North Umpqua Coalition's Brief Opposing TRO

1

IN THE CIRCUIT COURT OF THE STATE OF OREGON

2

FOR THE COUNTY OF MARION

3 4

7

DOUGLAS COUNTY, a political subdivision of the State of Oregon, UMPQUA FISHERY ENHANCEMENT DERBY, INC., an Oregon non-profit corporation, and SCOTT WORSLEY,

8

Petitioners,

5 6

9 10 11 12 13

v.

OREGON FISH AND WILDLIFE COMMISSION, and the OREGON DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon,

Case No. 22CV13979 RESPONSE BRIEF OF THE CONSERVATION ANGLER, STEAMBOATERS, PACIFIC RIVERS, UMPQUA WATERSHEDS, NATIVE FISH SOCIETY, THE NORTH UMPQUA FOUNDATION, AND JEFF DOSE AS AMICI CURIAE – TO PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION

Respondents.

14 15 I. SUMMARY OF ARGUMENT

16

Petitioners had their day in Court, made their best arguments, and lost their hatchery

17 18

release claims. Douglas County v. Or. Fish & Wildlife Comm’n, 323 Or App 720, 729 (2023),

19

adh’d to as modified on recons, 326 Or App 188 (2023), rev den, 372 Or 560 (2024). Now,

20 21

Petitioners allege meritless claims they chose not to bring when they filed their action 29 months ago, and they move for a new injunction, something that is not needed and would harm a

22 23 24

cherished wild summer steelhead population. The court should deny Petitioners’ Motion for at least four reasons.

First, Petitioners cannot make their prerequisite showing that irreparable harm will occur

25 26

without a new injunction. See Josephine County v. Garnier 163 Or App 333, 336-37 (1999)

27

PAGE 1

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

(explaining that proof of irreparable harm “is a prerequisite of injunctive relief”). The Oregon Department of Fish and Wildlife’s (“ODFW”) data demonstrate that enough hatchery summer

3

steelhead released during the injunction (2022-2024) should return through 2026 to then restart

4

the Rock Creek Hatchery summer steelhead program (“Hatchery Program”) should Petitioners

5

ultimately prevail on the merits (which Amici think is highly unlikely). See Declaration of John

6 7 8 9 10

McMillan in Support of Amici Curiae Brief in Opposition to Petitioners’ Motion for Temporary Restraining Order/Preliminary Injunction (“Third McMillan Decl.”) ¶7. Therefore, hatchery releases could stop for two years (2025-2026), as well as broodstock collection (2024-2025), without jeopardizing the Hatchery Program. Id. Petitioners speculate otherwise, but mere speculation does not meet their “burden of

11 12 13 14

production or persuasion” in showing irreparable harm. See Arlington Sch. Dist. No. 3 v.

Arlington Educ. Ass’n, 184 Or App 97, 102 (2002) (explaining standard). For this reason alone, the Court should deny Petitioners’ Motion.

15

Second, issuing a new injunction would harm the public interest in protecting wild North

16 17

Umpqua summer steelhead. The Oregon Fish and Wildlife Commission (“Commission”), which

18

represents the public interest of Oregon, ORS 496.012, determined it must immediately eliminate

19

the Hatchery Program to protect these special fish. Issuing another injunction would further harm

20

these fish, which are suffering ongoing genetic and ecological consequences of previous

21 22 23 24

hatchery releases as well as consecutive record low returns. Third McMillan Decl. ¶¶3-5, Exs. 18-20. Thus, another injunction would further harm the public interest in protecting these unique fish.

Third, the balance of harm tips in Respondents’ favor. Denying the Motion would not

25 26

harm Petitioners for the reasons stated. Granting it, however, would harm ODFW and Oregon

27

PAGE 2

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

taxpayers by forcing them to fund the Hatchery Program. That would be especially wasteful, considering that ODFW now recommends closing the Rock Creek Hatchery due to the exorbitant

3

cost of upgrading it. Declaration of David Moskowitz in Support of Amici Curiae Brief in

4

Opposition to Petitioners’ Motion for Temporary Restraining Order/Preliminary Injunction

5

(“Fourth Moskowitz Decl.”) ¶¶2-5, Exs. 21-24. Because Respondents and taxpayers have much

6 7 8

to lose if another injunction is issued, while Petitioners have nothing to lose if it is not, the Court should deny the Motion.

Fourth, Petitioners cannot show, with clear and convincing proof, that they are likely to

9 10

prevail on their new claims. Petitioners’ Administrative Procedures Act (“APA”) claims 1 are

11

barred by the law of case doctrine. The Oregon Court of Appeals already held “the APA does not

12

provide a mechanism for reviewing the commission’s decision.” Douglas County, 323 Or App at

13

729. Petitioners’ new separation of powers claims 2 similarly lack merit. Oregon’s wildlife statute

14 15 16

provides policy and criteria to guide the Commission’s decisions and, therefore, the statute does not unconstitutionally delegate legislative power to the Commission. ORS 496.012.

