Certified Mail Return Receipt Requested November 30, 2012 Charlton Bonham, Director California Department of Fish and Game 1416 Ninth Street, 12th Floor Sacramento, California 95814 Stafford Lehr Branch Chief Inland and Anadromous Fisheries California Department of Fish and Game 830 S Street Sacramento, California 95811 Rebecca Blank, Acting Secretary U.S. Department of Commerce 1401 Constitution Ave., N.W. Washington, D.C. 20230 Samuel D. Rauch, III Assistant Administrator for Fisheries NOAA Fisheries Service 1315 East West Highway Silver Spring, Maryland 20910 Kenneth Salazar, Secretary U.S. Department of the Interior 1849 C. Street N.W. Washington, D.C. 20240 Philip Schaffer 4100 Wonder Stump Rd. Crescent City, California 95531 Andrew Van Scoyk, Hatchery Manager Rowdy Creek Fish Hatchery P.O. Box 328 Smith River, California 95567-0328
Re: Notice of Intent to Sue for Violations of Endangered Species Act Dear Sirs and Madam: I write on behalf of the Environmental Protection Information Center (EPIC) to respectfully request that you remedy ongoing violations of the federal Endangered Species Act (ESA), 16 U.S.C. 1531-1544. As EPIC establishes below, the California Department of Fish and Game (CDFG) has funded or authorized, and continues to fund or authorize, the illegal take of wild Southern Oregon/Northern California Coast coho in the Smith River in California, by funding or authorizing the Rowdy Creek Fish Hatchery. For its part, the Rowdy Creek Fish Hatchery, a 501(c)(3) corporation registered in California, has violated and continues to violate the ESA, by operating the hatchery and causing the illegal take of listed wild coho salmon. EPIC is a non-profit conservation group based in Arcata, California, that works to protect and restore ancient forests, watersheds, coastal estuaries, and native species in northern California. EPIC uses an integrated, science-based approach, combining public education, citizen advocacy, and strategic litigation. EPIC focuses in part on preserving and restoring wild salmon runs in northern California. I. Background. The Smith River flows undammed from the Pacific Coast Range Mountains in northern California and southern Oregon to the Pacific Ocean. The Smith River system is composed of five main tributaries: Rowdy Creek, Mill Creek, and the North Fork, South Fork, and Middle Fork Smith Rivers. The Smith River is one of the most pristine rivers along the Pacific Coast. Segments of the Smith River are protected under the federal Wild and Scenic Rivers Act and under the California Wild and Scenic Rivers Act. Three hundred and twenty five miles of the Smith River and its tributaries are designated under the federal or state act (or both) the most of any river system in the United States. The Rowdy Creek Fish Hatchery is a privately-operated hatchery located on Rowdy Creek near the confluence with Dominie Creek in the Smith River watershed. Rowdy Creek enters the lower mainstem Smith River about two miles downstream of the hatchery. The California Fish and Game Commission has issued a permit to authorize operation of the hatchery under state law. See Cal. Fish and Game Code 1170-1175. The Commission assumes no responsibility for operation of the hatchery. Cal. Fish and Game Code 1175. a. Southern Oregon/Northern California Coast Coho. On May 6, 1997, NMFS listed coho in the SONCC ESU as threatened with extinction under the ESA. 62 Fed. Reg. 24,588 (May 6, 1997); see 70 Fed. Reg. 37,160 (June 28, 2005). The Smith River and its tributaries contain wild coho that are part of the SONCC ESU. 50 C.F.R. 223.102(c)(11). On May 5, 1999, NMFS designated critical habitat for the SONCC coho ESU. 64 Fed. Reg. 24,049 (May 5, 1999). Critical habitat for the SONCC coho ESU includes the Smith River and its tributaries below longstanding, naturally impassable barriers. 50 C.F.R. 226.210(b). 2
Most coho salmon, including SONCC coho, have a three-year life cycle divided equally between fresh and salt water. 1 Adult coho spawn in their natal streams between mid autumn and early winter. 2 However, in times of water shortage, coho will wait to enter fresh water, sometimes delaying spawning until the early spring. 3 Coho typically construct redds in the substrate of smaller tributaries to mainstem rivers. 4 Adult coho die after they spawn. Juvenile coho emerge as fry from redds in the late winter and spring, and move to relatively slow waters to rear. 5 Juvenile coho typically remain in freshwater for one year to rear. Some juvenile coho remain close to their natal sites, while others disperse throughout the watershed. 6 Juvenile coho undergo smoltification during their second spring season, approximately 18-19 months after egg fertilization, and outmigrate to the ocean. 7 Outmigration typically occurs between the beginning of March and the end of May, although timing and patterns can vary year-to-year depending on environmental factors. 8 Juvenile coho do not migrate downstream continuously, but rather continue to forage and hold as they travel. 9 After 16-17 months in the ocean, adult coho return to their natal streams to spawn. 10 SONCC coho are limited by the steep gradients of the Smith River drainage. 