Oregon Embarks on Bold Recovery Plan for Pacific Salmon: Should it be Used as an Alternative to an ESA Listing?

By: Glen Spain

On April 25, 1997, with the ink still drying from last minute negotiations, the National Marine Fisheries Service (NMFS) announced that it would not list the 'Northern Oregon Evolutionarily Significant Unit (ESU)' of coho salmon in deference to the State of Oregon's Coastal Salmon Restoration Initiative (now known simply as the "Oregon Plan"). This is remarkable, for no other state has ever attempted such a comprehensive recovery plan, nor been able to avoid a federal listing in this fashion.

Given the wide mix of coho recovery strategies being tried in both California and Oregon (with two of three coho ESUÕs listed, the other not), the west coast is now a perfect laboratory for developing new kinds of state-federal species protection partnerships. Unfortunately, the Oregon Plan is still being presented in the rhetoric as somehow incompatible with ESA protection, when just the opposite is true. Worse, the Oregon Plan is now being trumpeted as a model state recovery effort to be copied primarily to avoid an ESA listing altogether.

As the Northwest Regional Director of the Pacific Coast Federation of Fishermen's Associations (PCFFA), the largest organization of commercial fishermen on the west coast, I have been personally involved with the development of the Oregon Plan from its inception. In this article I will draw on that experience to describe the plan, explain how it works, discuss whether it is in fact preferable to an ESA listing, look at how both the ESA and the Oregon Plan might work together, and hopefully draw some conclusions applicable to the development of future recovery plans of this sort elsewhere.

The term "salmon," as used on the west coast, means any of the seven major species of the genus Oncorhynchus, which includes chinook or king salmon (Oncorhynchus tshawtscha), coho or silver salmon (Oncorhynchus kisutch), coastal searun cutthroat (Oncorhynchus clarki clarki), steelhead (Oncorhynchus mykiss gairdneri), chum salmon (Oncorhynchus keta), pink salmon (Oncorhynchus gorbuscha) and sockeye salmon (Oncorhynchus nerka). As a genus these species are often lumped together and called "salmonids."

Specifically, the plight of Pacific salmon has been recognized since at least the 1880's. However, much of the information was buried until the American Fisheries Society's (AFS) publication of "Pacific Salmon at the Crossroads," their landmark coast-wide salmon population assessment (Nehlsen et al. 1991). The conclusion of this report was chilling: more than 214 distinct stocks of salmon in the Northwest and northern California (the vast majority of those still remaining) are at varying degrees of risk of near term extinction, with at least 106 other stocks already extinct. Virtually every river system and coastal basin has one or more species of salmon that face extinction. The report also clearly identified onshore habitat lossÑincluding the impacts of logging, overgrazing, mining and hydropower developmentÑas the leading cause of these declines.

Geographic Information System (GIS) mapping of the AFS findings also produced some startling results (Frissell 1993). Coho salmon are already extinct in 55% of their historic range, endangered in 13%, threatened in another 20%, of 'special concern' in an additional 5% and could be classified as 'not known to be declining' in only 7% of their historic rangeÑand some of those runs are classed in this 7% due only to lack of data (Table 1). Armed with this information, salmon advocates, including the Pacific Rivers Council, the Western Division of the AFS, and 21 other groups, filed a formal petition with the National Marine Fisheries Service (NMFS) to list coho (Oncorhynchus kisutch) coastwide on October 19, 1993.

Unlike other species of Pacific salmon, coho are very sensitive to inland habitat problems because they spend up to their first 18 months in freshwater streams. Over decades, the impacts of logging, overgrazing, mining pollution and other human uses have directly affected coho populations. Most Oregon streams now produce less than 20% of their historic salmon populations, with many producing much less. By 1994, wild coho populations in Oregon had declined from 1 to 2 million, to less than 20,000 returning adultsÑa 99% decline. Fishing closures largely kept pace with these population declines. However, in a final emergency conservation effort, the remaining coho ocean fisheries were closed down coastwide in 1994. Unfortunately, fishing closures alone can never bring back damaged habitat. If habitat continues to decline, eventually too few fish will come out of the river systems to ensure even minimal replacementÑeven with no fishery harvest at all. Even with total fishing closures, there is no hope of saving these species unless inland habitat loss can be halted and eventually reversed (Lawson 1993).