Petitioners’ new wildlife statute claims3 also fail, because the Commission’s decision is

17 18

consistent with the statue, and the Court cannot substitute Petitioners’ judgment for the

19

Commission’s. See Schlip v. Oregon Fish and Wildlife Comm’n, 75 Or App 462, 465 (1985)

20

(denying similar challenge to a Commission decision to protect wild fish). Finally, Petitioners’

21 22 23 24 25

1 See Amended Petition for Judicial Review ¶¶ 51-57 (First Claim, Count One) and 62-65, 67, 70, 72 (Second Claim), 79-81 (Third Claim, Count One).

2

See id. at ¶¶67, 69, 71 (Second Claim), 78-81, 83 (Third Claim, Count One), and 84-86 (Third Claim, Count Two).

3

26 27 28

PAGE 3

See id. at ¶¶67 (Second Claim) 78-79, 83 (Third Claim, Count One).

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

injunction claim4 is meritless. An injunction is a remedy, not a claim for relief, and Petitioners provide no independent basis for this purported claim.

Since Petitioners are unlikely to prevail on any and all of their newly alleged claims, the

3 4

Court should deny Petitioners’ Motion.

5 6

II. BACKGROUND A.

7

Amici Curiae state the facts about the North Umpqua River’s special population of wild

8 9

Wild North Umpqua Summer Steelhead

summer steelhead and history of conservation in separate prior briefing. See Intervenor-

10

Respondents’ Proposed Memorandum in Opposition to Petitioners’ Motion for Preliminary

11

Injunction at pp.2-3. Amici incorporates those facts here, but to spare the court extra reading will

12

not repeat those facts in this brief. As previously demonstrated, wild North Umpqua summer

13 14

steelhead are extraordinary. Id. Therefore, it makes sense the Commission chose to protect them.

B.

15

Amici Curiae explain the Commission’s decision in separate briefing and, therefore, do

16 17

The Commission’s Decision to Eliminate the Hatchery Program

not repeat those facts here. See Amici Curiae Brief in Response to Petitioners’ Motion for Leave

18

to File First Amended Petition for Judicial Review and Complaint for Declaratory Relief and

19

Injunction (“Amici Curiae Br. Rsp. Mot. to Amend”). As demonstrated, the facts show the

20

Commission facilitated a fair, inclusive, and informed discussion about the Hatchery Program

21 22 23 24 25 26 27 28

and, after considering the available information, made a rational, science-based, and publicly supported5 decision. Id. The facts do not support Petitioners’ attempt at revisionist history.

4

See id. at ¶¶87-91 (Fourth Claim).

Petitioners assert that the Commission “ignored” tribes, ODFW, and others who did not support eliminating the Hatchery Program at the time, apparently because the Commission did not make the decision these groups wanted (i.e., to continue the Hatchery Program). Second Mot. for TRO/PI at 5. That argument is inconsistent with the definition of the term “ignore.” To “ignore” means to “refuse to take notice of.” Merriam Webster’s 5

PAGE 4

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2 3

/// /// C.

4 5 6 7 8 9

The Injunction Order Respondents accurately describe the Order Granting Petitioners’ Motion for Preliminary

Injunction (“Injunction Order”), but Petitioners do not. Specifically, Petitioners assert “the preliminary injunction required that ODFW raise and release up to 165,000 hatchery steelhead summer steelhead smolts annually.” Petitioners’ Motion for Temporary Restraining Order/Preliminary Injunction (“Second Mot. for TRO/PI”) at 5-6 (emphasis added). That is not

10

correct. As the Court will recall, it ordered ODFW to release a safe number of fish in 2022.

11

Specifically, it ordered ODFW to release the 2022 smolt cohort pursuant to two

12

conditions: first, ODFW would release smolts during peak “smolting” and “optimal” migratory

13 14 15 16 17

conditions; and second, ODFW would volitionally release smolts when “hatchery managers believe that a significant portion of fish are likely to migrate to the ocean immediately.”

Injunction Order at 2 (citing Declaration of Shaun Clements in Support of Respondents’ Opposition to Petitioners’ Motion for Preliminary Injunction ¶12(a)-(b) (“Clements Decl.”).

18

Therefore, Petitioners’ description of the Injunction Order is inaccurate.

19

D.

20 21

The Coastal Multi-Species Conservation and Management Plan Petitioners’ descriptions of the Coastal Multi-Species Conservation and Management

Plan (“CMP”) and CMP rule, OAR 635-500-6775, are also incorrect. Specifically, Petitioners

22 23 24 25 26 27 28

Dictionary, https://www.merriamwebster.com/ thesaurus/ignore. The facts show the Commission in fact took notice of everyone who chose to be heard on the matter. See e.g., Amici Curiae Br. Opp. Mot. to Amend at 3-4 (summarizing oral testimony during the April 22, 2022 Commission meeting and written testimony submitted beforehand). Thus, the facts do not support Petitioners’ accusation that the Commission ignored certain groups.

Instead, they show that the Commission considered those presentations but chose a different result than what those presenters wanted.

PAGE 5

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

assert that “each … require a release of 165,000 summer steelhead smolts annually.” Second Mot. for TRO/PI at 6. That is not what the CMP or CMP rule require.

Instead, the CMP describes hatchery production goals, not hatchery release requirements.

