A Pacific Rim approach to salmon management: redefining the role of Pacific salmon international consensus.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  PACIFIC SALMON ECOLOGY
     A.  The Ocean Phase
     B.  The Freshwater Phase
     C.  Technological Influence--Hatcheries
III. THE PACIFIC SALMON AGREEMENTS--HARVEST MANAGEMENT
     A.  The Convention for the Conservation of Anadromous Stocks in the
         North Pacific Ocean
     B.  The Pacific Salmon Treaty
     C.  Russia-Japan Fisheries Agreements
     D.  Limitations of Harvest Regimes
IV.  INTERNATIONAL APPROACHES TO WILDLIFE PROTECTION
     A.  The Convention on the Conservation of Migratory Species of
         Wild Animals
     B.  The Convention on Biological Diversity
     C.  The International Union for the Conservation of Nature and
         Natural Resources
V.   THE MIGRATORY BIRD TREATIES AND THE NORTH AMERICAN WATERFOWL
     MANAGEMENT PLAN
VI.  A PACIFIC SALMON CONSERVATION TREATY
     A.  Institutional Structure
     B.  Coverage Across the Entire Life History
     C.  Protected Areas
VII. CONCLUSION

I. INTRODUCTION

Pacific salmon (1) traverse several distinct ecosystems and international, national, state/provincial, and tribal jurisdictions during their life span. Currently, conflicting jurisdictional interests create a patchwork of conservation efforts and generate enormous costs to coordinate these efforts. (2) Successes during a particular life stage are often undermined by negative impacts at another stage. (3) Despite several international agreements pertaining to Pacific salmon management and allocation, populations continue to decline and some evolutionary significant units (ESUs) (4) face almost certain extinction. (5)

Attempts to garner international consensus on Pacific salmon management in the past have resulted in harvest-centered agreements with limited jurisdictional scopes. (6) Salmon encounter limiting factors within each life phase; however, international agreements have focused on a single limiting element--harvest. (7) These limiting factors within the ocean, estuary, and freshwater systems interrelate each year to determine the abundance of Pacific salmon. (8) Agreements that do not cover the species' entire range fail to account for the essential linking of diverse habitats used during a Pacific salmon's life span, each necessary to sustain healthy, productive populations. (9)

Furthermore, the current Pacific salmon agreements almost completely ignore the vital role of spawning and rearing habitat. By failing to implement binding freshwater habitat conservation principles, harvest regimes under existing agreements provide only limited protection for Pacific salmon. (10) Habitat protection for Pacific salmon generally does not occur until the species becomes threatened or endangered. (11) This reactive approach to salmon protection results in costly attempts to restore what are often no longer self-sustaining salmon populations with severe impacts already firmly in place. (12)

While billions of dollars are spent on restoration efforts for those Pacific salmon populations on the brink of extinction, healthy stocks often remain unprotected. (13) Although it is necessary to address these imperiled populations, such a narrow allocation of funding allows for the continued degradation of more successful, self-sustaining populations. Traditionally, wildlife restoration has focused on healthy populations as sources for reestablishing the species. (14) Consequently, protected high-quality habitat sustains the production and genetic diversity of the species. (15) Despite more than a century of demands for a similar strategy for Pacific salmon, not a single highly productive Pacific salmon watershed is protected as a reserve. (16)

The Convention on the Conservation of Migratory Species of Wild Animals (CMS), (17) the Convention on Biological Diversity, (18) and the International Union for the Conservation of Nature and Natural Resources (IUCN) (19) address the essential role of protected areas for wildlife conservation. Similarly, management in accordance with the series of migratory bird treaties developed over the last century provides a mechanism for the protection of productive habitat necessary to sustain the covered species. For example, the North American Waterfowl Management Plan (NAWMP) has conserved more than five million acres of wetlands ecosystems funded largely by private interests. (20) While most migratory bird populations continue to decline, waterfowl have rebounded dramatically as a result of this plan. (21)

Future strategies for the conservation of Pacific salmon must incorporate lessons from these successful transboundary wildlife protection efforts. Addressing the needs of Pacific salmon across their entire anadromous life history, encompassing ocean, estuary, and freshwater habitats, and the impacts associated with each, requires comprehensive planning in the future. The Pacific salmon origin nations must reevaluate existing Pacific salmon management regimes in the context of each life stage and develop new or supplemental agreements to address the following clear deficiencies: limited jurisdictional boundaries, a lack of coverage and genetic consideration, and the absence of protected areas. (22) By developing a Pacific salmon conservation agreement, international Pacific salmon management will adhere to sound conservation science as parties agree to ecological principles that will guide Pacific salmon protection from the tiniest watersheds to the vast ocean and back again. In turn, the origin nations can develop national management plans in accord with these mutually agreed-upon priorities and practices. For example, if plans were to encourage joint ventures between all stakeholders--such as commercial fishers, national and local governments, and conservation organizations--in order to conserve highly productive habitat, self-sustaining Pacific salmon populations could receive proactive protection, making expensive restoration efforts unnecessary. Furthermore, national, state/provincial, tribal, and private efforts to protect salmon would all exist under a single guiding ecological ethic. (23) Under this "shared vision," the Pacific salmon nations could undertake a truly long-term, proactive approach to Pacific salmon conservation. (24)

Part II of this Comment discusses the unique anadromous life history of Pacific salmon. Part III analyzes the harvest-based international agreements pertaining to Pacific salmon and their limitations resulting from the fragmentation of the salmon life history and lack of biodiversity principles. Part IV explores existing international agreements and institutions that could form the basis and provide the expertise for a comprehensive Pacific Rim salmon conservation program. Part V examines the applicability of techniques used to implement migratory bird treaties, including continental management plans, production areas, and joint ventures. Part VI discusses the priorities and implementation of a new Pacific salmon conservation agreement. Finally, Part VII concludes that a comprehensive Pacific Rim agreement offers the best chance of sustaining healthy--and restoring imperiled--Pacific salmon populations.

II. PACIFIC SALMON ECOLOGY

Anadromous fish, such as Pacific salmon, display a generalized life history that begins when the fish hatch from eggs in freshwater, continues with the salmon's migration to the ocean to feed and mature, and concludes with a return to the freshwater to spawn. (25) However, within this generalized life history, Pacific salmon display an enormous degree of variability. (26) For example, the life history traits of migration age and timing or spawning habitat preference vary significantly within and between each species. (27) The unique life history characteristics of locally adapted Pacific salmon populations--for example, homing behavior--are genetically derived and fundamental to the long-term recovery and sustainability of the species. (28) Maintaining a vast array of Pacific salmon genetic expressions, as exhibited by diverse life histories, allows the species "to cope with environmental variation that is typical of freshwater and marine environments." (29) By analyzing environmental impacts and variation of the ocean and freshwater system, managers can more effectively account for uncertainty with the predictable human influences on salmon diversity and productivity. (30)

A. The Ocean Phase

The importance of the ocean ecosystem to Pacific salmon development is often difficult to grasp because of the spatial enormity and constant variation of conditions within the system. (31) However, Pacific salmon management decisions that neglect the significant influence of the ocean ecosystem on salmon abundance can result in false assumptions or expectations. (32) Nearly all of Pacific salmon growth occurs in the coastal and open waters of the North Pacific and the Bering Sea. (33) The ocean ecosystem is also where high Pacific salmon mortality takes place. (34) Considering its vital role in the continued production of salmon stocks, the ocean ecosystem has received little attention in the management of Pacific salmon beyond harvest regimes. Generally, the lack of ocean research is attributed to the inability of humans to manage the variable ocean system. (35) However, this narrow consideration fails to account for the substantial human impacts on the ocean and closely associated estuary system "through global warming, introduction of exotic species, deposition of pollutants, and physical alteration of habitats through manipulation of riverine inputs, dredging and bottom fishing." (36)

Survival within the ocean system is highly related to the specific species' life history characteristics. (37) The "critical period" of mortality appears at the time of emergence from the river system into the ocean system. (38) Thus, "a longer freshwater residence generally results in higher freshwater mortality and lower ocean mortality because fish are larger when they enter the ocean and survival at sea is assumed to be directly related to size." (39) To illustrate the extent of size variation, pink and chum salmon generally spend a few days to weeks in the freshwater system, while coho salmon generally spend at least a year. (40)

The different survival rates, relative to size upon emergence, result from several ecological interactions occurring within the ocean ecosystem. Predation on emerging salmon appears to result in a selective pressure for large size upon entry. (41) This links survival during the ocean entry phase with the growth experienced during the freshwater phase. (42) The abundance of Pacific salmon predators also influences salmon survival because predation "appears to be the primary mechanism causing mortality during this life stage." (43) As a result, wildlife management decisions "may have indirectly affected salmon by creating legislation that protects species (endangered birds and marine mammals) that prey on salmon to the point that many of those species have reached historically high abundances." (44)

Because "food is the most limiting resource in the marine environment," (45) density-dependent (46) interactions also affect ocean salmon mortality. Thus, studies suggest that growth and survival decrease when salmon densities increase. (47) In addition, the increased competition associated with increased densities appears to occur within the oceans adjacent to the natal streams, suggesting that density-induced competition primarily occurs upon emergence and return to natal streams by salmon from the same region. (48) The release of hatchery-reared fish exacerbates the effects of density-induced competition by increasing the density of emerging and returning Pacific salmon.

Furthermore, the density-dependent relationship associated with Pacific salmon suggests that the ocean ecosystem has a limited carrying capacity. (49) This carrying capacity now must support the development of wild fish and hatchery-released fish. If hatchery-reared salmon have grown more or are more prevalent prior to ocean emergence than the wild fish, they may have a competitive advantage in acquiring limited food. (50) This result leads to the further decline of self-sustaining wild Pacific salmon.

An evaluation of Pacific salmon density-dependent competition and the ocean's carrying capacity inevitably leads to a consideration of changing ocean productivity. "The ocean's carrying capacity for anadromous salmonids is dynamic in time and space." (51) The conditions within the ocean system vary "seasonally, from year to year, over decadal time scales, and across broad regions of the North Pacific Ocean." (52) For example, in the 1970s favorable ocean conditions may have led to a 200 to 300 percent increase in marine survival for chum and pink salmon. (53) This variation indicates the uncertainty associated with long-term climatic changes and human-induced global warming.

Actual management of salmon within the ocean ecosystem is difficult because of the highly migratory nature of Pacific salmon and the variable conditions within the system. Harvest allocation and restriction has been the principle management mechanism for the Pacific salmon's ocean stage. Yet, as discussed above, several ecological interactions must be taken into account when determining abundance. By eliminating much of the ocean ecosystem from the scope of management decisions, managers operate with a limited understanding of the diverse influences affecting Pacific salmon abundance. This limitation often results in misguided decision making and over time may decrease the long-term viability of self-sustaining stocks.

B. The Freshwater Phase

Impacts on the freshwater ecosystem have been the primary focus of salmonid management. (54) This system plays a vital role in sustaining Pacific salmon populations during the early and late phases of theft life history. At the same time, Pacific salmon substantially influence the functioning of the freshwater system and the linked terrestrial system. (55) For example, salmon may provide the primary food source for large mammals, such as grizzly bears, that allows them to build fat reserves for over-wintering hibernation. (56) In addition, Pacific salmon bring an enormous amount of marine-derived nutrients into the freshwater system. (57) "Variation in anadromous fish populations can have major effects on the productivity, phenology, and metapopulation dynamics of wildlife and hence on regional biodiversity." (58)

Salmon use the freshwater system for rearing and spawning. Adult Pacific salmon return to their natal streams following the ocean growth period by using the river systems as corridors to spawning areas. (59) Migrating salmon can encounter obstacles, such as river debris or hydropower dams, that block passage to the spawning grounds. (60) Furthermore, Pacific salmon require suitable in-stream flows throughout this time to facilitate passage and ensure ample habitat for spawners and juveniles rearing in the freshwater system. (61) Low flows can increase competition by restricting the salmon to a small number of pools. (62) Low flows also can affect stream temperature. At higher stream temperatures, growth declines and "the incidence and virulence of many salmonid diseases increases." (63) For example, in the Willamette and Umpqua river valleys of Oregon, water withdrawals for irrigation and municipal purposes coupled with the removal of streamside vegetation often result in stream temperatures above critical levels for salmonids. (64)

Salmon spawn in gravel by digging small nests, known as redds. Preferences for gravel size, location, and water conditions, such as temperature, vary among and within the species. (65) During incubation, eggs require permeating water to supply oxygen and carry away waste products. (66) Increased sediment--from flooding on deforested slopes, for example--can reduce the interstitial spaces within each redd, hindering water permeation, and thus decreasing survival. (67) High flows can also lead to decreased redd production, as all or part of the redd may be swept downstream. (68)

Upon emergence, salmon fry vary in their use of the freshwater system. In general, pink, chum, and sockeye salmon migrate to the saltwater system shortly after emergence. (69) Chinook remain for several months to a year, while coho function within the freshwater system for at least year. (70) During this freshwater phase, salmon remain in slow-flowing areas, such as small eddies along the stream margins, which facilitate access to drifting food and offer protection from predation. (71) As the salmon fry grow, they begin to stake territories away from the channel margins in areas where food is more abundant and larger. (72) Stream areas with features, such as large woody debris that protect salmon from predators, often provide the focus of the territory. (73)

Salmon migrate downstream to the estuary to initiate the smoltification process by which the fish undergo "physiological, biochemical, morphological, and behavioral changes" that enable them to survive and flourish within the marine environments. (74) This life stage and the ocean system discussed above have been called the "'black boxes' into which salmon juveniles enter and from which some small but variable percentage later return as adults." (75) Long-term restoration and sustainability of Pacific salmon populations requires integrating research on freshwater, estuary, and ocean systems.

C. Technological Influence--Hatcheries

The primary management tool for Pacific salmon over the last century has been the use of artificial propagation through hatchery programs. This technological fix to the problems of habitat degradation and blockage in the freshwater system and over-harvesting in the ocean system directly affected the ecology of wild Pacific salmon. Initially, managers tried to "gain control over the production of salmon and maintain a supply of fish for the salmon industry." (76) Hatcheries were viewed as an alternative to conservation. (77) Managers assumed that natural reproduction was inefficient and subject to uncontrolled mortality, and that hatcheries would result in "fish so abundant that they can be caught without restriction." (78)

Slowly, many assumptions failed as managers realized they had "relied too exclusively upon artificial propagation as a sole and adequate means for maintenance of our fisheries." (79) Nonetheless, hatcheries remained the focus of Pacific salmon management for decades, as they appeared to contribute to the fishery. (80) However, evaluations of hatcheries tended to focus on whether harvest rates were sustainable or increasing, thereby indicating that hatcheries generated economic value, rather than examining the effects of hatchery fish on wild populations or biological diversity. (81) In many cases, increased harvest rates, believed to be the result of Pacific salmon propagation, were actually caused by favorable ocean condition. (82)

Before the 1990s, few studies examined the relationship between hatchery and natural populations. (83) Unfortunately, the 1990s studies have revealed several detrimental effects of hatchery programs on natural populations. Introductions of non-locally adapted populations to the watershed have degraded the unique local adaptations of salmon populations, (84) Furthermore, released hatchery fish can interbreed with natural fish, thereby reducing the genetic variation within the wild population, (85) This interbreeding reduces the fitness of wild population because of the degradation of genes that evolved for performance in a specific watershed. (86) "The artificial selection process in hatcheries favors domestic as opposed to wild traits. Subsequent inbreeding with wild stocks can quickly undo thousands of years of natural selection and lead to loss of local stocks." (87) Basically, this process selects for salmon more suited to the hatchery setting; for example, hatchery salmon learn to surface to feed on food dispersed from above, yet this behavior in a natural setting increases the risk of predation.