In July, 1995 (roughly 8 months past its statutory deadline), NMFS proposed the listing of three genetically distinct Evolutionarily Significant Units (ESU's), with the northernmost unit, the "Oregon Coast ESU," ranging from Cape Blanco in southern Oregon to the Columbia River. Coho were clearly in trouble all along the coast, and onshore habitat loss, particularly from logging and agricultural impacts, was identified in the listing proposal as a main culprit in these declines. Still stinging from timber harvest restrictions previously required for spotted owls and marbled murrelets, the prospect of further restrictions due to coastwide salmon listings put the timber, cattle and agricultural interests in a frenzy. Fearing the worst (and knowing that some of their common land use practices were being called into question), they pressed hard politically to avoid a similar closedown to protect fish. When their efforts to gut the ESA in the 104th Congress failed, they turned to state governments to avoid a listing.

In response to such serious population declines, then Oregon Governor Barbara Roberts called a Salmon Restoration Conference in December 1992. Governor Roberts invited a broad cross section of interests, including the Pacific Coast Federation of Fisherman's Associations, and arranged working groups to draft restoration recommendations. In work sessions, timber and agricultural interests deflected any effort to make regulatory changes in their practices, but fully supported establishing a system of locally based "watershed councils" to work on local restoration efforts. The 1993 Legislative Session soon thereafter passed a bill giving these watershed councils formal legal recognition and providing them with state expertise and financial resources for staffing. There are now about 60 such councils in Oregon, covering almost every coastal and some inland watersheds.

Recognizing past failures of state-driven salmon restoration efforts, watershed councils were designed to create local 'buy-in' by involving locals with the salmon restoration. Projects were intended to be 'ground up,' i.e., proposed by local watershed council participants, with the state agencies providing support rather than control.

To a large degree, this approach has been successful, particularly in conservative rural areas where suspicion of outside government programs generally runs high. Critics note, however, that watershed councils are generally unable to curb local industrial land use practices which are contributing to salmon habitat destruction statewide. In fact, councils are often dominated by the very industrial landowners whose practices are in question. Critics also note that projects which typically gain approval though local watershed councils are only those that are noncontroversialÑnot necessarily those most beneficial to the salmon. However, when Governor Kitzhaber replaced Governor Roberts in January of 1995, the watershed council structure was already a fait accompli with a developing local constituency. It was a place to start.

When NMFS first proposed listing coho in July of 1995, Oregon's Governor Kitzhaber faced a defining moment. The Governor, himself an avid fly fisherman and outdoorsman, immediately recognized the urgent need to restore the region's salmon resource, for both economic and cultural reasons. Economically, salmon are extremely valuable to northern California and the Pacific Northwest. As recently as 1988, salmon fishing in the Northwest (including both commercial and recreational sectors) contributed more than 62,000 family wage jobs and generated over $1.25 billion for the regional economy. In 1988, Oregon's share of salmon dollars supported about 14,000 of these family wage jobs (representing more than $275 million/year in annual personal income) (Pacific Rivers Council, 1992). Given the already depressed salmon populations of 1988, these figures for total value of the resource are quite conservative. They also exclude all non-market and "quality of life" values, and are based only on hard dollars.

With roughly two-thirds of coho habitat on nonfederal lands, Kitzhaber believed that the watershed council 'local control/voluntary action' approach was more likely to get private landowners mobilized and cooperative than a typical 'top-down' federal program under the ESA. He also felt that the ESA alone would not be able to achieve actual restorationÑit would only restrict direct 'take,' particularly on private lands.

Unfortunately, there were a lot of hidden agendas. The timber and agricultural industries, which have long dominated state politics, feared federal restrictions and wanted a state controlled recovery plan primarily in the hopes of avoiding an ESA listing (and thus federal control). Fishing industry closures coastwide had devastated local economies so both local political interests and the fishing industry itself were screaming for real recovery efforts, not just ESA avoidance. The Governor wanted real recovery, but in the midst of Oregon's worst budget crisis in history selling any new program would be impossible without broad political support. Thus there was an unusual confluence of forces, each operating out of self-interest, that made progress politically possible.

Shortly after the proposed listing decision, the Governor's office went into high gear. In an unusual move, the Governor announced his "Coastal Salmon Restoration Initiative" and personally instructed every state agency to quickly come up with an initial plan for salmon recovery measures. He also met with the heads of each state agency every two weeks on this issue, giving them assignments and holding them accountable for their portions of the plan. These bi-weekly staff meetings allowed Governor Kitzhaber to end traditional inter-agency bickering and ramrod an ambitious restoration plan through a conservative Legislature just in time to meet the court imposed listing decision deadline of April 25, 1997.