3 4

See Declaration of Nolan Smith in Support of Petitioners’ Motion for Temporary Restraining

5

Order/Or Preliminary Injunction (“First Smith Decl.”) Ex. 104 at p.47; see also Declaration of

6 7 8 9

Michael Harrington in Support of Respondents’ Opposition to Petitioners’ Motion for Temporary Restraining Order and Preliminary Injunction at ¶12; see also Clements Decl. ¶9. The CMP rule simply requires ODFW to implement the CMP, which again, does not require ODFW

10

to release 165,000 summer steelhead smolts annually. OAR 635-500-6775(6)-(7). Indeed, no

11

smolts could be released because the CMP rule allows the Commission to eliminate the Hatchery

12

Program. Douglas County, 323 Or App at 728. Therefore, Petitioners’ descriptions of the CMP

13

and CMP rule are inaccurate.

14

III.

15

Injunctive relief is an “extraordinary remedy” that is granted sparingly and “only upon

16 17

STANDARD OF REVIEW

clear and convincing proof.” Jewett v. Deerhorn Enterprises, Inc. 281 Or 469, 473 (1978). It

18

“may” be allowed when the movant would suffer injury during the litigation and appears entitled

19

to relief. ORCP 79A.

20 21 22 23 24 25

Oregon courts apply four equitable factors when deciding whether to grant a preliminary injunction. See Elkhorn Baptist Church v. Brown, 366 Or 506, 518-19 (2020) (describing standard). First, there must be “clear and convincing” proof on the merits. Jewett, 281 Or at 473.

Second, the movant must show that irreparable harm will occur if the injunction is not issued, using “evidence that satisfies a burden of production or persuasion placed upon the proponent of

26

a fact.” Arlington Sch. Dist. No. 3, 184 Or App at 102. Third, courts compare the “relative

27

PAGE 6

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2 3

hardship likely to result to the defendant if the injunction is granted and to the plaintiff if it is denied.” York v. Stallings, 217 Or 13, 23-25 (1959). Fourth, courts consider the public interest.

Bennett v. City of Salem, 192 Or 531, 546 (1951).

4

Petitioners assert that a “sliding scale” exists that provides that when the balance of

5

equities tips in their favor, they need only show “serious questions going to the merits” of their

6 7 8 9

claims. Second Mot. for TRO/PI at 8 (citing Alaska Landmine, LLC v. Dunleavy, 514 F. Supp.

3d 1123, 1128 (D. Alaska 2021)). However, that is not Oregon law. In Oregon, Petitioners must show they “will ultimately prevail on the merits of [their] claim[s],” not just raise questions,

10

regardless of how the equity scale tilts. Elkhorn Baptist Church, 366 Or at 518-19. Petitioners

11

fail to do so here.

12 13

IV. A.

14 15 16 17

POINTS AND AUTHORITIES

There Would Be No Irreparable Harm to Petitioners Petitioners cannot satisfy their threshold burden of proving irreparable harm for three

reasons. First, not releasing hatchery steelhead in 2025 will not jeopardize the Hatchery Program because ODFW released 55,115 hatchery summer steelhead this year (2024) and, therefore, no

18

two-year gap in hatchery releases would occur next year (2025), which avoids Petitioners’

19

adopted prerequisite for irreparable harm. See Declaration of Nolan Smith in Support of

20

Petitioners’ [Second] Motion for Temporary Restraining Order/Or Preliminary Injunction

21 22 23 24 25

(“Second Smith Decl.”) Ex. 205 (explaining that ODFW released 55,115 hatchery summer steelhead in 2024); see also Petitioners’ Motion for Preliminary Injunction at p.18 (adopting twoyear gap theory). Second, the best available scientific data show that ODFW released enough hatchery steelhead during the injunction (2022-2024) such that ODFW could pause hatchery

26

releases for two years without endangering the Hatchery Program. See Third McMillan Decl. ¶7.

27

PAGE 7

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

Third, recent hatchery adult returns (2023-2024) are the result of ODFW releasing no fish

1 2

in 2021 and releasing “fingerling” steelhead too late in the year in 2022. McMillan Decl. at ¶¶8-

3

9. Therefore, recent hatchery adult returns do not indicate that near-future returns (2025-2026)

4

resulting from the 2023-2024 releases will be relatively low, too; and Petitioners provide no

5

evidence to show the contrary. Because Petitioners cannot satisfy their burden to show that

6 7 8 9

irreparable harm will occur if another injunction is not issued, the Court should deny Petitioners’ Motion.

1.

Denying the Motion Would Not Cause a Two-Year Gap in Releases

10

Petitioners’ purported prerequisite for irreparable harm will not occur. Petitioners

11

asserted that the injunction was necessary because “two consecutive years of no hatchery

12

releases *** w[ould] mean that, when these generations of fish would be returning, there will be

13 14 15 16 17

no hatchery fish to spawn for the continuation of the hatchery program.” Petitioners’ Reply in Support of Motion for Preliminary Injunction at p.32; see also Petitioners’ Motion for Preliminary Injunction at p.18 (“[T]wo consecutive lost years of a smolt release will effectively eliminate the broodstock and, thus, the ability to collect broodstock”). However, in reality no

18

two-year gap would occur if ODFW does not release smolts in 2025, because ODFW released

19

hatchery steelhead during the previous three years (2022: 68,444 fish released; 2023: 6,790 fish

20

released; 2024: 55,115 fish released). See Third McMillan Decl. Ex. 25 at p. 66; Second Smith

21

Decl. Exs. 201, 205.

