In 1977, after eight years of litigation, the federal district court in U.S. v. Oregon approved a five-year management and allocation agreement regarding upper Columbia fish runs.20 That first management plan established an in-river harvest sharing formula and included an agreement by the parties (the United States, Oregon, Washington and the Warm Springs, Yakama, Nez Perce, and Umatilla tribes) that they would “diligently pursue and promote through cooperative efforts upriver maintenance and enhancement of fish habitat and hatchery rearing programs….” The plan also established a technical advisory committee to develop and analyze biological information.21 However, the plan relied upon the federal district court as its sole means of policy dispute resolution.22
In 1982, two of the tribes gave notice of their intent to withdraw from the original plan based upon the lack of a connection between plan objectives and ocean fishing regulations, and the vague objectives of the plan regarding enhancement. The court then ordered the parties to attempt to agree upon a modified agreement.23 Negotiations among the parties continued from 1983 until 1988. During that period, the court allowed both the State of Idaho and the Shoshone-Bannock tribes to intervene.24 In October 1988, the federal district court approved the Columbia River Fish Management Plan (CRFMP).25
The CRFMP is an agreement among the tribal, state, and federal parties with jurisdiction over Pacific salmon originating in the Columbia Basin that provides procedures whereby the parties co-manage anadromous fish harvest, production and habitat. The CRFMP is similar to the 1977 Plan by its inclusion of inriver runsize allocations26 but the resemblance ends there. At the core of the CRFMP is the goal “to rebuild weak runs to full productivity and fairly share the harvest of upper river runs.”27 The preamble continues:
As a means to accomplish this purpose, the Parties intend to use (as herein specified) habitat protection authorities, enhancement efforts, and artificial production techniques as well as harvest management to ensure that Columbia River fish runs continue to provide a broad range of benefits in perpetuity. By this Agreement, the Parties have established procedures to facilitate communication and to resolve disputes fairly. It is the intent of the Parties that these procedures will permit the Parties to resolve disputes outside of court and that litigation will be used only after good faith efforts to settle disagreements through negotiation are unsuccessful.28
The CRFMP calls for “agreed-to production orientated actions to achieve the goal of rebuilding upriver anadromous runs … within 15 years” and states that “[p]resent and future artificial production programs shall be integrated with natural production” as described in the Plan.29 The CRFMP further calls for the development of subbasin plans for all upriver tributaries and assigns responsibility to the states and tribes with management jurisdiction for specific sub basins,30 a provision that parallels elements of the NPPC’s 1987 FWP.31 The CRFMP also includes a table of specific production actions utilizing artificial propagation that are to be undertaken during the plan’s tenure.32
Dispute resolution is a key element of the CRFMP. The parties to the CRFMP, in light of their experience with U.S. v. Oregon, recognize the need for expeditious judicial review but also realized that an opportunity to review positions and supporting data is required for successful resolution.33 In this regard, the parties established a technical advisory committee to make technical recommendations regarding harvest34 and a production advisory committee to review artificial and natural production programs and make recommendations to the management entities.35 The CRFMP further provides procedures whereby these technical committees are to deliberate with assistance from the court’s technical advisor and submit consensus recommendations or a “consensus description of unresolved technical issues.”36
Under the CRFMP, a Policy Committee composed of representatives of the parties was established to “facilitate cooperative action by the Parties with regard to fishing regulations, policy disputes, coordination of the management of fisheries on Columbia River runs and production and harvest measures.”37 Detailed dispute resolution rules are provided for the technical committees and the Policy Committee concerning notice, additional issues, confidentiality of proceedings, and judicial action.38 In the harvest area, dispute resolution processes evolved from the initiation of the 1977 Plan and now take place on a scheduled basis that provides systematic consideration. On the production side, dispute resolution has focused on specific disputes concerning the use of hatchery-bred fish to increase natural production rather than on production policy objectives, a key requirement to effective case-by-case dispute resolution.
