Now this is a beauty!!!! This is a attorney for the Willapa Gillnetters trying to intimidate WDF&W with findings from a bio they hired. Now the consultants report is 13 pages long so I will put it up in two or three parts later. That said this is interesting reading as ........................ oh hell I do not know but trying to intimidate a government agency is not such a good idea!!!!!!!! I did not fix the formatting as this is exactly as received but converted from a PDF to Word.


Washington Department of Fish and Wildlife Attn: Joanna Eide, WDFW Rules Coordinator 600 Capitol Way N.
Olympia, WA 98501-1091 rules.coordinator@dfw. wagov

RE: Comments to CR'102
WAC 220-40-021- Willapa Bay salmon summer fishery WAC 220-40-026)- Willapa Bay salmon fall fishery

Dear Ms. Eide:

The undersigned and this law firm represent the Willapa Bay and Gr.ays Ha.rbor Gillnetters Associations ("Associations"). The following are the Associations' comments to CR 102 draft
regulations for the Willapa Bay sahnon sununer fishery and Willapa Bay salmon fall fishery promulgated under WAC 220-40-021 and WAC 220-40-027, respectively.

BACKGROUND

In January 2014 the Washington Department of Fish and Wildlife ("WDFW''), Tim Hamilton, Arthur Hohnan, and Ron Schweitzer settled litigation under Thurston County cause nos. 13-2-01741- 2 and 13-202050-2 ("Settlement Agreement"). Attached hereto as Exhibit "A" is a. copy of the Settlement Agreement. The Associations did not have an opportunity to participate in the Settlement Agreement. The Settlement Agreement requires the WDFW to procure consulting services from independent fishery scientists. The scientists and their scope of work were jointly selected by the parties to the Settlement Agreement and the WDFW. The Associations did not have the opportunity to participate in this process.

The WDFW further agreed to use public funds to establish a private non-profit organization. The organization is intended to promote recreational fishing in Willapa Bay and Gray's Harbor. The organization is called the Twin Harbors Fish and Wildlife Advocacy ("Advocacy"). The officers of the Advocacy are Tim Hamilton, Arthur Hohnan, and Ron Schweitzer. Itisunclear how the public funds were used by the Advocacy or its officers. The Associations have never received similar funds.

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The.scientists engaged by the WDFW and the Advocacy convened a panel identified as the Independent Fisheries Science Panel ("IFSP"). On.March 31, 2014, the IFSP produced the Grays Harbor and Willapa Bay Commercial Salmon Fisheries Mortality Rates ("IFSP Report"). The IFSP was requested to address only the following issues:(1) Chinook and chum salmon release mortality rates for Willapa Bay and Grays Harbor with fishermen complying with the regulations; (2) Chinook and chum salmon release mortality rates for Willapa Bay and Grays Harbor in light of actual fishing practices; and (3) identifying compliance problems with fish-friendly tactics. The issues posed to the IFSP also appear to have been created by the Advocacy. The Associations again did not have the opportunity to participate in the IFSP's formulation of its scope of work and they did not receive any meaningful opportunity to comment on the IFSP's draft report.

On May 21, 2014, the WDFW issued CR-102 filed as WSR 14-11-105 for the 2014 North of Falcon commercial salmori rules for Willapa Bay. On June 23, 2014, Ian Courter of Mount Hood
.Environmental prepared a Teehnical Memorandl.}!Il which consists of a Review of the IFSP Recommendations and the 2014 Proposed Rules for Willapa Bay Commercial Salmon Fishing. Attached hereto as Exhibit "B'' is a copy of the Technical Memorandum. Mr. Courter observes that release mortality rates for naturally spawning chinook are one of the most significant factors impacting the 2014 commercial gillnet season. (Technical Memorandum, p. 3). Regarding the mortality rates,Mr. Courter finds that "[i]t appearsthat the WDFW used the IFSP Report exclusively to arrive at these figures." (Technical Memorandum, p. 3). As a result, the WDFW's Willapa Bay rule-making process for 2014 suffers from the e flaws as the IFSP Report discussed in the Technical Memorandum.

ANALYSIS

The statutory mandate for the WDFW state5 as follows:

The department shall conserve the wildlife and food fish, game fish, and shellfish resources in a manner that does not impair th resource. Ina manner consistent with this goal, the department shall seek to maintain the economic well-being and stability of the fishing industry in the state. The department shall promote orderly fisheries and shall enhance and improve recreational and commercial fishing inthis state.

The commission may authorize the taking of wildlife, food fish, game fish, and shellfish only at times orplaces, or inmanners or quantities, as inthejudgment of the commission does not impair the supply of these resources.