Also, the release of hatchery salmon may lead to the decline of wild Pacific salmon populations through several competitive interactions. Salmon fry released into the freshwater system can have a competitive advantage over natural system reared species because the artificially reared fry may be larger at release or simply older because of timing alterations by the hatchery. (88) Again, this competitive interaction continues into the ocean system, where emergence size is a factor in overall mortality. (89) Essentially, released hatchery salmon, larger upon entering the ocean system, out-compete the naturally spawned fish or are less likely to suffer predation. Also, the release of hatchery fish skews the perceived abundance available to the commercial fishery. (90) Although harvest seemingly may be at a consistent level, the actual salmon harvested often shifts from natural to hatchery-produced salmon. (91)

The detrimental impacts of hatchery-released salmon on endangered stocks may be further exacerbated in the United States by the recent Alsea Valley Alliance v. Evans (92) decision. The U.S. District Court for the District of Oregon ruled that the National Marine Fisheries Service (NMFS) improperly distinguished between hatchery and naturally spawned salmon in its listing decisions under the Endangered Species Act (ESA). (93) NMFS included hatchery spawned salmon within the Oregon coast coho ESU, (94) yet declined to list as threatened the hatchery fish in the final listing decision because the hatchery fish were not deemed "essential to recovery." (95) Because NMFS included hatchery fish as part of the Oregon coast coho ESU, which defines a distinct population statement (DPS) under the Endangered Species Act, and because the Endangered Species Act does not permit the listing of species at a scale below a DPS, the court concluded that the decision to exclude hatchery fish from the listing decision was arbitrary and capricious and therefore unlawful. (96) "Once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU." (97) As a result, NMFS now is reviewing twenty-five Endangered Species Act listings for Pacific salmon. (98) NMFS also is rewriting the entire hatchery policy to be consistent with the Alsea Valley decision. (99) The likely result of this process is that the ESA will not protect imperiled stocks from the negative effects of hatchery salmon.

Given the problems associated with hatchery programs, experts often advocate more naturally responsive supplementation programs. (100) Supplementation refers to the "[p]lanting [of] all life stages of hatchery fish to enhance wild/natural stocks of anadromous salmonids." (101) Essentially, supplementation allows for the released salmon to encounter the selective processes encountered by their natural counterparts, yet benefit from the high survival rate of young fish within the hatchery setting. (102) Unfortunately, reviews of supplementation programs have been mixed, and "successes at rebuilding self-sustaining runs with hatchery fish are scarce." (103) Furthermore, in streams with only natural self-sustaining runs, supplementation techniques should not be used because they can have detrimental effects on the wild population. (104) For these wild populations, harvest and habitat management offer the best approach to enhancement. (105)

Long-term solutions to Pacific salmon declines will require reevaluating and reducing the role of hatchery programs. (106) Hatchery programs "need to be coordinated into an integrated recovery and management plan," as a unified approach to salmon restoration is formulated. (107) The more appropriate role for hatcheries is on a temporary, small scale to assist imperiled stocks during the restoration of habitat. (108) No longer can salmon management decisions rely on such "techno-arrogance" for manufactured solutions to mitigate the diverse pressures and impacts encountered by Pacific salmon. (109)

III. THE PACIFIC SALMON AGREEMENTS--HARVEST MANAGEMENT

Agreements addressing Pacific salmon have taken the form of harvest-based agreements exclusively. The Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, bilateral agreements between the United States and Canada, and bilateral agreements between Russia and Japan address specific problems associated with Pacific salmon within the ocean system. (110) The high-seas agreement and the agreements between Russia and Japan primarily responded to the burden placed on state-origin fish by Japan's high seas fishery. (111) In addition, the bilateral agreements attempted to ensure equitable coastal catches for origin nations. However, given the diverse influences affecting salmonid abundance, these agreements to restrict harvest failed to account sufficiently for the unique life history and ecological interactions of Pacific salmon.

A. The Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean

Mainly in response to the harvest pressures of Japan's salmon fishery, (112) the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (Anadromous Stocks Convention) was signed on February 11, 1992. (113) Canada, Japan, Russia, and the United States reached this agreement following heightened agitation over the interception of national origin fish on the high seas. (114) Prior to the signing, Japan enjoyed a limited harvest of intercepted salmon on the high seas. (115) Japan entered into the agreement partially because of Russia's assurance that Japan would continue to have access to the salmon fishery within Russia's 200-mile exclusive economic zone (EEZ). (116)

The Anadromous Stocks Convention prohibits all salmon-directed fishing within the convention area, which includes only the high seas beyond each party's 200-mile EEZ. (117) The convention also calls on all commercial fisheries to minimize the incidental taking of anadromous stocks. (118) Furthermore, the Anadromous Stocks Convention fosters cooperation in enforcement and scientific research. (119)

As the most inclusive agreement pertaining to Pacific salmon, (120) the convention recognizes that collaboration is necessary given the unique life history of Pacific salmon. (121) Each nation "shall cooperate in the conduct of scientific research in the North Pacific ... for the purpose of the conservation of anadromous stocks including, as appropriate, scientific research on other ecologically related species." (122) In this language, not only is there an acknowledgement that scientific collaboration assists all parties, but also an understanding that research into the greater ecological interactions that influence salmonid abundance benefits all Pacific Rim nations. Because the Anadromous Stocks Convention includes the primary Pacific salmon origin nations, it signifies that the countries are able to work collaboratively in salmon management. (123) Because the treaty effectively prohibits salmon-directed fishing on the high seas, the agreement could be viewed as a success if enforced; however, as discussed below, allocation disputes among the parties continue.

B. The Pacific Salmon Treaty

Although the Anadromous Fish Convention effectively restricts salmon-directed fishing on the high seas, the treaty does not address disputes arising between nations intercepting one another's origin salmon within the exclusive economic zone of the nation where the salmon's natal stream is located. To address the problem of inequitable allocation, Pacific salmon management has taken on the form of bilateral agreements between intercepting nations. (124) Essentially, these agreements attempt to respond to the transboundary migration of the anadromous species because salmon migrating to natal rivers in one jurisdiction can be intercepted by another jurisdiction's fishery. (125) These agreements are difficult to negotiate because the parties must consider more than just the harvestable salmon--the parties also must consider foregoing development to maintain salmon habitat. (126) Furthermore, the agreements also must consider the economic benefit of fish caught. (127) Similar to the Anadromous Stocks Convention, the regulatory mechanism within the coastal ocean has been harvest-centered. Essentially, these bilateral agreements attempt to allocate the harvest equitably among the Pacific Rim nations.

The United States and Canada have a long and contentious relationship pertaining to Pacific salmon. In 1937, the Fraser River Convention was ratified, creating the International Pacific Salmon Fisheries Commission to restore Fraser River sockeye populations and equally divide the catch. (128) However, the narrow approach of the Fraser River Convention, addressing only sockeye and pink salmon, proved inadequate to address the overall dispute over salmon interceptions. (129) Over time, the northerly migratory shift of the Fraser runs, which led to increased Canadian harvest outside of convention waters and increased harvesting of the Pacific Northwest salmon runs by Alaskan and Canadian fishers off the west coast of Vancouver Island, elucidated the need for a more comprehensive agreement. (130)

In 1971, negotiations began on a salmon interception agreement. (131) Originally, the negotiations focused on an equitable allocation of the resource; however, by the late 1970s and early 1980s "data indicated that the pressure of ocean interceptions was pushing many [Northwest, Alaskan, and Canadian] Chinook stocks below needed escapement (132) levels, and in some cases, toward extinction." (133) The negotiators began to consider and advocate limits on the harvest from interception fisheries. (134) Finally, in 1985, the United States and Canada signed the Pacific Salmon Treaty. (135)

The Pacific Salmon Treaty of 1985 established two goals: allocation and conservation. (136) The regime attempted to "ensur[e] sustainable fisheries through conservation and enhancement, and optimiz[e] benefits to each Party." (137) The treaty established the Pacific Salmon Commission to oversee implementation of the agreement, three panels to "provide information and make recommendations to the Commission," (138) and harvest management regimes in specific fisheries. (139)

Primarily, the Pacific Salmon Treaty of 1985 used a fixed-catch ceiling to determine Canada's and the United States's harvests. (140) This system created a specified limit on each nation's harvest allocation; however, the harvestable quota was not necessarily adjusted if the stock suffered depletion and could not sustain the allotment. (141) The harvest principles of the agreement expired in 1994, and the parties failed to implement new regimes. (142) The nations did not negotiate a new agreement primarily because the parties were unable to define "equitable share," leading to continuing disputes over proper harvest allocation. (143) The interception imbalance was further exacerbated by declining production in the Pacific Northwest, resulting in fewer salmon available for interception. (144)

In 1999, the United States and Canada renegotiated the 1985 treaty and changed the management regime substantially (145) Most notably, an abundance-based management regime replaced the fixed-catch ceiling of the prior agreement. (146) This system requires salmon abundance forecasts based on monitoring data and sets harvest limits based on these assumptions. (147) The abundance-based management regime requires increased monitoring by the parties to accomplish this task. (148)

Although the abundance-based management regime represents a step toward a more responsive fisheries policy, (149) there remains room for criticism. Specifically, the Pacific Fisheries Resource Conservation Council asserts that "the Agreement's biodiversity goals are incompletely specified." (150) For example, although the parties agreed to "ensure that the level of exploitation is consistent with achieving maximum sustainable harvest for a set of agreed key natural stock management units while maintaining genetic and ecological diversity," (151) the agreement establishes no "target reference point" by which to measure genetic or ecological diversity, nor does it define a management unit for attaining biodiversity goals (152) Although the agreement does in some instances indicate the measure of "stock group," only a specific, chosen indicator stock measures the entire group's successes. (153) The "concern is that these indicator stocks may poorly reflect the condition of other stocks when that stock group covers large and diverse geographic area[s]." (154) Furthermore, the representational purpose of the indicator stock is not identified; it is not clear whether these indicator stocks are supposed to represent endangered stocks, the most productive stocks, or the most genetically diverse stocks. (155) Finally, the ability of the 1999 Pacific Salmon Agreement to respond to abundance fluctuations is questionable. (156) If ocean conditions favored one party, cooperation might not provide any benefit; instead the party might be motivated simply by self-interest. (157)

Although the ecological goals of the 1999 agreement are inadequate and the regime may not be sufficiently responsive to changes in ocean production, the agreement for the first time textually acknowledges the role of habitat. (158) However, the stated goal of cooperation to protect habitat remains "to achieve optimum production," not to maintain genetic diversity or self-sustaining populations. (159) Although the parties agree to use "best efforts" to "achieve high levels of natural production," the agreement specifies no measure of success. (160) In addition, the language does not bind the parties to any particular management strategy; rather, the agreement simply requires best efforts. Interestingly, the agreement does acknowledge the existence of naturally spawning stocks in which "harvest controls alone cannot restore optimum production." (161) However, the only binding requirement resulting from the 1999 agreement is that the Pacific Salmon Commission identify and report annually to the parties on these stocks. (162)

The 1999 agreement created a Northern and Southern Salmon Enhancement Fund to assist in habitat protection. (163) Presently, there are no clear objectives established for the disbursement of these funds. Whether the Pacific Salmon Agreement of 1999 will improve salmon management in the long-term is an open question. Although scientists and managers generally view the abundance-based management regime as an improvement, some question gaps in the protection of genetic diversity and an understanding of biological responses to climate change. (164) The agreement also "does little to resolve long-standing differences over the division of the benefits." (165) However, one clear benefit of the 1999 Pacific Salmon Agreement is the necessity for "accurate and timely estimates of abundance." (166) Increased scientific understanding will certainly benefit future salmon management efforts. This information can be correlated with adult returns within the river system to provide a more comprehensive understanding of every species' life history needs.

Despite the 1999 Pacific Salmon Agreement, "harvest controls alone will not lead to recovery of salmon stocks." (167) The negotiators urge that collaborative approaches to salmon habitat protection are a "necessary measure" to prevent limitations of the freshwater system from decreasing available harvest. (168) Equally important is the remaining issue of the loss of genetic diversity from actions within both the freshwater and ocean systems.

C. Russia-Japan Fisheries Agreements

As jurisdictional boundaries developed in international law (for example, acknowledging the 200-mile exclusive economic zone) Russian-Japanese relations concerning salmon harvest focused on limiting Japan's harvest of Russian-origin fish. Between 1985 and 1991, "Japanese harvest of Russian-origin salmon declined by two-thirds." (169) Russia and Japan have also signed agreements related to hatchery production assistance in the Russian Far East. (170)

Each year quotas for the Japanese fishery are negotiated via the Japan-Russia Joint Committee on Fisheries. (171) For example, in 2001, "Japan will have the right to catch 5,170 tons of salmon in its immediate offshore waters" and 12,000 tons within Russia's EEZ. (172) In contrast, Russia expects to catch "as many as 200,000 tons of salmon in its waters this year." (173) In return, Russia will receive financial compensation amounting to $6 million. (174) Russia receives a greater proportion of the catch because the salmon spawn and rear in Russian waters; these waters also experience significant hatchery releases (175)

Whether these agreements truly can protect salmon is uncertain. For example, Japanese vessels often under-report their catch and economically skew their catches by reporting low-value species such as pink salmon, instead of high-value species such as sockeye. (176) Also, an enormous amount of poaching continues throughout the Russian Far East, with illegal fishing nearly as prevalent as legal fishing. (177) In response to the problem, Olga Krivondasov of the State Duma Natural Resources Committee said, "The only way we can effectively stop poachers is if we have clear and precise laws.... Russia is the only major fishing state that has no law on fisheries." (178)

These bilateral agreements offer very little actual protection to the species, especially because the treaty obligations often go ignored. The bilateral agreements do provide some financial equity to the origin nation; however, much of these funds are used for the development of hatcheries, which often results in long-term injury to self-sustaining populations. Russia needs assistance in developing a national program for salmon to ensure that their fertile, often pristine watersheds remain productive in the long-term.

