an effort to reach an agreement that might stave off a lawsuit. Among other things, the groups asked the state to ban bait, not allow anglers to fish from boats, not allow anglers to briefly remove wild steelhead they hook from the water for a photograph before releasing them and close the season on Jan. 1.

Moskowitz said the state was unwilling to entertain any of those changes. Still, the groups nearly reached an agreement that would have led to closing certain stretches of rivers where wild fish and hatchery fish are mixed and left open other rivers such as the North Fork of the Clearwater River and the Little Salmon River, where anglers encounter few wild fish. However, that agreement fell apart.

"The disappointing part of this is we had an agreement (Nov. 8) on how to do a very limited closure that addressed the biological issues we all agreed on and they walked away from that agreement," said Virgil More, director of Idaho Fish and Game. Moskowitz disagrees that an agreement was reached.

"We agreed those were good ideas, but I don't think it was complete, he said. "I don't think it was not a U-turn. We simply didn't get far enough along."

Lacking a settlement, Fish and Game commissioners and officials at the department believe if the groups were to follow through on their threat of a lawsuit, they would prevail. If that happened, they said, it's likely Idaho would have to pay the groups' legal tab, an estimated $50,000 but one that could have climbed to has high as $100,000 according to Moore.

Commissioner Dan Blanco of Moscow described going to court under those circumstances as showing up to a gun fight with a pop gun.

"We decided as a commission to neutralize the suit by suspending the season with the idea we might have our permit back by March, at which point we can unsuspend the season."

Who is to blame for this situation?

It seems there is plenty of blame to spread around and those involved are now pointing at each other. The federal government delayed working on the state's monitoring and evaluation plan for eight years. Some people believe the state should have done more to urge the fisheries officials at NOAA to process the permit. And some people blame the conservation groups for forcing the issue.

"We are sort of being blamed for this, but I think the blame falls elsewhere," Moskowitz said. "They could have completed their due diligence and followed the law."

Moore places the blame squarely on the conservation groups and said they wanted the department to make changes that would have favored fly anglers and punished those who fish with bait and from boats.

"These folks are selfishly prosecuting the people of the state of Idaho to close down a fishery because they have social issue related to the way they want to fish and where they want to fish," he said. "What they wanted was no bait. They basically wanted to go to fly fishing only and catch and release."

Kevin Lewis, executive director of Idaho Rivers United at Boise, said federal officials, the commission and department are at fault. He said wild steelhead numbers are in unrelenting decline." About 10,000 wild fish have counted this year, compared to 40,000 just three years ago.

He noted department officials have said there is no biological reason to shutter the season, "but the Commission went forward anyway, inflicting pain on riverside Idaho communities that depend on a fishing economy, and which have struggled for years with dwindling stocks of salmon and steelhead."

He called the federal government's failure to complete work on Idaho's permit "a blatant administrative problem."

"(Idaho Fish and Game) says it submitted a draft fishery management plan for steelhead in 2010 to NOAA officials, but NOAA never processed or approved a permit. IDFG staff might deserve some heat for inattention too, but we suspect federal inaction is primarily to blame. Federal agencies have a long record of ignoring the plight of Idaho salmon and steelhead, and more generally, of ignoring Idaho values."

Eric Barker
Steelhead Season Gets Snagged on a Legal Barb
Lewiston Tribune, November 16, 2018

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