the film forum library tutorial contact

Oregon Argues in State Appeals Court that Challenges to New Gill-Net Rules 'Without Merit' by Staff Columbia Basin Bulletin, February 21, 2014

A relatively long-running legal dispute regarding gill-net use on the lower Columbia River has taken a step forward, with attorneys for the state of Oregon on Feb. 10 telling the Oregon Court of Appeals that challenges to new non-tribal fishing rules are "without merit."

The Oregon Fish and Wildlife Commission, which provides policy guidance for Oregon Department of Fish and Wildlife management of fisheries in state waters, in December 2012 approved new state "rules" that directed a transition away from non-tribal commercial gill-net in the lower river downstream of Bonneville Dam (located 146 miles upstream of the Pacific Ocean). The Washington Fish and Wildlife Commission approved a similar set of fishing regulations in January 2013.

A petition was almost immediately (Jan. 4, 2013) filed with the Oregon appeals court, claiming that the OFWC process did not properly follow state rulemaking requirements, did not properly consider potential impacts on small business and failed to resolve issues regarding how gill-net fishing harvest losses might be replaced.

The state then engaged in additional public process, and approved revised lower Columbia fishing rules in June 2013. The original petitioners, Steve Fick, James Wells, and Fishhawk Fisheries, then asked once again that the court declare the Oregon fishing rulemaking illegal. Fick owns Fishhawk Fisheries, an Astoria, Ore.,-based seafood processing company. Wells is president of Salmon for All and a commercial fisherman. Salmon for All is an association of gillnetters, fish buyers, processors and associated businesses.

With the new target, legal debate was resumed in the Oregon Appeals Court with an opening brief delivered Dec. 23 by the petitioners in the case.

The commercial fishers' opening brief said that "ODFW exceeded its authority by promulgating rules that conflict with controlling Oregon law pertaining to fishing and the protection of small businesses" and also fails to comply with federal law, including the ESA. Part of the state plan involves shifting commercial fishers away from gill-net use in the mainstem Columbia to off-channel areas in the estuary.

The plan envisions a switch to fixed nets, such as seines, by commercial fishers to enable mainstem harvest but with lesser impacts on protected fish that for the most part course upriver in the main part of the river. State managers say seines would be less injurious to fish than gill nets, and thus reduce impacts on wild salmon and steelhead stocks that are protected under the Endangered Species Act. The state Legislature late last year opted to make legal the use of such set nets.

The brief filed last week by the state offers counterpoints to the petitioners arguments. Those Oregon answers were supported in a brief filed by intervenors-respondents, the Coastal Conservation Association and David Schamp:

• where an agency's small business cost-of compliance statement does not show that proposed rules will have a significant adverse impact on small businesses, is an agency required to reduce the impact of that rule on those businesses?
• Is a rule invalid where it conflicts with a statute that the legislature has repealed?
• Does the department exceed its authority to manage fisheries under ORS 506.109 when it partially shifts the allocation of fish species in a state managed fishery from one group to another?
• Does an agency violate its duty under OAR 137-001-0087(3) to make a good faith effort to appoint a fiscal impact advisory committee that represents the interests of affected parties when it appoints to that committee two members representing recreational fishers, two members representing commercial fishers, and three agency employees?

"In petitioners' second and third assignments of error, they contend that the rules exceed the agency's statutory authority. Those arguments are without merit, because the challenged rules do not establish seine fisheries, they are not inconsistent with a subsequently repealed statute prohibiting the use of seine nets, and further, they are well within the agency's authority to manage fisheries under ORS 506.109.

"In petitioners' remaining assignments of error, they raise various challenges to the agency's rulemaking procedures. Those claims are likewise without merit, because the rules were adopted in compliance with the applicable procedures. Thus, this court should reject petitioners' challenge to the validity of the rules.

The "guiding principles" set forth in the new rules approved by the OFWC "contemplate that ODFW will take a number of actions intended to enhance the Columbia River fishery, protect local economic interests, and preserve endangered species," the Feb. 10 response.

"Those actions include steps to phase out the use of gill nets in non-tribal fisheries in the mainstem of the Columbia while transitioning to the use of gill nets in off-channel areas; to enhance the commercial fishery and commercial fishing interests by developing and implementing mainstem commercial fisheries based on 'selective fishing gear and techniques' and 'providing additional hatchery fish for release in off-channel areas[;]' and to 'enhance the overall economic well-being and stability of Columbia River fisheries' in a manner consistent with conservation," the Oregon brief says.

According to a schedule established by the court, any reply brief is now due from the plaintiffs by March 3, provided no extensions are sought and granted. Once any reply or replies are filed, --and assuming there are no unresolved motions -- the case will be considered "at issue," i.e., ready to be argued or submitted on the briefs. Oral argument is not an automatic part of the process but could be set if any party requests it.

In an October 2013 order issued by the Appellate Commissioner, the court directed the expedited scheduling of this case for submission/argument once the case is at issue. In that order he discouraged parties from seeking extensions in the case.