RCW 77.04;012. To further these broad objectives, the Legislature directed that "[t]he commission acts in an open and deliberative process that encourages public involvement and increases public confidence in department decision making." RCW 77.04.013.

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These objectives grant the WDFW regulatory authority to manage fish within the waters of
this state for purposes of conservation. Purse Seine Vessel Owners Ass'n v. State, 92 Wn. App.381, 391, 966 P.2d 928 (1998);see also Northwest Gillnetters Ass'n v.Sandison, 95 Wn.2d 638, 641, 628
P.2d 800 (1981). In order to manage a fishery for conservation, WDFW is permitted to do the following:

[i]t •enables the agency to collect data regarding the size, plaeement, and harvest of runs, to regulate the type of gear and times at which it can be employed in fishing specific varieties and runs •of fish, to discriminate among classes of users by gear and purpose, to artificially enhance the fishery through hatchery programs, and even to force the owners of existing dams to improve fish passage facilities.

Northwest Gillnetters Ass'n v. Sandison, 95 Wn. 2d 638, 641-642, 628 P.2d 800 (1981).

The grant of broad discretion to an agency includes the corresponding obligation to take actions that are not arbitrary and capricious under the Administrative Procedure Act ("APA"). RCW 34.05.570(2)(c). Arbitrary aild capricious is defined as follows:

Arbitrary and capricious action has been defined as willful and unreasoning action, without consideration and in disregard of facts and circwnstances. Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached.

Pierce County Sheriff v. Civil Service Com'n of Pierce Cowtty, 98 Wn.2d 690, 695, 658 P.2d 648 (1983) (quoting State v.Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980).

Based on the above analysis and the Technical Memorandum, the WDFW has failed to discharge its statutory mandate and acted in an arbitrary and capricious manner.

A. The WDFW violated its statutory mandate and the APA by failing to treat the Advocacy and the Associations equally in the IFSP process without adequate justification .

The statute states:

The department shall conserve the wildlife and food fish, game fish, and shellfish resources in a manner that does not impair the resource. Ina manner oonsistent with this goal, the department shall seek to maintain the economic well..being and stability of the fishing industry in the state. The department shallpromote orderly fisheries and shall enhance and improve recreational and commercial fishing in this state.

RCW 77.()4.012. In accord with this statute, the WDFW •must balance both commercial and
_recreational interests. Puget Sound Crab Ass'n v. State, 174 Wn. App. 572, 581-582, 300 P.3d 448

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(2013). The WDFW must also treat both the commercial and recreational industries equally. Id. at
584. The WDFW may onlytreat the groups differently if it has an adequate explanation on the record. The failure to treat two similarly situated groups equally without adequate explanation is arbitrary under the AP. Petroleum Communications. Inc. v. F.C.C., 22 F.3d 1164, 1172 (D.C. Cir. 1994); Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105, 115 (2006).

• The commercial industry and recreational industry were not treated equally here and the WDFW lacks any justification for such disparate treatment during its rule-making process. Rather, the Settlement Agreement and the IFSP process, at the expense of public funds, provided the Advocacy access to agency rul(}-making to the exclusion of the Associations. Such an exclusive practice reSulted in disparate treatment of two similarly situated groups - the Advocacy and• the
Associations. Disparate treatment violates the WDFW's mandate and it violates the APA because there is no basis to treat the groups differently during a process intended to encourage public
involvement. The WDFW has not only failed to encourage the Associations' involvement inthe IFSP process, it excluded the Association8 by agreemen with the Advocacy. Accordingly, the WDFW caruiot adopt the IFSP's conclusions without adequate justification for treating the Advocacy and Associations differently during the IFSP process. The IFSP Report must be excluded from the WDFW rule- making process on this basis alone. •

B. The application of a 10% actual practices adjustment to naturally spawning release mortality rates is arbitrary and capricious because it is not supported by any reliable data and it is contrary to the on-board observer data collected by the WDFW.

The IFSP concludes that release mortality rates will be higher in actual practice due to the failure of the commercial fleet to comply with fish friendly tactics. To support this conclusion, the IFSP relied upon unqualified lay opinion testimony and video presented at workshops. This evidence lacks any credibility and is directly contrary to the WDFW on-boat observer data collected during the gillnet seasons.

Further, Mr. Courter finds that the application of a noncompliance rate is subjective, lacks empirical .evidence, and is duplicative of factors already included in the FRAM model. (Technical Memorandum, p. 6). The WDFW's decision to apply the IFSP's 10% adjustment renders the WDFW's action similarly subjective, duplicative, and arbitrary.

