Appeals Court Puts Oregon’s Gill Net Fishing Rules on Hold – For Now

In last November’s election,
Oregon voters overwhelmingly rejected Measure 81, which would have banned
commercial non-tribal gill net fishing on Oregon’s “inland waters” and allowed
the use of seine nets in their stead.

The Oregon Fish
and Wildlife Commission (OFWC) overturned the resounding tally of 884,913 votes
(66 percent) with just four votes of their own in December. In a controversial
4-2 decision, the commissioners opted to back Gov. John Kitzhaber’s plan to
move commercial non-tribal gill-netters off the main stem of the lower Columbia
River into off-channel sloughs and bays. Oregon Department of Fish and Wildlife
(ODFW) officials promised to expand and enhance those areas and stock them with
more hatchery fish to offset potentially devastating financial losses for the
commercial fishery.

The plan,
however, is currently dammed up by the Oregon Court of Appeals, which ordered
the state to wait after two leading commercial gillnet fishermen filed a
petition asking the court to invalidate Kitzhaber’s plan.

Filed by
Eugene-based attorney Ben Miller on behalf of Astoria-based commercial
fishermen Jim Wells and Steve Fick of Fishhawk Fisheries, the petition alleges
that the OFWC violated several state laws, among them one that requires
“optimum commercial and public recreational benefits” of food fish management.
The petition notes that the new rules would take fish away from the commercial
fisheries to add to the recreational fisheries, and “ultimately banning
non-tribal gill nets from the Columbia River main stem for all species of fish,
including sturgeon, smelt and shad, as well as salmon.”

Wells, president
of Salmon for All –an association of gillnetters, fish buyers, processors and
associated businesses founded in 1958, and Fick noted that commercial fisheries
harvest fish for the consuming public, giving all Oregonians access to the
Columbia River’s resources, and “for many generations,” Oregon gave the
fishermen and public “a significant and equitable share” of those resources by
allowing gillnetting.

“The ODFW Rules
effectively abolish that tradition and cause irreparable economic devastation
for these commercial fisheries and the coastal communities dependent on them,”
the petition stated. “The ODFW Rules violate controlling Oregon law, and ODFW
relied on flawed assumptions and inadequate analysis in its Statement of Fiscal
Impact to promulgate them.”

Columbia River
area tribes also question ODFW’s assumptions and the new rules’ consistency
with court-supervised harvest management agreements in the region.

Fick, Wells and
other commercial fishermen say the salmon in the river’s main stem are larger
and more valuable than those in off-channel sections. They asked the court to
declare the new rules invalid, and other commercial fishermen have vowed to
take the challenge to the state legislature.

Noting that the
petitioners showed “substantial likelihood” of winning the case and made a
“prima facie showing that irreparable harm will result to themselves and
others,” the appeals court ordered a stay on ODFW’s enforcement of the
commercial gill net fishery modifications on the Columbia River, pending
judicial review.

Neither ODFW
officials nor anti-gillnetting groups opposed the stay, which remains in effect
while the legal petition moves forward.

Outright Ban
Versus Gradual Ban
ODFW staffers
ventured into the well charted but controversy-infested waters based on Gov.
John Kitzhaber’s proposal to reform fisheries management on the lower Columbia
River. OFWC members opted to back Kitzhaber last August, focusing on the
governor’s proposed solution to the on-going, complex and intense conflicts
between commercial and recreational fishermen over salmon allocations in the
lower Columbia River, as well as with conservation groups opposed to

outlined a compromise for ODFW Director Roy Elicker and OFWC Chairwoman Bobby
Levy, designed to phase gillnets out of the main stem Columbia rather than ban
them immediately as Measure 81 would have done.

“Lower Columbia
River recreational and commercial fisheries are vital to the social and
economic fabric of our state and local communities, providing valuable jobs and
millions of dollars of economic activity,” Kitzhaber noted at the time. He called
“optimizing the economic value of these fisheries within a conservation-based
framework” one of his priorities.