D. Limitations of Harvest Regimes

The primary limitation of harvest regimes is the failure to account for the unique life history of Pacific salmon. "Harvest management has failed to consider the relation of salmon abundance to other components of the ecosystem, which are connected by the life cycle of salmon." (179) Although life history characteristics have been acknowledged as vital to the conservation of wildlife, these principles have yet to be comprehensively applied to Pacific salmon. (180) Creating limited jurisdictional regimes that lack the ability to deal with freshwater habitat issues undermines any progress in maintaining or recovering salmon populations during another life phase. (181)

Harvest regimes are also nonresponsive to mixed stock fisheries. (182) Fishers' nets do not distinguish between endangered and healthy stocks. Future fishery regimes should maximize "the goal of developing and implementing selective harvest strategies for all fisheries." (183) As a consequence, the full range of stock diversity will receive greater protection. (184)

Finally, hatchery salmon often distort sustainable harvest levels. (185) By focusing on optimum production rather than on retaining a full complement of genetic diversity, management regimes ensure that small, depressed runs will continue to suffer. "Instead of focusing on production for harvest, artificial propagation of salmon and steelhead should be directed at helping to restore depressed fish populations." (186) This transition requires better tracking and marking techniques for hatchery salmon. (187)

Harvest regulation is a necessary part of salmonid management; however, an effective approach requires reevaluation in terms of ecological principles. Salmon management decisions can no longer ignore the inherent interconnectedness of watershed productivity and sustainable harvest. The genetic diversity of less abundant stocks also must be maintained. Future harvest decisions must attempt to mitigate impacts on these depressed stocks. Sustainable harvest must become an element of a clearly established comprehensive Pacific salmon strategy, not the primary management purpose or the only instrument for international collaboration.

IV. INTERNATIONAL APPROACHES TO WILDLIFE PROTECTIONS

Migratory species have been the focus of many international agreements. These agreements may address specific wildlife species such as whales. (188) Alternatively, these agreements may address many species in order to protect biological diversity. (189) Several such international agreements as well as other conservation mechanisms are possible instruments for comprehensive Pacific salmon management.

A. The Convention on the Conservation Migratory Species of Wild Animals

The Convention on the Conservation of Migratory Species of Wild Animals (CMS) aims to "conserve migratory (avian, marine, and terrestrial) species over the whole of their range." (190) The agreement recognizes that all origin states must take "concerted action" (191) in the "conservation and effective management of migratory species." (192) Although no Pacific Rim salmon origin nations have signed the CMS, the United States and Russia actively participate in species and habitat protective agreements under the treaty. (193) The United States also joined in the negotiations during the convention's drafting process. (194)

The reluctance of Pacific nations to sign the CMS stemmed from a belief that existing bilateral agreements were sufficient to address the needs of migratory species. (195) At the time of signing, both the United States and Russia had negotiated bilateral migratory bird treaties with adjacent nations. Although the United States and Canada attended the first meeting of the Conference of Parties, they preferred to develop the North American Waterfowl Management Plan, which envisioned regionalized agreements similar to the agreements under the CMS, because it could better address limited federal jurisdictions pertaining to wildlife. (196)

However, given the continuing decline of Pacific salmon, the reliance on existing mechanisms for salmonid species preservation is misplaced. Bilateral regimes under the Pacific Salmon Treaty and the Russia-Japan agreements inadequately protect the species' genetic diversity and fail to recognize the interdependence of the ocean and freshwater systems. (197) Unlike the migratory bird treaties that have resulted indirectly in the protection of highly productive habitat, Pacific salmon bilateral agreements are almost exclusively harvest-based. The CMS provides a framework to address Pacific salmon needs across species' entire life history, with flexibility that is sensitive to each nation's individual impacts and needs. Regionalized agreements also can be sensitively tailored to ensure that federal and state/provincial governments retain existing jurisdictions.

The CMS places "migratory species" (198) into two categories: "endangered species" (199) (listed under Appendix I) and species with "unfavorable conservation status" (200) "which would significantly benefit from international cooperation" (201) (listed under Appendix II). "Endangered species.... means that the migratory species is in danger of extinction throughout all or a significant portion of its range." (202) The species may be listed under both Appendix I and Appendix II. (203) For Appendix I endangered species, "range states (204) ... shall endeavor" (205) to conserve and restore habitats, minimize migration obstacles, "prevent, reduce or control" limiting factors, and prohibit the taking (206) of endangered migratory species. (207) Currently, eighty-five species are listed under Appendix I. (208)

For Appendix II species with unfavorable conservation status, (209) the CMS "provides for the development of specialized regional Agreements for individual species or, more often, for a group of species." (210) The agreements are intended to cover the entire range of the species. (211) Also, the CMS encourages the development of "co-ordinated conservation and management plans." (212) To date, twelve agreements and 170 species are listed under Appendix II. (213) Although the CMS is species-specific, it is important to note that the convention acknowledges that migratory species are "Valuable Components of Biodiversity Tying Ecosystems Together." (214)

The seven species of Pacific salmon could be listed under Appendix I. The term "migratory species" means "the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries." (215) Because the CMS allows for listing below the species level, certain geographically separate populations may be suitable for listing under Appendix I. However, agreements solely addressing Appendix I endangered Pacific salmon species could result in the same deficiencies that the United States has experienced under the Endangered Species Act. (216) Specifically, "it is apparent that the narrowly-focused, species-by-species approach, applied only when at the verge of extirpation or extinction of a population, is an ineffective and inefficient way to address the problem of declining biological diversity." (217) However, the CMS contemplates the listing of species in both the endangered species and unfavorable conservation status categories; thus, endangered species may be addressed by the more stringent requirements of Appendix I, while all Pacific salmon populations receive protection under Appendix II?is

Pacific salmon clearly meet the definition of unfavorable conservation status Appendix II species. Specifically, two conditions for "favorable" status are not met: 1) the range of species remains likely to be reduced; and 2) the distribution and abundance are nowhere near historic levels. Therefore, a comprehensive Pacific salmon management approach is possible under the CMS through agreements contemplated by Appendix II. (218)

Agreements reached under the CMS should result in "co-ordinated conservation and management plans." (219) These "action plans represent the most detailed manifestations of an agreement's obligations." (220) These plans are then transformed into national legislation and programs. (221) Individualized conservation planning allows nations with specific interests, such as maintaining a sustenance fishery, to use a flexible approach to the issues of salmon management. National implementation plans should be coordinated among the nations, yet they need not be identical. Given the unique impacts associated with Pacific salmon within each nation (or regions within), this flexibility may represent the only way to achieve consensus.

For example, in accordance with the action plan for the Conservation of the Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), parties "shall adopt the necessary legislative, regulatory or administrative measures to give full protection to cetaceans in waters under their sovereignty and/or jurisdiction." (222) Agreements also may be more habitat specific; for example, the Action Plan for the Conservation of the Western and Central Populations of the Siberian Crane requires parties to "[e]nact, where it does not already exist, legislation to protect Siberian cranes and the wetlands critical to their survival." (223) These requirements are often quite specific; for instance, under the Siberian Crane Action Plan, Pakistan is required to "[e]xpand the existing crane conservation centers near Lakki, on the Kurrom River, and at Derya Khan Bridge on the Indus River near D.I. Khan." (224) In terms of Pacific salmon, a Pacific Rim agreement would trigger the development of the action plan. This planning stage presents an opportunity to clarify the ecological principles by which a truly holistic approach to salmon could be implemented. (225) In this approach, nongovernmental entities would be needed to assist in executing the conservation strategy. (226)

The CMS envisions that nations should "promote, co-operate in [and] support research relating to migratory species." (227) Again, this cooperative research helps all Pacific Rim nations address the impacts on Pacific salmon production. Similarly, agreements reached under the treaty should provide for "research into the ecology and population dynamics of the migratory species concerned, with special regard to migration." (228) This language acknowledges the vital role of ecological understanding in efforts to protect these migratory species. This ecological understanding also transfers to the harvesting of migratory species, because the CMS requires that agreements, where appropriate and feasible, provide for "measures based on sound ecological principles to control and manage the taking of migratory species." (229)

The CMS provides the framework for comprehensive and ecologically sound management of Pacific salmon. The convention also provides the necessary flexibility national and local governments require to manage unique impacts within their watersheds. Specifically, allowing national legislation to implement the principles of the agreement and its conservation plans presents an opportunity to unify management principles across international, national, state/provincial, and watershed scales. Further, by including a role for nongovernmental entities in conservation planning, sport and commercial fishers, environmental groups, tribes, and landowners are all involved in the conservation process.

B. The Convention on Biological Diversity

The Convention on Biological Diversity (the Biodiversity Convention) represents a "new breed" of international environmental agreement. (230) The objectives of the Biodiversity Convention are "the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources." (231) Upon opening for signature, the Biodiversity Convention was signed by a record number of nations (157). (232) Of particular importance, the primary Pacific Rim salmon origin nations--Canada, Japan, Russia, and the United States--have all signed the treaty. (233)

In situ conservation (234) principles articulated in the Biodiversity Convention include requirements for the parties to create, "as far as possible and as appropriate," (235) a network of protected areas (236) and "[r]egulate or manage biological resources important for the conservation of biological diversity." (237) "Biological diversity" refers to the "variability among living organisms ... and the ecological complexes of which they are part." (238) A consideration of biodiversity includes "diversity within species, between species and of ecosystems." (239) The approach of the Biodiversity Convention is rooted in conservation biology. (240)

The Biodiversity Convention, in relation to Pacific salmon, provides a philosophical guide, focusing on the conservation of biodiversity rather than optimum production. An important element of the Biodiversity Convention is the obligation that parties "[e]stablish a system of protected areas or areas where special measures need to be taken to conserve biological diversity." (241) A "protected area" is "a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives." (242) Protected areas for Pacific salmon fulfill all of the levels by which biodiversity protection occurs. Local adaptations are protected within the species, and several species are likely to be protected within a watershed. "[S]almon can be viewed as the center of a broad 'functional web' of wildlife and their ecological roles." (243) Studies establish a relationship between Pacific salmon and 138 other wildlife species. (244) As keystone species, (245) Pacific salmon are essential to the biodiversity and productivity of the Pacific Northwest. (246)Just as protected areas represent "the heart of any global strategy" to preserve biodiversity, (247) Pacific salmon sanctuaries could represent the focal point for biodiversity protection within the freshwater system and the closely associated terrestrial system.

The Biodiversity Convention further requires parties to "regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use." (248) This language reflects the inadequacy of existing harvest management regimes that fail to account properly for the genetic diversity within and among salmon species and the exclusion of any effective consideration of the genetic legacy of locally adapted depressed stocks. Proper adherence to the Biodiversity Convention requires reevaluating the Pacific salmon harvest management regimes to reflect increased consideration of biodiversity concerns and the central role of Pacific salmon in the freshwater and linked terrestrial system.

The obligations of the Biodiversity Convention have been criticized as being overly comprehensive and vague. (249) To accommodate the Biodiversity Convention's broad subject matter, regional agreements, like those advocated by the CMS, may facilitate implementation. (250) Although the focus of the agreements may not be identical, in many ways the CMS and the Biodiversity Convention complement one another. The CMS "addresses comprehensively migratory species" (251) while the Biodiversity Convention "addresses biodiversity comprehensively, but does not specifically address migratory species even though they are a unique global component of biodiversity." (252) Based on the extensive ecological interactions of Pacific salmon, addressing biodiversity through Pacific salmon protection not only enables the protection of a highly migratory species in accordance with the CMS, but also enables in situ conservation under the Biodiversity Convention. Thus, by establishing agreements under the CMS, triggering the requirement to write conservation plans and enact national legislation accordingly, nations partially fulfill their biodiversity obligations under the Biodiversity Convention, for instance, through the creation of a network of Pacific salmon protected areas.

C. The International Union for the Conservation of Nature and Natural Resources

The International Union for the Conservation of Nature and Natural Resources (IUCN) (253) provides a framework for collaborative resource management by nongovernmental organizations (NGOs) and governments. (254) The IUCN's mission is "to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable."(255) To accomplish this mission, the IUCN has developed programs related to protected areas and species-specific agreements.

The mission of the IUCN's World Commission on Protected Areas (WCPA) is "to promote the establishment and effective management of a worldwide network of terrestrial and marine protected areas." (256) The WCPA recognizes that certain habitats are of "strategic importance for conservation and sustainable development." (257) The IUCN has identified six categories of protected areas, of which the likely candidate for Pacific salmon protection is Category IV: Habitat/Species Management Area. (258) Category IV areas are designated to "ensure the maintenance of habitats and/or meet the requirements of specific species" and are often areas of particularly high biological diversity. (259) As discussed below, the protection of high-quality productive salmon habitat may offer the most effective proactive salmon management strategy for protecting biodiversity while continuing production for the fishery.

The Species Survival Commission (SSC) also was created to fulfill the objectives of the IUCN. The goal of the SSC acknowledges the "shared responsibility" inherent in biodiversity loss. (260) By creating the SSC, the IUCN recognized that the "best way to combat global biodiversity loss is to establish a biodiversity guardian network." (261) The SSC works toward ensuring that "decisions and set policies affecting biodiversity do so only on the basis of sound interdisciplinary scientific information." (262) IUCN/SSC specialist groups establish a forum to address the specific needs of identified species. Currently, more than 120 species specialist groups exist under the IUCN. (263) Specialist groups facilitate and implement agreements pertaining to natural resources, furthering the overall objective of the IUCN/SSC. (264)

In October 2001, the IUCN announced the formation of a Salmon Specialist Group. (265) The Salmon Specialist Group will work with scientists from around the world to identify and prioritize the difficulties associated with salmon protection and to compile accurate data on the status of the species. (266) Effective international resource protection requires a driving force to guide nations on ecologically sound conservation mechanisms. (267) The IUCN wrote the first drafts of the 1972 Convention on International Trade in Endangered Species (CITES) and the Convention on Biological Diversity. (268) The IUCN/SSC Salmon Specialist Group has the expertise necessary to guide scientifically sound Pacific salmonid management on an international level.