To consider information that lacks any indicia of reliability or credibility which is contrary to actual data in the WDFW's possession disregards the facts and circumstances available to the IFSP, it lacks any rational support, and it duplicates a factor Blready included in the model. A final rulethat relies solely upon the IFSP Report and disregards the attending facts and circumstances is arbitrary and capricious Puget Sound Harvesters Ass'n v. Washington State Dept.. of Fish and Wildlife, 157 Wn.App.935, 945, 239 P.3d 1140 (2010). Accordingly the non-compliance rate adjustment must be removed and the mortality rates adjusted accordingly.,

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C. There is no data_ to su1mort a drop-out mortality rates of 3% for commercial fisheries.

Based on the information available from WDFW, there isno empirical data.to support a drop­ out rate for Willapa Bay commercial gillnetters. It apPears, based upon the _available infoation from the WDFW, that the WDFW and tribal co-managers have agreed upon these rates, but the WDFW has no data to support the conclusion that such rates pccur in actual practices. Mr. Courter finds that the drop-out rates arenot based on objective data and redundant. (Technical Memorandwn,
p. 7). Accordingly, the drop-out rates must be removed and the mortality rates adjusted accordingly.

D. The application of spring Chinook test fishery data from the Colwnbia River must be adjusted to reflect the time frame and migration distance expected inWillapa Bay and Grays Harbor.

Tl1e IFSP report finds that data from Ashbrook et al. (2004) does not need to be altered because mortality of spring Chinook in the Colwnbia River did not differ substantially between trea1ment and control fish upstream ofthe McNary Dam. Grays Harbor and the Willapa Bay fall runs are materially different than the Colwnbia River spring run. The Columbia River fishery has significantly lower long-term survival rates and higher corresponding mortality rates because of the presence of hydroelectric dams, the significant distance traveled by returning fish before reaching spawning grounds, and the significant time in fresh water before spawning.

Mr. Courter also disagrees with the IFSP' s :findings because there is affirmative data to dispute the IFSP'sunsupported conclusions. The IFSP Report appears to concede that it made an affirmative conclusion based upon a perceived lack of evidence. An affirmative conclusion based upon the lack of evidence here is inappropriate because of the material differences between the fishenes. Mr. Courter sites VanderHaegen, G.E.et al (2004) and Ashbrook et al. (2009) forthe conclusion that there are significant capture-related mortality occurring upstream of McNary Dam on the Colwnbia River. (Technical Mernorandwn, p. 8-9). Therefore, distance of travel distinguishes the Columbia River spring runs and Willapa Bay fall runs.

Moreover, the U.S. v. Oregon Technical Advisory Committee ("TAC") reached a similar conclusion to Mr. Courter by applyiri.g a 4()0/o long term release mortality rate •to Columbia River Chinook based on "study design biases" inAshbrook et al. (2004). (Technical Memorandwn, p. 9). The IFSP's analysis is clearly inconsistent with the Technical Memorandum and the TAC despite reviewing the exact same data.

The IFSP and subsequently the WDFW are disregarding the attending facts and circwnstances available to adequately inform the 2014 rule-making process. A final rule based solely upon the IFSP Report that disregards the actual facts and circumstances is arbitrary and capricious. Puget Sound Harvesters Ass'n v. Washington State Dept. of Fish and Wildlife, 157 Wn. App. 935, 945, 239 P.3d 1140 (2010). .

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The WDFW must develop a scalar to adjust the mortality rates accordingto actual Willapa Bay conditions and the study • design biases observed in Ashbrook et al (2004). . (Technical Memorandwn; p. 13). Without adequate adjustment, the WDFW's rule .disregards the weight of available scientific evidence on this issue.

E. The imposition of tangle nets on Willapa Bay fails to consider the economic impact on the commercial industry.

The WDFW's statutory mandate requires it to consider the economic burden ofits regulations on the fishing industry. Puget Sound Crab Ass'n v. . State, 174 Wn. App. 572, 581-582, 300 P.3d 448 (2013). The imposition of tangle nets on Willapa Bay, only a few months before the season commences, fails to.account for the economic impact of such a change on the commercial industry. Itis impossibleto purchase atangle net in time forthe2014 summer and fall Willapa Bay commercial salmon season. Manufacturers are not capable of filling orders for tangle nets in the allowed time frame. As a result, the economic burden will be significant as the commercial industry will not be permitted to fish as a result of this change in equipment. e Associations request the WDFW to delay the imposition of tangle nets in order to provide the Associations a commercially reasonable time to acquire the new gear.

CONCLUSION

The Associations request that the WDFW disregard the IFSP's Report. The Associations request that naturally spawning chinook mortality rates be adjusted according to the Technical Memorandum 's recommendations. The Associations request that the WDFW promulgate a regulation for the 2014 commercial gillnet season in Willapa Bay that complies with RCW 77.04 and RCW 34.05.

Sincerely,



.GOOwffi

cc: Clients
Mike Grossman, Washington Attorney General's Office