22

As a result, issuing another injunction is unnecessary to prevent a two-year gap in

23 24 25

hatchery releases - because no such gap will occur. Because Petitioners’ perquisite for irreparable harm will not occur in 2025, Petitioners cannot make their prerequisite showing for

26

injunctive relief. Therefore, the Court should deny Petitioners’ Motion.

27

PAGE 8

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

Incredibly, Petitioners assert that the facts are not materially different in 2024 than they

1 2

were in 2022. See Second Mot. for TRO/PI at p.15. Nothing could be further from the truth. In

3

2022, the Hatchery Program faced two potential years of no releases (2021-2022). In contrast, in

4

2024, there is no two-year gap because ODFW released fish this year (2024). Id. Therefore, the

5

facts are materially different.

6 7 8 9

Petitioners also assert that “declining and low-level releases make it more crucial that ODFW continue the [Hatchery Program].” See Second Mot. for TRO/PI at p.15 (emphasis added). But Petitioners do not provide any evidence, much less clear and convincing evidence,

10

that the number of fish released during the injunction (2022-2024) will not return in sufficient

11

numbers if hatchery releases are paused for one or more years. Because Petitioners fail to

12

provide clear and convincing proof that hatchery releases must continue while their new claims

13 14 15

are litigated, the Court should deny their Motion.

2.

ODFW Could Pause Hatchery Releases for Two Years Without the Hatchery Program

16 17 18

Jeopardizing

ODFW’s fish release and return data and other best available scientific data show that fish released in 2023-2024 should return in sufficient numbers through 2026 to continue the Hatchery Program. See Third McMillan Decl. ¶7, Exs. 26-27; Second Smith Decl. Ex. 201 at

19 20 21

p.78 and 205; First Smith Decl. Exs. 105 at p.42, & 109 at p.40. Therefore, ODFW could release hatchery fish into reservoirs this year (2024), not collect broodstock for two years (2024-2025),

22

restart broodstock collection in the Summer of 2026, and resume hatchery smolt releases in

23

2028, without functionally terminating the Hatchery Program. Amici Curiae demonstrate how

24

this would be a likely scenario in four steps.

25 26 27 28

PAGE 9

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

First, ODFW released 6,790 and 55,115 hatchery summer steelhead in 2023 and 2024,

1 2

respectively. Second Smith Decl. Exs. 201 at p78, 205 at p. 1. ODFW’s data show that an

3

average of one percent of Rock Creek Hatchery summer steelhead return as adults. Third

4

McMillan Decl. ¶7b, Ex. 26. Therefore, approximately 619 hatchery summer steelhead should

5

return to the North Umpqua River (i.e., 1% of 61,905 hatchery summer steelhead released in

6

2023-2024). Third McMillan Decl. at ¶7b.

7

Second, to be conservative, Amici Curiae assume that up to 17% of those hatchery

8 9

steelhead may have residualized. The 17% residualization rate is based on a meta-analysis of

10

hatchery steelhead programs throughout the Pacific Northwest, which found that residualism

11

rates range from 0% to 17%, with an average of 5.6%. Id. ¶7c, Ex. 27 at p.1. Therefore,

12

assuming the maximum residual rate applies (17%), at least 514 hatchery summer steelhead

13 14 15 16

should return as adults. Third McMillan Decl. ¶7c. Because some fish that residualized will likely migrate to the ocean and return as adults, more than 514 adult hatchery summer steelhead should return. Id. Third, ODFW’s data show that Rock Creek Hatchery summer steelhead return after

17 18

spending one to four years in the ocean. First Smith Decl. Ex. 105 at pp.42-43. Specifically,

19

ODFW assumes that 10% return after one year in the ocean (“1-salt” steelhead), 66.5% return

20

after two years in the ocean (“2-salt” steelhead), 20% return after three years in the ocean (“3-

21 22 23 24 25 26 27 28

salt” steelhead), and 3.5% return after four years in the ocean (“4-salt” steelhead). Id.; see also Third McMillan Decl. ¶7d. Therefore, fish released during 2023-2024 should return through 2028 because some 4-salt steelhead from the 2024 release should return in 2028. 6

6

Fish that migrated to the ocean in 2023 would return in 2024-2027, and fish that migrated to the ocean in 2024 would return in 2025-2028. See McMillan Decl. at ¶7d.

PAGE 10

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

This return schedule does not account for hatchery steelhead that likely residualized,

1 2

migrated to the ocean in subsequent years, and, therefore, would return to the North Umpqua

3

River later as adults. Id. In any event, to be conservative, Amici Curiae use 2026 as the cutoff

4

year and still show that no irreparable harm would occur if the Court denied the Motion. Id.7

5 6 7 8 9 10

Fourth, ODFW could restart the Hatchery Program with hatchery fish that return in 2026 because enough fish should return then due to hatchery releases in 2023-2024. Id. ¶7d. For example, assuming 17% of the hatchery steelhead released in 2023-2024 residualized, a minimum of approximately 315 and 93 hatchery summer steelhead should return in 2026 and 2027, respectively, because of the 2023-2024 hatchery summer steelhead releases. Id. The offspring of steelhead returning in 2026 (2-salt steelhead from 2024 release and 3-

11 12 13 14 15 16 17

salt steelhead from 2023 release) could be released in 2028, and the offspring of steelhead returning in 2027 (3-salt steelhead from 2024 release) could be released in 2029. Alternatively, ODFW could use the 2026 broodstock for hatchery releases in both 2028 and 2029, which would be consistent with the Hatchery Program’s Hatchery and Genetic Management Plan (“HGMP”).

