SALEM — A group of seven environmental organizations and the Nez Perce Tribe on Tuesday, Sept. 5, filed a lawsuit related to revisions to Oregon salmon policy.

The court action comes in the wake of a chorus of objects to Oregon Department of Fish and Wildlife’s changing the state’s definition of “fish passage.”

The lawsuit, filed with the Oregon Court of Appeals, claims that sometime between Oct. 21 and Dec. 16, 2022, ODFW “fundamentally altered” sections of Oregon’s Fish Passage Law related to migrating fish.

However, the lawsuit isn’t directed at ODFW or its unpopular revisions but instead focuses on the public commission that approved those revisions.

The lawsuit alleges the Oregon Fish and Wildlife Commission violated Oregon law by not providing sufficient public notice before voting to approve ODFW’s revisions at a Commission meeting held on Dec. 16, 2022.

The revisions took effect on Jan. 1 and concern how “fish passages” are now defined under Oregon law.

Fish passages are engineering structures, including fish ladders, that allow migrating salmon and steelhead to voluntarily swim past dams and other artificial obstructions, at least according to the state’s previous legal definition.

Oregon’s new definition of “fish passage,” which ODFW rewrote and the ODFW Commission made law, now includes involuntary “trap collection and transport” procedures, otherwise known as trap-and-haul.

Trap-and-haul procedures involve people catching and then moving fish past obstructions.

Trap-and-haul has been shown to stress and disorient migrating salmonids and is generally considered to be a poor substitute for volitional fish passages.

Critics of the new definition have claimed it will set back efforts to protect native threatened and endangered salmon and steelhead populations.

The lawsuit contends that including involuntary trap-and-haul in the legal definition of “fish passage” constitutes a significant change to existing policy.

Because of the significance of the change, the lawsuit argues, the ODFW Commission should have provided more public notice than it did.

“The core of our argument is there was not sufficient notice related to this degree of change to the definition of fish passage to allow the public and tribal governments a reasonable opportunity to provide input,” said Miles Johnson, legal director at Columbia Riverkeeper, which joined the lawsuit.

The public notice the commission provided appears to have been an agenda item and a series of attached documents posted to its Dec. 16, 2022, meeting agenda webpage.

“Our view is if you’re going to make a major change to a key definition of a statute about fish passage, you should tell people you are doing it and not expect them to find it when it’s buried on the backend of the agency’s website,” Johnson said.

Major change to key definitionAccording to official documents, the definition of “fish passage” remained largely unaltered until sometime after Oct. 21, 2022.

However, by the time of the commission’s vote on Dec. 16, 2022, ODFW staff had changed the definition of “fish passage” to include involuntary trap-and-haul.

“The biological significance of volitional passage versus trap-and-haul is pretty clear. There are real problems with trap-and-haul,” said David Moskowitz, executive director of the Conservation Angler, which also joined the lawsuit.

Moskowitz said the public notice around the revised definition was “inadequate.”

Moskowitz said he didn’t know ODFW had made revisions prior to the December 2022 meeting. Instead, he said he thought the commission was voting to approve the previous October draft, which his organization supported.

“When we learned what happened, it was disconcerting,” Moskowitz said.

Others also caught off guardODFW’s revisions and the commission’s decision to approve them during last year’s holiday season angered and surprised salmon advocates.

In a joint Jan. 10, 2023, letter to the ODFW Commission, lawyers for the Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation called the changes to Oregon salmon policy “concealed, late-hour, no-public-notice revisions.”

The letter ends with the words: “our Tribes reserve the right to seek all appropriate legal remedies.”

In a written statement sent to Columbia Insight, Shannon Wheeler, chair of the Nez Perce Tribe, called the lawsuit a “necessary challenge.”

“After a two-year public input process to update the rule, and after the publication of a final proposed update, agency staff secretly rewrote the core definition of fish passage, and inserted an entirely new authority for ODFW to decide when volitional fish passage is required,” Wheeler wrote. “The Nez Perce Tribe has a strong relationship with Oregon, and we’re confident that neither Oregonians nor senior Oregon officials would have condoned these changes and the way they were done if they’d been aware.

“We’d hoped Oregon would simply remove these unlawful late revisions from the published product of the public process, but since that has not happened, a court challenge and the daylight that involves is required.

“Doing business under cover of darkness is unacceptable agency conduct.”

In February 2023, Columbia Riverkeeper and 14 other nonprofit organizations, many of which are suing, sent a scathing letter to the Commission. The letter refers to ODFW’s revisions as “last-minute changes.”

The Umatilla tribes are not listed on the lawsuit, but CTUIR Communications Director Kaeleen McGuire provided this statement:

“The Confederated Tribes of the Umatilla Indian Reservation has Treaty-reserved rights in the waters, lands, fish and wildlife of the Columbia Basin. In Article I of our Treaty of 1855 with the United States, 12 Stat. 945, the CTUIR reserved for our members the right to take fish at all usual and accustomed areas. Since time immemorial, our tribal members have fished, hunted and gathered throughout the Columbia Basin for subsistence, ceremonial and commercial purposes. Our culture and way of life reveres salmon, steelhead, lampre, and sturgeon as one of the First Foods, which are an integral component of our longhouse ceremonies and feasts.