V. THE MIGRATORY BIRD TREATIES AND THE NORTH AMERICAN WATERFOWL MANAGEMENT PLAN

In 1916, using Congress's constitutional treaty powers, the United States initiated migratory bird protection. (269) Initially, the United States and Great Britain entered into a bilateral agreement for the protection of migratory birds in the United States and Canada, yet subsequent agreements have been negotiated with Mexico, (270) Japan, (271) and Russia. (272) Over time the agreements have shifted from primarily a harvest restrictive strategy (273) to an ecosystem approach that requires parties to "undertake measures necessary to protect the ecosystems in those special areas ... against pollution, detrimental alteration and other environmental degradation." (274)

The Migratory Bird Treaty Act (275) implements these treaties for the United States. However, this legislation is limited in its protective approach because it focuses on the direct taking of migratory birds (276) rather than on indirect impacts that can cause population declines. (277) This inefficiency precipitated the enactment of the Migratory Bird Conservation Act (278) and the Migratory Bird Hunting Stamp Act (279) to provide a mechanism for habitat protection. Specifically, the Secretary of Interior may acquire interests in any area "[the Secretary] determines suitable for use as an inviolate sanctuary, or for any other management purpose, for migratory birds." (280) Also, the Secretary may obtain property interests to establish "Waterfowl Production Areas." (281)

Through funds received under the Migratory Bird Hunting Stamp Tax, the Secretary of Interior is authorized to acquire property interests in "small wetland and pothole areas ... to be designated as Waterfowl Production Areas." (282) These areas are not inviolate sanctuaries for waterfowl because "[1]ands acquired as 'waterfowl production areas' shall annually be open to the hunting of migratory game birds, upland game, and big game. (283) Nonetheless, waterfowl production areas represent an important part of the United States National Wildlife Refuge System contributing to the overall breeding success of waterfowl. (284)

Waterfowl production areas are acquired by purchasing easements. The operative language of the easement generally prevents "the draining ... of any surface water including the lakes, ponds, marshes, sloughs, swales, swamps, or potholes." (285) By acquiring these highly productive breeding areas, the United States Fish and Wildlife Service ensures that the most sensitive aspect of waterfowl life history, the breeding period, is protected. Indirectly, this protection improves landscape health in the region, as many species connected to part of the waterfowl's life history benefit. (286)

Similarly, Pacific salmon protected areas do not necessarily require nations to establish inviolate sanctuaries; often, the purchase of conservation easements of riparian land may effectively protect the essential productive habitat. Furthermore, protecting highly productive salmonid habitat not only ensures successful natural breeding population, but also provides a mechanism by which to determine overall watershed health. "[A]n understanding of ... the keystone role of anadromous salmon will be valuable, if not essential, to understand how we have affected coastal ecosystems and the processes that support them." (287) Long-term recolonization efforts may depend on these remaining successful populations as once-degraded habitat is restored. (288)

Furthermore, the North American Waterfowl Management Plan (NAWMP) provides lessons for future Pacific salmon restoration and recovery. The NAWMP, developed to ensure the success and address the deficiencies of continental efforts to protect migratory birds, realized that "international cooperation in harvest management must be extended to include habitat conservation." (289) Cooperative and coordinated management endeavors within the framework of the Migratory Bird Treaties (290) sought to "perpetuate waterfowl populations and their supporting habitats." (291) The NAWMP "asked conservationists to develop coordinated site-specific habitat management programs and projects that would prompt population responses on the continental scale." (292) The NAWMP linked habitat management with quantifiable population goals and habitat strategies to achieve optimal waterfowl production. (293)

The NAWMP's primary mechanism for habitat protection is coordinated "planning, funding and implementation of projects to improve waterfowl habitat" by public and private organizations, also known as a joint venture. (294) The NAWMP anticipates private organizations will be the primary source of funding for habitat protection projects. (295) Currently, thirteen habitat joint ventures and three species joint ventures exist. (296) A habitat joint venture provides "strategic oversight and guidance to ensure that the Plan's goals are being achieved." (297) Furthermore, the joint venture secures funding for the conservation projects. (298) Species joint ventures are specifically focused on the monitoring and research needs of a particular species. (299) In the eleven years following the creation of the NAWMP, more than $1.5 billion has been spent "to secure, protect, restore, enhance, and manage wetlands and associated uplands in priority landscapes." (300)

Migratory birds, like Pacific salmon, initially were taken primarily by harvest, yet slowly the adverse impacts of habitat degradation were determined to contribute greatly to the species' declining numbers. (301) This factor precipitated stakeholders, such as hunters, to seek participation in effective waterfowl management, (302) Similarly, ecologically effective management of Pacific salmon benefits sport fishers and commercial interests in the long run. Incorporating private interest groups into the protection of waterfowl has helped defray difficult governmental allocation decisions by providing the conservation process with an alternative source of funding and energy. Essentially, the NAWMP has "offered a platform from which waterfowl conservationists in both the public and private sectors could organize themselves into partnerships." (303) This platform has yet to be properly established in the Pacific salmon context.

The creation of the NAWMP allowed participating nations to establish concrete goals for the protection of waterfowl. For example, a breeding population of 62 million ducks was to be achieved by the year 2000. (304) Also, these goals incorporate habitat protection. The NAWMP acknowledged that "waterfowl tend to be concentrated on a small percentage of the land where environmental conditions favor high productivity." (305) The plan suggests that the best protection for lands of "extraordinary value" is purchase and withdrawal from other uses. (306)

The NAWMP is implemented on a national, state/provincial, and a project level. (307) The national plan "outline[s] recommendations for accomplishing broad objectives within each nation including both international and domestic planning priorities." (308) This national plan is translated into "operational programs" at the state and provincial level. (309) Joint venture projects are "negotiated and agreed to by all those wishing to participate." (310) Finally, the North American Waterfowl Management Plan Committee was established to provide a forum for discussing international waterfowl issues and problems. (311)

Many of the requirements of waterfowl protection mirror the needs of Pacific salmon within the freshwater system. Pacific salmon could similarly benefit from a proactive strategy to protect self-sustaining populations and their associated ecosystems as well as areas suitable for future recolonization. The diverse group of Pacific salmon stakeholders can agree on such a strategy because conservationists and commercial and sport fishers benefit from such protections and likely could coordinate similar joint ventures to protect these areas. The development by Pacific Rim nations of continental plans within the international framework also will ensure more effective long-term planning as contemplated by the CMS. In sum, Pacific salmon management would benefit from incorporating the tiered structure approach across the entire species range, including joint ventures and the protection of highly productive habitat concepts central to migratory bird and waterfowl protection.

VI. A PACIFIC SALMON CONSERVATION TREATY

The management of Pacific salmon requires reevaluation and prioritization in order to sustain and restore populations throughout the Pacific Rim. Pacific salmon need to be managed across their entire range as a unit. (312) For several reasons, all nations of origin would benefit from an agreement relating to the conservation of the species. First, locally adapted Pacific salmon populations represent the culmination of millions of years of evolutionary development. Not only does their protection maintain the earth's biological diversity, (313) but also the protected populations are the gene banks for future restoration efforts. Self-sustaining populations, as desired by supplementation programs, are most likely to result if the replanted stock derives from the genetics of species from similar natural systems.

Second, all Pacific Rim nations play a role in the annual harvest of salmon. Some salmon stocks intermingle in the ocean, and each nation would benefit from a better understanding of the processes affecting salmon during this life stage. The benefit does not simply extend to intermingling stocks, but to each nation's ability to address all factors relating to salmon mortality, from predation to ocean-freshwater passage. As each nation has a vital interest in this resource, a full understanding of the interdependence of the terrestrial, freshwater, estuary, coastal, and ocean systems would assist in securing the maximum benefit for the salmon.

Finally, a unified, coordinated approach to Pacific salmon protection indirectly benefits many other species by maintaining this essential keystone species within the freshwater and ocean systems. (314) By focusing on maintaining biodiversity and the genetic legacy of Pacific salmon, rather than simply biomass production for harvest, the Pacific salmon origin nations can halt or effectively mitigate their detrimental practices while ensuring ample supply of salmon to the fishery.

A. Institutional Structure

Pacific salmon management requires clear objectives across several spatial scales. Detrimental impacts must be addressed in a unified policy on international, continental, national, state/provincial, and local levels. Furthermore, harvest regimes must fit within the entire framework across all of these spatial scales.

The Migratory Bird Treaties and North American Waterfowl Management Plan provide guidance on accomplishing this task. Specifically, the treaties establish broad principles requiring national obligations and continental plans such as the NAWMP. The NAWMP creates more specific objectives and approaches, with national legislation assisting in implementing these objectives through programs such as the Waterfowl Protection Areas. Public and private stakeholders then undertake local projects. However, migratory bird protection does not encounter the harvest pressures of Pacific salmon or require the linking of two very distinct habitat types--the ocean and freshwater systems.

For Pacific salmon, a new international framework with ecologically principled objectives would need to incorporate current harvest regimes. Accomplishing this task would first require identifying the ecological, science-based priorities for achieving restoration and sustainability. The IUCN/SSC Salmon Specialist Group could assist in the development of these principles. Furthermore, the provisions of the CMS and Biodiversity Convention offer guidance on the necessary priorities, such as the protection of genetic diversity and coverage across the entire range.

Subsequently, existing harvest regimes and management institutions, such as the Pacific Salmon Commission, must adjust to accommodate these ecological guidelines. For example, better marking of hatchery fish and close monitoring of harvest characteristics for both hatchery and wild fish need to be implemented. Also, harvest management, to the maximum extent possible, need to account for the diversity of genetically significant, depressed populations. Again, greater monitoring is necessary to confirm ocean migration patterns to mitigate increased harvest pressure on these populations.

In the freshwater system, international consensus on Pacific salmon within an ecological framework will likely result in a shift from optimum production to biodiversity protection. For example, the role of hatcheries in rebuilding populations should be emphasized, while mass production to bolster harvest--often negatively impacting wild fish--must be curtailed. Again, the hatchery policy should fit within the framework of an internationally accepted, scientifically based approach.

Protected areas for genetically significant populations also should be created. The Biodiversity Convention suggests this approach, which lies within the IUCN's expertise under the World Commission on Protected Areas. (315) The focus of these protected areas should be the contribution to the genetic legacy of the species, not simply extinction prevention. These essential areas can be identified specifically in continental management plans, as is done in the conservation plans under the CMS or through the initiative of governmental and non-governmental stakeholders.

At the continental planning level, strategies responsive to the parties' more specific needs can be addressed. This may, for example, require national legislation to prevent excessive take through poaching in Russia; in turn, Russia can undertake the task in a flexible manner under its national laws. Furthermore, a continental plan can establish more specific population and escapement goals, similar to the NAWMP. This type of planning is contemplated under the CMS for Appendix II species. (316)

Continental plans are turned into action at the national, state/provincial, and local levels. Nations should promote ecologically sound Pacific salmonid management through theft national legislation, for example by funding the acquisition of protected areas through purchase or conservation easements. States and provinces can incorporate the international framework in theft own planning, for example, within the Oregon Coastal Salmon Restoration Initiative. (317) "The management plan is the heart of the subbasin plan. It sets forth the strategies that will be implemented at a local level." (318) By promoting joint ventures much of the funding strain in implementing plans on the local level can be eliminated by private money.

The joint venture concept could benefit Pacific salmon enormously. Already, conservation groups are working to study and protect salmon populations worldwide, through programs such as the Kamchatcka Salmon Biodiversity Program. (319) These projects could take the form of habitat joint ventures, protecting significant spawning and rearing habitat for an array of salmonids within the watershed, or species joint ventures, protecting specific distinct populations.

By unifying the management of Pacific salmon across all spatial scales through an international conservation agreement, nations will be provided a framework within which to undertake all protection efforts. Pacific Rim salmon origin nations will be able to better incorporate scientific principles into national planning and encourage interested parties to conserve the resource effectively.

B. Coverage Across the Entire Life History

Inherent in the concept of a comprehensive Pacific salmon conservation agreement is the principle that the entire life history of the species must be covered. (320) The principles and objectives of management decision must fall within the framework of the agreed-upon ecological principles. Because "the abundance, productivity and diversity of organisms are integrally linked to the characteristics of theft ecosystems," (321) harvest must be linked with habitat while ocean conditions must be linked with escapement goals. For Pacific salmon, the consideration must extend to all encountered ecosystems: ocean, estuary, freshwater, and closely linked terrestrial systems. (322) Only by incorporating the influence of each of these ecosystems and the linkage between them can Pacific salmon receive a truly ecologically sound approach to management.

However, the scale upon which to undertake the amorphous idea of an ecosystem approach for Pacific salmonids presents difficulties. (323) As a result, long-term planning across the species' entire range requires regionalized planning. (324) This regionalized planning must have effective oversight. Coverage across the entire life history of Pacific salmon requires the creation of a new institution--a Pacific salmon conservation commission--to provide the scientific expertise necessary to protect salmon within each nation's borders and ensure that harvest principles under existing mechanisms account for the biological diversity within the species.

The IUCN/SSC Salmon Specialist Group could initiate this process by bringing together the world's experts on Pacific salmon. The Salmon Specialist Group should begin developing the ecological principles, accounting for all ecosystems, by which a truly comprehensive strategy could be undertaken. Just as the IUCN played an influential role in initiating the drafting process for the Biodiversity Convention and CITES, the time has come for the beginning of a new era for Pacific salmon, one that is responsive to the unique life history of the salmon and cognizant of the diverse influences that lead to productivity and abundance.

C. Protected Areas

More than a century ago, Livingston Stone called for the creation of "National Salmon Parks." (325) To this day, no governmentally declared salmon refuge exists. Habitat protection for salmon generally comes in the form of indirect protections from land use designations or from critical habitat designations once the species has declined to levels necessitating a threatened or endangered listing. Although these designations are necessary to give the imperiled ESU a chance to recover, proactive habitat protection could head off the need for such designations in the future.

As the Biodiversity Convention contemplates "a system of protected areas or areas where special measures need to be taken to conserve biological diversity," (326) the next step is to determine ecologically sound selection and classification criteria. Also, the "goals, purposes, and objectives of each sanctuary must be clearly identified." (327) Scientists have suggested that focal habitats be protected initially. These habitats "are critical areas supporting a mosaic of high-quality habitats that sustain a diverse or unusually productive complement of native species." (328) For Pacific salmon, these areas are likely to be fairly pristine areas of highly productive spawning and rearing habitat. (329) Furthermore, these areas should receive the highest priority because many species benefit from the protection of highly productive areas, the cost of protection is low in relation to the biological benefit, and the likelihood of successful conservation within these areas is high because of their current role in the ecological web. (330) Of particular importance, these areas "capture the critical biological and physical elements that sustain the focal populations' productivity in both the freshwater and marine environments." (331) Finally, these areas should be selected for their contribution to the overall network of reserves, for example, their ability to preserve the genetic legacy of the species protected. (332)

Following the protection of these focal habitats, partially degraded adjacent habitats offer an effective mechanism to increase the vitality of the resident populations. The focal habitat represents a potential source area for the future recolonization of the adjacent habitat. (333) Meanwhile, the adjacent habitat buffers the focal habitat, thereby ensuring the retention of the ecosystem processes that have enabled such high productivity. (334) This interrelationship results in conservation benefits for both habitat areas because restoring the adjacent habitat benefits the focal area while the focal area sustains the species enough to allow for recolonization of the adjacent habitat.

Once these focal and adjacent areas have been protected, habitats that are of particular importance for the life history of the species should receive protection. (335) For example, the estuary plays a primary role in the long-term viability of the species. (336) This may be true as well for protective areas such as river stretches with intact riparian vegetation and large debris that provide refuge from predators during salmon freshwater growth. Finally, areas that do not currently support Pacific salmon species yet assist in the overall quality of the habitat--for example, high-quality water sources--should receive consideration for protection. (337)

In the long term, the possibility of marine "no-tak"' reserves must be considered. Although our understanding of the ocean ecology of Pacific salmon remains somewhat limited, protected ocean areas do substantially affect abundance. "Marine Protected Areas are coastal or oceanic management areas designed to conserve ecosystems together with theft functions and theft resources." (338) As the science progresses, areas of critical development for Pacific salmon should be identified and protected from excessive impacts from harvesting or pollution. The difficulty with marine protected areas for Pacific salmon lies in the highly migratory nature of the species and the adjustment of ocean migratory patterns due to changing ocean conditions, such as El Nino and La Nina events. Again, as the science develops, predictability will improve to enable implementation of this potentially effective conservation mechanism.