In contrast to the 1977 Plan, the CRFMP also addressed the linkage between ocean harvest and inriver fisheries by setting a schedule for determining ocean harvest allocations.39 This effort linked with the operations of the Pacific Salmon Treaty considered below. The major limitation of the CRFMP, however, was that the federal parties to the plans were limited to the Bureau of Indian Affairs, the US Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration, agencies without the authority to regulate use of public lands or water projects.
20. A Plan for Managing Fisheries on Stocks Originating from the Columbia River and its Tributaries above Bonneville Dam (1977) (entered into pursuant to Sohappy v. Smith, 302 F. Supp. 899, (D. Or. 1969)) [hereinafter 1977 Plan].
21. Id. at 3, para. 4.
22. Id. at 4, para. 7.
23. United States v. Oregon, Civ. 68-513 (August 24, 1983; September 6, 1983).
24. United States v. Oregon, 699 F. Supp. 1456, 1459-1460 (D. Or. 1988).
25. In 1990, the Ninth Circuit Court of Appeals upheld the district court’s ruling over the objections of Idaho, the Shoshone-Bannock and Makah tribes. Columbia River Fish Management Plan (October 1988) (entered into pursuant to Sohappy v. Smith, 302 F. Supp. 899, (D. Or. 1969), aff’d 913 F.2d 576 (9th Cir. 1990) [hereinafter CRFMP].
26. For spring chinook, the interim management goal at Bonneville Dam is 115,000 while at Lower Granite Dam, the goal is 35,000. The tribal ceremonial and subsistence entitlement is 10,000 fish. For run sizes less than these amounts, fisheries will occur at places other than Zone 6 or the balance will be made up from abundant hatchery runs.
For upriver summer chinook, the tribal fishery impacts will be limited to 5 percent of the run.
For sockeye, the management goal at Priest Rapids Dam is 65,000. Tribal sockeye harvest is managed acceding to run size and is shared 75/25 for Indian and non-Indian harvest.
For summer steelhead, the CRFMP allocates according to the number of wild/natural spawners. The interim management goal consists of 75,000 natural/wild steelhead (62,200 Group A and 13,300 Group B), which is expected to produce 30,000 natural/wild steelhead above Lower Granite Dam under present production and average upstream passage conditions.
For upriver fall chinook, the escapement goal is 40,000 natural spawners above McNary Dam. Treaty Indian fisheries in Zone 6 and non-Indian fisheries below the Canadian border are to share catch equally. Ocean fishing regimes are to be set annually pursuant to a stated schedule.
For coho, the CRFMP anticipates that enhancement actions would “provide expanded harvest opportunities for treaty Indian fisheries within tributary areas for early coho stock and within the mainstem area for late coho stock.” Coho are caught incidentally during the fall management period.
For sturgeon, the CRFMP calls for a year-round setline fishery in Zone 6. Shortly after the completion of the CRFMP the Tribal/State Stugeon Management Task Force (SMTF) was formed to address concerns on the population status of sturgeon. By agreement of the SMTF the commercial treaty harvest is limited to 1,650 fish annually.
For lamprey, the CRFMP states: “There shall be no commercial harvest of lamprey in Zone 6 and its tributaries. …The Parties will seek to develop, in coordination with the U.S. Army Corps of Engineers, a method for harvesting from dam fishways that will not adversely impact fish passage. The Parties agree to work with the U.S. Army Corps of Engineers to provide the resulting harvest to Indian tribes for their ceremonial or subsistence use” (CRFMP at page 40). Lamprey populations have declined significantly in recent years. Harvest is limited to a small number of fish collected at Willamette Falls.
27. CRFMP at 2.
28. Id. at 2.
29. Id. at 40-41.
30. Id. at 44.
31. Northwest Power Planning Council, 1987 Columbia River Basin Fish and Wildlife Program 44-45 (1987) [hereinafter 1987 Program].
32. CRFMP Appendix B at 66-72.
33. Id. at 7.
34. Id. at 48.
35. Id. at 51.
36. Id. at 50 and 53.
37. Id. at 54.
38. Id. at 54-56.
39. Id. at 30-31.