The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

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The Pacific Salmon Treaty: The 1999

Agreement and Renegotiated Annex IV

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Congressional Research Service

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CRS Report for Congress

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Summary

The Pacific Salmon Treaty (PST) of 1985 requires the United States and Canada to develop

periodic bilateral agreements to implement the PST’s conservation and harvest-sharing principles.

Beginning in 1993, long-standing disputes prevented such an agreement from being concluded.

On June 30, 1999, after many years of heated diplomatic struggles, U.S. and Canadian officials

reached a new comprehensive agreement. The 1999 Agreement (1) established abundance-based

fishing regimes for the Pacific salmon fisheries under the jurisdiction of the PST; (2) created two

bilaterally managed regional restoration and enhancement endowment funds to promote

cooperation, improve fishery management, and aid stock and habitat enhancement efforts; and (3)

included provisions to enhance bilateral cooperation, improve the scientific basis for salmon

management, and apply institutional changes to the Pacific Salmon Commission (PSC). Annex IV

to the 1999 Agreement outlines, in detail, the fishery regimes to be followed by Canada and the

United States in cooperatively managing the six species of anadromous Pacific salmon and trout.

Before it expired at the end of 2008, the terms of Annex IV were renegotiated.

The 1999 conservation and harvest-sharing agreement was of interest to Congress for several

reasons. Most notably, a congressional appropriation of $140 million was required to establish the

agreement’s two regional restoration and enhancement endowment funds. Provisions of the 1999

Agreement were implemented thorough additional authorizing language and amendment of the

Pacific Salmon Treaty Act (16 U.S.C. §§3631, et seq.). The 1999 Agreement under the PST

regime has been implemented in accordance with existing U.S. laws pertaining to salmon

conservation (e.g., Magnuson-Stevens Fishery Conservation and Management Act; Endangered

Species Act). In addition, the agreement’s implementation determines the quantity of fish

available for commercial, recreational, and subsistence fisheries as well as Indian treaty

allocations.

Many complex issues continue to challenge the PSC and the parties; several of these were

addressed in the 2008 renegotiation of the Annex IV fisheries regimes. Some of the issues

associated with the renegotiation included the fishery regime for Chinook salmon found in

Chapter 3 of Annex IV. The problems arising from the status (e.g., U.S. endangered and

threatened species listing) of certain runs of Chinook salmon in Washington, Oregon, Idaho, and

perhaps British Columbia posed particular challenges for the negotiators. Additional concerns

arose from Canada over increasing bycatch of Chinook salmon by the U.S. pollock fishery in the

Bering Sea, as many of these fish are bound for the Yukon River, including Canadian tributaries.

This report provides historical background about the PST, discusses issues that created difficulties

in the regime, summarizes the 1999 accord, and analyzes issues considered during the

renegotiation of Annex IV. The 111th Congress may conduct oversight of the renegotiated

Agreement and its implications for U.S. salmon management.

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Contents

Introduction ................................................................................................................................1

Historical Background ................................................................................................................2

The Pacific Salmon Treaty ..........................................................................................................6

The Pacific Salmon Treaty Act of 1985 and U.S. Decision-Making .............................................9

The 1999 Agreement ................................................................................................................. 11

Abundance-Based Management .......................................................................................... 12

Fishery Regimes ................................................................................................................. 12

Transboundary Rivers ................................................................................................... 12

Northern British Columbia and Southeast Alaska .......................................................... 13

Chinook Salmon ........................................................................................................... 13

Fraser River Sockeye and Pink Salmon ......................................................................... 14

Coho Salmon ................................................................................................................ 15

Southern British Columbia and Washington State Chum Salmon ................................... 16

Regional Endowment Funds................................................................................................ 16

Cooperation on Scientific and Institutional Matters ............................................................. 17

Habitat................................................................................................................................ 17

Concerns with the 1999 Agreement ........................................................................................... 18

Dispute Resolution.............................................................................................................. 22

Issues of Potential Conflict between Alaska and Oregon/Washington/California .................. 22

Implementing the Regional Endowment Funds.................................................................... 23

Effect of Chinook Management on Other Fisheries.............................................................. 24

Renegotiated Annex IV ............................................................................................................. 25

Renegotiation Timeline ....................................................................................................... 25

U.S. Concerns ..................................................................................................................... 25

Measures beyond Harvest Control................................................................................. 25

Non-Fishing Factors Affecting Productivity and Capacity ............................................. 26