“Members of the CTUIR regularly exercise Treaty rights to fish, hunt and gather in the state of Oregon in areas that would be negatively affected by the rule change. The Oregon Fish and Wildlife Commission’s last-minute changes also go against all the work the CTUIR has invested in fisheries and ecosystem restoration. The CTUIR is involved in extensive activities relating to protecting and restoring both anadromous and resident fish stocks in the Columbia River Basin and the ecosystems on which they depend. The public and tribal interests served by the CTUIR’s efforts in fish restoration will be adversely affected by the Fish Passage Rule Amendments promulgated by the Oregon Fish and Wildlife Commission.”

Timeline of public noticeThe lawsuit filed Sept. 5 builds upon these earlier claims that ODFW’s revisions were “unlawful” due to a lack of public notice.

To make this argument, the lawsuit lays out a timeline showing how public notice was handled from the start of the fish-passage rule-making process to its end at the Dec. 16, 2022, ODFW Commission meeting.

Rulemaking started in 2021, when ODFW created the Fish Passage Task Force as part of a larger public process to update Oregon’s fish passage rules, according to the lawsuit.

From 2021 to 2022, the state held 20 public meetings related to proposed revisions.

By August 2022, a “final draft” of these early revisions was submitted for public review and comment.

The Fish Passage Task Force reviewed comments at its meeting Oct. 7, 2022.

ODFW on Oct. 21, 2022, uploaded the task force-approved revisions to the Oregon Secretary of State website for publication. This included an official “Notice of Proposed Rulemaking.”

This draft includes a minor change to the definition of “fish passage,” but one that does not alter the meaning of the term, according to the lawsuit. Notably absent is any mention of trap-and-haul.

By all accounts, these and other early revisions were popular among salmon advocates.

In February, Columbia Riverkeeper’s Johnson told Columbia Insight these early revisions “were good and needed to be done.”

In their Jan. 10, 2023, letter to the ODFW Commission, lawyers for the Nez Perce and Umatilla wrote that early fish passage revisions “continued the long-standing Oregon approach to favoring true volitional fish passage” and for that reason “our Tribes were not concerned with the rule revisions.”

In her statement to Columbia Insight, Wheeler of the Nez Perce Tribe referred to Oregon’s previous fish passage rules as “a model of sound policy and protection for native migratory fish.”

However, the proposed fish passage revisions that were later uploaded to the December 2022 meeting agenda included ODFW’s new definition of “fish passage” that contained “trap collection and transport,” aka trap-and-haul.

The definition reads: “’Fish passage’ means the ability, by the weakest native migratory fish and life history stages determined by the Department to require passage at the site, to move either volitionally or by trap collection and transport with minimal stress, minimal delay, and without physical or physiological injury upstream and downstream of an artificial obstruction.” (Italics have been added and Oregon Administrative Rule numbers have been removed from this quote for clarity.)

These revisions were not accompanied by an additional Notice of Proposed Rulemaking.

Instead, the Notice of Proposed Rulemaking uploaded to the December 2022 Commission meeting webpage is the same notice posted by ODFW in October 2022.

Public records kept confidential

However, what’s not mentioned in the lawsuit is how ODFW made its revisions.

As Columbia Insight reported last week, key fish passage revisions most likely occurred after Nov. 17, 2022. That’s the date ODFW staff reached out to the Oregon Department of Justice for legal advice concerning proposed revisions, according to released public documents.

ODFW staff then made key revisions to Oregon law with the Oregon Department of Justice acting as the state agency’s legal counsel, according to documents obtained by Columbia Insight.

ODFW and the DOJ have refused to release further public documentation related to revisions made during this period, claiming the records are protected by attorney-client privilege.

ODFW representatives have downplayed the significance of the revisions made by the agency.

“We don’t believe this was a substantive change at all,” Shaun Clements, assistant administrator for Inland Fisheries at ODFW, told Columbia Insight in February.

Greg Apke, ODFW’s acting Fish Screens and Fish Passage Program manager and former Statewide Fish Passage Program lead at the time the revisions were made, has publicly downplayed critics’ concerns, including claims his agency made revisions without appropriate public notice.

In a written statement sent to Columbia Insight and published last week, Apke wrote: “This process (as with other Commission rule-making) included public notice of the draft fish passage rules that were published at least two weeks prior to the Commission hearing but changes to rules can occur up until the Commission makes its final decision at the Commission meeting as a result of consideration of both staff and public input on the noticed draft and proposals raised at the Commission meeting public hearing.”

Apke could not be reached for comment for this story.

Michelle Dennehy, communications coordinator for ODFW, responded in a text that the agency does not comment on pending litigation.

Commission holding the bag

But while the revisions were made by ODFW, it’s the ODFW Commission that’s named in the lawsuit, not ODFW.

That’s because the Commission, not ODFW, is ultimately responsible for whether or not there was sufficient public notice, said Columbia Riverkeeper’s Johnson.

Johnson said this is unfortunate.

“I am not sure if the Fish and Wildlife Commission had any idea what the new (fish passage) rule was or its implications,” he said.

Commission Chair Mary Wahl could not be reached for comment.

The lawsuit is a petition for judicial review. This means legal action could end at a judge’s bench, with the court striking down ODFW’s revised rule changes rather than go through a lengthy litigation process.

“I don’t think it’s a completely forgone conclusion that this has to go all the way through litigation, but it could,” says Johnson.

The Native Fish Society, the Northwest Environmental Defense Center, Oregon Wild and the Pacific Coast Federation of Fishermen’s Associations and the association’s research branch, the Institute for Fisheries Resources, also joined the lawsuit