North of Falcon Process

Independent Fisheries Scientist Panel issues its final report on the mortality rates for use of a gillnet in Grays Harbor and Willapa Bay

The IFSP has published its anxiously awaited report on "catch & release" mortality when using a gillnet in Willapa Bay and Grays Harbor.  The IFSP concept originated from the out-of-court settlement of the legal challenge to gillnet seasons in 2013 for the two terminals wherein the historic 45% mortality for fish released from a net used by WDFW was challenged by the founders of the Twin Harbors Fish & Wildlife Advocacy.

The report finds the IFSP did not adopt the 45% and came in with recommendations for mortalities tied to net mesh sizes and the fishers behaviour in actual practices that could climb up to 80% or higher.  In addition to extensive presentations from the commercial interests and its attorney, one of the items reviewed by the panel was the "Chehalis Fling" video from this website that filmed the fleet in action during the 2012 season in Grays Harbor.

The mortality rates recommended by the IFSP are expected to be used when setting net seasons in Grays Harbor and Willapa Bay this year.  The report has been placed into the fishileaks library on this site and is available for downloading or viewing by clicking here.

The "Advocacy" provides 3 member independent panel of scientists a presentation on selective fishing with a gillnet

 The newly formed nonprofit Twin Harbors Fish & Wildlife Advocacy that evolved from the settlement of legal challenges to the 2013 gillnet fisheries in Willapa Bay and Grays Harbor (see settlement below) has provided the 3 member panel charged with the responsibility to recommend a mortality percentage for selective fishing with a gillnet.  The presentation is in PDF format for easy viewing (read it here).  The Advocacy has formed a Technical Advisory Team (TAT) whom have contributed to the presentation.  Each of their comments are included as an exhibit attachment to the presentation. 

Hal Michael, long time WDFW biologist, offers his comments here.  Read Dave Hamilton's Broodstocking experience here.  Forest Economist Loren Gee provides his analysis here.  Frank Grygorcewicz, biologist with a career in certification and quality control assurances offers his comments on "Fish Friendly" classes for gillnetters here.  Seasoned criminal defense lawyer Joshua Sneva reviews WDFW's enforcement of gillnetting in WB and GH here.

The presentation will be orally reviewed before the panel in a public workshop in Olympia.  Public comments will also be taken at the workshop.  All those interested in gillnetting and the issue of the mortality rates associated with "catch & release" selective fishing with a gill net are encouraged to attend.

Workshop Date, Time, and Location: The workshop will occur on February 26, 2-5PM, in the Auditorium of the General Administration Building in Olympia. Best idea may be to park on P-3 at the Natural Resources Building (WDFW offices) and walk the two or so blocks to the GA Building at 210 11th Ave SW, Olympia, WA 98501.

Settlement reached in legal challenges to 2013 Willapa and Grays Harbor gillnet seasons

Joe Frawley, Esq. of the Olympia firm of Schefter & Frawley, Ron Schweitzer (Elma), Tim Hamilton (McCleary), and Art Holman (Aberdeen) are pleased to announce that the legal challenges in Hamilton et al v- WDFW have been addressed in an out-of-court settlement reached with the Washington Department of Fish & Wildlife on January 24, 2014.  The group believes the settlement terms set up a detailed public involvement process that is unprecedented and provides the opportunity to quickly develop remedies to the issues under dispute in Willapa and Grays Harbor that would carry greater public support than rulings by a judge at some unknown point in the future.

The terms of the agreement call for the three petitioners to form a non-profit organization and work with the Department and the public to address the issues that were contained in the litigation. A team of independent fishery scientists jointly approved by the Department and the petitioners will be retained from outside the Department using a dedicated fund held by WDFW.  A series of technical workshops and public meetings will occur. The Director will seek guidance from the Commission to begin review of the policy directives and the management plan used to manage fisheries and set seasons in the Willapa terminal following completion of the process currently underway in Grays Harbor regarding its Policy and Management Plan.

The full settlement agreement is available for your review in PDF format for easy viewing or downloading by clicking here. Since it is not overly long and in fairly plain English, all are encourage to click the link and read this truly remarkable agreement.

