`
`
`
`Brian A. Knutsen, WSBA No. 38806
`Emma Bruden, WSBA No. 56280
`Kampmeier & Knutsen, PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`Telephone: (503) 841-6515
`
`Attorneys for Plaintiff
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`
`Case No. 2:21-cv-00169
`
`COMPLAINT
`
`
`
`
`
`WILD FISH CONSERVANCY,
`
` Plaintiff,
`
`v.
`
`WASHINGTON DEPARTMENT OF FISH &
`WILDLIFE; KELLY SUSEWIND, in his official capacity
`as the Director of the Washington Department of Fish &
`Wildlife; LARRY CARPENTER, in his official capacity
`as Chair of the Washington Fish & Wildlife Commission;
`BARBARA BAKER, in her official capacity as Vice
`Chair of the Washington Fish & Wildlife Commission;
`JAMES ANDERSON, in his official capacity as a
`member of the Washington Fish & Wildlife Commission;
`LORNA SMITH, in her official capacity as a member of
`the Washington Fish & Wildlife Commission; FRED
`KOONTZ, in his official capacity as a member of the
`Washington Fish & Wildlife Commission; MOLLY
`LINVILLE, in her official capacity as a member of the
`Washington Fish & Wildlife Commission; DONALD
`MCISAAC, in his official capacity as a member of the
`Washington Fish & Wildlife Commission; and KIM
`THORNBURN, in her official capacity as a member of
`the Washington Fish & Wildlife Commission,
`
` Defendants.
`___________________________________________
`
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`COMPLAINT - 1
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 2 of 33
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`INTRODUCTION
`The State of Washington declared steelhead the official state fish in 1969.
`1.
`Despite that designation, wild Puget Sound steelhead have declined precipitously since that time.
`The average region-wide abundance between 1980 and 2004 was less than four percent of levels
`present in 1900. Puget Sound steelhead have continued to decline since being listed as a
`threatened species under the Endangered Species Act (“ESA”) in 2007. The most recent five-
`year average puts Puget Sound steelhead abundance at less than three percent of historical levels.
`
`2.
`It was once believed that hatchery production could replace salmonid-sustaining
`ecosystems and provide an abundance of fish. It is now understood that, not only have hatcheries
`failed to meet those expectations, but they have contributed to the decline of wild salmonids.
`Hatchery fish harm wild salmonid populations and their ability to recover through a variety of
`mechanisms, including genetic introgression and ecological interactions. Genetic introgression
`occurs when hatchery fish spawn with wild fish and thereby transfer their maladapted
`(domesticated) genetic traits to the wild salmonid populations. Ecological interactions occur
`when hatchery fish compete with wild fish for resources, such as food and territory.
`
`3.
`Defendants the Washington Department of Fish and Wildlife, its Director, and the
`members of the Washington Fish and Wildlife Commission (collectively, “WDFW”) implement
`hatchery programs in the Puget Sound region using highly domesticated stocks known as
`“Skamania” summer steelhead and “Chambers Creek” winter steelhead. The National Marine
`Fisheries Service (“NMFS”) excluded those stocks when it listed the Puget Sound steelhead
`distinct population segment (“DPS”) as a threatened species under the ESA in 2007 because
`those hatchery stocks are genetically diverged from the local native populations. 72 Fed. Reg.
`26,722, 26,722 (May 11, 2007). This divergence increases the potential for passing on
`maladaptive traits to ESA-listed Puget Sound steelhead, thereby undermining recovery efforts.
`NMFS also found that efforts to prevent natural spawning of those hatchery fish is unlikely to be
`completely effective, “with significant potential to reduce natural productivity.” Id. at 26,728.
`COMPLAINT - 2
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
`No. 2:21-cv-00169
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 3 of 33
`
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`Despite these findings, WDFW continued to implement hatchery programs using these out-of-
`basin stocks and without undergoing review, approval, and restrictions required by the ESA.
`4.
