Court papers are revealing more details related to a judge’s order late last week granting a preliminary injunction for ODFW to release summer steelhead smolts from a hatchery on the North Umpqua.
Marion County Circuit Judge Daniel J. Wren found county officials, a local fishing derby and a fishing guide were “likely to suffer irreparable harm” if the young fish weren’t let go, the “balance of equities” favored their position, it “would be in the public interest” to release the smolts, and the trio had “demonstrated serious questions on the merits of their petition” targeting the Oregon Fish and Wildlife Commission’s April vote against releasing the fish and ending the hatchery program.
It all may be standard-issue court language used with a preliminary injunction to show it has cleared sufficient legal bars, but the wording will warm the hearts of the fishery’s fans and hatchery advocates as a reaffirmation that they too have a stake and that their voices were heard.
Essentially, the judge’s ruling put the commission’s 4-3 vote not to release smolts in 2022 on pause “until this case is decided on the merits or otherwise disposed of by the Court,” per his order.
In it, Judge Wren tells ODFW to “volitionally release” the smolts from Rock Creek “as explained in paragraphs 12.a. and 12.b. of the Declaration of Shaun Clements.”
Clements would be Dr. Shaun Clements, ODFW’s deputy administrator of the Inland Fisheries division, and his Paragraphs 12a and 12b are among 19 paragraphs he wrote for a May 10 declaration in which he outlined North Umpqua hatchery and wild steelhead; the agency’s Coastal Multispecies Plan for the system and other ocean tributaries; the Rock Creek program; recent environmental issues and the commission’s decision.
“Volitionally” means opening the gate at the rearing ponds and letting those steelhead ready to follow their urge to swim to sea to do so – technically they back down the river – and those that aren’t are kept on station for the time being.
The rub is that the smolts raised for release from Rock Creek this year were actually reared at Cole Rivers Hatchery on the upper Rogue because of 2020’s devastating Archie Creek Fire that destroyed the hatchery buildings, but in January the fish were moved back to the station and at the end of March there were 75,644 on hand, per Clements.
That’s about the average number that have been released in recent years; Clements reports the high mark is 118,716 in 2020 for return this summer, and low marks are 23,872 in 2019 for 2021’s fishery and 0 in 2021 for 2023’s.
But even if some 75,000-plus smolts now have a judge’s greenlight to head down the North Umpqua and mainsteam Umpqua to their marine pastures, this year’s crop is also reported as “smaller than is typical for this time of year.”
Clements states that there were “issues with the power supply” at Cole Rivers that left 2022’s Rock Creek fish “significantly smaller than is typical for this time of year, potentially increasing the number of fish that would not normally be released because they are not ready to outmigrate to the ocean.”
In his declaration, he writes, “Because of this, we expect that (if directed to release this year) a higher proportion would not be ready to out-migrate than is typical.”
While the court-ordered release is a rare victory for hatchery and consumptive fishery proponents, it means there could also be three poor summers in a row looming ahead for anglers, if too many of this year’s cohort stay in the ponds.
Typically the fish are released around April Fools Day, though it can depend on fish behavior and environmental conditions, Clements states,
April 1 is also the day ODFW published an assessment of North Umpqua summer steelhead, which, in its boiled-down form, found “no evidence that the hatchery summer steelhead program negatively affected naturally produced summer steelhead,” nor was it limiting the wild population’s recovery.
The assessment was in response to native steelhead advocates petitioning the commission earlier this year to forego releasing smolts in 2022 – essentially ending the program. At the citizen oversight panel’s April 22 meeting, Clements et al recommended members instead reduce Rock Creek releases to 30,000 and improve infrastructure there to get hatchery stray rates within the management plan’s goals.
However, the commission voted to not release any fish and to end the program, and that sparked the late April lawsuit from Douglas County, the Umpqua Fishery Enhancement Derby and fishing guide Scott Worsley.
They asked for a preliminary injunction to release the smolts while their main challenge against the commission decision is mulled and were granted it last week.
Wild fish advocates have called the release “reckless” for potential harm to young native steelhead, but in his order Judge Wren states, “Any summer steelhead smolts that do not volitionally migrate shall be transported by Oregon Department of Fish and Wildlife outside the range of summer steelhead rearing habitat. This action is expected to be sufficient to minimize risk, from competition, at this life history stage by moving those fish that are not exhibiting behavioral signs of smolting to a location where they will not interact with wild juvenile summer steelhead. To further mitigate any potential harm to wild summer steelhead, Respondents and Petitioners shall work together and with others in the region to pursue and support implementation and funding of an effective trapping program at Rock Creek Hatchery.”
The aforementioned respondents are ODFW and petitioners are the county et al.
The commission has also postponed a special meeting it was to hold with local tribes to consider “additional information” on the matter.