The settlement agreement contains a provision (sec. 6) wherein the two parties would agree on how to issue public statements or comments regarding the settlement and the meetings or workshops that will be scheduled shortly. Those agreed-upon talking points read as follows:

The Washington Department of Fish and Wildlife has completed a settlement agreement with Tim Hamilton, Art Holman, and Ron Schweitzer that resolves litigation regarding commercial fishing in Grays Harbor and Willapa Bay for the 2013 season. Rather than prolonging litigation, all parties have agreed to build on a shared interest in enhancing communication between the Department and recreational fishers, ensuring a strong technical foundation for salmon fishery management, and improving the integration of the North of Falcon fishery planning and the rules process.

All parties recognize that salmon play an integral role in the commerce, recreation, and cultural identity of the people of the Pacific Northwest. This is particularly true along the Washington coast, where salmon are an economic mainstay for communities, a focal point for tribal life, and an important link between the ocean and interior ecosystems in Willapa Bay and Grays Harbor.

The Agreement reflects a shared interest in the conservation of salmon in these basins and in building support for the salmon resources among commercial fishers, recreational fishers, and outdoor recreation enthusiasts.
Key elements of the agreement include:

   · Ensuring a strong technical foundation for salmon fishery management by enlisting the assistance of    independent fishery scientists to review the rates used to project the mortality of salmon released in commercial fisheries.

   · Increasing the public’s ability to participate in season setting and fisheries management by developing a web page with Grays Harbor information on fishery catches, spawners, and the basis of spawner escapement goals.

   · Initiating a series of workshops to:

    a)  assist the public in understanding how fishery management in Grays Harbor is conducted, seasons are set, and the processes used;

   b)  increase the accuracy and reliability of models used to set fishing seasons; and

   c)  develop in-season indicators of salmon abundance to enable adaptive management.

   d)  Director Anderson will request that the Fish and Wildlife Commission provide him with direction to initiate the development of a Willapa Bay Fishery Management Policy for implementation in the 2015 North of Falcon process. In addition, following adoption of the policy, the Willapa Bay Management Plan will be revised in a manner consistent with the policy.

These elements of the agreement are designed to enhance conservation of the state’s salmon resource, improve public trust, and develop a solid foundation for a long-lasting relationship with all stakeholders.

Update- November 25, 2013

In a break in litigation action that is described below, the three petitioners turned to the current process underway in GH for development of a Commission guidance policy and a Fish Program Management Plan being considered by the Fish & Wildlife Commission.  The result was an email to members of the Commission that contained a presentation with a section by section analysis of the current draft policy language created by WDFW staff, suggested amendments to the language, and the rationale for each.  The email cover to the Commission is reprinted below and the presentation is available for viewing or downloading here

November 24, 2013

To: Members of the Fish and Wildlife Commission

We recently attended a meeting of the Commission in Olympia where the Department proposed a draft of a new policy designed to be adopted by the Commission related to salmon resource management in Grays Harbor. Extensive criticism from the public was heard during the comment period after which Commissioner Kehoe suggested the public stop waiting for someone else to write for them. After due consideration,we decided to adopt his advise.

We began by seeking out individuals with extensive legal, natural resource economic, and marine biology expertise. Our next step was to take the latest publicly available draft of the proposed Commission draft circulated by the Department and go through it line by line with our experts. We concluded the current draft is so vague, broad, and limited in direction that adoption by the Commission would change very little if anything in the manner WDFW manages salmon resources in Grays Harbor. The controversies over the Department's management practices would not lessen and most likely increase in intensity in the future.

Attached for your review is a document that starts with the Department's draft language. We provide our suggestions section by section. In legislative fashion, deletions of current draft language is shown in stikethroughs and suggested new language in red underline. The rationale for each deletion or addition is followed in blue text.

Creating this document for the members of the Commission was a challenging task requiring significant investment of resources. We sincerely hope each of you on the Commission will take the time to read the proposal and consider each one of our proposed sectional as individual amendments to the draft proposed by the Department.

Naturally, we stand by to assist any Commissioner if questions arise or anyone of you have need for further information or clarification.