See First Smith Decl. Ex. 109 at p.40 (ODFW proposing to release more two-year old smolts

18

than one-year old smolts); see also Third McMillan Decl. ¶7f. Therefore, hatchery operations

19

could pause through the Spring of 2026 without jeopardizing the Hatchery Program.

20 21 22 23 24

Petitioners do not cite any persuasive (much less clear and convincing) evidence that pausing hatchery releases in 2025 and 2026 would functionally terminate the Hatchery Program.

Instead, Petitioners merely cite a statement by former ODFW Director Curt Melcher during the April 22, 2022 Commission meeting. Second Mot. for TRO/PI at p.14. However, Director

25 7

26 27 28

PAGE 11

Amici Curiae are not counting 4-salt returns because they are relatively rare (i.e., 3.5% of returns). See Id. AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

Melcher did not cite anything to support his statement and the best available scientific data shows ODFW could pause hatchery releases for two years without jeopardizing the Hatchery

3

Program. As a result, former Director Melcher’s conjecture on this issue is not compelling

4

evidence.

5 6 7 8 9

In short, Petitioners fail to show – by clear and convincing evidence – that two years of no hatchery releases (2025-2026) would terminate the Hatchery Program. As a result, the Court should deny the Motion.

3.

Hatchery Returns Should Increase

10

The relatively low hatchery steelhead returns in 2023 and 2024 do not indicate that

11

hatchery returns in the near future will be dangerously low. Thus, continued hatchery releases in

12

the near-term are not necessary to avoid irreparable harm.

13 14 15 16 17

Indeed, the 2023 and 2024 hatchery summer steelhead returns are an unsurprising result of ODFW releasing no hatchery steelhead in 2021 and releasing “fingerling” hatchery steelhead too late in 2022. Third McMillan Decl. ¶¶8-9. As outlined, hatchery steelhead released in 2023 and 2024 should result in larger hatchery steelhead returns in 2026 such that ODFW could pause

18

the Hatchery Program for two years without jeopardizing the Hatchery Program. Therefore,

19

contrary to Petitioners’ assertion, the 2023 and 2024 hatchery steelhead return numbers do not

20

make it “imperative” that ODFW continue hatchery steelhead releases while their second round

21

of claims are litigated. Second Mot. for TRO/PI at p.15.

22

Hatchery summer steelhead returns in 2023 were relatively low because no hatchery

23 24 25

summer steelhead were released in 2021 and, therefore, no two-salt hatchery steelhead returned in 2023. Nevertheless, 67 hatchery summer steelhead still returned to the North Umpqua in 2023

26

despite ODFW releasing zero fish in 2021. See Third McMillan Declaration Ex. 19.

27

PAGE 12

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

Hatchery summer steelhead returns are relatively low this year (2024) for two reasons.

1 2

First, in 2022, ODFW released “fingerling” hatchery summer steelhead, which are not smolts

3

and do not migrate to the ocean. Third McMillan Decl. ¶9a Ex. 25. Therefore, the hatchery

4

steelhead released in 2022 likely residualized in the river for a year and then migrated to the

5

ocean the following spring (Spring of 2023). Third McMillan Decl. ¶9a. Second, ODFW

6 7 8 9 10

released these fish too late in the year. Id. ¶9b Ex. 28. As Amici Curiae warned the Parties, releasing those fish outside their juvenile migration window (March-April) would likely cause residualization and, as a result, competition with wild summer steelhead. Id. Therefore, it is not surprising that relatively few hatchery summer steelhead returned this year (2024).

11

However, this year’s relatively low hatchery steelhead return does not require ODFW to

12

continue releasing more hatchery steelhead in 2025 or 2026 to maintain the Hatchery Program.

13 14 15 16 17 18

As outlined, ODFW could release no hatchery summer steelhead in 2025 and 2026 without jeopardizing the Hatchery Program, regardless of the number of fish returning this year (2024).

Because Petitioners have not and cannot provide convincing evidence to the contrary, the Court should deny the Motion.

B.

19 20 21 22

Issuing another injunction would harm the public interest by placing more harm on top of a struggling wild summer steelhead population that the agency and the public wants protected.

1.

Wild Summer Steelhead are Suffering Genetic and Ecological Damage from Hatchery Releases

23 24

Granting the Injunction Would Harm the Public Interest

ODFW’s data show that the Hatchery Program is still exceeding genetic and ecological safety limits and, therefore, the Hatchery Program is harming wild summer steelhead. Third

25 26 27 28

PAGE 13

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

McMillan Decl. Ex. 18. The CMP sets a 10% pHOS limit for North Umpqua summer steelhead. 8 First Smith Decl. Ex. 104 at pp.174-75. ODFW reports that the 9-year pHOS average is 18%,

3

which is nearly double the pHOS limit. Third McMillan Decl. ¶3. As explained in separating

4

briefing, exceeding that limit proves the Hatchery Program is harming wild summer steelhead.