`Wild Fish Conservancy sued WDFW for operating these programs in violation of
`the ESA; first in 2014 for the Chambers Creek winter steelhead programs and then in 2019 for
`the Skamania summer steelhead programs. The consent decree reached in the latter of those
`lawsuits required WDFW to, inter alia, discontinue releases of Skamania summer steelhead in
`Puget Sound watersheds that are not authorized under the ESA with the exception of one final
`release in 2019 to the North Fork Stillaguamish River and several releases to the Skykomish
`River. For the Skykomish River, the consent decree allows for decreasing annual releases that
`terminate with a release of 40,000 fish in 2022, after which releases are prohibited unless they
`have been approved under the ESA.
`
`5.
`Apparently determined to maintain an artificial steelhead propagation program on
`the Skykomish River to support recreational fishing, WDFW submitted a hatchery and genetic
`management plan (“HGMP”) dated April 12, 2019 to NMFS proposing to implement an
`“integrated” South Fork Skykomish River summer steelhead program. As WDFW’s HGMP for
`this new hatchery program recognizes, this hatchery program will “take” ESA-listed salmonids.
`WDFW nonetheless commenced its new summer steelhead hatchery program on the South Fork
`Skykomish River before NMFS reviewed the HGMP and before NMFS or the United States Fish
`and Wildlife Service (“FWS”) authorized the new program to “take” ESA-listed species.
`
`6.
`WDFW’s implementation of this program in the absence of ESA-review or
`approval follows a long and disconcerting pattern of the agency’s willingness to violate the
`ESA’s prohibition on unauthorized “take” of protected species when it comes to artificial fish
`propagation.
`Plaintiff Wild Fish Conservancy is concerned that the continued implementation
`7.
`of the South Fork Skykomish River summer steelhead hatchery program, along with other
`WDFW hatchery programs in the Puget Sound region, are harming wild salmonids and their
`COMPLAINT - 3
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
`No. 2:21-cv-00169
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 4 of 33
`
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`ability to recover, including threatened Puget Sound steelhead. Moreover, Wild Fish
`Conservancy is disconcerted by WDFW’s pattern showing the agency’s willingness to violate
`the ESA’s prohibition against unauthorized “take” of protected species within the context of
`artificial fish propagation.
`8.
`This action challenges WDFW’s failure to comply with the ESA in its
`implementation of the South Fork Skykomish River summer steelhead program. Wild Fish
`Conservancy seeks declaratory and injunctive relief requiring WDFW to comply with the ESA
`and an award of litigation expenses, including fees and costs.
`JURISDICTION AND VENUE
`This Court has jurisdiction under section 11(g) of the ESA, 16 U.S.C. § 1540(g)
`9.
`(citizen suit), and 28 U.S.C. § 1331 (federal question). The requested relief is also proper under
`28 U.S.C. § 2201 (declaratory relief) and 28 U.S.C. § 2202 (injunctive relief). As required by the
`ESA citizen suit provision, 16 U.S.C. § 1540(g)(2)(A)(i), Wild Fish Conservancy provided
`60 days’ notice of its intent to sue to WDFW and the Secretaries of the United States Department
`of Commerce and the United States Department of the Interior through a letter dated and
`postmarked December 2, 2020. A copy of that letter is attached as Exhibit 1 to this complaint
`and incorporated herein by this reference.
`10.
`The Western District of Washington is the proper venue under 28 U.S.C.
`§ 1391(e) and 16 U.S.C. § 1540(g)(3)(A) because the violations alleged, and/or substantial parts
`of the events and omissions giving rise to the claim, occurred and are occurring within such
`District. This matter is properly assigned to a District Judge in Seattle under LCR 3(d) because a
`substantial part of the events and omissions that give rise to the claim occurred within a county
`for which actions are assigned to a district judge in Seattle. Specifically, the challenged hatchery
`program is implemented primarily in Snohomish County.