Respectfully,

Tim Hamilton, Ron Schweitzer, & Art Holman


cc:
Members of the Grays Harbor Salmon Advisory Group
Enrollees for the Fishingthechehalis.net contact list
Jim Scott, WDFW
Ron Warren, WDFW
Kirt Hughes, WDFW
Mike Scharpf, WDFW
Craig Burley, WDFW

Update- September 28, 2013

On September 26, 2013, the second petition was filed objecting to the commercial gill net seasons set this year by WDFW for the coastal region.  The second petition challenges the season set for Grays Harbor (read petition here)

Many of the issues contested are similar between the Willapa Bay petition earlier (see below) and the one filed for Grays Harbor.  The use of selective fishing (catch & release) that does not follow the practices and standards for selective fishing (watch the Chehalis Fling to see WDFW/gillnetters in actual action) is one similar point.  The North of Falcon "dog & pony show" used by WDFW as public input on setting seasons each year is another.  Most importantly, the failure of WDFW to set season year after year that overfish the gravel and fail to allow natural spawners to reach escapement goals in Grays Harbor is a mirror of the problems in Willapa.

A major difference between the two seasons is the process inserted at the last minute to pass the final language of the GH season.  WDFW went through its NOF meetings and held a public hearing on a proposed CR 102 Supplemental where the commercial net season proposed for GH prohibited the use of gill nets and required smaller mesh "tangle nets" that capture Chinook by the teeth.  The season proposed inserted the commercial nets into the Chehalis River mouth (2A & 2D) for a maximum of 84 hours. 

Incredulously, WDFW later announces adoption of the new season and it is entirely different than the proposal presented to the public in its CR 102 hearing in Montesano.  Claiming that staff in Region 6 were somehow supplied an alternative proposal from the commercial fishers, Director Anderson adopts a season with 192 hours of nets with only 12 being tangle and 180 more using gill nets.  Then, the area is outside the lower reaches of the Chehalis River to include Area 2C (mouth of the Humptulips) and the commercial fishers are allowed to retain wild spawning Chinook headed for not only the Hump but back up the Chehalis.

Earlier in the process, Petitioner Tim Hamilton emailed WDFW attorney and Rules Coordinator Lori Pruess explaining his concern that Region 6 staff would somehow hold a hearing on a proposal and then, Director Anderson would adopt something different.  Hamilton pointed out such would effectively deny the public the ability to comment on the actual season prior to it being adopted.  Pruess responded assuring Tim that the APA did not allow that type of behaviour (read the email string here). 

Hamilton wasn't the only one thinking about the possibility of hearing one thing in the public and then adopting something else behind closed doors.  Region 6 staff followed Hamilton and also emailed Pruess about Anderson changing the proposal from the one presented in the public hearing.  Pruess advised them that a change in either days, areas, or gear would considered substantive and subject them to challenge for a violation of the APA (read the email string here).  Clearly, Director Anderson and Region 6 staff totally ignored Pruess and adopted a season requested by the gillnetters that was unknown to the public until after it was adopted and showed up on the WDFW website. 

Petitioners Hamilton, Holman, and Schweitzer were first shocked, then appalled by Anderson's action they believe blatantly violates the APA and deny's the public's right of participation.  Accordingly, along with the petition of challenge, counsel Joe Frawley filed a summary judgement motion asking the court to invalidate the entire GH season setting WAC.  A hearing on the motion has been set for October 25, 2013 in Thurston County Court before Judge Wickham who has both the petitions before him (read the Summary Judgement Motion here).

To say that Anderson and Region 6 staff have disappointed the public in Willapa and GH is a gross understatement.  The three petitioners (Tim Hamilton-McCleary, Art Holman-Aberdeen, and Ron Schweitzer-Elma) are committed to exposing every secret deal, behind closed door meeting, and "voodoo science" that WDFW used in setting these seasons.  The Judge will have it all laid out in a clear and precise fashion.  As this unfolds, another "trial" will be underway and the facts will be presented in the "court of public opinion" on Fishingthechehalis.net and other internet forums.  Everything that has been said, schemed, planned, or done by Director Anderson and WDFW Region 6 Fish Program staff will be presented in its entirety to the public.  The citizens, like Judge Wickham, will have the ability to determine for themselves whether WDFW behavior is acceptable in an open and transparent democracy.