Furthermore, protected areas do not simply benefit healthy populations, because a "system of Key Watersheds that serves as refugia is crucial for maintaining and recovering habitat for at-risk stocks of anadromous salmonids." (339) Such "refugia" represent the "cornerstone of most species conservation strategies." (340) Protected areas are a vital part of the programs under the Biodiversity Convention and the IUCN. Agreements reached under the CMS also can address protection within national boundaries. (341) Additionally, habitat protection could fulfill a nation's responsibilities under fisheries agreements, for example, to improve habitat "to enhance productivity and protection of Pacific Salmon." (342)

However, the responsibility for protection should not be left solely to the national governments. The joint venture structure of the NAWMP offers a model by which salmon habitat protection could be undertaken. Specifically, if conservation organizations and fisheries interests successfully collaborate (with the assistance of state and federal wildlife management agencies), much of the habitat protection could occur with little cost to the government. This is an advantageous approach for governments to promote because treaty obligations could be fulfilled with little or no cost, essentially creating a network of salmon refuges that ensures the protection of biological diversity.

VII. CONCLUSION

International consensus on Pacific salmon could provide the mechanism by which ecological principles are inserted into the management decision-making process. The current course of management fails to consider properly the pressures associated with the unique life history of Pacific salmon and the effect of these pressures on the genetic diversity within the species and biological diversity of the ecosystems encountered. Furthermore, the narrow focus on harvest management without accounting for all factors affecting abundance weakens the likelihood of success of restoration or protection efforts.

In the future, the IUCN should initiate the process to establish clear priorities and principles of a holistic salmon policy. This policy should mirror the successful strategy of the North American Waterfowl Management plan within the framework of the CMS, thereby fulfilling obligations created by the Biodiversity Convention. Pacific salmon should be viewed as an effective mechanism to protect the biodiversity of the freshwater system as a whole. The end result will be more productive, healthier watersheds, and thus more salmon available for harvest. The alternative is to retain the status quo and continue to degrade habitat, inefficiently harvest, and reduce genetic and biological diversity. However, given the vital role of salmon in the Pacific Rim economy and the species' enormous cultural significance, retaining the status quo is not an option. The Pacific Rim nations must put an end to their detrimental practices and unite in the preservation and restoration of Pacific salmon.

(1) For purposes of this Comment, the term "Pacific salmon" refers to sockeye salmon (Oncorhynchus nerka), pink salmon (Oncorhynchus gorbusha), chum salmon (Oncorhynchus keta), chinook salmon (Oncorhynchus tshawytscha), coho salmon (Oncorhynchus kisutch), cherry salmon (Oncorhynchus masou), and steelhead trout (Oncorhynchus mykiss). These seven species of salmon are the subject of the most inclusive international salmon agreement, the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, which recognizes that Pacific salmon "originate primarily in the waters of Canada, Japan, the Russian Federation, and the United States of America." Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 11, 1992, T.I.A.S. 11,465, pmbl., Annex I [hereinafter Anadromous Stocks Convention].

(2) NORTHWEST POWER PLANNING COUNCIL, INAUGURAL ANNUAL REPORT OF THE COLUMBIA BASIN FISH AND WILDLIFE PROGRAM, 1978-1999, COUNCIL DOCUMENT 2001-2 (2001) ("Since 1978, Bonneville's fish and wildlife expenditures total $3.48 billion.").

(3) For example, ocean and freshwater harvest of Upper Columbia River spring chinook (ESU) have been nearly eliminated, but hatcheries, habitat degradation, and blocked passage by hydropower development resulted in a continuing decline of the ESU requiring an endangered listing under the Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). National Marine Fisheries Service, Endangered and Threatened Species, 64 Fed. Reg. 14,322, 14,324 (Mar. 24, 1999) (to be codified at 50 C.F.R. pt. 224).

(4) "An ESU is defined as a population that 1) is substantially reproductively isolated from conspecific populations and 2) represents an important component of the evolutionary legacy of the species." National Marine Fisheries Service, Definition of Species, 56 Fed. Reg. 58,613, 58,618 (Nov. 20, 1991).

(5) For example, the Upper Columbia River spring chinook ESU has been given a 4% to 17% chance of sustaining a population greater than 100 individuals in any river over the next 50 years. 64 Fed. Reg. at 14,323. In some streams within the basin, all returning adults have been captured for hatchery propagation. Id.

(6) See Anadromous Stocks Convention, supra note 1, art. 1. (governing salmon fisheries beyond the 200-mile exclusive economic zone); see also Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can, T.I.A.S. No. 11,091 [hereinafter Pacific Salmon Treaty] (responding to interceptions of each other's origin salmon within the exclusive economic zone where harvest is permitted by allocating the catch).

(7) WILLIAM G. PEARCY, OCEAN ECOLOGY OF NORTH PACIFIC SALMONIDS 26-27, 63-75 (1992) (discussing limiting factors within the ocean and estuary systems); Stanley V. Gregory & Peter A. Bisson, Degradation and Loss of Anadromous Salmonid Habitat in the Pacific Northwest, in PACIFIC SALMON & THEIR ECOSYSTEMS 277, 285-93 (Deanna J. Stouder et al. eds., 1997) (discussing limiting factors within freshwater).

(8) For example, the Pacific interdecadal climate oscillations, which affect ocean conditions, in some years may be the primary determinant of abundance. A lack of understanding could lead to the breakdown of cooperation currently implemented through harvest regimes. Kathleen A. Miller, Pacific Salmon Fisheries: Climate, Information and Adaptation in a Conflict-Ridden Context, 45 CLIMATIC CHANGE 37, 49 (2000).

(9) NORTHWEST POWER PLANNING COUNCIL, COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM, COUNCIL DOCUMENT 2000-19 at 31 (2000) [hereinafter FISH & WILDLIFE PROGRAM] (addressing the interdependence of the freshwater and marine environments); see also THE WILDERNESS SOCIETY, THE LIVING LANDSCAPE VOLUME 2: PACIFIC SALMON AND FEDERAL LANDS 52-53 (1993) [hereinafter PACIFIC SALMON AND FEDERAL LANDS] (discussing the sensitivity of watersheds to land use practices); Richard D. Brodeur et al., A Coordinated Research Plan for Estuarine and Ocean Research on Pacific Salmon, 25 FISHERIES 7, 10-12 (2000) (arguing for coordinated estuary and ocean research to better understand limiting factors for Pacific salmon at each life stage).

(10) In the words of the chief negotiators of the 1999 Pacific Salmon Treaty Agreements, James Pipkin (of the United States) and Donald McRae (of Canada): "Fishery arrangements are not a substitute for sound habitat management." Correspondence to Parties from Chief Negotiators Regarding Proposed Agreement Relating to the Pacific Salmon Treaty (June 23, 1999) in PACIFIC SALMON COMMISSION, 15TH ANNUAL REPORT, APPENDIX A, at 110 (2001).

(11) Once an ESU is determined to be endangered or threatened under the Endangered Species Act, "[a] final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination that such species is endangered or threatened." Endangered Species Act of 1973, 16 U.S.C. [section] 1533(6)(C) (2000).

(12) For example, the Central California Coast coho's (ESU) passage to historically occupied habitat is blocked by dams, yet the National Marine Fisheries Service (NMFS) does not designate habitat beyond the dams as critical despite the fact that the ESU is listed as endangered. Designated Critical Habitat, 50 C.F.R. [section] 226.210; see also Fred W. Allendorf et al., Prioritizing Pacific Salmon Stocks for Conservation, 11 (1) CONSERVATION BIOLOGY 140 (ranking stocks with the highest risk of extinction as requiring attention first).

(13) Biologists perceive that more than 85% of the healthy stocks in the Pacific Northwest are susceptible to habitat degradation. C. Huntington, A Survey of Healthy Native Stocks of Anadromous Salmonids in the Pacific Northwest and California, 21 (3) FISHERIES 6-14 (1996).

(14) For example, bald eagle recovery has focused on productive nesting territories, known as "key areas," that currently support breeding populations and are capable of supporting more nesting pairs. In addition, "target recovery areas" are identified as likely recolonization areas capable of supporting breeding in the future. U.S FISH & WILDLIFE SERV., PACIFIC BALD EAGLE RECOVERY PLAN 28 (1986); See also NAT'L RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 98-99 (1995) ("The fate of a population as a whole can depend on whether the reproductive success of the individuals in high-value habitats outweighs the failure of the individuals in the poor areas.").

(15) Habitat protection resulting from the North American Waterfowl Management Plan of 1986 provides an illustration of this management technique's successful application. The Plan called for "site-specific habitat management programs and projects that would prompt population responses on a continental scale." Twelve years later "striking rebound[s]" were observed in most populations of ducks, geese, and swans. U.S DEP'T OF INTERIOR, FISH & WILDLIFE SERV., EXPANDING THE VISION: 1998 UPDATE NORTH AMERICAN WATERFOWL MANAGEMENT PLAN I (1998) [hereinafter EXPANDING THE VISION].

(16) "Let us now at the eleventh hour, take pity on our long-persecuted salmon and do him the poor and tardy justice of giving him, in our broad land that he has done so much for, one place where he can come and go unmolested and where he can rest in safety." Livingston Stone, A National Salmon Park, 21 TRANSACTIONS OF THE AM. FISHERIES SOC'Y 162 (1892); see Guido R. Rahr et al., Sanctuaries for Native Salmon: A Conservation Strategy for the 21st Century, 23(4) FISHERIES 6 (1993); SHAUNA M. WHIDDEN & JAMES LICHATOWICH, NORTHWEST WATER LAW & POLICY PROJECT, PACIFIC SALMON SANCTUARIES: THE HOPE AND CHALLENGE OF A NEW MILLENNIUM (2001).

(17) For example, the Convention on the Conservation of Migratory Species of Wild Animals provides that "Range States ... shall endeavor [ ] to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction." Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15 [hereinafter CMS].

(18) See United Nations Convention on Biological Diversity, June 5, 1992, art. 8(a), S. TREATY DOC 20 (1993), reprinted in 31 I.L.M. 818 [hereinafter Biodiversity Convention] (promoting the establishment of protected areas based on biological diversity).

(19) See IUCN, WCPA, PROTECTED AREAS, BENEFITS BEYOND BOUNDARIES: WCPA IN ACTION 2 (2000), http://wcpa.iucn.org/pubs/pdfs/WCPAInAction.pdf.

(20) EXPANDING THE VISION, supra note 15, at vii.

(21) Conrad A. Fjetland, Possibilities for Expansion of the Migratory Bird Treaty Act [or the Protection of Migratory Birds, 40 NAT. RESOURCES J. 47, 49 (2000).

(22) Despite a mention of habitat in Attachment E and the creation of an enhancement fund in Attachment C of the Pacific Salmon Treaty Agreement of 1999, these provisions do not bind nations to any action and potentially will be used according to existing "most at danger" prioritization. Agreement Relating to and Amending Annexes I and IV of the Treaty Concerning Pacific Salmon of January 28, 1985, Attachments C, E, U.S.-Can, State Dept. No. 99-97 (1999) [hereinafter 1999 Pacific Salmon Agreement], available at http://www.psc.org/ Pubs/PSCAR/15th%20Annual%20Report.pdf; see also Allendorf et al., supra note 12 (ranking stocks with the highest risk of extinction as requiring attention first).

(23) In the words of Oregon Governor John Kitzhaber, "One of the most frustrating things I've experienced and one of the real difficulties we have in the Columbia Basin is the inability of federal natural resource agencies to speak with a common voice. It is impossible to determine what the federal position is on Columbia Basin issues. NMFS has a position; the BLM has a different position; Interior has a different position; the Bonneville Power Administration has a different position." Governor John Kitzhaber, Remarks at the Policy After Politics conference: How should the next administration approach public land management in Western states? (39) (June 1, 2000) (transcript available through the Andrus Center of Public Policy, Boise State University) [hereinafter Policy After Politics].

(24) In the words of George Frampton, former chair of the Council on Environmental Quality, "[W]e're unlikely to develop any successful strategy or any successful lasting strategy unless we're able to start out with some kind of shared vision about what it is that we hope to achieve in the end." Id. at 26.

(25) See FISH & WILDLIFE PROGRAM, supra note 9, at A-1.

(26) See THE INDEP. SCI. GROUP, RETURN TO THE RIVER: RESTORATION OF SALMONID FISHERIES IN THE COLUMBIA RIVER ECOSYSTEM 60-64 (2000) [hereinafter RETURN TO THE RIVER] (discussing the connection between salmonid life histories and habitat).

(27) Id. at 61.

(28) NATIONAL RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 145-63 (1996) [hereinafter UPSTREAM].

(29) RETURN TO THE RIVER, supra note 26, at 60.

(30) For example, "[f]or pink salmon in particular, fishing appears to have changed the genetic makeup of many stocks and resulted in smaller adults." UPSTREAM, supra note 28, at 162. In general, "maintaining appropriate diversity in salmon gene pools and population structure ... has not been adequately recognized." Id. at 163.

(31) Id at 39.

(32) Id. ("Ocean factors are important not only because they directly influence the number of adults that return to their spawning streams but also because a poor understanding of their effects can result in misinterpreting both population status and the potential for an acceptable level of fishing.").

(33) William G. Pearcy, Salmon Production in Changing Ocean Domains, in PACIFIC SALMON & THEIR ECOSYSTEMS, supra note 7, at 331.

(34) Id.; see also Robert L. Burgher, Life History of Sockeye Salmon, in PACIFIC SALMON LIFE HISTORIES 88 (Cornelis Groot & Leo Margolis eds., 1991) (estimating Pacific sockeye's ocean mortality from approximately 50% to more than 95%).

(35) Brodeur et al., supranote 9, at 13.

(36) Id. Also, the protection afforded some species that prey upon salmon may allow abundance to exceed the historic balance. Id.

(37) For example, the National Research Council identifies three generalized patterns of marine distribution for Pacific Northwest salmon:

   First, juvenile pink, chum, and sockeye (smolts) enter the ocean
   and migrate north along the continental shelf, reaching the
   northern Gulf of Alaska in late fall; they then migrate south in
   the open ocean, where they remain until they mature and return to
   the coastal waters, usually making landfall north of their river of
   origin. Second, coho and chinook usually rear in coastal waters,
   although some migrate to the open ocean as well. Third, steelhead
   migrate to the open ocean, but--unlike pink, chum, and
   sockeye--appear to migrate directly to open ocean as smolts and
   return directly to the vicinity of their river of origin, rather
   than migrating along the coast.

UPSTREAM, supra note 28, at 30 (citations omitted).

(38) PEARCY, supra note 7, at 39-40. For example, Babine Lake sockeye salmon estimates indicate "that 90 percent of the ocean mortality occurs during the first four months at sea." Id. at 41.

(39) Id. at 34.