The Oregon Plan is based on some fundamental principles: (1) no additional regulations or changes in existing law (a politically expedient compromise, given a hostile Legislature and regulation resistant industrial landowners); (2) increased enforcement of existing laws, including additional funding for current enforcement programs; and (3) primary reliance on voluntary efforts from local landowners, organized through local watershed councils and industry trade or landowner associations.

The Governor does have a strong argument in favor of voluntary action and against federal control alone. Specifically, the ESA prohibits actual 'take,' but very little else. Even recovery plans required under the ESA do not require actual recovery (as that term is commonly understood). They require only the maintenance of sufficient populations to avoid extinction or threat of extinction. Indeed, the term "recovery" has never been defined as a matter of law under the ESA, and is therefore confused throughout the statute and regulations with the requirement to "conserve" a species. Conservation is a minimal requirement that has been interpreted by courts to be only "far more than to merely avoid the elimination of protected species" (Defenders of Wildlife v. Andrus (428 F. Supp. 167, 170 (D. D.C 1977))), but not necessarily to bring populations close to historic levels. Conservation throughout the ESA has only been defined as avoiding jeopardy rather than in terms of a recovery standard, which would presumably require restoration as well as maintenance. Furthermore, while the ESA can be effective in controlling destructive land uses on federal lands, it is not that effective in changing land uses on state owned and private lands. Many of its provisions (such as the Section 7 consultation process) apply only to federal projects or projects with a federal nexus.

For political reasons, the Plan was aggressively sold to industrial landowners and the Legislature as a way to avoid an ESA listing. This was just what they wanted to hear. However, this was not the stated goal of the program itself, which reads: "It is the mission of the Oregon Coastal Salmon Restoration Initiative to restore our coastal salmon populations to productive and sustainable levels based on their natural, cultural and economic values to the people of Oregon." Thus there has been a schizophrenic tension between these two views of the Plan. Most conservation and some fishing groups see the whole process as a cynical attempt by industrial timber and agricultural landowners to exempt themselves from responsibility for past and future habitat destruction. Others see it as the best hope there is (in spite of its flaws) for achieving actual recovery over the long term. It may in fact be both.

Though this fact has been lost in the debate, the Oregon Plan is intended to operate with or without an ESA listing. It is also a stand alone recovery plan should a listing later occur. Unlike a similar effort in California which quickly dissolved, Oregon's program was always intended to be scientifically credible as a recovery plan, not just as an excuse for not listing. The same plan has thus served multiple functions, garnering political support from different forces for widely differingÑand even incompatibleÑreasons.

By happy fortune, the political conditions were ideal for the negotiations that led to the Oregon Plan. From the viewpoint of the industrial timberland or agricultural land owner, the Oregon Plan was an opportunity to avoid a listing, i.e., to avoid federally mandated reforms of land use practices linked to salmon declines. From the viewpoint of the Governor, primary reliance on voluntary efforts made the package politically saleable and fundable through a skittish and anti-regulatory Legislature suffering severe budget shortfalls. From NMFS's (and the White House's) viewpoint, the Oregon Plan offered an expedient way out of making a politically charged listing decision. It was also clear that NMFS had neither the willingness nor the institutional capability to develop its own recovery efforts and much preferred leaving it to the state. The Oregon Plan thus seems to be good for all the political interests involved. However, the question really should be whether the Plan is good for the fish.

The downside of the deal Unfortunately, there are some serious flaws in the Oregon Plan which cannot be readily overcome. These include:

(1) Reliance on Oregon's laws when Oregon's laws are the problem. Oregon's natural resource protection laws have proven seriously deficient in controlling salmon habitat losses. Compared to either Washington or California, many of Oregon's current regulatory regimes are weak at best. In fact, some laws actually prohibit protecting salmon spawning areas. For example, the Oregon Revised Statutes (ORS) Section 196.810 prevents more than 20% of any waterway from being designated "essential indigenous anadromous salmonid habitat." Gravel extraction is thus allowed in all the remaining areas, regardless of the impact on spawning salmon. Under Oregon law there is also no regulatory restriction on streambed removal-fill activities of less than 50 cubic yardsÑa much weaker standard than under the Clean Water Act. Beefing up enforcement of weak or counterproductive laws is not going to result in much additional protection. As they stand, the existing regulatory mechanisms cannot be relied upon to adequately control, curtail or reverse the widespread pattern of salmon habitat destruction. Even though NMFS did negotiate a "Memorandum of Agreement" calling for rule making improvements to some of these laws, there is a real question about how much widespread land use practices can be changed by internal agency rule-making alone. Many of the laws themselves need to be changed. Unfortunately, the chances of passage in a Legislature politically controlled by those very industries whose practices would have to be curtailed are very dim.