More to come--

 

Update-  August 30, 2013.

On August 29, 2013, Judge Wickham heard our motion requesting an injunction to block the 2013 Commercial gillnet season adopted by WDFW. At the same time, he heard a motion by the Willapa Bay Gillnetters Association who asked to intervene and represent its members who are commercial gillnetters fishing in Willapa.  As typically done, the WBGA was allowed to intervene to represent its members interest and immediately teamed up with WDFW to argue against an injunction. 

From the get-go, we have always understood the standards for an injuction blocking an action by the state is extremely high.  Injuctions are primarily used to block one party from economic harm by the actions of another while the court determine's the appropriate action as a law suit works its way through the process.  A citizen questioning WDFW's use of gillnets to kill fish in a manner he/she believes is contrary to legislative conservation mandates and in doing so, violates the public's right to participate in the decision making process faces the problem of  no "hard cash" economic damage to themselves. 

Typically a 15 minutes for each side type hearing, Judge Wickham listened and questioned for nearly 2 hours.  Then, he announced that he would issue a written decision the next morning.  He further added that he intended to talk about his decision and basically invited all back if interested in what he had to say verbally.  Intrigued by this unusual approach, all were back on Friday morning and listened intently. 

As expected, Judge Wickham issued his written decision denying our motion for an injuction to stop the season.  Basically, the gillnetters could prove fianancial harm if they lost the sale of fish and we couldn't.  The injunction standard in the Adminstrative Procedure Act (APA) is set so high that once WDFW adopts a season, it can rarely be blocked without a full vetting by the court and by that time, the season is over.  With no "in-season" remedy available, the challenge to this season is used to determine how the court finds WDFW must act in the future.

Then, judge started to talk and here's my read on what he said.  He recognized that the challenge to WDFW's actions were of significant importance, not only to all in the courtroom, but the public itself.  He recognized that when WDFW delayed passing the regulation until a couple days before the season started that WDFW's actions denied the public the time needed to get the problems laid out before the court before the season started.  He wanted all to know that his action to deny an injuction was not an indicator of the outcome.  He assured all present that he would go through all the evidence on the record to determine exactly what had happened and fully assess the facts.  Once this could be completed,  he would issue his decision on the final outcome of the case.  He also referenced that he had previously ruled on seasons set by WDFW.  When he issued rulings on those cases, WDFW conformed future actions to those rulings.  Clearly, the judge believed "post-seasons" remedies were within his power to install.

There's that old saying, what goes around comes around.  It will be interesting to see how WDFW can handle the scrutinity that is coming its way.  Example-  At the last minute on Thursday, seeking to assure the judge the resources were safe for the time being, WDFW came running in waiving a declaration from Region 6 biologist Kirt Hughes. Hughes declaration promises that he would take action to curtail harvest by the nets if it appeared overharvesting was occuring this year.  Our attorney Joe Frawley quickly pointed out to our knowledge: a) Mr. Hughes had not done so in all the time he's been involved in the Willapa; b) failure to meet escapement goals had gotten worse since his arrival; and c)  last year Mr. Hughes did absolutely nothing as the nets clobbered over 10,000 Chum that were not supposed to be caught. 

The venue has changed from a public "dog and pony show" controlled by WDFW staff to a legal environment.  From this point on, "smoke and mirrors" is not going to sell.  When questions are asked, they must be fully answered under the threat of perjury.  The 2013 NOF and season setting fiasco is going to be replayed in slow motion in front of a judge who seems committed to finding out exactly what happened.  This is going to get real interesting as it plays out.  Can't wait until we play the "Chehalis Fling" for him and watch WDFW try to convince him that 55 out of 100 Chinook ripped out of the nets by the gills and thrown overboard to the waiting seals somehow lived to reach the spawning grounds.  

The court filings are available for viewing or downloading on the right side of this page.

We are now waiting for them to pass the WAC for the commercial net season in Grays Harbor.  Rest assured, Ron, Art, myself, and Joe Frawley are ready to meet the challenge.

