Tag Archives: Washington Department of Fish and Wildlife

Lake Tahuyeh case meanders through riparian rights

UPDATE, Aug. 16, 2011
The Tahuyeh Lake Community Club appealed the Kitsap County Superior Court ruling yesterday, the same day that the judge issued her findings of fact and judgment in the matter.

Check out my story in tomorrow’s Kitsap Sun or review the judge’s findings document (PDF 968 kb).
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While I was away for a week, Kitsap County Superior Court Judge Jeanette Dalton handed down a most intricate ruling in the case called Tahuyeh Lake Community Club versus Washington Department of Fish and Wildlife.

This legal dispute has gone on for years and may not be over even now. But, through it all, I’ve learned a great deal about riparian rights to use shorelines and surface waters in Washington state.

The bottom line, if the ruling stands, is that WDFW will be allowed to build a public boat launch on Lake Tahuyeh. Officers of the community club pursued the case even after the agency withdrew its plans for a launching facility, which was given conditional approval.

Local fishing groups wish to have access to Lake Tahuyeh for recreation, while the community club maintains that the lake is private and under its exclusive control.

Judge Dalton understood the legal and societal implications of her decision:

“In bringing this lawsuit, the members of the community club seek to protect important rights to the quiet enjoyment of their private shoreside community. In defending this action, the state of Washington also seeks to defend values central to our society, those of public access to public lands.

“Fortunately, resolution of this action does not require this court to resolve the relative importance of the competing values represented by the two parties. Rather, centuries of lawmakers have weighed these values for us, and their legal mandates dictate the necessary outcome of this case.”

Judge Dalton’s ruling maneuvers logically through a maze of facts and legal benchmarks before reaching the conclusion that a single parcel of lakefront property provides legal access to the entire surface of the lake. Much of the decision hinges around the question of whether Lake Tahuyeh was actually a lake when the property was first conveyed by the federal government and later when the state acquired its small parcel of property — both long before a dam formed the lake as we know it today.

If Lake Tahuyeh was nothing more than a swamp or a man-made lake, then ownership and access would be defined by boundary lines drawn on a map and the related legal descriptions. If the lake were large and deep enough to be a “navigable” waterway, then the state would have claimed ownership to the entire lake bed.

But Dalton concluded — based on historical documents and testimony from folks who fished on the lake a half-century ago — that Lake Tahuyeh was, and is, a “nonnavigable lake.” As such, each property owner along the shoreline owns a pie-shaped piece of the lake bed to the center — unless that ownership is conveyed to someone else. In this case, the community club acquired ownership of most of the lake bed, but the state retained its ownership, Dalton concluded.

Whether the state has riparian rights to use the lake depends not only on whether Lake Tahuyeh was actually a lake, but also whether those rights were conveyed during successive ownerships of the property.

Jean Bulette, president of Tahuyeh Lake Community Club, has told me several times and argued in a Kitsap Sun op-ed piece in March 2010 that the lake bed and its riparian rights were granted to predecessors of the club and can never be taken away.

Judge Dalton agreed that the original owners obtained title to the lakebed when the federal patent conveyed ownership, but she also gave weight to the original federal survey of the site, which included a “meander line” to note the approximate edge of the water:

“There is some authority for the proposition that a lot is conclusively riparian if it bounders a ‘meander line,’ at least in the absence of evidence showing that the lot was meant to run only to the meander line and not to the actual edge of the watercourse.”

What is the evidence that the original owners meant to pass on riparian rights — lake access — to the state in 1939, when the state took ownership of the parcel?

“The court finds that the parties likely were contemplating public access to Lake Tahuyeh by the conveyance to the department. It was a historic aberration for a grant of land to be only 200 feet wide and run between a known access road and a lake, at least where other acquisitions of property during those early decades were much larger parcels of land. The mere dimensions of the department’s lot suggest — and probably require — the conclusion that the lot was intended for water access….

“Other factors lead the court to this conclusion, includ(ing) that the consideration for the transfer of the property was apparently not money, but rather the department’s agreement to allow the grantor to control the level of Tahuyeh Lake and to allow removal and harvest of the sphagnum moss.

“If the transfer was not intended to run into the lake at all, then raising or lowering the level of the lake would have had no consequences to the state. The fact that such an agreement was specifically negotiated as consideration for the deed indicates to this court that the grantor intended to convey, and did convey, the bed of the lake under the water as well as the upland parcel to the road.

“The court therefore determines that the lot conveyed to the department included riparian rights to Tahuyeh Lake, which the lot abutted.”

While a riparian owner has rights that extend to the entire surface of the lake, Judge Dalton pointed out that such rights must “not interfere unreasonably with the riparian rights of other owners.”