Thirteen species
of salmon and steelhead within the Columbia River Basin are listed under the
federal Endangered Species Act (ESA), which means all fisheries face
significant limits due to low abundance and required survival of ESA-listed
fish. Oregon’s long-term plan is the recovery of ESA-listed salmon and
steelhead populations to levels that would support what Kitzhaber called
“robust fisheries” across the state. Unfortunately, it has resulted in what the
governor termed as “perennial and divisive conflicts” between commercial and
recreational fisheries over the allocation of harvest impacts, along with the
use of gillnets in non-tribal commercial fisheries in the river’s main stem.

Attempts to
reconcile those differences have proven almost futile, and many observers said
Kitzhaber’s directive – based primarily on a compromise that sport fishermen
put forward several years ago – was the governor’s answer to Measure 81’s
attempt to ban all commercial gillnets and tangle nets in Oregon’s inland
waterways. Under the motto “for salmon, for wildlife, for jobs,” members of
Portland-based Stop Gillnets Now (SGN) and others gathered 142,000 signatures
to get the initiative, also known as the Protect Our Salmon Act, on the ballot.

The measure’s
supporters said it would ban the use of “indiscriminate” gillnets on the
Columbia River, yet still allow commercial fishing using “more sustainable
practices,” such as purse seines.

They said it
would protect the river’s wild salmon and steelhead, keep tribal fishing rights
intact, retain the allocations for both commercial and recreational fisheries,
and preserve the commercial fishery through required alternatives, such as
seine nets and other selective gear that allows for the harvest of hatchery
fish and protects endangered wild salmon and steelhead populations.

directive also featured the use of selective gear and fishing techniques “to
minimize mortality of ESA-listed and non-target fish and optimize recovery.”
The governor made it clear that he believes the use of gillnets in non-tribal
main stem fisheries is at odds with that objective. He also said the matter was
best resolved by a combined effort by the Oregon and Washington fish and
wildlife commissions, not through a ballot measure.

Kitzhaber noted
that he wanted “a long-term solution” that “enhances fisheries while minimizing
mortality of wild fish to promote fish recovery, honors tribal commitments and
optimizes economic benefits.”

“The long-term
solution must enhance the economic vitality of both recreational and commercial
fisheries, which provide the public with benefits, including recreation,
family-wage jobs and businesses, local commerce and export economies,
nationally-renowned culinary destinations and the Pacific Northwest’s uniquely
high quality of life and culture,” the governor noted. “Proposals that fail to
enhance benefits for both recreational and commercial interests in the lower
Columbia within a conservation framework are an unacceptable solution, as is
the status quo.”

Finding a
workable solution has proved daunting in an issue rife with historical

Both Oregon and
Washington initiated measures to regulate the commercial salmon fishery as
early as the 1870s, but conflicting regulations often hampered efforts to
properly manage the resource. In 1915, the two states forged the Columbia River
Compact. Adopted by the US Congress in 1918, the compact made the states co-managers
of all Columbia River fisheries. It and the joint management staff from ODFW
and WDFW still provide principal management of those fisheries, in consultation
with NOAA Fisheries, the US Fish and Wildlife Service, Idaho Fish and Game, the
four treaty tribes and the Columbia River Intertribal Fish Commission. During
the ensuing decades, other commercial activities – mining, logging, grazing and
irrigation diversions – led to pollution and ever-increasing conflicts with a
full-scale commercial salmon fishery.

The river’s
salmon fishery now is one of the world’s most highly regulated fisheries, and
numerous attempts to reconcile conflicts and resolve the river’s “salmon
crisis” via various committees, commissions and councils have fallen short.
Oregon and Washington representatives were tantalizingly close to agreeing on
new gillnet rules in 2008, but agency officials said the effort failed as the
process broke down due to escalating tensions between and objections from
commercial and recreational fishery groups.
Efforts were
scheduled to resume in 2013, but the success of anti-gillnetting groups in
getting Measure 81 on the November 2012 ballot spawned Kitzhaber’s

Basically, the
idea is to phase out commercial gillnets from the river’s main stem during a
three-year transition (2013 to 2016) and move them into off-channel areas that
would be enhanced to raise more hatchery fish for commercial fishermen, who
could only fish in the main channel if they use alternative or selective
fishing gear.

A clear
transition period, Kitzhaber noted, “is a central part of this solution…to span
the time needed for the new investments in off-channel areas to occur and
provide returns necessary to the vitality of the commercial fishery.”