Interaction with U.S. Harvest Policy.............................................................................. 26

Mass Marking and Mark-Selective Fishing.................................................................... 26

Ambiguity..................................................................................................................... 26

Planning Forums for Exchanging Information and Perspectives..................................... 27

Funding Reductions ...................................................................................................... 27

Regulation and Accountability in First Nation Fisheries ................................................ 27

Canadian Concerns ............................................................................................................. 28

Constituent Concerns .......................................................................................................... 29

Renegotiated Annex IV ....................................................................................................... 29

Figures

Figure 1. Major Coastal Waters and Drainages Affected by the PST ............................................3

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Tables

Table 1. Expenditures by Project Category (in U.S. dollars)....................................................... 23

Contacts

Author Contact Information ...................................................................................................... 30

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Introduction

On June 30, 1999, U.S. and Canadian officials signed a new comprehensive agreement to resolve

long-standing disputes and to ensure implementation of the conservation and harvest-sharing

principles of the 1985 Pacific Salmon Treaty (PST). After years of failed negotiations, a

combination of resource management studies, joint-fishery restrictions to protect wild salmon

stocks, and the involvement of high-level government negotiators helped ease tensions between

the United States and Canada over the shared harvest of Pacific salmon. Moreover, the two

nations recognized that failure to reach a long-term conservation and harvest-sharing agreement

was in no one’s best interest. The provisions in this agreement’s Annex IV outline, in detail, the

fishery regimes to be followed by Canada and the United States in cooperatively managing the

five species of Pacific salmon. Most chapters of Annex IV expired at the end of 2008,1 and

discussions began in 2005 on its renegotiation. This report provides historical background about

the PST, discusses issues that created difficulties in the regime, summarizes the 1999 salmon

accord, and outlines issues relevant to the renegotiation of Annex IV.

The 1999 Agreement (1) established abundance-based fishing regimes for the Pacific salmon

fisheries under the jurisdiction of the PST; (2) created two bilaterally managed regional

restoration and enhancement endowment funds to promote cooperation, improve fishery

management, and aid stock and habitat enhancement efforts; and (3) included provisions to

enhance bilateral cooperation, improve the scientific basis for salmon management, and apply

institutional changes to the Pacific Salmon Commission (PSC).

Pacific salmon have long been a matter of common concern to the United States and Canada. In

the 1800s, with the advent of canning technologies, extensive commercial salmon fisheries

developed in both countries. Since their inception, salmon fisheries have experienced strong

fluctuations in catch and stock abundance. Periods of great plenty were often followed by years of

low returns. By the 20th century, it had become obvious that the combined effects of fishing and

natural variability in abundance could lead to overharvest. The United States and Canada

recognized that some form of cooperation would be necessary for the sake of the resource.

For many years, piecemeal agreements were forged to protect specific fisheries, such as Fraser

River sockeye and pink salmon. 2 However, because of the diversity in salmon fisheries and

recurring disagreements over how best to address the interception problem, 3 these agreements

proved inadequate. In 1985, the PST4 created an arrangement for cooperative management,

research, and enhancement of all intercepted Pacific salmon stocks. The goal of the PST is

coordinated management of Pacific salmon throughout their range to ensure sustainable fisheries

and maximize long-term benefits to the parties.

Chapter 4 of Annex IV, Fraser River Sockeye and Pink Salmon, applies thorough 2010.

The Fraser River Convention, discussed below.

Interception means the capture of salmon originating in one country by the fishing fleets of another. Salmon

intermingle as they migrate from the North Pacific Ocean back to their natal rivers, crossing the international

boundaries of the United States and Canada. Some salmon returning to spawn in Canadian rivers are incidentally

captured (“intercepted”) in U.S. fisheries, and some returning to U.S. rivers are intercepted in Canadian fisheries.

Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific

Salmon, TIAS 11091 (Ottawa, Canada: 1985).