`
`
`
`COMPLAINT - 4
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 5 of 33
`
`
`
`PARTIES
`Plaintiff Wild Fish Conservancy is a membership-based 501(c)(3) nonprofit
`11.
`organization incorporated in the State of Washington with its principal place of business in
`Duvall, Washington. Wild Fish Conservancy is dedicated to the preservation and recovery of
`Washington’s native fish species and the ecosystems upon which those species depend. Wild
`Fish Conservancy brings this action on behalf of itself and its approximately 2,400 members.
`Wild Fish Conservancy changed its name from “Washington Trout” in 2007. As an
`environmental watchdog, Wild Fish Conservancy actively informs the public on matters
`affecting water quality, fish, and fish habitat in the State of Washington through publications,
`commentary to the press, and sponsorship of educational programs. Wild Fish Conservancy also
`conducts field research on wild fish populations and has designed and implemented habitat
`restoration projects. Wild Fish Conservancy advocates and publicly comments on federal and
`state actions that affect the region’s native fish and ecosystems. Wild Fish Conservancy routinely
`seeks to compel government agencies to follow the laws designed to protect native fish species,
`particularly threatened and endangered species.
`12. Wild Fish Conservancy’s members regularly spend time in areas in and around
`Puget Sound and its tributaries, including the Skykomish and Snohomish Rivers and other
`watersheds where WDFW’s hatchery steelhead programs are implemented. Wild Fish
`Conservancy’s members intend to continue to visit these areas on a regular basis, including in
`the summer of 2021 and beyond. These members observe, study, photograph, and appreciate
`wildlife and wildlife habitat in and around these waters. These members also fish, hike, camp,
`swim, and snorkel in and around these waters. Wild Fish Conservancy’s members would like to
`fish in these waters for wild Puget Sound steelhead, wild Puget Sound Chinook salmon, and wild
`bull trout, or increase opportunities for such activities, if those species were able to recover to a
`point where such activities would not impede the species’ conservation and restoration.
`
`COMPLAINT - 5
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 6 of 33
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`13. Wild Fish Conservancy’s members derive scientific, educational, recreational,
`health, conservation, spiritual, and aesthetic benefits from Puget Sound, its tributaries, the
`surrounding areas, and from wild native fish species in those waters and from the existence of
`natural, wild, and healthy ecosystems.
`
`14.
`The past, present, and future enjoyment of Wild Fish Conservancy’s interests and
`those of its members, including the recreational, aesthetic, spiritual, and scientific interests, have
`been, are being, and will continue to be harmed by WDFW’s failures to comply with the ESA as
`described herein and by Wild Fish Conservancy’s members’ reasonable concerns related to
`WDFW’s violations. These injuries include reduced enjoyment of time spent in and around the
`waters described above, fewer visits to those areas than would otherwise occur, and refraining
`from engaging in certain activities while visiting these areas, such as fishing, than would
`otherwise occur. These injuries also include an inability to fish for wild salmonids due to their
`depressed status.
`
`15. Wild Fish Conservancy’s injuries and those of its members are actual, concrete
`and/or imminent, and are fairly traceable to WDFW’s violations of the ESA as described herein
`that the Court may remedy by declaring that WDFW’s omissions and actions are illegal and
`issuing injunctive relief requiring WDFW to comply with its statutory obligations. Wild Fish
`Conservancy’s members will benefit from increased enjoyment of time spent in and around the
`waters described above and/or will visit the areas more frequently if WDFW is required by the
`Court to comply with the ESA.
`
`16.
`Defendant Washington Department of Fish and Wildlife is an agency of the State
`of Washington that owns and implements the South Fork Skykomish River summer steelhead
`hatchery program challenged herein.
`
`17.
`Defendant Kelly Susewind is the Director of the Washington Department of Fish
`and Wildlife and is being sued in that official capacity. As the Director of the agency, Mr.
