The spirit of the salmon: how the tribal restoration plan could restore Columbia basin salmon.

• Author: Powers, Melissa

1. INTRODUCTION

   Columbia River salmon(1) stand on the brink of extinction.(2) Historically, an estimated eleven million salmon spawned in the Columbia River watershed, but fewer than 500,000 fish return to them upstream spawning grounds today.(3) Of those still returning, at least 80% are produced in hatcheries, and most lack the necessary genetic characteristics to perpetuate the species.(4) For the remaining native stocks, the National Marine Fisheries Service (NMFS) has listed twelve runs (or evolutionary significant units) as endangered or threatened under the Endangered Species Act (ESA).(5) Of the many causes attributed to the salmon's decline, habitat degradation and destruction have caused significant losses in salmon populations.(6) In the Columbia River Basin hydropower developments in particular have decimated upstream salmon populations by effectively cutting spawning salmon off from them spawning grounds and creating inhospitable habitat for migrating and rearing salmonids.(7)

   Recognizing that continued habitat destruction would result in the complete extinction of salmonids, fish managers have developed various salmon restoration and recovery plans. Since 1995, federal entities have managed salmon under a plan implementing a biological opinion developed by NMFS.(8) The NMFS Biological Opinion (NMFS BiOp) evaluated the impacts of federally administered dams on the Columbia and Snake Rivers and recommended changes to operations to comply with the ESA.(9) To avoid jeopardizing the continued existence of listed salmon and steelhead, NMFS proposed various "reasonable and prudent alternative[s]" under which state and federal agencies must manage the listed species.(10) Accordingly, agencies currently operate hydropower facilities under these NMFS requirements, which assume the continued existence of the current river infrastructure, and thus operate within a small range of mitigating options in order to reduce harm to salmon.(11) Under NMFS's implementation of ESA protections, salmon populations have not recovered or even improved.(12) In fact, despite the protections outlined in the NMFS BiOp, NMFS has listed eight additional runs of Columbia River salmon and steelhead as threatened or endangered under the ESA since NMFS first issued its 1995 Biological Opinion.(13)

   The states have also weighed in on salmon management. In 1980, under the Northwest Power Act, Congress authorized a regional program that involved states in salmon restoration.(14) Through the Northwest Power Planning Council (Council), the states have developed a fish and wildlife mitigation plan for salmon recovery.(15) The Council's program strives to improve salmon habitat, rather than relying solely on technology to replace degraded habitat.(16) Specifically, the Council's program calls for increased instream flows and reservoir drawdowns to improve salmon migration.(17) Unlike the NMFS BiOp, which anticipates continued barging and trucking of juvenile salmon around existing dams,(18) the Council's program considers artificial transport to be a last-ditch effort appropriate only under "extremely adverse" river conditions.(19) Proponents of the Council's program have. heralded it as a progressive plan that could possibly help restore salmon.(20) However, since the measures of the ESA effectively trump any plan developed by the Council, the Council's program has not changed the manner in which agencies manage Columbia River salmon.(21)

   A year after the Council promulgated its program calling for substantial changes in hydropower operations, the Columbia River Inter-Tribal Fish Commission (CRITFC) released a tribal plan for salmon restoration.(22) CRITFC based the "Spirit of the Salmon" tribal plan on the simple idea that restoration must involve putting fish back into ecologically improved rivers that can support salmon.(23) Unlike both the federal BiOp (i.e., NMFS BiOp) and the states' program, the Spirit of the Salmon aims to restore salmon to their historical populations in their historical habitats.(24) The tribal plan also emphasizes strategies that will result in natural production, healthy river systems, and protection of tribal sovereignty and treaty rights.(25)

   Furthermore, the tribal plan provides a means by which anadromous fish will exist for future generations,(26) CRITFC set an ambitious time frame to halt population declines and begin recovery.(27) Specifically, the Spirit of the Salmon seeks to halt salmon population declines within seven years of implementation and to also increase the number of adult salmon returning to habitat above the Bonneville Dam by four million annually within twenty-five years.(28)