Kitzhaber asked
the OFWC commissioners to initiate the public rulemaking process to work toward
adopting “a solution that achieves the key elements” of his proposal. He also
directed them to work with their counterparts in Washington, and to begin the
process immediately to complete the needed rulemaking before the end of 2012.

The Oregon
commission agreed and followed through in December 2012. Their Washington
counterparts did the same in January.

Follow the Money
Because the
fishery is regulated jointly by Oregon and Washington, the Washington Fish and
Wildlife Commission (WFWC) voted to phase out gillnet fishing on the Columbia’s
main stem by 2017 as part of similar management objectives adopted by Oregon’s
commission. The Washington contingent did so, despite a letter from Wells’ and
Fick’s attorney Miller asking them to delay a decision “for at least another
month” due to the anticipated ruling from the Oregon appeals court.

“I suspect
knowing whether the rules will actually take effect in Oregon is something that
you would want to consider before voting on such a drastic change to the
commercial fishery on the Columbia River,” Miller noted.

Despite the
request and heads-up about the legal action, the nine members of WFWC
unanimously approved the most extensive changes in Columbia River salmon
fisheries in decades. WFWC Chairwoman Miranda Wecker called it a “bold but
practical move.” The commissioners said they would review the plan annually,
and were open to allowing use of gill nets if alternative selective gear is
neither available nor practical for fall chinook and coho. They and others said
commercial gillnetters must adapt to changing times.

The Oregon vote
was divided, with Chairwoman Bobby Levy and commissioners Bob Webber, Holly
Akenson and Michael Finley in favor of it, commissioners Laura Anderson and
Gregory Wolley opposed.

The plan, at its
most basic, is virtually identical to Oregon’s, with a phase-out of gillnets in
the main stem by 2017, moving commercial gillnetters into off-channel sites
stocked with more hatchery salmon, allowing commercial fishermen to fish the
main channel using “selective gear” such as purse seines or beach seines, and
shifts the spring Chinook allocation sharply in favor of recreational anglers.
Initially, the ratio was 70 percent to 30 percent, but the Washington
commissioners dropped it to 65-35 for the current season.

Until now, the
allocation stood at 60-40 in favor of sports fishing. Commercial fishermen like
Fick and Wells want a 50-50 split.

It all boils down
to money and livelihoods.

Ed Bowles, ODFW
fish division director, told the OFWC that the “reasonable objectives” in the
Oregon plan “can be met.” WDFW Director Phil Anderson said the key to the
effort lies in developing and using alternative selective gear.

At the moment,
seine nets are illegal per Oregon law for catching salmon, and commercial
fishermen said the cost for making the switch and moving out of the river’s
main stem – where salmon are larger and more valuable – could put the fleet out
of business.

officials said there is no guarantee of funding becoming available to help with
the transition. Kitzhaber earmarked $5.2 million in the 2013-2015 beleaguered
biennial state budget – $2 million from general funds, $1.6 million from
lottery-backed bonds, and $1.6 million from an endorsement fee paid by Columbia
River recreational anglers.

Fick and Wells
said the fishery is sustainable as is, and the economic assumptions made by
ODFW – especially the assumption that seine netting might be allowed – were

The wild salmon
among the 1.43 million hatchery and wild salmon that enter the river every year
provide the determining factor on the where, when and how of salmon fishing,
both commercial and recreational. In 2011, the 200 gillnet boats caught 137,000
salmon valued at $4.72 million. Sports anglers reeled in 142,000 fish, but they
said their efforts provide a bigger financial boost, and state statistics claim
that 350,000 recreational fishing trips on the lower Columbia in 2011 landed an
estimated $22 million for the economy as anglers spend money on lodging, food
and tackle. 
Commercial fishermen noted that the non-fishing public also has a
right to access salmon for food – something they provide to restaurants, fish
markets and other outlets that also boost the state’s economy. They said the
proposed off-channel sites are too small for the fleet, and adopting new gear
and being forced to chase after hatchery fish that might or might not be there
is too expensive and ephemeral.
For now, the
courts have stopped the phase-out from moving forward, but as of press time,
the outcome of the legal process, or how long it might take to move through the
court system, remained unknown.