`Susewind is responsible for ensuring that the agency complies with applicable laws, is
`COMPLAINT - 6
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
`No. 2:21-cv-00169
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 7 of 33
`
`
`
`responsible for overseeing the implementation of the challenged South Fork Skykomish River
`summer steelhead hatchery program, and could respond to injunctive relief orders from this
`Court related to the challenged hatchery program.
`
`18.
`Defendants Larry Carpenter, Barbara Baker, James Anderson, Lorna Smith, Fred
`Koontz, Molly Linville, Donald McIsaac, and Kim Thornburn are the Commissioners of the
`Washington Fish and Wildlife Commission and are being sued in that official capacity. As the
`Commissioners of the Washington Fish and Wildlife Commission, they are responsible for
`ensuring that the Washington Department of Fish and Wildlife complies with applicable laws,
`are responsible for overseeing the implementation of the challenged South Fork Skykomish
`River summer steelhead hatchery program, and could respond to injunctive relief orders from
`this Court related to the challenged hatchery program.
`BACKGROUND
`
`The Endangered Species Act.
`I.
`19.
`The ESA is a federal statute enacted to provide a program to conserve threatened
`
`and endangered species and to protect the ecosystems upon which those species depend.
`16 U.S.C. § 1531(b). “Conserve,” as used is in the ESA, means to use all methods and
`procedures necessary to bring threatened and endangered species to a point where the protections
`afforded by the statute are no longer necessary. 16 U.S.C. § 1532(3).
`20.
`The ESA assigns certain implementation responsibilities to the Secretaries of the
`United States Department of the Interior and the United States Department of Commerce, which
`have delegated these duties to the Director of FWS and the Assistant Administrator for Fisheries
`of NMFS, respectively.
`
`21.
`Section 4 of the ESA requires FWS and NMFS to determine whether species are
`threatened or endangered of extinction and to list species as such under the statute. 16 U.S.C.
`§§ 1533(a)(1) and (c)(1). Such a listing triggers various protective measures intended to
`
`COMPLAINT - 7
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 8 of 33
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`conserve the species, including the designation of critical habitat and the preparation of a
`recovery plan. 16 U.S.C. §§ 1533(a)(3) and (f).
`
`22.
`Section 9 of the ESA makes it unlawful for any person to “take” species listed
`under the statute as endangered. 16 U.S.C. § 1538(a)(1). The take prohibition has been applied to
`certain species listed as threatened under the statute though regulations promulgated under
`section 4(d) of the ESA, 16 U.S.C. § 1533(d). 50 C.F.R. §§ 223.102, 223.203(a); 50 C.F.R. §§
`17.21, 17.31(a). Section 9 of the ESA prohibits a violation of those regulations. 16 U.S.C. §
`1538(a)(1)(G).
`23.
`“Take” is defined broadly under the ESA to include harass, harm, pursue, hunt,
`shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
`16 U.S.C. § 1532(19).
`24.
`“Harass” is defined to include 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. 50 C.F.R. § 17.3.
`25.
`“Harm” is defined to include 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; 50 C.F.R § 222.102.
`26.
`Section 10 of the ESA provides a mechanism by which NMFS and FWS may
`issue permits exempting from liability under section 9 of the ESA the take of threatened or
`endangered species associated with activities intended to enhance the propagation or survival of
`the affected species. 16 U.S.C. § 1539(a)(1)(A). Such permits are issued upon consideration of
`several factors, including the effects the activity would have on wild populations and whether the
`proposed activity would conflict with other programs intended to enhance the survival
`probabilities of the species. 50 C.F.R. § 17.22(a)(2); 50 C.F.R. § 222.308(c).
`
`COMPLAINT - 8
`No. 2:21-cv-00169
`
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` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 9 of 33
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`Section 10 of the ESA also allows for the issuance of permits exempting from
`27.
