Adam Spencer, The Triplicate

They're presenting united front as legal confrontation looms

A lawsuit has been filed against state and federal agencies affiliated with Mad River Fish Hatchery for alleged violations of the Endangered Species Act, and Rowdy Creek Fish Hatchery may be next.

The local hatchery received a "notice of intent to sue" letter at the same time as Mad River and is partnering with Smith River Rancheria on a legal response to the possible suit.

The litigation, filed by the Arcata-based Environmental Protection Information Center, stems from accusations that hatchery-raised salmon and steelhead negatively affect endangered and threatened wild fish (coho in the Smith River; chinook, steelhead and coho in the Mad) by preying upon juvenile wild fish and competing with wild fish for food, rearing habitat and spawning areas.

Besides these examples of "incidental take" under the Endangered Species Act, the lawsuit accuses Mad River's operations of "direct take" because of the capturing of listed wild steelhead to use for spawning hatchery fish.

The notice of intent to sue letter that EPIC sent to Rowdy Creek only accuses that fish hatchery of "incidental take," since the hatchery does not spawn coho salmon, the only listed fish in the Smith River basin.

The defendants listed in the Mad River complaint include officials with California Department of Fish and Wildlife, which manages Mad River Fish Hatchery, and U.S. Fish and Wildlife Service, which helps finance Mad River hatchery operations.

The complaint does not list Friends of Mad River Fish Hatchery, a community grass-roots organization that formed to keep the hatchery open when CDFW threatened closure in 2004.

"CDFW agreed to continue operating the Mad River Fish Hatchery when the Friends of the Mad River Fish Hatchery committed to contributing $120,000 annually toward the approximately $400,000 it costs to operate," according to the CDFW website.

EPIC officials would not comment on whether Rowdy Creek Fish Hatchery would similarly be spared as being listed as defendants like Friends of Mad River Fish Hatchery or if there are plans to file a complaint against state and federal officials in regards to Rowdy Creek operations.

"EPIC is fully investigating and pursuing all available options to address ongoing harm to coho salmon due to the operations at Rowdy Creek Fish Hatchery. We are hopeful that a solution can be reached short of litigation," said an email from EPIC's conservation director, Andrew Orahoske.

Rowdy Creek and its new partner, Smith River Rancheria, have been working on a legal response since the hatchery received the notice of intent to sue letter Nov. 30, according to Rowdy Creek Fish Hatchery chairman Jim Waldvogel.

For several months last year, the rancheria and the hatchery negotiated changes to the hatchery's articles of incorporation that gave the rancheria the ability to appoint five of the nine members of the hatchery board, effectively giving the rancheria majority control.

"This transition occurred in late November, and has provided the SRR and Hatchery staff the opportunity to create new working relationships in the efforts of preserving this iconic feature of the Smith River community," according to a rancheria press release.

The partnership has allowed the hatchery to utilize the rancheria's resources, including its legal department.

The notice of intent to sue letters to Rowdy Creek, Mad River and Trinity River Fish Hatchery, and the official complaint against Mad River, are all based on the fact that none of the hatcheries has a National Marine Fisheries Service-approved Hatchery and Genetic Management Plan (HGMP) with "take" of listed species written into it.

Mad River has a draft HGMP with "take" written in, but it has not yet been approved by NMFS. Rowdy Creek's permit is from the state of California, via CDFW, and the agency has not required the hatchery to develop an HGMP, Waldvogel said. He added he does not think it would be difficult to create such a plan since the hatchery has been breeding wild fish with wild fish for more than 20 years.

"We are doing what's required for our permit," Waldvogel said. "We don't as a hatchery ever consult directly with NMFS. Our permits come from (CDFW)."

Waldvogel noted that the hatchery does have a "take" permit for coho salmon written into its five-year management plan through CDFW due to the few adult coho that get caught in the hatchery's fish trap. Those coho are promptly released, he said.

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