5

See Amici Curiae Br. Rsp. Pet. Mot. to Amend at pp.5-6. As a result, issuing another injunction

6 7 8 9

would cause more harm to wild summer steelhead and the public interest in protecting these special fish.

2.

Wild Steelhead Are Suffering from Ongoing Record Low Abundance More genetic and ecological harm is the last thing wild summer steelhead need,

10 11

considering their sharp dip in recent abundance. In 2021 and 2023, only 450 and 960 wild

12

summer steelhead returned, respectively, which are the two lowest returns on record for the

13 14 15 16

population. Third McMillan Decl. Ex. 19 (showing annual summer steelhead returns from 1946 through 2023). In 2022, 1,346 wild summer steelhead returned, which is the population’s fourth lowest return on record. Id. Wild summer steelhead will likely experience another low return this year. See Third

17 18

McMillan Decl. Ex. 20. Based on ODFW’s most recent data, 1,554 summer steelhead (hatchery

19

and wild summer steelhead combined) returned between May 1 and September 26, 2024, which

20

is the third worst return for this period during the last ten years (2015-2024). Id. Because the vast

21 22 23 24 25 26 27 28

8

The 10% pHOS limit may not sufficiently protect wild steelhead. According to ODFW’s former Fish Division Administrator, Edward Bowles, who contributed to the CMP, genetic risks increase when pHOS exceeds 5% and ecological risks have occurred when pHOS is over 10%. Native Fish Soc’y v. NMFS, 992 F.Supp. 2d 1095, 1105 (D. Or. 2014) (citing Amended Declaration of Edward Bowles at ¶127, Nat’l Wildlife Fed’n v. NMFS, 839 F.Supp.2d 1117 (D. Or. 2011) (emphasis added); see also Ex. 104 at 2 (listing Edward Bowles as an ODFW contributor to the CMP). In short, pHOS levels are nearly four times the amount that ODFW has associated with increased genetic risks.

PAGE 14

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

majority of summer steelhead return before September 26 th, it is unlikely that there will be a surge of fish that would significantly change the outlook for this year’s return. Id.

3

Releasing more hatchery summer steelhead will cause more harm to wild summer

4

steelhead that are already struggling. Therefore, to avoid more harm to these special fish and the

5

public interest in protecting them, the Court should deny Petitioners’ Motion.

6

C.

7

The balance of harms tips in Respondents’ favor, because they are the only named parties

8 9

The Balance of Harms Tips in Respondents’ Favor

with something to lose while Petitioners litigate their second round of claims. For the reasons

10

outlined, Petitioners face no irreparable harm if the Court denies their request to issue another

11

injunction. However, issuing an injunction would harm ODFW by forcing it to spend limited

12

funding on this particular Hatchery Program. See Harrington Decl. at ¶29 (estimating annual

13

operating cost to be $122,000). Therefore, the Court should deny Petitioners’ Motion.

14 15 16 17

Forcing ODFW to pay for hatchery summer steelhead releases that are unnecessary to prevent irreparable harm would be especially wasteful because ODFW now recommends closing the Rock Creek Hatchery. Fourth Moskowitz Decl. Exs. 21 & 24. ODFW proposes closing the

18

hatchery because it is expensive to operate and is especially vulnerable to climate change.

19

“The Salmon River and Rock Creek hatcheries were chosen for closure because our analyses to date suggest that these two facilities are the most vulnerable to climate change (decreased flows, increased temperatures, fires, flooding) and will be among the costliest to maintain going forward because of the deferred maintenance costs …”

20 21 22 23 24 25

Fourth Moskowitz Decl Ex. 24. Indeed, out of all 17 hatcheries in Oregon, the Rock Creek Hatchery has the highest infrastructure costs (approx. $45 million) and is the worst prepared for climate change. Id. Ex. 22 at p.16. ODFW’s consultant estimates it would cost $20,651,531 just

26

to upgrade the facility’s cooling system, which is necessary to “continue to provide the

27

PAGE 15

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

conditions required for reproduction” at the hatchery. Id. Ex. 23 at pp.1 & 7. For these reasons, the Court should deny Petitioners’ request that ODFW and Oregon taxpayers throw more money

3

into this proverbial money pit while Petitioners try to take a proverbial second bite at the apple.

4

///

5

D.

6 7 8 9 10

Petitioners Cannot Show They Are Likely to Prevail on their Claims Petitioners cannot show, with clear and convincing proof, that they are likely to prevail

on their new claims for five reasons. First, Petitioners’ ORS 183.490 and 183.400(2) claims are barred by the law of the case doctrine. Second, Petitioners’ ORS 183.490 claim also fails because nothing requires the Commission’s instruction to ODFW staff to be in writing.

11

Third, Petitioners’ ORS 183.400(2) claim also fails because the Commissions’ decision

12

and the CMP rule are consistent with Oregon’s wildlife statute. Fourth, neither the CMP rule,

13 14

Oregon’s wildlife statute, nor the Commission’s decision violate the separation of powers doctrine.

