Tag Archives: 9th Circuit Court

Feds, Tribe Prevail In Elwha Salmon, Steelhead Hatchery Appeal

Federal and tribal fishery overseers have prevailed in a court case involving Elwha River salmon and steelhead that allows for continued use of hatchery fish in the restoration of runs to the north Olympic Peninsula watershed.

After hearing arguments last month, a three-judge panel of the Ninth Circuit Court of Appeals today upheld a lower court’s ruling that the National Marine Fisheries Service had done its homework when approving state and Lower Elwha Klallam production programs for after two dams were removed.


“The Ninth Circuit found our analysis was complete and that both NOAA and the (National) Park Service have thoroughly adequately assessed the impacts involved, from the dam removal process to the efforts to recover salmon and steelhead populations,” explained Michael Milstein, a spokesman  for NOAA’s Fisheries Service in Portland.

That analysis was the target of a long-running challenge in U.S. District Court for Western Washington by the Wild Fish Conservancy, Wild Steelhead Coalition, Federation of Fly Fishers Steelhead Committee and Wild Salmon Rivers.

According to federal court documents, they had argued that NMFS’s approval of hatchery programs violated the National Environmental Policy and Endangered Species Acts, and that the tribe’s facility output represented a taking of ESA-listed fish.

But 9th Circuit Court Judges Susan P. Graber, Sandra S. Ikuta and Andrew D. Hurwitz largely agreed with U.S. District Court Judge Benjamin Settle’s earlier ruling, and according to Milstein that “clears the way” for NMFS and its partners to focus on restoring the river, including with hatchery fish per a 2012 environmental assessment that found minimal risk and some benefits from them.

The Elwha restoration is a project on a huge scale, featuring the removal of Elwha Dam in 2012 and Glines Canyon Dam in 2014, freeing up dozens of miles of river and tributaries that flow from the heart of the Olympic Peninsula.

To that end, earlier this spring, WDFW, the National Park Service and Lower Elwha Klallam Tribe extended a fishing moratorium on the Elwha through May 2019.

For its part, WDFW doesn’t appear interested in stocking steelhead into the river, as last summer it declared the Elwha a wild steelhead gene bank. The Wild Steelhead Coalition said that designation was the result of “decades of work,” but the tribe’s hatchery means the sanctuary “still does not exist.”