11 Though the Smith River and its main tributaries extend roughly 32 miles inland, most coho habitat is within the lower six miles of the drainage. 12 Despite the range of coho within the Smith River watershed, it historically produced relatively large runs of coho. 13 Historically, an estimated 7,000 adult wild coho returned to the Smith River each year to spawn; recently, as few as 800 adult wild coho have returned each year. 14 1 Lestelle, L.C., Coho salmon (Oncorhynchus kisutch) life history patterns in the Pacific Northwest and California. 2007. Final Report. Prepared for the U.S. Bureau of Reclamation Klamath Area office. 2 3 4 5 6 7 8 9 10 11 NMFS. 2012. Public Draft SONCC Coho Recovery Plan, Smith River Population 15-4. Available at http://swr.nmfs.noaa.gov/recovery/soncc_draft/chapter_15_smith_river_ Population.pdf. 12 13 14 3
II. Violations of the ESA. Under the ESA, it is generally unlawful for an entity to take an endangered species. 16 U.S.C 1538. In 2000 and 2005, NMFS promulgated regulations under section 4 of the ESA that extend the take prohibition in 16 U.S.C 1538 to threatened salmonids, including SONCC coho. 50 C.F.R. 223.203(a). The ESA defines take as to harass, harm, pursue, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. 1532(19). [H]arm includes an act which actually kills or injures wildlife includ[ing] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. 17.3. [H]arassment includes an "intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Id. The prohibition applies to direct take, as well as to takings that are incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Id.; see also 50 C.F.R. 402.14. To avoid civil or criminal liability, any direct or incidental take of listed fish in the Smith River by operations of the Rowdy Creek Fish Hatchery must be authorized by an HGMP approved pursuant to NMFS section 4(d) regulations, or other explicit approval from NMFS. a. Incidental Take of SONCC Coho. The Rowdy Creek Fish Hatchery releases approximately 50,000 hatchery-raised juvenile steelhead from the hatchery into the lower Smith River each year between the months of February and March. The hatchery also releases approximately 105,000 hatchery-raised juvenile Chinook from the hatchery into the lower Smith River each year between the months of April and May. These releases have harmful ecological effects on listed wild coho and their habitat. Hatchery steelhead and Chinook prey on wild juvenile coho. 15 Hatchery steelhead and Chinook introduce and transmit disease to wild coho. 16 Hatchery steelhead and Chinook compete with 15 Naman, S.W. 2008. Predation by hatchery steelhead on natural salmon fry in the Upper Trinity River, California. M.S. Thesis, Humboldt State University, December 2008. Available at: http://hdl.handle.net/2148/449. Berejikian, B.A. and E.P. Tezak, S.L. Schroder, T.A. Flagg, C.M. Knudsen. 1999. Competition between wild and hatchery coho fry. Transactions of the American Fisheries Society. 128: 822-839; Einum, S., and I.A. Fleming. 2001. Ecological interactions between wild and hatchery salmonids. Nordic J. Freshw. Res. 75:56-70. 16 NMFS. 1996. Factors for decline: a supplement to the Notice for Determination for West Coast Steelhead Under the Endangered Species Act. Available at http://www.nwr.noaa.gov/ ESA-Salmon-Listings/Salmon-Populations/Reports-and-Publications/upload/stlhd-ffd.pdf. 4
wild coho for food and habitat. 17 wild coho. These ecological effects decrease the abundance and fitness of The Rowdy Creek Fish Hatchery and CDFG have violated the ESA by funding, authorizing, permitting, and/or carrying out the release of hatchery-bred steelhead and Chinook into the Smith River, in the absence of an approved HGMP or other explicit authorization from NMFS that insulates them from liability under the ESA for illegal take of wild coho. This letter serves as EPIC s notice of intent to sue the Rowdy Creek Fish Hatchery and CDFG under the ESA for these violations. 16 U.S.C. 1540(g)(2). EPIC anticipates that during the 60-day period when the Rowdy Creek Fish Hatchery and CDFG consider this notice, and before EPIC files any lawsuit, the Rowdy Creek Fish Hatchery and CDFG may wish to meet and confer as to its position as to these matters. EPIC welcomes such an engagement. EPIC is represented by counsel in this matter: Peter M.K. Frost Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401 541-359-3238 frost@westernlaw.org Please contact me if the Rowdy Creek Fish Hatchery or CDFG is interested in meeting, or if you have questions or concerns about this notice of intent to sue. Thank you for your time and consideration. Sincerely, Peter M.K. Frost Attorney for EPIC 17 Chilcote, M. 2003. Relationship between natural productivity and the frequency of wild fish in mixed spawning populations of wild and hatchery steelhead (Oncorhynchus mykiss). Can. J. Fish. Aqua. Sci. 60:1057-1067. Weber, E.D. and K.D. Fausch. 2003. Interactions between hatchery and wild salmonids in streams: differences in biology and evidence for competition. Can. J. Fish. Aqua. Sci. 60(8):1018-1036. Kostow, K.E., and Zhou, S. 2006. The effect of an introduced summer steelhead hatchery stock on the productivity of a wild winter steelhead population. Trans. Am. Fish. Soc. 135:825-841. 5