`
`liability under section 9 the take of threatened or endangered species incidental to projects
`determined by NMFS or FWS not to appreciably reduce the likelihood of survival and recovery
`of the protected species. 16 U.S.C. § 1539(a)(2)(B)(iv); 50 C.F.R. § 222.307(c)(2)(iii); 50 C.F.R.
`§ 17(b)(2)(i)(D). Parties seeking such a permit are required to develop a habitat conservation
`plan that will minimize adverse effects to ESA-listed species. 16 U.S.C. § 1539(a)(2)(A);
`50 C.F.R. § 17.22(b)(1)(iii); 50 C.F.R. § 222.307(b)(5).
`
`28.
`NMFS has promulgated regulations under section 4(d) of the ESA that apply the
`take prohibition of section 9 of the ESA to certain salmonid species—known as the “4(d)
`Rule”—while also providing exemptions from that take prohibition—known as the “4(d)
`Limits.” 50 C.F.R. § 223.203. One such exemption is for artificial propagation programs for
`which a HGMP has been approved by NMFS as meeting detailed criteria. 50 C.F.R.
`§ 223.203(b)(5). Another exemption exists for joint State-Tribe resource management plans
`implementing treaty fishing rights that have undergone a NMFS review and approval process.
`50 C.F.R. § 223.203(b)(6).
`
`29.
`Section 7 of the ESA imposes substantive and procedural requirements on federal
`actions. See 50 C.F.R. § 402.03. Substantively, it mandates that federal agencies “insure that any
`action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
`continued existence of any endangered . . . or threatened species or result in the destruction or
`adverse modification” of such species’ critical habitat. 16 U.S.C. § 1536(a)(2); Pyramid Lake
`Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990).
`30.
`Procedurally, section 7 of the ESA requires an agency planning an action that
`“may affect” listed species (the “action agency”) to consult with NMFS and/or FWS (the
`“consulting agency”). 50 C.F.R. § 402.14(a). Such consultation is intended to facilitate
`compliance with the substantive mandate. See Thomas v. Peterson, 753 F.2d 754, 763–65 (9th
`
`COMPLAINT - 9
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 10 of 33
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`Cir. 1985), abrogated on other grounds, Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789
`F.3d 1075, 1091–92 (9th Cir. 2015).
`
`31.
`Consultation under section 7 of the ESA results in the consulting agency’s
`issuance of a biological opinion (“BiOp”) determining whether the action is likely to jeopardize
`listed species or adversely modify critical habitat. 50 C.F.R. § 402.14(h)(3); see id. § 402.02. If
`jeopardy and adverse modification are not likely, the BiOp includes an incidental take statement
`(“ITS”) defining the “take” anticipated from the action. 16 U.S.C. § 1536(b)(4)(C)(i); 50 C.F.R.
`§ 402.14(i)(1)(i). The ITS also includes requirements to minimize impacts to species and to
`monitor the take that occurs. 16 U.S.C. § 1536(b)(4)(C)(iii), (iv); 50 C.F.R § 402.14(i)(1)(ii),
`(i)(1)(iv), (i)(3); Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531–32 (9th Cir. 2010). Take
`in compliance with an ITS is exempt from liability under section 9 of the ESA. 16 U.S.C. §
`1536(o)(2); 50 C.F.R. § 402.14(i)(5).
`
`32.
`NMFS’s approval of an HGMP under the 4(d) Rule for salmonids is an action that
`requires consultation under section 7 of the ESA and therefore generally requires a BiOp.
`
`33.
`NMFS’s issuance of a take permit under section 10 of the ESA is also an action
`that generally requires consultation under section 7 of the ESA and therefore generally requires a
`BiOp.
`NMFS’s 4(d) Rule for salmonids that provides for the 4(d) Limits specifies that
`34.