15

Fifth, Petitioners’ injunction claim provides no independent basis for relief and, therefore,

16 17

it is meritless. Because none of the Petitioners’ claims have merit, the Court should deny

18

Petitioners’ Motion.

19

1.

20 21

Petitioners’ New APA Claims are Barred Petitioners’ ORS 183.490 and 183.400(2) claims are barred by the law of the case

doctrine. The doctrine provides:

22

“when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.”

23 24 25 26 27 28

PAGE 16

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

State v. Langley, 331 Or 430, 437 (2000) (quoting State v. Pratt, 316 Or 561, 569 (1993) (cleaned up). “Thus, the law of case precludes relitigation or reconsideration of a point of law

3

decided at an earlier stage of the same case.” Id. (quoting Koch v. So. Pac. Transp. Co., 274 Or

4

499, 512 (1976) (cleaned up).

5 6 7 8 9

The Oregon Court of Appeals decided several points of law that Petitioners cannot relitigate in this case. First, it held that “the APA does not provide a mechanism for reviewing the commission’s decision” and, therefore, Petitioners’ new APA claims are barred. Douglas County, 323 Or App at p.729. Second, the court held that the CMP rule does not require ODFW

10

to operate two hatchery programs. Id. at p.728. Therefore, Petitioners’ ORS 183.490 claim to the

11

contrary is barred. Third, the court held that the Commission’s decision binds ODFW. Id. at

12

p.726. As a result, Petitioners’ ORS 183.490 claim that the decision is not a final binding

13 14

decision on the public is barred. Because these claims are barred, Petitioners will not prevail on them.

15 16

2.

Nothing Requires the Commission’s Decision to be in Writing No case law supports Petitioners’ new theory that the Commission’s instruction to

17 18

ODFW to terminate the Hatchery Program is not final because it is not in writing. Indeed,

19

Petitioner argued previously that the Commission’s decision was in fact a Final Order subject to

20

APA review. Nor did the Oregon Court of Appeals reject the Commission’s decision as non-

21 22 23 24 25

final. Petitioners’ assertion that the Commission’s decision is somehow not final, because it is not in writing, lacks merit. /// ///

26

3.

27

PAGE 17

28

The Commission’s Decision is Constitutional AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

The Legislature lawfully delegated authority to the Commission to close the Hatchery

1 2

Program. See, ORS 496.146(3); ORS 496.012. Oregon’s wildlife statute authorizes the

3

Commission to “propagate and stock wildlife species in such manner as the commission

4

determines will carry out the state wildlife policy and management programs.” ORS 496.146(3).

5

Oregon’s wildlife policy states that “wildlife shall be managed to prevent serious depletion of

6 7 8 9

any indigenous species and to provide the optimum recreational and aesthetic benefits for present and future generations of the citizens of this state.” ORS 496.012. It also requires the Commission to implement seven co-equal goals of wildlife management. Id. For example, the Commission must “make decisions that affect wildlife resources of the

10 11

state for the benefit of the wildlife resources” and “allow for the best social, economic and

12

recreational utilization of wildlife resources by all user groups.” ORS 496.012(7). The statute

13 14

does not require the Commission to propagate or release hatchery fish in any specific locations, let alone the North Umpqua River.

15

Because the wildlife policy and its criteria instruct the Commission on how to make

16 17

decisions, the Legislature did not unlawfully delegate legislative authority to the Commission.

18

ORS 496.012; see City of Damascus v. Brown, 266 Or. App. 416, 448-49 (2014) (focusing on

19

whether objective legislative standards or policy guides exercise of delegated authority).

20

Therefore, the Commission’s decision to eliminate the Hatchery Program does not violate the

21

separation of powers doctrine.

22

Petitioners cannot show that Oregon’s wildlife policy or the CMP rule opens the door to

23 24 25

Commissioners closing hatcheries to serve their personal interests. See id. at pp.450-451 (describing lack of adequate safeguards relating to decisionmakers having personal interests in

26

the outcome). Here, the Commissioners represent different regions of the state. ORS 496.090(4).

27

PAGE 18

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

The Commission may only decide to close a hatchery after considering whether that would serve the public interest of Oregon, applying the seven criteria in the wildlife policy. ORS 496.012.

The chance that Commissioners would conspire with each other to close a hatchery to

3 4

serve their personal interests under this scenario is remote at best compared to cases where a lack

5

of safeguards opened the door to self-dealing by decisionmakers. See Corvallis Lodge No. 1411

6 7 8 9 10

v. OLCC, 67 Or App 15 (1984); see also City of Damascus, 266 Or App at 451. Thus, there are adequate safeguards to protect against arbitrary decisions to close hatcheries. As a result, Petitioners will not prevail on this claim.

4.

The Commission’s Decision Implements Oregon’s Wildlife Policy

11

The Commission has discretion in determining how to achieve Oregon’s wildlife policy

12

goals. Petitioners simply disagree with the Commissions’ determination that it is in the public

13 14 15 16

interest to close the Hatchery Program to protect wild North Umpqua summer steelhead for current and future generations of Oregonians to experience. It is not for this Court to substitute its judgment – or Petitioners’ – for the Commission’s.