Dalton said she does not minimize the potential effects that her ruling could have on the “solitude currently enjoyed by members of the community club.” Still, the facts in this case do not address the extent to which public use might interfere with the recreational rights of community club members. That, Dalton said, could be the subject of future legal action.

Further information:

Judge Jeanette Dalton’s ruling

Steve Gardner’s Kitsap Sun story

Christopher Dunagan’s preview of Lake Tahuyeh case

Predicting salmon runs — and reporting the issues

Before salmon managers begin to focus on harvest quotas and seasons for salmon fishing, they must work out predictions about the number of salmon coming back to each management area throughout the Northwest.

Those are the numbers released this week during the annual kickoff meeting for the North of Falcon process held in Olympia. Check out my story in yesterday’s Kitsap Sun.

So how do the managers go about predicting this year’s salmon runs? It gets pretty technical, but it is basically a combination of counting the number of salmon smolts that leave selected streams and then calculating a rate of survival to determine the number of adults that will come back.

Mara Zimmerman
WDFW photo

Numerous conditions affect whether eggs and fry will survive to smolt stage and make it out of a stream, just as many factors can cause the death of the young fish after they leave freshwater. I’m tempted to describe these factors here, but instead will defer to Mara Zimmerman, who heads the Wild Salmonid Production Evaluation Unit. Her well-written report on the “2011 Wild Coho Forecasts…” (PDF 376 kb) provides an excellent education into how coho are estimated. Check it out.

I was one of three newspaper reporters who attended Tuesday’s meeting in Olympia. It was easy to tell the difference between my handling of this story and the approaches by Jeffrey P. Mayor, who writes for the Olympian and the News Tribune in South Puget Sound, and Allen Thomas, who writes for the Columbian in Vancouver (Clark County).

The biggest difference is that those guys are sports or outdoor reporters, mainly interesting in telling their readers what fishing will be like this year. As an environmental reporter, my primary focus is to describe how the salmon are doing ecologically — although I do recognize that many readers of my stories are anglers who also want to know about fishing.

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Talks begin on salmon seasons, with orcas nearby

The annual North of Falcon process is about to get under way again, beginning with a public meeting in Olympia on Tuesday. During Tuesday’s meeting, state, federal and tribal managers are expected to outline their preseason forecasts of abundance for each salmon species. See meeting announcement in the Kitsap Sun and on the North of Falcon website.

Chinook salmon are the primary prey for Puget Sound's killer whales. Here, J-40 grabs a fish off False Bay, San Juan Island
Photo by Astrid Van Ginneken, Center for Whale Research.

This year, there will be a new elephant in the room … actually, something as large as an elephant — a killer whale. But more about that in a moment.

The process of determining how many salmon of each species are available for harvest and how to divide up the catch has become a complex project involving commuter simulations, policy discussions and demands from fishing constituents. The goal is to make abundant stocks of salmon available for harvest while protecting “weak runs” — particularly those listed under the Endangered Species Act.

Sure, the process has its flaws, but I have not heard of any better ideas for protecting weak runs outside of stopping all fishing for a period of time. So far this year, I haven’t had time to get a head start on what salmon managers are thinking, but I’ll be following the discussions as they move along.

I’ve been thinking about the comments people sometimes post on this blog, blaming all the salmon problems on commercial fishing, tribal fishing or the locations of fishing nets. Because such comments are often based on a lack of knowledge, I was wondering if such folks ever consider attending these meetings to find out how fishing decisions are made. The meetings, which are open to the public, begin with general discussions and get more technically oriented right up to the point when final decisions are made in mid-April.

While the fishing issues are complex by themselves, it is becoming clear that anglers and tribal fishermen may soon need to share their chinook salmon — a highly prized sport and table fish — with another species, the Southern Resident killer whale, an endangered species.

In a letter to salmon managers (PDF 1.5 mb), Will Stelle, regional administrator for the National Marine Fisheries Service, announced that he would convene a series of workshops to study the relationship between chinook fishing and the survival of the Puget Sound orcas:

“The basic question NMFS must answer is whether Chinook salmon fisheries that affect the abundance of prey available to the killer whales are significantly and negatively affecting the well-being of the Southern Resident population and, if so, how those negative effects might be reduced.

“At the conclusion of the scientific workshop process, NMFS and others will be better able to determine what recovery actions are appropriate and, more specifically, whether and under what conditions additional constraints on salmon fishing may be necessary.”

As recently as 2008, the federal agency concluded that fishing at the levels allowed through the North of Falcon process had no serious effects on the whales. But, according to Stelle, more recent analyses may show otherwise:

“Our conclusions, which are preliminary at this point, strongly suggest that the amount of Chinook available to the whales in comparison to their metabolic requirements is less than what we estimated in the 2008 consultation, particularly during those summer months when the whales spend considerable time foraging in the Salish Sea.

