Restoring salmon protections
last updated September 5, 2023
Proposed changes in Oregon’s fish passage rules will hurt native fish and tribal treaty rights. Photo by Laura Mahoney/USFWS.
Crag files legal challenge over fish passage rule change
New case filed! On behalf of seven fish advocacy groups, Crag filed a new lawsuit challenging a December 2022 decision by the Oregon Fish and Wildlife Commission that weakened state-wide protections for migratory fish like salmon, steelhead, and lamprey. We filed a petition for review in the Oregon Court of Appeals to challenge their rule change – you can read it here. Additionally, the Nez Perce Tribe joined Crag’s clients in the lawsuit and the Confederated Tribes of the Umatilla Indian Reservation filed a separate companion legal challenge to the rules.
For millennia, wild salmon have made the journey from the Columbia River to the ocean where they grow large and strong, until it’s time for them to return home to lay their eggs and complete their life cycle. But their journeys from ocean to home are stopped short when confronted with dams and other human made barriers.
Crag attorney Maura Fahey is representing our clients challenging the fish passage rules.
To help with fish recovery efforts, Oregon law requires all artificial barriers, like dams and culverts, have “fish passage” – a way for the fish to get around the barriers. Until very recently, “fish passage” was defined to mean structures that allowed fish to get around dams by their own free will (i.e. “volitionally”), things like fish ladders or lifts which allow fish to swim around a barrier themselves.
Left: a Fish ladder in Longview, WA. Photo by Tess McBride/USFWS. License CC BY-NC 2.0. Right: Fish swimming up a fish ladder.
However, this past December, the Oregon Department of Fish and Wildlife weakened these protections by changing the definition of “fish passage” to include trapping and hauling the fish around the dam. Instead of requiring that man-made barriers like dams be upgraded to allow fish to swim freely past them, the weakened rules can allow dam operators and others to trap salmon and load them into trucks for transport around dams—a process with much lower survival rates.
A trap and haul truck. Photo by Matt Stoecker.
To add insult to injury, these changes occurred at the last-minute and behind closed doors, after a nearly two-year public process had taken place to include stakeholders in the rulemaking process, without any additional public notice or tribal consultation.
This rule change has significant consequences for protection of native fish species and reserved treaty fishing rights. Not only does this proposed “fish passage” rule change hurt wild fish, but the rules did not undergo the legally required public notice process or tribal consultation. So we’re taking them to court!
Our Clients
Crag represents the seven fish advocacy groups who filed the legal challenge to the rule change: Columbia Riverkeeper, The Conservation Angler, Institute for Fisheries Resources, Native Fish Society, Northwest Environmental Defense Center, Oregon Wild, and the Pacific Coast Federation of Fishermen’s Associations.
Additionally, the Nez Perce Tribe joined Crag’s clients in the lawsuit and the Confederated Tribes of the Umatilla Indian Reservation filed a separate companion legal challenge to the rules.
Read more from our clients about why this rule change is so troubling:
“After all the public process and discussions that went into developing the new rules, it’s really disappointing to see Oregon Department of Fish & Wildlife (ODFW) insert a major change at the last minute without consulting Tribes or notifying the public. ODFW’s new rule makes it less likely that effective and proven volitional fish passage will be constructed at dams, culverts, and diversions in Oregon, hindering efforts to recover Oregon’s migratory fish.”
– David Moskowitz, Executive Director of The Conservation Angler
“Oregon’s fisheries are vital to Tribes, river communities, and the Beaver State’s culture and economy; they deserve the highest levels of protection. It’s disappointing to see ODFW weaken those protections without explaining why or asking for public or Tribal input.”
– Miles Johnson, Legal Director for Columbia Riverkeeper
“Call me a radical, but I believe that salmon and steelhead should swim in our rivers, not be trapped and hauled around in trucks. Whoever at ODFW came up with the idea of redefining Oregon’s rules to allow trap-and-haul to substitute for freely swimming salmon should have been laughed out of the room.”
– Steve Pedery, Conservation Director of Oregon Wild