(40) U.S. FISH & WILDLIFE SERV., PACIFIC SALMON--WHERE ARE THE SALMON, WHEN? (May 1998). Steelhead usually migrate to the ocean after two years in the freshwater system, however some may never migrate, thus becoming part of a resident population. UPSTREAM, supra note 28, at 30.

(41) William R. Heard et al., A Synthesis of Research on Early Marine Ecology, of Juvenile Pacific Salmon in Southeast Alaska, in NORTH PACIFIC ANADROMOUS FISH COMMISSION, TECHNICAL REPORT 2: WORKSHOP ON FACTORS AFFECTING PRODUCTION OF JUVENILE SALMON 3, 4 (Richard Beamish et al. eds., 2000) [hereinafter TECHNICAL REPORT 2].

(42) Id. ("Growth, in turn, depends on timing of juveniles leaving streams, temperature, seasonal plankton blooms, and presence or absence of sympatric cohorts."); see also Edward V. Farley, Factors Affecting Distribution, Migration, and Growth of Juvenile Sockeye Salmon in the Eastern Bering Sea (July and September 1999), in TECHNICAL REPORT 2, supra note 41, at 25, 26. (juvenile sockeye salmon early marine survival affected by late ice break up, which delayed migration to areas with greater forage availability).

(43) T.M. Willette et al., Ecological Processes Influencing Mortality of Juvenile Pink Salmon (Oncorhynchus gorbuscha) in Prince William Sound, Alaska, in TECHNICAL REPORT 2, supra note 41, at 14.

(44) Brodeur et al., supra note 9, at 13. For a discussion of the possible implications of the Marine Mammal Protection Act, see UPSTREAM, supra note 28, at 42-43.

(45) Kurt L. Fresh, The Role of Competition and Predation in the Decline of Pacific Salmon and Steelhead, in PACIFIC SALMON & THEIR ECOSYSTEMS, supra note 7, at 245, 247.

(46) Density-dependent competition for Pacific salmon refers to the effect of competition on the number of young salmon entering the ocean system from natal streams or hatcheries. UPSTREAM, supra note 28, at 44.

(47) Fresh, supra note 45, at 245, 247 (citations omitted).

(48) UPSTREAM, supra note 28, at 44.

(49) Fresh, supra note 45, at 247. Carrying capacity refers to "the number of individuals of one species that the resources of a habitat [in this case the ocean habitat] can support." FISH & WILDLIFE PROGRAM, supra note 9, at A-1.

(50) Fresh, supra note 45, at 259-61. Referring to the survival of Fraser River chum salmon, Fresh explains that a depression of survival "can occur if high densities of hatchery fish depress growth rates of wild fish and increase the period when wild fry remain vulnerable to predators." Id. at 261 (citations omitted).

(51) William G. Pearcy, Salmon Production in Changing Ocean Domains, in PACIFIC SALMON & THEIR ECOSYSTEMS, supra note 7, at 331.

(52) UPSTREAM, supra note 28, at 41 (citations omitted).

(53) Id.

(54) For example, NMFS did not designate ocean habitat as critical for endangered or threatened Pacific salmon species. See National Marine Fisheries Serv., Designating Critical Habitat, 65 Fed. Reg. 7764, 7771 (Feb. 16, 2000) (codified at 50 C.F.R. pt. 226).

(55) C. Jeff Cederholm, Pacific Salmon Carcasses: Essential Contributions of Nutrients and Energy for Aquatic and Terrestrial Ecosystems, 24(10) FISHERIES 6-15 (1999).

(56) Id. at 11.

(57) Id. at 6.

(58) Mary F. Willson & Karl C. Halupka, Anadromous Fish as Keystone Species in Vertebrate Communities, 9(3) CONSERVATION BIOLOGY 489, 496 (1995).

(59) PACIFIC SALMON AND FEDERAL LANDS, supra note 9, at 46.

(60) Id.

(61) See Janet C. Neuman, Run, River, Run: Mediation of a Water-Rights Dispute Keeps Fish and Farmers Happy--For A Time, 67 U. COLO. L. REV. 259, 265 (1996); see also Charles F. Gauvin, Water Management and Water Quality Decision Making in the Range of Pacific Salmon Habitat, in PACIFIC SALMON & THEIR ECOSYSTEMS, supra note 7 at 389, 389-409 (discussing the importance of integrating water quantity and water quality issues for salmonid recovery).

(62) OREGON DEP'T OF FISH & WILDLIFE, THE EFFECTS OF STREAM ALTERATIONS ON SALMON AND TROUT HABITAT IN OREGON 14 (1985) (Low stream flows that result in the salmon's concentration in fewer pools increase competition and predation among salmon and with predatory nongame fish.).

(63) Id. Scientists speculate that the fall 2002 death of at least 12,000 salmon in the lower Klamath River was the result of lower than normal river flows that increased stream temperatures, making the salmon more susceptible to disease, and forced the salmon to migrate closer together, increasing disease transmission. Jonathan Brinckman, Scientists Link Salmon Die-off to Tissue-Eating Bacteria Parasite, OREGONIAN, Sept. 28, 2002, at A7.

(64) Id. at 16.

(65) PACIFIC SALMON AND FEDERAL LANDS, supra note 9, at 47.

(66) Id. at 48.

(67) UPSTREAM, supra note 28, at 38; see also OREGON DEP'T OF FISH & WILDLIFE, supra note 62, at 40 (discussing the negative effects of sedimentation and debris torrents).

(68) Stanley Gregory & P.A. Bisson, Degradation and Loss of Anadromous Salmonid Habitat in the Pacific Northwest, in PACIFIC SALMON & THEIR ECOSYSTEMS, supra note 7, at 277, 285-86. High stream flow may also sweep salmon fry downstream following emergence. PACIFIC SALMON AND FEDERAL LANDS, supra note 9, at 49.

(69) UPSTREAM, supra note 28, at 30.

(70) Id.

(71) PACIFIC SALMON AND FEDERAL LANDS, supra note 9, at 50.

(72) Id.

(73) Id. at 51.

(74) UPSTREAM, supra note 28, at 30.

(75) Brodeur et al., supra note 9, at 8; see also FISH & WILDLIFE PROGRAM, supra note 9, at 21.

(76) RETURN TO THE RIVER, supra note 26, at 307 (internal citations omitted). Interestingly, a major proponent of the hatchery system was Livingston Stone, the same person who called for the establishment of national salmon parks. Id. at 305.

(77) Id. at 307.

(78) Id. (quoting G.B. Goode, The Status of the U.S. Fish Commission in 1884, in U.S. COMMISSION OF FISH & FISHERIES, REPORT OF THE COMMISSION 1157 (1884)).

(79) Id. (quoting Marshall McDonald, The Salmon Fisheries of the Columbia River Basin, in REPORT OF THE COMMISSIONER OF FISH AND FISHERIES INVESTIGATIONS IN THE COLUMBIA RIVER BASIN IN REGARD TO THE SALMON FISHERIES, S. Misc. Doc. No. 200 (2d Sess. 1894), H.R. Misc. Doc. No. 86 (3d Sess. 1894) 1, 3-18 (1984)).

(80) Id. at 307-08.

(81) RETURN TO THE RIVER, Supra note 26, at 317.

(82) Id.

(83) Id. at 322 (citations omitted).

(84) P.M. Washington & A.M. Koziol, Overview of the Interactions and Environmental Impacts of Hatchery Practices on Natural and Artificial Stocks of Salmonid, 18 FISHERIES RES. 105, 105-22 (1993).

(85) F.W. Allendorf, Ecological and Genetic Effects of Fish Introductions: Synthesis and Recommendations, 48 CAN. J. FISHERIES & AQUATIC SCI. 178, 178-81 (1991).

(86) R.F Leary et al., Hybridization and Introgression between Introduced and Native Fish, 15 AM. FISHERIES SOC'Y SYMP. 91-101 (1995).

(87) C.H. Olver et al., Toward a Definition of Conservation Principles for Fisheries Management, 52 CAN. J. FISHERIES & AQUATIC SCI. 1584, 1588 (1995).

(88) RETURN TO THE RIVER, supra note 26, at 319.

(89) See supra Part II.A (discussing salmon ecology during the ocean phase).

(90) Gary K. Meffe, Techno-Arrogance and Halfway Technologies: Salmon Hatcheries on the Pacific Coast of North America, 6(3) CONSERVATION BIOLOGY 350, 352 (1992) (discussing sustained harvest of Puget Sound coho at rates as high as 95%, while hatchery production has increased and natural stocks have declined).

(91) Id.

(92) 161 F. Supp. 2d 1154 (D. Or. 2001).

(93) Id. at 1162.

(94) For the definition of ESU, see supra note 4.

(95) Nat'l Marine Fisheries SeEr., Endangered and Threatened Species, 63 Fed. Reg. 42,587, 42,589 (Aug. 10, 1998). NMFS announced this distinction under its hatchery policy, which states:

   If available information indicates that existing hatchery fish can
   be considered part of the biological ESU, a decision must be made
   whether to include them as part of the listed species. In general,
   such fish will not be included as part of the listed species. An
   exception may be made for existing hatchery fish if they are
   considered essential for the recovery.

Nat'l Marine Fisheries Serv., Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act, 58 Fed. Reg. 17,573, 17,575 (Apr. 5, 1993).

(96) Alsea Valley, 161 F. Supp. 2d at 1162.

(97) Id.

(98) Nat'l Marine Fisheries Serv., Endangered and Threatened Species, 67 Fed. Reg. 6215 (Feb. 11, 2002).

(99) NAT'L MARINE FISHERIES SERV., QUESTIONS AND ANSWERS ABOUT THE REVIEW OF PACIFIC SALMON AND STEELHEAD ESA LISTINGS AND HATCHERY POLICY 1, 4 (Feb. 11, 2002).

(100) UPSTREAM, supra note 28, at 137.

(101) WILLIAM H. MILLER ET AL., DEP'T OF ENERGY, ANALYSIS OF SALMON AND STEELHEAD SUPPLEMENTATION 1, TECHNICAL REPORT 1990 (1990). Actually, there are two definitions of supplementation. The other meaning refers to the augmentation of natural stocks by planting hatchery-cultured fish into the watershed prior to smoltification. UPSTREAM, supra note 28, at 137. The difference is that one definition only accounts for the planting of hatchery-bred and cultured salmon, while the other includes the planting of "adults, eggs, fry, or juveniles, including smolt releases." Id. at 137 n. 3.

(102) UPSTREAM, supra note 28, at 137.

(103) MILLER ET AL., supra note 101, at 36. "We turned over scores of gray literature stones without finding any significant new evidence that supplementation can consistently enhance natural populations.' Id.

(104) Id. at 36, 40.

(105) Id. at 40.

(106) RETURN TO THE RIVER, supra note 26, at 334.

(107) Id.

(108) Id.

(109) Meffe, supra note 90, at 354. Meffe identifies "six reasons why the hatchery approach will ultimately fail: 1) data demonstrate that hatcheries are not solving the problem--salmon continue to decline despite decades of hatchery production; 2) hatcheries are costly to nm, and divert resources from other efforts, such as habitat restoration; 3) hatcheries are not sustainable in the long term, requiring continual input of money and energy; 4) hatcheries are a genetically unsound approach to management that can adversely affect wild populations; 5) hatchery productions lead to increased harvest of declining wild populations of salmon; and 6) hatcheries conceal from the public the truth of real salmon decline.' Id. at 350.

(110) For a discussion on ocean governance, see John M. Van Dyke, International Governance and Stewardship of the High Seas and Its Resources, in FREEDOM FOR THE SEAS IN THE 21ST CENTURY: OCEAN GOVERNANCE AND ENVIRONMENTAL HARMONY 13 (John M. Van Dyke et al. eds., 1993). Two jurisdictional regimes govern international management of Pacific salmon; the exclusive economic zone (extending 200 nautical miles from a nation's coast) and the high seas (beyond the 200-mile exclusive economic zone). Id. Within the exclusive economic zone, a coastal nation has authority "to regulate all living and nonliving resources and to control all polluting activities." Id. In contrast, the high seas is governed as a commons. Id In addition, the 1982 United Nations Convention on the Law of the Sea recognizes that "[s]tates in whose rivers anadromons stocks originate shall have the primary interest in and responsibility for such stocks." United Nations Convention on the Law of the Sea, art. 66(1), Dec. 10, 1982, U.N. Doc. A/Conf. 62/122, 21 I.L.M. 1261, 1283. The 1982 Convention on the Law of the Sea "is viewed as generally reflecting customary international law even by those that did not sign." John M. Van Dyke, supra.

(111) See REYNOLD A. FREDIN ET AL., NORTHWEST & ALASKA FISHERIES CTR., U.S. DEP'T OF COMMERCE, PACIFIC SALMON AND THE HIGH SEAS SALMON FISHERIES OF JAPAN (1977) (outlining the history and response of the United States to Japan's high seas fishery); Peter L. Walton, Piracy of North Pacific Salmon: Economic Implications and Potential Solutions, 25 GEO. WASH. J. INT'L L. & ECON. 581 (1992) (discussing the many agreements responding to the fishery pressures within the North Pacific Ocean).

(112) Walton, supra note 111, at 587-88.

(113) Anadromous Stocks Convention, supra note 1.

(114) Walton, supranote 111, at 586-58.

(115) The Anadromous Stocks Convention replaced the International Convention for the High Seas Fisheries of the North Pacific Ocean, under which Japan was allowed to fish for salmon subject to often-amended geographic limitations. See Walton, supra note 111, at 587-88. This geographic limitation was "a means to limit Japanese interceptions of North American-origin salmon in a fishery ostensibly aimed at the harvest of Asian-origin salmon." Marian Nash, Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, 86 AM. J. INT'L L. 792, 792 (1992).

(116) Tsuneo Akaha, From Conflict to Cooperation: Fishery Relations in the Sea of Japan, 1 PAC. RIM L. & POL'Y J. 225, 240 (1992).

(117) Anadromous Stocks Convention, supra note 1, arts. III. 1(a), I.

(118) Id. art. III. 1(b)-(c).

(119) Id. art. VI(1) ("The Parties shall cooperate in the exchange of information on any activities contrary to the provisions of this Convention."); id. art. VII(1) ("The Parties shall cooperate in the conduct of scientific research....").

(120) The Anadromous Stock Convention is signed by the primary Pacific Rim salmon origin countries: Canada, Russia, Japan, and the United States.

(121) NORTH PACIFIC ANADROMOUS FISH COMMISSION, 2000 ANNUAL REPORT 1, 68-69 (2000) In his closing remarks, William Hines, head of the U.S. delegation stated, "It is only through the sum of the parts, that is, all Contracting Parties working collaboratively together, will we all be able to address such complexity and ensure the long-term sustainability of our salmon resources." Id.

(122) Anadromous Stocks Convention, supra note 1, art. VII(1).

(123) For example, during joint enforcement activities by the convention's parties, U. S. Coast Guard aircraft (staged in Petopavlovsk-Kamchatsky), while patrolling the convention area, were able to detect illegal salmon fishing within Russia's Exclusive Economic Zone. A Russian Border Service vessel then intercepted this illegal commercial fisher and escorted the ship back to port. Press Release, North Pacific Anadromous Fish Commission, 9th Annual Meeting News Release, at http://www.npafc.org/events/NewsRelease/NewsRelease2001.htm (Oct. 28, 2001).

