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Gillnetters Appeal Oregon Harvest Changes by Bill Rudolph NW Fishletter, January 17, 2013

Lower Columbia netters have asked the Oregon Court of Appeals to throw out last month's decision by the state's fish and wildlife commission to end gillnet fishing of lower mainstem waters and restrict fishing to select areas near where salmon are raised in net pens solely for harvest by the commercial fleet.

The change was pushed by Oregon Gov. John Kitzhaber, who proposed the changes last August as a way to circumvent a measure on the November ballot.

If it had passed, the measure would have outlawed using gillnets in state waters. The measure was the result of an initiative drive led by sportfishing organizations. But after Kitzhaber's proposal came to light, they dropped their support of the measure and it went down with more than a 60-percent "no" vote. His proposal promised to maintain or improve the fishermen's bottom line.

But in a petition filed Jan. 4, the gillnetters said the commission approved a rule change that conflicts with an existing state law forbidding the use of seine nets. The new fishing regime calls for more selective fishing methods by commercial fishermen, such as the use of purse seines to reduce impacts on weak wild stocks.

The petition argues that state law says seines are not legal for catching food fish in state waters--"The ODFW Commission is only authorized by rule to permit 'seine nets' for the taking of certain species of food fish other than salmon or steelhead from the waters of this state," said the filing, which notes the fiscal impact statement that accompanied the rule change assumes that seines will be used in 2013.

But the seines are still illegal, say the gillnetters. "ODFW has no authority to permit by rule that which has been prohibited by statute," the petition said.

In an extensive footnote, the petition said the fiscal analysis' assumption that seining would be allowed would boost the value of the commercial fishery by 5 percent in 2013. But when the value of lower river hatchery Chinook and coho no longer caught by gillnetting in the mainstem is subtracted, the result would be a 3-percent decline from current value. And when the analysis is carried out to 2017, when the transition period ends, subtracting the value of the seine fisheries would mean a 33-percent decrease from present values.

The petition said ODFW erred when it assumed seining would become lawful, and noted that the agency has no control over the state's Legislature, which does have the authority to change the state law that currently bans seine nets. "Further," the filing said, "ODFW failed to analyze the economic impact of eliminating gillnets on the mainstem Columbia River on commercial shad, smelt and sturgeon fisheries."

The gillnetters' petition also argued that the ODFW rules violate state policy that says "food fish shall be managed to provide the optimum economic, commercial, recreational and aesthetic benefits."

Since the new rules would decrease the gillnetters' allocation of ESA-impacts and harvestable surplus--down to 20 percent in most cases--"such allocations do not provide optimum commercial benefits nor are they equitable," the petition said. "The reallocations provide the recreational fisheries with a larger share of the harvest; they are not a tool for conservation nor were they intended to promote conservation. They were intended to, and do, benefit recreational fisheries at the expense of commercial fisheries and related businesses."

The petition also argued that ODFW did not allow enough time for public comment after it amended its fiscal analysis before voting for the rule change, which should invalidate the entire rule-making process. The gillnetters said the fiscal analysis was also contrary to state law because it met none of the requirements for examining the economic effects of the rule change on small businesses.