`
`those limits provide an affirmative defense to a claim alleging that the activity is causing “take”
`in violation of section 9 of the ESA. 50 C.F.R. § 223.203(c). Specifically, the regulation
`provides: “Affirmative Defense. In connection with any action alleging a violation of the
`prohibitions of paragraph (a) of this section (which applies the ESA section 9 “take” prohibition)
`with respect to the threatened West Coast salmon ESUs and steelhead DPSs . . . , any person
`claiming the benefit of any limit listed in paragraph (b) of this section or § 223.204(a) shall have
`a defense where the person can demonstrate that the limit is applicable and was in force, and that
`the person fully complied with the limit at the time of the alleged violation. This defense is an
`COMPLAINT - 10
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
`No. 2:21-cv-00169
` Portland, Oregon 97214
` (503) 841-6515
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 11 of 33
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`affirmative defense that must be raised, pleaded, and proven by the proponent. If proven, this
`defense will be an absolute defense to liability under section 9(a)(1)(G) of the ESA with respect
`to the alleged violation.” Id.
`
`35.
`Parties claiming an exemption from liability for take of ESA-listed species
`through an incidental take statement issued under section 7 of the ESA or a take permit issued
`under section 10 of the ESA have a similar burden to that under the salmonid 4(d) Rule. Section
`10(g) of the ESA provides: “Burden of Proof. In connection with any action alleging a violation
`of [section 9 of the ESA], any person claiming the benefit of any exemption or permit under this
`chapter shall have the burden of proving that the exemption or permit is applicable, has been
`granted, and was valid and in force at the time of the alleged violation.” 16 U.S.C. § 1539(g).
`II.
`Factual Background.
`A.
`ESA-Listed Species and Designated Critical Habitat.
`36.
`The Puget Sound DPS of steelhead was listed as a threatened species in 2007. 72
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`Fed. Reg. 26,722 (May 11, 2007); see also 79 Fed. Reg. 20,802 (Apr. 14, 2014) (revision to
`listing); 50 C.F.R. § 223.102. NMFS has applied the ESA section 9 take prohibition to this
`species. 50 C.F.R. §§ 223.102, 223.203(a).
`
`37.
`The Puget Sound Chinook salmon evolutionarily significant unit (“ESU”) is listed
`as a threatened species. 64 Fed. Reg. 14,308 (Mar. 24, 1999); 70 Fed. Reg. 37,160 (June 28,
`2005); see also 79 Fed. Reg. 20,802 (Apr. 14, 2014) (revision to listing); 50 C.F.R. § 223.102.
`NMFS has applied the ESA section 9 take prohibition to this species. 50 C.F.R. §§ 223.102,
`223.203(a).
`The coterminous United States bull trout population is listed as a threatened
`
`38.
`species. 64 Fed. Reg. 58,910 (Nov. 1, 1999). FWS has applied the ESA take prohibition to this
`species. 50 C.F.R. §§ 17.21, 17.31(a).
`
`
`COMPLAINT - 11
`No. 2:21-cv-00169
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`
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`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 12 of 33
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`South Fork Skykomish River summer steelhead hatchery program.
`B.
`
`39. WDFW’s HGMP for the new South Fork Skykomish summer steelhead hatchery
`
`program explains that WDFW will develop stock by collecting up to 30% of the wild, natural-
`origin, summer steelhead returning to the Sunset Falls fishway, or up to 120 fish, during the first
`4 years of the program. Those adult steelhead will be trapped from July through October and
`held in captivity at Reiter Ponds and/or Wallace River hatchery facilities until ready to be
`spawned. Once ripe, WDFW will lethally or live spawn the fish at those hatcheries.
`40.
`The new hatchery program will target an annual release of 116,000 yearling
`steelhead from Reiter Ponds and/or the Wallace River hatchery facilities. Once adult hatchery
`summer steelhead begin to return to the Skykomish River from this new program, WDFW will
`incorporate those hatchery-origin fish into the broodstock, along with the natural-origin
`steelhead.
`
`41. WDFW’s HGMP provides that South Fork Skykomish summer steelhead are not
`recognized as a demographically independent population (“DIP”) and asserts that they are
`therefore not included in the ESA-listed Puget Sound steelhead DPS.