(124) Pacific Salmon Treaty, supra note 6.

(125) Kathleen A. Miller et al., The 1999 Pacific Salmon Agreement: A Sustainable Solution to the Management Game? 1 (August 10, 2001) (on file with author).

(126) See DANIEL A. WALDECK & EUGENE H. BUCK, NAT'L COUNCIL FOR SCI. & THE ENV'T, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS NO. RL 30234, THE PACIFIC SALMON TREATY: THE 1999 AGREEMENT IN HISTORICAL PERSPECTIVE 5 (Oct. 18, 1999) (discussing differing interpretations of the "benefits equivalent" language of the 1985 Pacific Salmon Treaty, where Canada interprets the language strictly on a fish-by-fish basis, while the U.S. argues for a broader interpretation to include "protecting fish habit by forgoing development" or the benefits of transboundary processing).

(127) See Less Salmon Sashimi Vladivostok News (Apr. 13, 2001), http://vlad.tribnet.com/2001/ISS256/News/News07.HTM, (Russia will receive $6 million from Japan to compensate for the Japanese catch.).

(128) WALDECK & BUCK, supra note 126, at 4. The Fraser River lies entirely within Canadian jurisdiction, but salmon originating from-the river generally migrate through United States waters. "From 1900 through 1934, U.S. fisheries produced from 61% to 70% of the sockeye salmon canned from the Fraser River run." Id. The agreement originally dealt solely with sockeye salmon, although pink salmon were later added. Id.

(129) Id. at 5.

(130) Miller et al., supranote 125, at 4.

(131) Thomas C. Jensen, The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview, 16 ENVTL. L. 363, 380 (1986).

(132) Escapement refers to "[t]he number of salmon and steelhead that return to a specified point of measurement after all natural mortality and harvest have occurred." FISH & WILDLIFE PROGRAM, supra note 9, at A-2.

(133) Jensen, supra note 131, at 388-89.

(134) Id. at 391.

(135) Pacific Salmon Treaty, supra note 6.

(136) Id. art. III(1) ("each Party shall conduct its fisheries and its salmon enhancement program so as to: (a) prevent overfishing and provide for optimum production; and (b) provide for each Party to receive benefits equivalent to the production of salmon originating in its waters"); see also Jensen, supra note 131, at 400.

(137) WALDECK & BUCK, supra note 126, at 5.

(138) Pacific Salmon Treaty, supra note 6, arts. II(l), II(18), II(19). The three panels are the Southern Panel, the Fraser River Panel, and the Northern Panel. Id Annex I.

(139) The Pacific Salmon Treaty created fishery regimes for chinook salmon, Fraser River sockeye and pink salmon, coho salmon, southern chum salmon, the northern boundary area fisheries, and the transboundary river fisheries. Id Annex IV, chs. 1-7.

(140) Jensen, supra note 131, at 405-09.

(141) See Sims G. Weymuller, Phoenix from the Ashes--The 1999 Pacific Salmon Agreement, 10 PAC. RIM L. & POL'Y J. 815, 827 (2001).

(142) Id

(143) Id. at 826-27. "Canadian sources reported that the United States intercepted 5.3 million more fish than Canada in 1996 compared to 2.4 million more fish in 1985. This was an increase of over 100% and resulted in approximately 35 million fish, worth an estimated (Can.) $500 million." Id. at 826.

(144) Id at 827.

(145) See 1999 Pacific Salmon Agreement, supra note 22, Annex IV, ch. 1(2), at 15 (establishing an abundance-based management regime).

(146) Id. There are two types of abundance-based fishery regimes--aggregate abundance-based management regimes (AABM) and individual stock-based management regimes (ISBM). "[A]n AABM fishery is an abundance-based regime that constrains catch or total adult equivalent mortality to a numerical limit computed from either a pre-season forecast or an in-season estimate of abundance...." Id. Annex IV, ch. 3(2)(a), at 32. "[A]n ISBM fishery is an abundance-based regime that constrains to a numerical limit the total catch or the total adult equivalent mortality rate within the fisheries of a jurisdiction for a naturally spawning chinook stock or stock group." Id. Annex IV, ch. 3(2)Co), at 33.

(147) See, e.g., Id. Annex IV, ch. 3(7)(a)(i), at 38 (establishing models for use "to compute the abundance index").

(148) See id. Annex IV, ch. 3(3)(c), at 34 ("[A] total fishing mortality approach will be implemented as soon as the required technical improvements in predictions and estimates of incidental mortality can be made.").

(149) Prior to reaching the agreement, the conservation group Trout Unlimited recommended that "[t]he United States and Canada should formally abandon the discredited approach of using fixed ceilings and adopt abundance-based harvest management designed to protect the full range of stock diversity." TROUT UNLIMITED, RESOLVING THE PACIFIC SALMON TREATY STALEMATE 8 (1999).

(150) PACIFIC FISHERIES RESOURCE CONSERVATION COUNCIL, REVIEW OF THE COHO AND CHINOOK SALMON SECTIONS OF THE "AGREEMENT UNDER THE PACIFIC SALMON TREATY" BETWEEN CANADA AND THE UNITED STATES, DATED 30 JUNE 1999 (Background Paper No. 2000/2) 15 (2000).

(151) 1999 Pacific Salmon Agreement, supra note 22, Annex IV, ch. 5(5)(d), at 58.

(152) PACIFIC FISHERIES RESOURCE CONSERVATION COUNCIL, supra note 150, at 15.

(153) See 1999 Pacific Salmon Agreement, supra note 22, Attachments I-V, 43-47 (identifying stock group, criteria for stock group concern, escapement indicator stocks, escapement objective, and criteria for stock status).

(154) PACIFIC FISHERIES RESOURCE CONSERVATION COUNCIL, supra note 150, at 16.

(155) Id. at 17.

(156) KATHLEEN MILLER ET AL., CLIMATE, UNCERTAINTY AND THE PACIFIC SALMON TREATY: INSIGHTS ON THE HARVEST MANAGEMENT GAME 1, 8-9 (2000), http://www.esig.ucar.edu/HP_miller/pubs/267.pdf (arguing that a shift in climate conditions may change the payoffs resulting from the agreement, possibly causing a breakdown).

(157) Id. at 8-10.

(158) 1999 Pacific Salmon Agreement, supra note 22, Attachment E.

   [T]he parties agree: To use their best efforts, consistent with
   applicable law, to: a) protect and restore habitat so as to promote
   safe passage of adult and juvenile salmon and achieve high levels of
   natural production, b) maintain and, as needed, improve safe passage
   of salmon to and from their natal streams, and c) maintain adequate
   water quality and quantity.

Id.

(159) Id. Therefore, the agreement does not address difficulties involved with hatchery/wild fish interactions.

(160) Id. Attachment E(1)(a).

(161) Id. Attachment E(2)(a).

(162) Id. Attachment E(2).

(163) 1999 Pacific Salmon Agreement, supra note 22, Attachment C.

(164) See MILLER ET AL., supra note 156, at 3 (discussing the problems associated with a mixed-stock fisher); id. at 8 (discussing the effects of climate shifts on salmon survival rates).

(165) Id. at 12.

(166) Id.

(167) Correspondence to Parties from Chief Negotiators Regarding Proposed Agreement Relating to the Pacific Salmon Treaty, in PACIFIC SALMON COMMISSION, supra note 10, at 110.

(168) Id.

(169) Xanthippe Augerot, An Environmental History of the Salmon Management Philosophies of the North Pacific: Japan, Russia, Canada, Alaska and the Pacific Northwest United States 255 (2000) (unpublished Ph.D. dissertation, Oregon State University) (on file with the Boley Law Library of Lewis & Clark Law School).

(170) Id

(171) Ministry of Agriculture, Forestry, and Fisheries, Japan-Russia Joint Committee on Fisheries Reaches Agreement on Offshore Salmon Fishing, MArt UPDATE (Mar. 28, 1997), at http://www.maff.go.jp/mud/205.html (last visited Oct. 15, 2002).

(172) Less Salmon Sashimi, supra note 127.

(173) Id.

(174) Id.

(175) Id

(176) Augerot, supra note 169, at 260.

(177) Stephen Zotov, Far East Salmon Catch Up, but Poaching Still a Worry, MOSCOW JOURNAL (Sept. 13, 1999), http://www2.russiajournal.com/weekly/article.shtml?ad=1124.

(178) Id.

(179) RETURN TO THE RIVER, supra note 26, at 366.

(180) See id. at 50-80. (developing an alternative conceptual framework for Columbia salmon that "must address the entire natural and cultural ecosystem, which encompasses the continuum of freshwater, estuarine, and ocean habitats where salmonid fishes complete their life histories").

(181) UPSTREAM, supra note 28, at 39.

(182) A "mixed-stock fishery' refers to "a harvest management technique by which different species, strains, races or stocks are harvested together." FISH & WILDLIFE PROGRAM, supra note 9, at A-3.

(183) TROUT UNLIMITED, supra note 149, at 13. "In the long run, failure to protect depressed stocks results in localized extinctions and the loss of genetic diversity of salmon coast-wide." Id at 9.

(184) The goal of selective harvest includes the ability to distinguish hatchery fish from naturally spawning stocks.

(185) Meffe, supra note 90, at 352.

(186) Donald D. MacDonald et al., One Northwest Community--People, Salmon, Rivers, and the Sea: Toward Sustainable Salmon Fisheries, in SUSTAINABLE FISHERIES MANAGEMENT 687, 695 (Eric E. Knudsen et al. eds., 2001).

(187) TROUT UNLIMITED, supra note 149, at 10.

(188) International Convention for the Regulation of Whaling, Dec. 2, 1946, T.I.A.S. 1849.

(189) See Biodiversity Convention, supra note 18.

(190) UNITED NATIONS ENVIRONMENT PROGRAM, GUIDE TO THE CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS 2 (2002) [hereinafter GUIDE TO CMS].

(191) CMS, supra note 17, Prmbl.

(192) Id; see also LYLE GLOWKA, A GUIDE TO THE COMPLEMENTARITIES BETWEEN THE CONVENTION ON MIGRATORY SPECIES AND THE CONVENTION ON BIOLOGICAL DIVERSITY 28 (2000) ("The CMS Instruments early on recognised that holistic and integrated measures were needed to address migratory species conservation and sustainable use.").

(193) Russia has signed and fully participates in the Memorandum of Understanding Concerning Conservation Measures for the Siberian Crane, and the United States has signed and financially supports the Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia. UNITED NATIONS ENVIRONMENT PROGRAM, MEMORANDUM OF UNDERSTANDING CONCERNING CONSERVATION MEASURES FOR THE SIBERIAN CRANE, INTRODUCTION, available at http://www.wcmc.org.uk/cms/sib_bkrd.htm (last visited Oct. 14, 2002); UNITED NATIONS ENVIRONMENT PROGRAM, INDIAN OCEAN AND SOUTH-EAST ASIA MARINE TURTLE MEMORANDUM OF UNDERSTANDING, BACKGROUND, available at http://www.wcmc.org.uk/cms/IOSEAturtle_bkgd.htm (last visited Oct. 14, 2002).

(194) Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals, the "Bonn Convention," 29 NAT. RESOURCES J. 979, 983 (1989).

(195) Id. at 981.

(196) Ralph Osterwoldt, Implementation and Enforcement Issues in the Protection of Migratory Species; Two Case Studies: Waterfowl in North America Seals in Europe, 29 NAT. RESOURCES J. 1017, 1028 (1989). "The federal system made it difficult for the national governments to enter into international legal obligations without the full support of state provincial governments." Id.

(197) See supra Part III(D).

(198) "'Migratory species' means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one of more national jurisdictional boundaries." CMS, supra note 17, art. I(1)(a).

(199) Id. art. III(2).

(200) "'Conservation status of migratory species' means the sum of the influences acting on the migratory species that may affect its long-term distribution and abundance." Id. art. I(b). Although "unfavorable" is not defined, "conservation status" will be taken as "favourable" when: the species is maintaining itself; the range is not currently, nor likely, to be reduced; there is, and in the future will be, sufficient habitat; and the distribution and abundance approach historic coverage and levels. Id. art. I(c)(1)-(4).

(201) Id. art. IV(l).

(202) Id. art. I(e).

(203) Id. art. IV(2).

(204) "'Range State' in relation to a particular migratory species means any State (and where appropriate any other Party referred to under subparagraph (k) of this paragraph) that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species." Id. art. I(l)(h).

(205) The words "shall endeavour" were advocated by the United States, among others. The obligations under this wording are weaker than a binding "shall" because the language implies that a nation need only "endeavour." Lyster, supra note 194, at 987.

(206) "'Taking' means taking, hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct." CMS, supra note 17, art. I(1)(i). There are four exceptions to the prohibition: taking for "scientific purposes," taking for "enhancing the propagation or survival of the affected species," taking for "traditional subsistence users," and "extraordinary circumstances." Id. art. III(5)(a)-(d).

(207) Id. art. III(4)(a)-(c), (5).

(208) Appendix I of the Convention on the Conservation of Migratory Species of Wild Animals, effective Feb. 14, 2000, at http://www.wcmc.org.uk/cms/cms_appl.htm (last visited Oct. 8, 2002).

(209) Hereinafter, the use of the term "unfavorable conservation status" includes those species that would significantly benefit from agreements.

(210) GUIDE TO CMS, supra note 190, at 3.

(211) CMS, supra note 17, art. V(2).

(212) Id. an. V(5)(b).

(213) CMS Agreements, at http://www.wcmc.org.uk/cms (last visited Oct. 14, 2002).

(214) GLOWKA, supra note 192, at 12. The CMS allows for the conclusion of agreements that encompass groups of species, for example, UNITED NATIONS ENVIRONMENTAL PROGRAM, AGREEMENT ON THE CONSERVATION OF POPULATIONS OF EUROPEAN BATS (1991), http://www.wcmc.org.uk/cms/bat_bkrd.htm.

(215) CMS, supra note 17, art. I(1)(a).

(216) Dianne K. Conway & Daniel S. Evans, Salmon on the Brink: The Imperative of Integrating Environmental Standards and Review on an Ecosystem Scale, 23 SEATTLE U. L. REV. 977, 981 (2000).

(217) Id.

(218) "If the circumstances so warrant, a migratory species may be listed both in Appendix I and Appendix II." CMS, supra note 17, art. IV(2).

(219) Id. art. V(5)(b).

(220) GLOWKA, supra note 192, at 18.

(221) GUIDE TO CMS, supra note 190, at 4.

(222) UNITED NATIONS ENVIRONMENTAL PROGRAM, AGREEMENT ON THE CONSERVATION OF CETACEANS OF THE BLACK SEA, MEDITERRANEAN SEA AND CONTIGUOUS ATLANTIC AREA (1991), http://www.wcmc.org.uk/cms/acc_CP.htm. Specifically, national legislation shall include the development and implementation of measures to minimize adverse effects of fisheries, prevent fishing gear from being discarded, require impact assessments, regulate the discharge of pollutants at sea, and strengthen or create national institutions to implement the agreement. Id. Annex 2(1)(a-e).