The Court of Appeals rejected a similar challenge to the Commission’s authority in

17 18

Schlip v. Oregon Fish and Wildlife Comm’n, 75 Or.App. 462 (1985). The petitioners in that case

19

challenged rules related to salmon management and harvest operations because they allegedly

20

led to management decisions that “devastated” fisheries. Id. at 607. The petitioners claimed the

21 22 23 24 25

Commission exceeded its statutory authority under ORS 506.109, which provides that “[i]t is the policy of [Oregon] that food fish shall be managed to provide the optimum economic, commercial, recreational, and aesthetic benefits for present and future generations of the citizens of this state.” Id. (quoting ORS 506.109). The Court disagreed, holding that while the rules may

26

have negative effects on fisheries, the Commission was well within its authority under ORS

27

PAGE 19

28

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 2

506.109 to adopt rules to protect wild stocks and that “it is not for th[e] court to substitute its judgement – or petitioners’ – for that of the Commission’s.” Id. at 465.

The Commission was well within its authority to adopt the CMP rule and implement it

3 4

when it decided to eliminate this particular Hatchery Program. ORS 496.138, 496.012. While the

5

Commission’s decision to eliminate this Hatchery Program would have negative effects on

6 7 8 9

recreational fishing for hatchery steelhead in one river in Oregon, the Commission was well within its statutory authority to make that decision on behalf of current and future Oregonians.

Again, it is not for this Court to substitute its judgement – or Petitioners’ – for that of the

10

Commission’s. Id. Therefore, neither the CMP rule, nor the Commission’s decision under that

11

rule, exceed the Commission’s statutory authority.

12 13 14

Because Petitioners do not, and cannot, demonstrate with clear and convincing proof that they are likely to prevail on any of their claims, the Court should deny Petitioners’ Motion.

5.

15

An injunction is a remedy, not a claim for relief. Also, Petitioners provide no independent

16 17

Petitioners’ Injunction Claim Lacks Merit

basis for their injunction claim. Therefore, it lacks merit.

CONCLUSION

18 19 20 21 22 23 24 25

No equitable factor supports issuing a new injunction. The data show that no irreparable harm will occur because enough hatchery steelhead from prior releases should return through 2026 such that ODFW could pause hatchery operations through the Spring of 2026 without jeopardizing the Hatchery Program. Issuing an injunction would actually harm the public interest, because more hatchery releases would further harm a struggling population of wild summer steelhead that needs to be protected.

26 27 28

PAGE 20

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

Petitioners have nothing to lose while their second round of claims are litigated, while

1 2

Respondents and Oregon taxpayers do not have money to waste on this particular failing

3

Hatchery Program. None of Petitioners’ new claims have merit, which is likely why they did not

4

allege them 29 months ago, when they filed their action. Petitioners’ case against the

5

Commission’s decision is functionally extinct, and there is no equitable reason to jeopardize a

6 7 8

beloved wild summer steelhead population any longer. The Court should deny Petitioners’ Motion.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAGE 21

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

1 Dated this 14th day of October, 2024

2 3 4

/s/Karl G. Anuta Karl G. Anuta OSB #861423 Law Office of Karl G. Anuta, P.C. 735 SW First ave, 2nd Fl. Portland, OR 97204 T: 503-827-0320 F: 503-386-2168 KGA@lokga.net

5 6 7 8

Corey J. Oken, OSB #240290 Law Office of Karl G. Anuta, P.C. 735 SW First ave, 2nd Fl. Portland, OR 97204 T: 503-827-0320 F: 503-386-2168 corey@lokga.net

9 10 11 12

Attorneys for Amici Curiae

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAGE 22

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320

CERTIFICATE OF SERVICE

1 2

I hereby certify that on October 14, 2024, I e-filed the foregoing Amici Brief in

3

Opposition to Petitioners’ Motion for Temporary Restraining Order/Preliminary

4

Injunction with the Circuit Court of the State of Oregon for Marion County. I further certify that

5

on October 14, 2024 I served a true and correct copy of the same by email on the attorneys listed

6

below at the addresses listed below.

7

Dominic M. Carollo Nolan Smith Carollo Law Group P.O. Box 2456 Roseburg, OR 97470 dcarollo@carollolegal.com nsmith@carollolegal.com

8 9 10 11

Attorney for Petitioners

12

Tom H. Castelli Alexander C. Jones YoungWoo Joh Oregon Department of Justice 1162 Court St. NE Salem, OR 97301 Thomas.Castelli@doj.oregon.gov Alex.Jones@doj.oregon.gov YoungWoo.Joh@doj.oregon.gov Attorney for Respondents

13

/s/Karl G. Anuta Karl G. Anuta OSB #861423 Corey J. Oken, OSB #240290 Law Office of Karl G. Anuta, P.C. 735 SW First ave, 2nd Fl. Portland, OR 97204 T: 503-827-0320 F: 503-386-2168 KGA@lokga.net corey@lokga.net

14 15 16 17 18 19

Attorneys for Amici Curiae

20 21 22 23 24 25 26 27 28

PAGE 23

AMICI CURIAE BRIEF - ON MOTION FOR TRO/PI

LAW OFFICE OF KARL G. ANUTA TRIAL ATTORNEY 735 S.W. FIRST AVENUE PORTLAND, OR 97204 (503) 827-0320