For centuries, inhabitants of California's northern coast wove legends about the annual return of the salmon to the area's creeks and rivers. Even as late as fifty years ago, with salmon still returning by the hundreds of thousands, the supply of fish seemed inexhaustible. During the last half of this century, however, the yearly migration upstream has dwindled to a trickle, and some species are on the brink of vanishing forever.
New technology revolutionized both the timber and fishing industries after World War II. Forest landowners and timber companies built roads into areas never before logged, and left entire watersheds stripped. Sediment from roads and mudslides filled the deep pools where salmon took shelter from the summer heat, and silt choked the wide gravel spawning beds. At the same time, the large trees along the creeks were cut, and the sun beat down on shallow, muddy water. Although life in the sea became more dangerous as fishing technology advanced, the journey upstream was increasingly lethal.
Coho
(or "silver") salmon, more sensitive than their cousins the Chinook and steelhead
to temperature and sediment conditions, suffered dramatically. By the early
1990s, populations had plummeted to less than ten percent of historic levels
(see page 7). Commercial fishing seasons were severely restricted, and families
dependent on salmon for their livelihood suffered as well.
The politically powerful timber industry, however, has only borne a fraction of the burden of salmon
protection, despite being one of the major causes of the species' decline. Although California adopted laws to minimize the environmental damage caused by private timber operations in 1973, the Forest Practice Rules alone do not offer enough protection for salmon to recover and thrive. This insufficiency is compounded by state agencies' refusal to consider the "cumulative impacts" of decades of road building and logging on fragile coastal watersheds, as required by the law. As the last mature forest disappears from already ravaged watersheds, and new roads are built across unstable hillsides while old roads bleed sediment into streams, California's regulatory officials largely look the other way.
Federal agencies have shown a similar reluctance to address the problem. The National Marine Fisheries Service (NMFS), charged with oversight of salmon because they spend much of their lives offshore, rejected numerous petitions
to list coho salmon under the Endangered Species Act (ESA) before finally deciding to consider the listing in 1993. After further delays, a coalition of more than twenty environmental and fisheries groups filed suit and obtained an order forcing NMFS to list the species in July of 1995.
NMFS responded with further delays, while state governments in California and Oregon initiated "stakeholder" processes like California's Coastal Salmon Initiative (CSI) in an attempt to avoid the effects of an ESA listing. The CSI process brought together industry, government, fisheries, environmental and restoration groups, ostensibly
to seek a "consensus" on salmon
protection measures that would make listing the species unnecessary.
According to the court order, NMFS had until October of 1996 to determine whether or not to list California's coho populations. With time running out, the California Resources Agency (representing the state government) submitted a document written by the California Forestry Association (the state's largest timber lobby group) as the state's "official" position, claiming that even more research was needed to resolve "scientific disagreements" over the necessity of a listing for northern California. The fisheries, restoration and environmental representatives to the CSI process, outraged at this collusion between government and industry, threatened to quit unless all California populations were listed.
Although the "disagreements" existed only in the minds of industry representatives and their political allies, NMFS bought the argument and listed only the southern and central populations of coho in October of 1996. The CSI process collapsed as a result. NMFS delayed action for another six months, but finally acknowledged that the "disagreement" was imaginary by listing northern California's coho as "threatened" in April of 1997.
The timber industry is frightened of an ESA listing because the law clearly prohibits "take" of threatened and endangered species. "Take" has been defined by the courts (in federal cases such as EPIC's lawsuit to protect Headwaters Forest's Owl Creek Grove) to mean not only the outright killing of a protected species, but also the adverse modification of its essential habitat or disruption of its normal breeding patterns. Given the fact that timber operations can kill salmon both directly and indirectly, complying with a legal prohibition against "take" would logically involve major changes in forest practices. Following the listing, timber companies met this challenge by seeking loopholes and exceptions to the law.
Much to the industry's delight, NMFS has completely failed to enforce the prohibition against "take" of coho. In fact, the agency has not even published guidelines defining which activities are likely to cause "take" and which measures need to be adopted to conserve the species, despite numerous promises to do so. Instead, NMFS has once again entered into negotiations with state governments in an effort to avoid enforcing the law. These negotiations produced a "voluntary" program in Oregon, funded in equal parts by the state and the timber industry, that convinced NMFS not to list Oregon's coho under the ESA. In California, where the listing has already occurred, talks focus on ways to get around the "take" prohibition through a Memorandum of Understanding between the state and federal governments.
Under the federal ESA, there are numerous loopholes and exceptions to the "take" prohibition. Habitat Conservation Plans, or HCPs, can provide landowners with permits allowing them to kill endangered species and destroy their habitat. A similar process for permitting this "incidental take" under state law was adopted by the California legislature last year. Finally, for "threatened" species like the coho, federal officials can craft a special rule (called a "4(d) rule," after the section of the ESA where it appears); while this rule is designed to provide conservation guidelines, it can also be used to create exceptions to the take prohibition.
California officials are trying to combine these loopholes into one statewide package that will allow business as usual to continue for the state's all-powerful timber, agricultural and ranching interests. The latest draft of the Memorandum of Understanding would combine a 4(d) rule with guidelines adopted by "Watershed Councils" throughout the state; landowners complying with these guidelines could be offered exceptions to the take prohibition. These Watershed Councils would most likely end up just like the failed CSI process: industry and government would collaborate in efforts to avoid significant changes, and litigation would be the only option for everyone else.
Litigation, after all, is the only reason that coho were listed in the first place. It seems that further litigation will be necessary to enforce the prohibition against "take," because NMFS shows no sign of complying with the law on its own. In order to meet this challenge, EPIC, Sierra Club and the Northcoast Environmental Center filed notice late last year that they intend to sue several federal and state agencies as well as Pacific Lumber Company.
The lawsuit will bring together a talented and formidable team of biological and legal experts, including some of the same attorneys that brought EPIC victory in the landmark Owl Creek case. Its purpose will be twofold: to obtain injunctions against logging operations in six watersheds critical to the coho's short-term survival, and to begin building a solid scientific basis for conservation of coho throughout the region.
The last few years of coho protection efforts clearly illustrate that government agencies will not challenge corporate interests on their own, and when forced to do so by citizen activism and litigation, will exploit every possible loophole. Therefore it remains up to usÑthe citizens who consider the preservation of ecological diversity and environmental laws a priorityÑto keep bringing cases before the courts that will close the loopholes, set the highest possible scientific standards, and hold both government and industry accountable for their actions.
Federal cases such as the impending coho lawsuit are both time-consuming and expensive. Even with the considerable pro bono efforts of a dedicated legal team, our costs (for experts, aerial photos, copies, etc.) are expected to be very high. Support from concerned individuals will be crucial in bringing this case to a successful resolution, and could be considered an important investment in the recovery of California's salmon. Unless our government can be convinced to uphold the law, even at the risk of offending influential interests, the dramatic, roaring salmon runs of the past will remain only a fading memory. However, if the concerted efforts of the grassroots environmental community can be brought to bear on this issue, we have a chance to help this magnificent creature recover its former place in the ecology of northern California.