(223) UNITED NATIONS ENVIRONMENT PROGRAM, ACTION PLAN FOR THE CONSERVATION OF THE WESTERN AND CENTRAL POPULATIONS OF THE SIBERIAN CRANE 1993), http://www.wcmc.org.uk/cms/sib_AP.htm.

(224) Id. (Pakistan section).

(225) For example, the agreement relating to marine turtles of the Indian Ocean and South-East Asia requires parties to implement "the provisions of the Conservation and Management Plan ..." The Conservation Plan then requires parties, among other activities, to "[d]esignate and manage protected/conservation areas, sanctuaries or temporary exclusion zones in areas of critical habitat." Implementation of the plan ensures progress towards the objective of the parties "to protect, conserve, replenish and recover marine turtles and their habitats." UNITED NATIONS ENVIRONMENT PROGRAM, MEMORANDUM OF UNDERSTANDING ON THE CONSERVATION AND MANAGEMENT OF MARINE TURTLES AND THEIR HABITATS OF THE INDIAN OCEAN AND SOUTH-EAST ASIA (2001), http://www.wcmc.org.uk/cms/IOSEAturtle_mou.htm.

(226) For example, the International Crane Foundation and the Wild Bird Society of Japan are explicitly mentioned in the action plan pertaining to Siberian cranes. These nongovernmental entities are called upon to provide monitoring information, assist in "experimental release" programs, and provide monitoring equipment. ACTION PLAN FOR THE CONSERVATION OF THE WESTERN AND CENTRAL POPULATIONS OF THE SIBERIAN CRANE, supra note 223 (International Crane Foundation and Wild Bird Society of Japan section).

(227) CMS, supra note 17, art. II(3)(a).

(228) Id. art. V(5)(c).

(229) Id. art. V(5)(j).

(230) Catherine Tinker, A "New Breed" of Treaty: The United Nations Convention on Biological Diversity, 13 PACE ENVTL. L. REV. 191 (1995).

(231) Biodiversity Convention, supra note 18.

(232) Tinker, supra note 230, at 189.

(233) Parties to the Convention on Biological Diversity, at http://www.biodiv.org/ world/parties.asp (last visited Feb. 23, 2003).

(234) "'In-situ conservation' means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties." Biodiversity Convention, supra note 18, art. 2. In contrast, "'[e]x situ conservation' means the conservation of components of biological diversity outside their natural habitats," for example, in a zoo. Id.

(235) Id art. 8.

(236) Id. art. 8(a)

(237) Id. art. 8(c)

(238) Id. art. 2

(239) Id.

(240) Tinker, supra note 230, at 194.

(241) Biodiversity Convention, supra note 18, art. 8(a).

(242) Id. art. 2.

(243) WASH. DEP'T OF FISH & WILDLIFE, PACIFIC SALMON AND WILDLIFE: ECOLOGICAL CONTEXTS, RELATIONSHIPS, AND IMPLICATIONS FOR MANAGEMENT, SPECIAL EDITION TECHNICAL REPORT 48 (2001).

(244) Id. at 35. "Of the 138 species with a relationship to salmon, 9 species were categorized as having a Strong, Consistent relationship, 58 as Recurrent 25 as Indirect and 65 as Rare. This tally totals more than 138 because 19 species had more than one type of relationship with salmon." Id.

(245) The term "keystone species" refers to a species that is of particular importance for the maintenance of biological diversity within a given system. Willson & Halupka, supra note 58, at 490.

(246) Id.

(247) Convention on Biological Diversity, Protected Areas-Introduction, available at www.biodiv.org/programmes/cross-cutting/protected/(last visited Feb 23, 2003).

(248) Biodiversity Convention, supra note 18, art. 8(c).

(249) Chris Wold, The Futility, Utility, and Future of the Biodiversity Convention, 9 COLO. J. INT'L ENVTL. L. & POL'Y 1, 5, 15 (1998).

(250) Id. at 32-33.

(251) GLOWKA, supra note 192, at 44.

(252) Id.

(253) The ICUN is also referred to as the World Conservation Union.

(254) The IUCN "brings together 78 states, 112 government agencies, 735 NGOs, 35 affiliates, and some 10,000 scientists and experts from 181 countries in a unique worldwide partnership." IUCN, Mission/Vision, http://www.iucn.org/2000/about/content/index.html (last visited Oct. 13, 2002).

(255) IUCN, REPORT 2000 1 (2000).

(256) IUCN, supra note 19, at 2.

(257) Id. at 5.

(258) The six categories are Strict Nature Reserve, Wilderness Area, National Park, Natural Monument, Habitat/Species Management Area, Protected Landscape/Seascape, and Managed Resource Protected Area. Id. at 12.

(259) Convention on Biological Diversity, Protected Areas, supra note 247; IUCN, Guidelines for Protected Area Management Categories, The Management Categories, Category N (1994), at http://www.unep-wcmc.org/protected_areas/categories/eng/iv.htm (last visited Nov. 4, 2002).

(260) IUCN/SSC, STRATEGIC PLAN 2001-2010 [section] 3.4 (2001) [hereinafterSTRATEGIC PLAN].

(261) Id. [section] 3.2.

(262) Id. [section] 3.5

(263) IUCN, Specialist Groups, http://iucn.org/themes/ssc/sgs/sgs.htm (last visited Feb. 23, 2003).

(264) IUCN, supra note 255, at 17.

(265) Species Survival Comm'n, New IUCN SSC Specialist Groups--Salmon Specialist Group, Species Survival Commission E-Bulletin, http://iucn.org/themes/ssc/news/ebulletin2001/ ebulletinoct.html (Oct. 2001).

(266) Id.

(267) "Collaborative processes need a powerful, committed advocate to make them happen." Susan L. Smith, Collaborative Approaches to Pacific Northwest Fisheries Management: The Salmon Experience, 6 WILLAMETTE J. INT'L L. & DISP. RESOL. 29, 61 (1998).

(268) IUCN, supra note 255, at 9.

(269) Convention for the Protection of Migratory Birds in the United States and Canada, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702 [hereinafter Migratory Bird Treaty with Great Britain].

(270) Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S. Mex., 50 Stat. 1311.

(271) Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment, March 4, 1972, U.S.-Japan, 25 U.S.T. 3329.

(272) Convention Concerning the Conservation of Migratory Birds and Their Environment, May 23, 1972, U.S.-U.S.S.R., 29 U.S.T. 4647 [hereinafter Migratory Bird Treaty with Russia].

(273) See Migratory Bird Treaty with Great Britain, supra note 269, art. IV. The only mention of habitat protection concerned the wood duck and eider duck, which disjunctively offered the alternative to closing the season over five years with the "establishment of refuges." Id.

(274) Migratory Bird Treaty with Russia, supra note 272, at 4654.

(275) Migratory Bird Treaty Act, 16 U.S.C. [subsection] 703-711 (2000).

(276) Id. [subsection] 703-704. See Conrad J. Fjetland, Possibilities For the Expansion of the Migratory Bird Treaty Act for the Protection of Migratory Birds, 40 NAT. RESOURCES J. 47, 49-58 (2000) (discussing liability under the Migratory Bird Treaty Act); Scott Finet, Habitat Protection and the Migratory Bird Treaty Act, 10 TUL. ENVTL. L.J. 1 (1996).

(277) U.S. DEP'T OF THE INTERIOR ET AL., NORTH AMERICAN WATERFOWL MANAGEMENT PLAN: A STRATEGY FOR COOPERATION 9 (1986) [hereinafter NAWMP] (discussing the possible negative impacts of "hydropower and recreational developments, certain forestry practices, and industrial effluent pollution and atmospheric contamination").

(278) Migratory Bird Conservation Act, 16 U.S.C. [section] 715 (2000).

(279) Migratory Bird Hunting Stamp Act, 16 U.S.C. [subsection] 718d(b)-(c) (2000) For example, "The Secretary of the Interior is authorized to utilize funds made available ... to acquire, or defray the expense incident to the acquisition by gift, devise, lease, purchase, or exchange of, small wetland and pothole areas ... designated 'Waterfowl Production Area.'" Id. [section]718d(c).

(280) 16 u.s.c. [section] 715(d).

(281) Id. [section] 718d(c).

(282) Id.

(283) 50 C.F.R. [section] 32.1 (opening wildlife refuge areas to hunting).

(284) 16 U.S.C. [section] 668dd(1)(2000)

   For the purpose of consolidating the authorities relating to the
   various categories of areas that are administered by the Secretary
   of the Interior for the conservation of fish and wildlife,
   including species that are threatened with extinction, all lands,
   waters, and interests therein administered by the Secretary as
   wildlife refuges, areas for the protection and conservation of
   fish and wildlife that are threatened with extinction, wildlife
   ranges, game ranges, wildlife management areas, or waterfowl
   production areas are hereby designated as the "National Wildlife
   Refuge System."

Id.

(285) Murray G. Sagsveen & Matthew A. Sagsveen, Waterfowl Production Areas: An Updated State Perspective, 76 N.D.L. REV. 861,862 (2000).

(286) See, e.g., Jane E. Austin, et al., Duck Populations as Indicators of Landscape Condition in the Prairie Pothole Region, 69 ENVTL. MONITORING & ASSESSMENT 29-47 (2001).

(287) WASH. DEP'T OF FISH & WILDLIFE, supra note 243, at 71.

(288) UPSTREAM, supra note 28, at 202-03.

(289) EXPANDING THE VISION, supra note 15, at 3.

(290) NAWMP, supra note 277, at 2.

(291) Id.

(292) EXPANDING THE VISION, supra note 15, at 1.

(293) Id.

(294) NAWMP, supra note 277, at 14.

(295) Id.

(296) EXPANDING THE VISION, supra note 15, at 32.

(297) Id.

(298) Id.

(299) Id.

(300) Id at 2.

(301) See Fjetland, supra note 276, at 50-51 (discussing the changing judicial interpretation of the Migratory Bird Treaty Act).

(302) Id.

(303) EXPANDING THE VISION, supra note 15, at 2.

(304) NAWMP, supra note 277, at 6.

(305) Id. at 9.

(306) Id. at 14.

(307) Id. at 17.

(308) Id.

(309) NAWMP, supra note 277, at 17.

(310) Id.

(311) Id. at 18.

(312) Cyril De Klemm, Migratory Species in International Law, 29 NAT. RESOURCES J. 935, 968 (1989).

(313) Like the Biodiversity Convention, this Comment refers to diversity "within species, between species and of ecosystems." See Biodiversity Convention, supra note 18, art. II.

(314) See WASH. DEP'T OF FISH & WILDLIFE, supra note 243, at 73 (discussing the current lack of long-term management of Pacific salmon).

(315) IUCN, supra note 19.

(316) CMS, supra note 17, art. IV(3).

(317) See http://www.oregon-plan.org/ ("Restoring and protecting Oregon's watersheds through locally-driven, voluntary, cooperative efforts") (last visited Feb. 23, 2003).

(318) FISH & WILDLIFE PROGRAM, supra note 9, at 41.

(319) For a description of the Kamchatchka Salmon Biodiversity Program,see http://www.wildsalmoncenter.org/sanctuary.php (last visited Feb. 23, 2003).

(320) See supra Sec. II (discussing Pacific salmon life histories).

(321) FISH & WILDLIFE PROGRAM, supra note 9, at 15.

(322) See BRIAN C.SPENCE ET AL., AN ECOSYSTEM APPROACH TO SALMONID CONSERVATION, A MANTECH REPORT(1996), http://www.nwr.noaa.gov/1habcon/habweb/ManTech/front.htm (providing a technical basis for an all-ecosystem approach).

(323) For a discussion of the difficulties in defining and describing ecosystem management, see Robert T. Lackey, Restoring Wild Salmon to the Pacific Northwest: Chasing an Illusion?, in WHAT WE DON'T KNOW ABOUT PACIFIC NORTHWEST FISH RUNS: AN INQUIRY INTO DECISION-MAKING UNDER UNCERTAINTY 91, 119-20 (Patricia Koss & Mike Katz eds., 2000).

(324) UPSTREAM, Supra note 28, at 361-62.

(325) Stone, A National Salmon Park, supra note 16, at 149.

(326) Biodiversity Convention, supra note 18, art. 8(a)-(b).

(327) WHIDDEN & LICHATOWICH, Supra note 16, at 30.

(328) CHRISTOPHER FRISSELL, A NEW STRATEGY FOR WATERSHED RESTORATION AND RECOVERY OF PACIFIC SALMON IN THE PACIFIC NORTHWEST 20 (1993); see also FISH & WILDLIFE PROGRAM, Supra note 9, at 23 ("Where the critical habitat is largely intact, artificial production is not currently occurring, and the fish population has good potential then no artificial production should be used. Those populations and their associated spawning and early rearing habitat should be preserved and protected.").

(329) FRISSELL, supra note 328, at 20.

(330) Id.

(331) WHIDDEN & LICHATOWICH, supra note 16, at 30.

(332) Id.; see also James Lichatowich et al., Sanctuaries for Pacific Salmon, in SUSTAINABLE FISHERIES MANAGEMENT, supra note 186, AT 675, 680 (Salmon refuges "must contain native populations of Pacific salmon which are capable of expressing a major part of their life history diversity.").

(333) Guido R. Rahr, Protecting Healey Fish Stocks: A Pacific No, west Approach, TRANSACTIONS OF THE 60TH N. AM. WILDLIFE & NAT. RESOURCES CONF. 98, 101 (1995).

(334) FRISSELL, supra note 328, at 21.

(335) Id.

(336) Brodeur et al., supranote 9, at 31.

(337) FRISSELL, supra note 328, at 21-22.

(338) A. CHARLOTTE DE FONTAUBERT ET AL., BIODIVERSITY IN THE SEAS: IMPLEMENTING THE CONVENTION ON BIOLOGICAL DIVERSITY IN MARINE AND COASTAL HABITATS 15 (1996).

(339) FOREST ECOSYSTEM MANAGEMENT ASSESSMENT TEAM, FOREST ECOSYSTEM MANAGEMENT: AN ECOLOGICAL, SOCIAL, AND ECONOMIC ASSESSMENT V-46 (1993).

(340) Id.

(341) See CMS, supra note 17, art. 5(f) ([E]ach agreement "should provide for ... maintenance of a network of suitable habitats.").

(342) Pacific Salmon Treaty, supra note 6, Attachment C.

SEAN PHELAN *

* [c] Sean Phelan, 2003. Associate Editor, Environmental Law, 2002-2003; J.D. and Certificate in Environmental and Natural Resource Law expected 2003, Lewis & Clark Law School; B.S. 1999, Southern Oregon University. The author thanks Xanthippe Augerot, Connor Boyd, and Professor Chris Wold for their invaluable comments and guidance. Most of all, the author thanks Kathryn for all her patience and support throughout this process.