Tim Hamilton

 

Update- August 24, 2013

There has been a flurry of motions and briefs filed by the Willapa Bay Gillnetters Association (WBGA) and WDFW's counsel from the Office of Attorney General.  The AG handling the case for WDFW has comfirmed he is working as if on the same team with the firm representing the WBGA.  The paper flying is amazing.  As an example, WDFW has just filed new briefs amending its responses and the declaration of Region 6 manager Ron Warren to correct numerous errors in Mr. Warren's intitial declaration.  The WBGA has filed a motion to strike portions of my declaration claiming, as one example, I don't have any personal knowledge that the public was upset over WDFW ignoring them in NOF and other proceeding used by WDFW to pass the season (I personally delivered petitions with hundreds of signatures and numerous individual letters of opposition to WDFW during the season setting process).  

The revised filings will be posted on this page once we can sort through the growing mountain of paper being thrown at our side by WDFW and the WBGA.

Tim Hamilton

Hamilton et al -v- WDFW filed challenging the commercial gillnet season underway in the Willapa.

After over 500 citizens filed written opposition to the commercial gill net season proposed for 2013 by WDFW in the Willapa.  Director Phil Anderson adopted the season without a vote of the Fish and Wildlife Commission on August 7, 2013.  WDFW sat on the proposal and the Director did not take action until the Wednesday before the Monday season opener.   Then, Anderson claimed his delay created a threat to the public welfare (defined as loss of profits to the gillnetters) to justify waiving the 31 days typically required before a statute can take effect.

Since no action could be taken until Anderson adopted the rule, Anderson's strategy of delay prevented a legal challenge until after the season got underway.   A team led by Joe Frawley of the Olympia law firm of Rogers, Kee & Pearson "burned the midnight oil" through the weekend and filed a petition challenging the season on behalf of Tim Hamilton of McCleary, Ron Schweitzer of Elma, and Art Holman of Aberdeen on Wednesday, August 15, 2013.  At the same time, Frawley filed a motion asking for an injunction blocking the season from continuing and the court scheduled the motion for a hearing on Friday August 23, 2013.

The petitioners argue that the season adopted by Anderson is illegal as it breaches WDFW mandate to manage for conservation and the Director's season grants a priority to providing short term profits for gillnet license holders in Willapa over the conservation standards governing WDFW.  Amongst other issues, the petition argues the public has been ignored for years as WDFW uses the NOF process as a "dog and pony show" as a ruse to divert the public's attention as it cuts deals behind closed in secretive meetings with negotiators hand picked by Anderson.  Further, the petitioners argue WDFW staff uses creative accounting and knowingly unreliable assumptions in its modeling spreadsheets called FRAMS to extend gill net seasons and as a result, the Department has failed to deliver escapement goals (fish needed to reach the gravel) for 15 years in a row.

Not to be outdone, on August 16, 2013 (approximately 14 working hours after WDFW was served with the petition by Frawley) the Willapa Bay Gillnetters Association filed a motion to enjoin the action and entered the fray by asking the presiding judge to allow the association lawyers to team up with WDFW to represent the interests of its members that fish the Willapa during the season.

Interesting how that all works.  Anderson sits on the rule until a couple days before the season opener even though he publicly announced his decision on April 11, 2013 at PFMC in Portland.  Then, he adopts the regulation without notice to the public and all is mum over in the Natural Resources building even though petitioner Tim Hamilton had requested to be notified if the Director intended on using an "emergency".  Then, the petition is filed and Frawley and his team sit back and wait to see how long it will take before someone in WDFW gives the gillnetters a heads up.  From the response time of the Association lawyers, it doesn't look like Frawley made it out of the building before someone picked up the phone.  Question is "who made the call?"

For those of you that want to read the legal documents filed by the group, the list on the right side of this page are links where the documents can be viewed on line in Google docs or downloaded and viewed from your own computer's hard drive.  Anyone who has ever attended a public meeting sponsored by WDFW and especially a "North of Falcon" meeting to discuss upcoming seasons is advised to at least read the Hamilton declaration.  It is a real eye-opener.

More to come.....