(2) Some of the industrial sectors most affecting salmon spawning areas are contributing the least. As part of the Oregon Plan the timber industry, the fishing industry and other sectors have pledged a great deal of money and effort to protect salmon. Other industrial sectors (such as agriculture) have offered relatively little under the Plan. Furthermore, all recovery measures to be taken by the inland industries are voluntary, whereas the Plan calls for relatively severe and mandatory cutbacks in commercial fishing. Even though curtailments in fishing alone cannot offset declines caused by decades of serious habitat losses onshore, commercial fishing restrictions under the Plan are in fact far more draconian than those required under the ESA. Unequal contributions of this sort create serious inequities and undermine confidence that the Plan will ever achieve its recovery goals.

(3) Voluntary efforts avoid dealing with real causes. Watershed councils are required by law to be broad-based, including representation from local landowners. However, it is often these landowners whose land use practices are part of the problem. Critics charge that the result is a 'dumbing down' of restoration efforts so that only those measures which are noncontroversial or do not inconvenience landowners can ever be achieved. Thus short term 'band aide' approaches are pre-selected over anything that would require local landowners to make more fundamental changes. This criticism is also leveled by the American Fisheries SocietyÑunless the major upstream land uses that destroy fish habitat are first corrected, all downstream recovery efforts may become futile. For example, many upland land use practices result in landslides drowning out lower spawning areas with silt and debris. Many studies of the relationship between clearcut logging and landslides bear this out. The preliminary results of an ongoing study by the U.S. Forest Service in Oregon, for instance, indicate that in recent heavy rains landslides were 2.6 times more frequent from slopes clearcut within the last 20 years, as compared to forested slopes. When combined with the effects of road-related activities, the frequency rose to 5.7 times that of untouched areas.

(4) The standard of the Plan should be what is biologically necessary, not what is politically most palatable. Many elements of the Oregon Plan are based on political and funding constraints, rather than biological needs of the fish. There are still legitimate scientific doubts about whether the Plan itself would lead to widespread recovery for the species even if fully implemented. To provide some assurances, an independent scientific review panel and on-going monitoring program were established to test and verify the Plan's operations and assumptions, as well as to correct any problems later identified through an adaptive management process. This will help, but may not be enough if the Plan itself is flawed.

(5) Voluntary efforts are inherently unreliable. There are already signs that some of the voluntary efforts pledged by affected onshore industries may not be forthcoming. Some have contingencies and preconditions that make them less firm. Unfortunately, all voluntary restoration efforts are inherently unenforceable, and therefore unreliable.

(6) The lack of stable funding. The 1997 Oregon State Legislature has only provided funding ($30 million) for the first two years of what is at least a 50 year recovery program. Future funding is tied to future Legislative approval, which means the whole program will be a political football in every future state budget. Without long-term dedicated funding that is insulated from the political process, the long-term stability of the whole program is questionable.

Many groups involved in this process, including most of the original listing petitioners, argued that it was unwise to jettison the ESA as a bottom line 'safety net' in favor of an untried and unenforceable state plan. Some of their concerns are summarized as follows: First, since the Oregon Plan is based almost entirely on voluntary measures, these may or may not materialize over time. While we hope they do, history is rife with restoration plans that sounded great on paper but which ultimately failed in delivery. A truly risk averse strategy would also include a listing. In fact, federal courts have consistently ruled that promised future actions, however grandiose, cannot be the basis for failure to list when it is biologically warranted (see Southwest Center for Biological Diversity v. Babbitt, 939 F. Spp. 49 (Dist. of Columbia Circuit 1996), and Save Our Springs, et. al. v. Babbitt (MO-96-CA-169), U.S, District Court, Western District of Texas (Opinion issued April 15, 1997) for two recent examples). However, if the Oregon Plan becomes an ESA mandated 'recovery plan,' it would have some teeth. This argues that both should work together as part of the whole package.

Second, the Oregon Plan will not significantly improve Oregon's laws. No new laws are contemplated in the Oregon Plan, and there are serious limits to how much existing laws can be improved purely through rule-making. Merely enforcing bad laws will never lead to recovery. A listing, however, at least protects against additional 'take' in ways that Oregon's weak laws cannot.