“This change results from several factors, including but not limited to revised estimates of the metabolic requirements of the whales, their selective preference for larger Chinook salmon, and inclusion of a broader range of years to represent expected variations in the abundance of Chinook salmon available to the whales.”

While allocations for killer whales may not be explicit this year, the workshops could result in reduced harvest under the next Puget Sound Chinook Management Plan. For a more detailed discussion of the early analysis, download “Effects of Fisheries on Killer Whales” (PDF 345 kb).

For an outline of the proposed discussions, go to “A Scientific Workshop Process to Evaluate Effects of Salmon Fisheries on Southern Resident Killer Whales (PDF 21 kb).

To read a news story on the topic, reporter Craig Welch touched on the issue in the Feb. 11 edition of the Seattle Times.

Oyster rescue planned at Scenic Beach State Park

State shellfish biologists are organizing a volunteer work party to rescue oysters that apparently were washed up high on the beach at Scenic Beach State Park by a Navy ship.

The guided-missile cruiser USS Port Royal operates off the coast of Hawaii during Rim of the Pacific (RIMPAC) in 2008.
U.S. Navy photo

The USS Port Royal, a 567-foot guided-missile cruiser, was operating in the Navy’s Dabob Bay testing range on Thursday, and the oysters were found high up on the private beaches across Hood Canal the next morning.

Camille Speck, a shellfish biologist with the Washington Department of Fish and Wildlife, inspected the waterfront at Scenic Beach State Park on Tuesday. She told me that she was surprised at how far some of the oysters had been moved:

“I have never seen a scour line that high on the beach. The oysters are alive, but I can tell they have been thrown around a little bit.”

Frankly, I have never heard of this kind of damage from any ship, and I don’t blame readers for being skeptical. But there seems to be no question that the oysters were washed up on the beach, that the Navy ship was in the vicinity about that time, and that a ship of this size is capable of producing a huge wake. It’s called circumstantial evidence, at least until I find someone who actually saw something happening.

Here are the stories I’ve written on the subject so far:

Ship’s Wake Prompts Oysters to Wash Up on Shore Near Seabeck (Aug. 13)

Residents Assessing Oyster Damage From Ship’s Wake (Aug. 16)

Volunteers Sought for Oyster Rescue Effort in Seabeck (Aug. 18)

Several years ago, residents living along Rich Passage between South Kitsap and Bainbridge Island complained that the wake of high-speed passenger-only ferries were washing away the gravel and undercutting their concrete and rock bulkheads. Washington State Ferries was ultimately forced to pull the ferries out of service. Local officials are still hoping they can find a ferry that can make it from Bremerton to Seattle in about half an hour without creating wake damage.

I’ve also heard complaints from shoreline property owners about wakes from huge freighters. Such comments have come up during discussions about revised shoreline regulations that could become part of Kitsap County’s Shorelines Master Program. Some folks who live on the east side of the Kitsap Peninsula say wakes from these massive cargo ships cause more damage to habitat than anything a shoreline owner might do.

If true, it may be time to address the wake issue, beginning with studies of actual damage caused when the ships come through. Do we need government intervention? I can’t say, but rules to control wakes could be problematic, because the movement of ships is mostly controlled by the federal government.

Industry dollars will operate McKernan Hatchery

Last week, I reported that the Purse Seine Vessel Owners Association has come forward with $158,000 a year to maintain the operation of the McKernan Hatchery near Shelton.

The hatchery, which produces 40 percent of the chum salmon in Hood Canal, was scheduled to close July 1 unless a private entity stepped up to run it. Three groups offered proposals, and the arrangement will allow state hatchery workers to keep doing their regular jobs. See my story in Friday’s Kitsap Sun for details.

Two questions came up in comments at the bottom of the story: Why doesn’t the state rear coho, chinook or other more valuable fish at McKernan? And why does the state continue to allow these kinds of production hatcheries to continue, considering impacts on wild salmon?
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Let’s clear up some confusion about the smelt listing

When the National Oceanic and Atmospheric Administration announced its listing of Pacific smelt as “threatened” yesterday, I posted a link to the press release under “Water, Water Everywhere: Government Actions” at the top of this page. That’s also where I posted a rapid response from the Washington Department of Fish and Wildlife.

Since we don’t really have Pacific smelt on the Kitsap Peninsula, where I do my local reporting, I decided against writing any more about it.

But today I’m getting the feeling that more than a few people in the Puget Sound region are confused about the potential impacts of this listing. They want to know whether they can still catch some smelt in Hood Canal, along Port Orchard’s Ross Point and in other favorite spawning areas for our local surf smelt — not the listed Pacific smelt.

Let me direct you back to a Water Ways entry I posted one year ago today, after NOAA proposed the listing. In that blog entry, I admitted my own initial confusion between the two kinds of “smelt.”