`42.
`However, the HGMP also explains that an objective of this program is to
`conserve and recover the immediately adjacent North Fork Skykomish River summer steelhead
`DIP, which is included within the ESA-listed Puget Sound steelhead DPS. Further, the South
`Fork Skykomish River, above and below Sunset Falls, is designated as critical habitat for
`threatened Puget Sound steelhead. See 50 C.F.R. § 226.212(a)(15), (u)(7)(i). Salmonids
`generally, and summer steelhead especially, stray to non-natal freshwater bodies before
`spawning in their natal streams.
`43.
`It is therefore almost certain that some of the fish trapped at Sunset Falls are
`North Fork Skykomish River summer steelhead or another DIP recognized as part of the
`threatened Puget Sound steelhead DPS protected under the ESA. WDFW admitted as much
`
`COMPLAINT - 12
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 13 of 33
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`when it identified broodstock collection activities at Sunset Falls as an activity that may lead to
`take of ESA-listed species.
`44. WDFW nonetheless commenced this new hatchery program, catching and killing
`wild summer steelhead for broodstock, prior to NMFS reviewing and approving the HGMP and
`prior to NMFS or FWS providing an authorization for WDFW to “take” ESA-listed species.
`45.
`Available data indicate that WDFW began removing wild steelhead from the
`South Fork Skykomish River for this new program in the summer of fall of 2019. Data obtained
`from WDFW’s In-Season Hatchery Escapement Reports indicate the following transfers (capture
`and live-ship via truck) of “wild, W” steelhead were made from the South Fork Skykomish
`Sunset Falls Fishway to the Reiter Ponds, a Summer Steelhead Program located on the
`Skykomish River:
` April 16, 2020 report: 52 W (final in-season estimate); and
` November 25, 2020 report: 36 W.
`46.
`Of the wild steelhead held in Reiter Ponds between October 2019 and March
`2020, 29 were lethally spawned on or about March 19, 2020 and 101,300 eggs were taken.
`47.
`Further, the WDFW Escapement Reports document one additional wild steelhead
`mortality at Reiter Ponds. It is presumed that the 36 “W” transferred to Reiter Ponds documented
`in the November 25, 2020 report are currently being held in captivity there, and those still alive
`will be lethally or live spawned in early 2021.
`48.
`Data are not available to Wild Fish Conservancy on mortalities of juvenile
`steelhead offspring resulting from the spawning and rearing of wild Skykomish summer
`steelhead at Reiter Ponds.
`
`C.
`
`The Take Caused by WDFW’s Unauthorized South Fork Skykomish River
`Summer Steelhead Program.
`49. WDFW’s new integrated South Fork Skykomish River summer steelhead
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`program, as described in the April 12, 2019 HGMP, causes take through a variety of mechanisms
`
`COMPLAINT - 13
`No. 2:21-cv-00169
`
`
`
` KAMPMEIER & KNUTSEN, PLLC
` 1300 S.E. Stark Street, Suite 202
` Portland, Oregon 97214
` (503) 841-6515
`
`
`
`Case 2:21-cv-00169 Document 1 Filed 02/10/21 Page 14 of 33
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`and activities. These include the broodstock collection activities, genetic introgression,
`ecological interactions, and increased fishing pressures.
`i.
`Take Through Broodstock Activities.
`
`
`
`50.
`All or some of the wild adult summer steelhead captured by WDFW, beginning in
`2019, and taken to Reiter Ponds, Wallace River hatchery, and/or other hatchery facilities as part
`of broodstock collection activities, are threatened Puget Sound steelhead protected under the
`ESA.
`
`51. WDFW does not have any applicable authorization or exemption for the taking of
`these ESA-listed fish.
`52. WDFW’s trapping, collection, transferring, holding, rearing, spawning, and
`killing of these fish constitute take of an ESA-listed species.
`
`
`ii.
`Take Through Genetic