A third concern is that without an ESA listing there would be absolutely no prohibition against actual 'take' of these fish in large numbers. At present, since there is no ESA protection, landowners within the Oregon ESU can now destroy all the fish or fish habitat on their property with total impunity. At present, coho are not a protected species in Oregon under either state or federal law. The ESA can at least provide an important interim "safety net" to help prevent extinction while voluntary recovery efforts are being organized and given a chance to work.

Finally, a listing may be necessary to assure that federal agencies do their share to protect these fish on federal landsÑor at least that they take no actions inconsistent with state recovery efforts. The Oregon Plan deals only with the roughly two-thirds of salmon habitat on state or privately owned lands. It provides no protection whatsoever for these fish on federal lands, which contain the remaining one-third of all remaining salmon habitat, including the most important refugia. Unfortunately, history provides many examples of failures by federal agencies to adequately protect salmon on public lands. Federal timber sales, for instance, are still being managed in ways that may increase downstream sediment loads and thus jeopardize lower stream restoration projects funded under the Oregon Plan. There are efforts underway to curtail such activities through ESA-based litigation for species already listed. However, without an actual listing, there are no such legal remedies. Unless federal projects are at least brought into consistency with the Oregon Plan, federal activities may work at cross purposes with the Plan itself, thus reducing its effectiveness.

The Oregon Plan is experimental, and results are certainly not guaranteed. It is a hopeful effort, however, and certainly the most ambitious and comprehensive state sponsored species recovery plan to date. PCFFA and other groups have strongly supported the Oregon Plan as the basis of a real recovery planÑthough not as an excuse for not listing. During the years the Plan is getting underway and proving itself on its own merits, we may need the ESA 'safety net' so that the species will at least receive some interim protectionÑand so crucial time will not be lost if the Plan fails.

It simply does not have to be one or the otherÑeither ESA listing or the Oregon Plan. The Oregon Plan and a listing under the ESA are fully compatible and should be melded together to assure maximum protection. Once listed, NMFS would still have to develop a recovery plan as required by the ESAÑand clearly the Oregon Plan would be the backbone of that recovery plan. In our own experience with other listings, few landowners will withdraw from the process once a listing occurs. Sometimes it is only the listing that breaks through the posturing and brings everyone to the table without preconditions. There is plenty of room in the ESA to allow states the freedom and flexibility to develop and implement their own recovery efforts, while still using the listing to maintain minimal "take" restrictions under the ESA. What has been ignored in the debate is that we can in fact have the best of both worlds.

Unfortunately, by falling into dualistic either/or thinking and pitting ESA protection against state recovery, both state and federal agencies are missing a golden opportunity to fashion a partnership on salmon recovery that could be of great benefit to both, as well as serve as a model for ESA recovery efforts elsewhere. Oregon's own efforts should not be used as a pretext to ignore other available tools. It makes no sense to jettison the ESA 'safety net' while so many coho populations are so close to extinctionÑparticularly for a voluntary recovery plan that is still incomplete, experimental and unenforceable.

Ultimately, however, the Oregon Plan is going in the right directionÑbut not because it is being used as an excuse not to list. If all goes well, Oregon's bold efforts will result in delistings and nonlistings the way it should be doneÑthrough full recovery back to healthy populations, rather than politically expedient back room deals intended to avoid protection as long as possible. Denial never works in the end. It is time to try actual recovery.

Frissell, C. A. 1993. Topology of extinction and endangerment of native fishes in the Pacific Northwest and California. Conservation Biology 7(2):342-354.

Lawson, P. W. 1993. Cycles in ocean productivity, trends in habitat quality, and the restoration of salmon runs in Oregon. Fisheries 18(8):6, Aug.

Nehlsen, Willa, J. E. Williams and J. A. Lichatowich. 1991. Pacific salmon at the crossroads: stocks at risk from California, Oregon, Idaho and Washington. Fisheries 16(2), March-April.

Pacific Rivers Council. 1992. The economic imperative of protecting riverine habitat in the Pacific Northwest, (Report 5 - January).

Glen Spain is the Northwest Regional Director of the Pacific Coast Federation of Fishermen's Associations (PCFFA), the largest organization of commercial fishermen on the west coast, as well as the Conservation Program Director of PCFFA's affiliate organization, the Institute for Fisheries Resources. He also sits on the Oregon Plan's Monitoring Advisory Committee and has been deeply involved in its development. He can be reached at PCFFA's Northwest Office, PO Box 11170, Eugene, OR 97440-3370 or by e-mail at <fish1ifr@aol.com>.