If you would like a little more information about yesterday’s announcement, I direct you to Associated Press reporter Jeff Barnard’s story.

Some leftovers from Tuesday’s salmon session

Washington state’s salmon managers provided so much interesting information on Tuesday that I could not fit it all into my story in yesterday’s Kitsap Sun.

Pat Pattillo, salmon policy coordinator for the Washington Department of Fish and Wildlife, deserves recognition for his patience with me and the numerous sport and commercial fishers who ask him questions. He and WDFW Director Phil Anderson are two of the most mild-mannered guys you will ever know, and yet they manage to work through tough salmon negotiations year after year.

Let me recount some of the issues expected to come up over the next few weeks, with a focus on things not covered in my story.
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McKernan Hatchery could be operated privately

The McKernan Hatchery on Weaver Creek, a tributary of the Skokomish River, is considered an important operation by commercial chum salmon fishers and by steelhead anglers, who benefit from the fish produced there.

It is not one of the Hood Canal hatcheries we’ve often talked about that are focused on rebuilding wild salmon runs. Still, the hatchery is being operated to minimize impacts on wild salmon, as outlined in the Hatchery and Genetic Management Plan (PDF 188 kb).

Because of state budget cutbacks, McKernan was one of the salmon- and trout-rearing facilities placed on the chopping block earlier this year by the Legislature. See the story I wrote for today’s Kitsap Sun.

State Rep. Fred Finn, D-Olympia, and other legislators believe that private organizations should be given the opportunity to operate the hatchery. Perhaps revenues from the sale of eggs and salmon returning to the hatchery could help to keep the operation going, he said in a news release.

Hood Canal Salmon Enhancement Group, which got its start in salmon production, is one group taking a close look at the financial end of the operation.

In the next couple of months, we’ll see how things pan out under the guidance of the Washington Department of Fish and Wildlife. Otherwise, the hatchery is scheduled for closure at the end of June.

New ‘cabinet’ may redraw regional boundaries

I’ve always wondered why our natural resource agencies have such widely varying regional boundaries. If anyone knows the history of these various regions, please let me know.

Gov. Chris Gregoire yesterday announced a reorganization of the state’s natural resource agencies. While consolidation of entire agencies was taken off the table, plans are moving forward to consolidate the regions and possibly regional offices of multiple agencies. See my story in today’s Kitsap Sun.

We’ll talk more about the new Natural Resources Cabinet and other elements of the reorganization in the future. For now, take a look at the regional boundaries for our three major resource agencies:

Department of Ecology: Kitsap County is in the Northwest Region, along with King, Snohomish, Skagit, Whatcom, Island and San Juan counties. The regional office is located in Bellevue.

Department of Fish and Wildlife: Kitsap County is in Region 6, along with Pierce, Thurston, Mason, Jefferson, Clallam, Grays Harbor and Pacific counties. The regional headquarters is in Montesano, on the way to the Pacific Ocean.

Department of Natural Resources: Kitsap County is in the South Puget Sound Region, along with King, Pierce and Mason counties and portions of Snohomish and Lewis counties. The headquarters is in Enumclaw, northwest of Mount Rainier.

It won’t be as easy as one might think to fight tradition and create a new uniform set of regions for all three agencies. But times have changed, and these particular regions may not work as well as when they were originally set up. I’m fairly certain that agency heads will start with agreed principles for setting the boundaries, considering population, travel time, ecological functions and other things.

Should they be divided along county lines, as most are now, or maybe along watersheds or so-called “eco-regions”?

I like the idea of creating regional headquarters in the same place for all agencies, so that various staffs could work in concert. Because of the cost of construction, the agencies might not be housed in the same buildings at first, but putting regional staffers in the same town or city would be a good start.

Prison inmates grow giant frogs to be released

As part of an effort to rebuild Northwest populations of endangered frogs — specifically Oregon spotted frogs — two inmates at Cedar Creek Corrections Center near Olympia were given 80 frog eggs with the goal of growing them into adult frogs.

<em>Oregon spotted frog</em><br><small> Photo courtesy of Washington Department of Fish and Wildlife</small>
Oregon spotted frog// Photo courtesy of Washington Department of Fish and Wildlife

The two — Harry Greer and Al Delp — not only took the job seriously, their frogs grew larger and with a higher survival rate than identical frogs grown by experts at Woodland Park Zoo and Oregon Zoo.

Sarah Waller, a reporter for KUOW News, tells the story well, and I encourage you to listen to her report. Other accounts are provided in a news release from the Washington Department of Fish and Wildlife and in a newspaper story by Jennifer Sullivan of the Seattle Times.

What Sarah Waller does not tell us is why the inmates were able to grow larger frogs, so I contacted Marc Hayes, project leader for the Washington Department of Fish and Wildlife.
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