   To achieve these goals, the tribal plan recommends "gravel-to-gravel" management that aims to increase salmon survival at all salmon life stages.(29) Much of the tribal restoration plan focuses on habitat improvement, setting broad goals in order to increase instream flows, prevent harmful land use practices, and restore riparian habitat through the implementation of a series of watershed-specific subbasin plans.(30) The tribal plan also recommends ocean harvest ceilings based on population abundance, particularly for Columbia River Chinook.(31)

   The Spirit of the Salmon also advocates controversial actions to improve the chances of salmon survival In particular, the plan recommends that salmon managers take advantage of hatchery technology to supplement extremely depressed salmon populations.(32) Supplementation is a hatchery technique that produces fish from native, wild broodstock and then rears the fish in habitat that closely resembles natural rearing habitat.(33) CRITFC believes that supplementation could restore fragmented and declining populations, at least when other recovery actions will not improve conditions quickly enough to stop population losses or extinction.(34) Critics of supplementation view it as just another hatchery technique that will further harm native populations by exposing native gene pools to high risks of damage.(35) The supplementation proposals in the Spirit of the Salmon have created divisions among salmon advocates.(36)

   Finally, the tribal plan recommended permanent drawdowns of the John Day and McNary reservoirs in the Columbia River and four reservoirs in the lower Snake River.(37) While the Council recommended seasonal drawdown of various reservoirs, the tribal plan was the first recovery plan to suggest permanent drawdown.(38) Since CRITFC released its plan, other agencies have advocated permanent drawdowns.(39) However, widespread political opposition(40) and reluctance by the Army Corps of Engineers may prevent permanent drawdowns in the near future.(41)

   This Comment argues that the tribes' Spirit of the Salmon plan represents the best hope for salmon recovery in the Columbia River Basin. Part II explains the need for the tribal restoration plan by detailing salmon life history and factors that contribute to salmon decline. Part III describes the main elements of the Spirit of the Salmon Restoration Plan.(42) Part IV discusses how the tribal plan could lead to salmon recovery. Finally, Part V explains the significance of the tribal restoration plan as a unique exercise of tribal sovereignty. The Comment concludes that federal and state agencies should adopt the tribal plan because its comprehensiveness could lead to salmon restoration.

2. SALMON LIFE HISTORY AND DECLINE

   1. Salmon Life History and Habitat Requirements

      Salmon are anadromous fish, meaning that they begin their life in freshwater, grow to maturity in the ocean, and return to freshwater to spawn and die.(43) This unique life cycle has mesmerized those interested in salmon for centuries, if not millennia.(44) It has also made salmon a particularly elusive species to understand, follow, and, therefore, protect.(45) Not only do salmon travel between fresh and saltwater, they have also evolved to depend upon habitat characteristics specific to the salmon life stages. Salmon's adaptation to and evolution with its natural environment help to explain its current decline, as its native habitat continues to suffer degradation from various land use practices, hydropower operations, and pollution.(46) The salmon life cycle and habitat conditions go hand-in-hand: without adequate habitat to support the salmon's life cycle, salmon populations will likely continue to decline.

      The anadromous fish life cycle both begins and ends with adults returning to rivers or lakes to spawn. Spawning salmon lay their eggs in nests, or redds, located in gravel beds beneath fast-flowing, clear, and well-aerated waters.(47) The water must have enough depth to cover the fragile eggs so they do not dry out. After two or more months--depending upon the species--the eggs hatch as alevins and eventually emerge from the gravel redds as fry.(48)

      At the fry stage, salmon continue to require clear, swift water that can provide adequate nutrients. Some fry, particularly those of pink and chum salmon, immediately migrate toward the Pacific Ocean.(49) However, Chinook, sockeye, coho, and steelhead, in preparation for their arduous voyage downstream and into the ocean, to different parts of the rivers or lake to grow and rear.(50) At the fry stage--prior to migration--juvenile salmon depend on nearby areas to provide adequate shade and oxygen, protection from predators, and an abundant food supply.(51) Specifically, juveniles rely on stream complexity and large woody debris to create refugia away from the typical stream flow.(52) Refugia areas usually contain large amounts of food for salmon.(53) Large woody debris and overhanging banks provide salmon with necessary shade during the hot summer months.(54) During spring and winter, the refugia provide salmon with areas where they can rest and possibly avoid high flow events caused from snowmelt or heavy rains.(55)

      Migrating juveniles, called smolts, depend upon swift currents to conduct them...