In recent weeks, Wild Steelheaders United has received numerous inquiries about the status of the hatchery summer steelhead program on the North Umpqua River. There have been a couple of key developments on this issue since late April – including a court order that places the relevant Oregon Fish and Wildlife Commission decision on hold until litigation plays out. Here’s a brief summary of where things stand:
Commission decision, litigation filed
On April 22nd, the Oregon Fish and Wildlife Commission voted 4-3 to end the hatchery summer steelhead program on the North Umpqua River. To read more about this decision, click here. On April 26th, several parties from Douglas County filed suit against Oregon Department of Fish & Wildlife (ODFW) and the Commission, seeking in part a “preliminary injunction” that would place the Commission’s decision on hold until the litigation could be decided on the merits. Wild Steelheaders and Trout Unlimited are not involved in this litigation.
Preliminary injunction granted
On May 18th, the Marion County Circuit Court held a hearing on the petitioners’ request for a preliminary injunction — a legal remedy that preserves the status quo (i.e., places the disputed decision on hold) until the aggrieved parties’ claims can be determined on the merits by the Court. A court’s decision to grant a preliminary injunction considers several factors, including: the likelihood that petitioners would suffer irreparable harm in the absence of the preliminary injunction, the balance of equities between the parties, the public interest in the issue, and the likelihood of petitioners succeeding on the merits in subsequent court proceedings.
In this case, the life history of summer steelhead played a key role in the Court’s application of the preliminary injunction factors. Summer steelhead smolts in the North Umpqua typically spend two years in the ocean before returning as adults. The 2021 cohort of North Umpqua hatchery summer steelhead smolts perished in the 2020 wildfires (while placed at another hatchery to avoid ongoing disease issues at the Rock Creek Hatchery in the Umpqua basin). Thus, if the state did not release hatchery summer steelhead smolts in 2022 – and during the springtime window of opportunity when the smolts were biologically wired to out-migrate – the hatchery summer steelhead run would be effectively eliminated by having a two-year gap in adult returns (i.e., adult return years 2023 and 2024).
According to ODFW staff, in the event of such a de facto end to the hatchery run, the department would be unlikely to subsequently “mine” the wild run for new hatchery broodstock to re-start the hatchery program.
On May 19th, the Court issued an “Order Granting Petitioners’ Motion for Preliminary Injunction,” which enjoined “the Oregon Fish and Wildlife Commission’s April 22, 2022 decision to not release hatchery summer steelhead smolts in 2022 and to eliminate the Rock Creek hatchery summer steelhead program from taking effect until this case is decided on the merits or otherwise disposed of by the Court.” In other words, the Court required the Department to release the 2022 smolt cohort to preserve the availability of a remedy for petitioners (i.e., if petitioners ultimately succeeded in the case, but the 2022 cohort hadn’t been released, there wouldn’t be a way to resume the hatchery program).
The Court also ordered ODFW to volitionally release the 2022 cohort of hatchery summer steelhead smolts then present at the Rock Creek Hatchery into the North Umpqua, with any smolts that did not volitionally migrate (i.e., swim out of the hatchery on their own) to be placed somewhere that they could not out-migrate (e.g., a put-and-take fishery).
On or about May 20th, ODFW volitionally released the 2022 cohort of hatchery summer steelhead into the North Umpqua. Although ODFW staff initially recommended at the April 22nd Commission meeting that only 30,000 smolts be released (rather than the 70,000+ available), the Court’s order did not require that limitation. Accordingly, the department’s May 20th release included all 70,000+ smolts present.
Above: North Umpqua wild summer steelhead (Image: Dean Finnerty)
Current Status of Hatchery Summer Steelhead Program
- The Commission’s April 22nd decision to terminate the North Umpqua summer steelhead hatchery program may still be upheld, and the program may still end pursuant to it. The Court entered only a “preliminary injunction,” meaning the petitioners’ case should still proceed to a decision by the Court on the merits. If the Commission’s decision is upheld by the Court as compliant with applicable law, then the Commission’s decision will stand, meaning the hatchery summer steelhead program will terminate (notwithstanding the May 20th release of the 2022 cohort of hatchery smolts). This would be the best outcome for wild steelhead because, as Wild Steelheaders and others testified at Commission meetings on this issue, the hatchery program posed an unacceptable risk to wild fish in the basin.
- The 2022 cohort of hatchery summer steelhead smolts was released into the North Umpqua River in May, meaning that hatchery summer steelhead will return to the watershed through the summer of 2024. Unfortunately, as some scientists feared, the release included a substantial number of undersized smolts and appears to have occurred too late this spring. Anglers are encountering hatchery fin-clipped steelhead smolts below the Rock Creek Hatchery (while fishing for spring Chinook) that have returned to displaying parr marks, meaning those fish likely reversed the smolting process and could become residualized (i.e., non-migratory). Many of the 2022 cohort hatchery smolts will not survive, and those that do will compete with wild juvenile steelhead. Given the low returns of wild fish in 2021, and likelihood of continued low wild fish returns, Wild Steelheaders is also concerned about the probability of high pHOS (proportion of hatchery-origin spawners) in 2024, as outlined in our earlier blog post on this issue. Wild Steelheaders encourages ODFW to increase trapping efforts and angler harvest on those hatchery fish in 2024, and to begin planning for those efforts now.
- The Commission’s April 22nd decision could be changed. This is the “wild card” here, and there are two primary ways it might come into play. First, the Commission and ODFW could settle the petitioners’ case – prior to a decision on the merits by the court – in a way that preserves the hatchery summer steelhead program on the North Umpqua River. Second, the Commission might re-visit this issue from the April 22nd meeting (regardless of how the litigation plays out) and decide to overturn its decision to terminate the summer steelhead hatchery program. Wild Steelheaders opposes either of these possibilities because the Commission made the right decision for wild steelhead on April 22nd, and the original decision should stand.
Image: Dean Finnerty
Conclusion
The Commission’s April 22nd decision to end the North Umpqua hatchery summer steelhead program is under review by a judge, but it has not been reversed. The Oregon Department of Fish & Wildlife released hatchery summer steelhead smolts into the North Umpqua on May 20th due to a “preliminary injunction” issued by a court, but that does not mean the hatchery program will continue indefinitely. Wild Steelheaders believes the Commission made the right decision for wild summer steelhead on April 22nd, and we encourage ODFW and the Commission to continue the relevant litigation to a decision on the merits, with the goal of upholding the Commission’s decision (and science behind it) and ending the North Umpqua hatchery summer steelhead program.