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Despite the PST, some salmon stocks continued to decline.5 Interceptions strained diplomatic

relations between the United States and Canada, and the parties fundamentally disagreed on how

to achieve the conservation and harvest-sharing goals established by the PST. After a long-term

harvest agreement expired in 1992, Canada argued strongly that the United States was exceeding

its share of the catch under the PST’s “benefits equivalent” provisions.6 In contrast, the United

States argued that Canadian interceptions of Pacific Northwest (Washington, Oregon, and Idaho)

coho salmon and Chinook salmon were further damaging these depleted stocks. 7

In years following 1992, a unstated assumption of both parties—that they would both abide by

conservation measures—allowed the two countries to manage their fisheries. In 1997, bilateral

stakeholder talks were held in an attempt to resolve the impasse. Ultimately, these negotiations

failed to forge an agreement. In August 1997, the United States and Canada appointed William

Ruckelshaus and David Strangway, respectively, to conduct a joint investigation and to make

recommendations for ending the controversy. In addition, Washington State and Canada agreed to

restrict several of their fisheries to help protect wild salmon stocks. However, failure to reach a

long-term conservation and harvest-sharing agreement harmed several salmon stocks and

hampered the ability of Washington, Alaska, and British Columbia fishermen to plan fishing

seasons and budget expenses because, without a harvest-sharing agreement, year-to-year salmon

allocations were unpredictable.8 Thus, the 1999 Agreement represented a major breakthrough in a

longstanding contentious resource issue.

Historical Background9

Pacific salmon are among the world’s most highly migratory anadromous fish.10 They spawn in

fresh water, often hundreds of miles from the ocean, migrate to the sea as juveniles, and then

disperse into the open ocean. From one to several years later, they return to their natal rivers to

spawn and complete their life cycle. Along the Pacific Coast of North America, many juvenile

salmon travel north after they enter the ocean, migrating freely across the national boundaries of

the United States and Canada and into international waters (see Figure 1).

In the 1990s, many salmon stocks in Washington, Oregon, California, and Idaho were at or near historically low

levels of abundance. Listings under the Endangered Species Act of 1973 (16 U.S.C. §§1361, et seq.) confirmed the

depleted status of some of these stocks. For more information, see CRS Report 98-666, Pacific Salmon and Steelhead

Trout: Managing Under the Endangered Species Act, by (name redacted).

In the late-1990s, Canadians asserted that the United States was taking an annual average of about 9 million more

Canadian-origin fish than Canada was harvesting of U.S.-origin salmon, representing lost value to Canada in the

hundreds of millions of dollars.

M. Drouin and B. Warren, “U.S./Canada: Progress or Politics?” Pacific Fishing, vol. XX, no.6 (June 1999): 37.

Ibid.

Much of this information was derived from the PSC at http://www.psc.org; and Trout Unlimited USA and Trout

Unlimited Canada, Resolving the Pacific Salmon Treaty Stalemate (Seattle, WA: 1999).

Anadromous fish begin their lives in freshwater rivers and lakes, migrate while immature to the open ocean where

they feed and grow, and return to freshwater (often to their natal rivers) to spawn. Anadromous species include Atlantic

and Pacific salmon, shad, eulachon (Columbia River smelt), and striped bass.

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Figure 1. Major Coastal Waters and Drainages Affected by the PST

There are six species11 of anadromous Pacific salmon and trout: Chinook (king) salmon

(Oncorhynchus tshawytscha), sockeye (red) salmon (O. nerka), coho (silver) salmon (O. kisutch),

pink (humpy) salmon (O. gorbuscha), chum (dog) salmon (O. keta), and steelhead trout (O.

mykiss). Migration patterns widely vary among the species. 12 Because of their value and

Cherry salmon (Oncorhynchus masou) is also a Pacific salmon, but primarily occurs on the Asian coast, so it is not a

concern under the PST.

Migration patterns of salmon are determined by using coded-wire tags (CWT). Juvenile salmon can be implanted

with CWT specific to their drainage of origin. When a tagged salmon is caught in the ocean, encoded information on

the CWT reveals the drainage from which the fish originated. Plausible migratory routes between the location of

(continued...)

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

importance to U.S. and Canadian fisheries, three species—Chinook, sockeye, and coho—are of

particular interest.13

Chinook salmon from central and northern Oregon coastal rivers, the Columbia River system, and

drainages entering Puget Sound generally swim north as juveniles, some migrating as far as the

waters off northern British Columbia and Alaska. Coho salmon stocks generally do not migrate as

far north and the southern coho stocks (fish originating in Washington/Oregon and southern

British Columbia) generally do not mingle with the northern stocks (originating in northern

British Columbia and Alaska), which frequently migrate through the waters off southeast Alaska.

Because of this natural segregation, the northern and southern coho stocks are addressed

separately in the PST. Sockeye salmon from British Columbia’s Fraser River move in different

patterns depending on ocean conditions. In years when El Niño climatic events occur, Fraser

River sockeye are more prevalent in southeast Alaskan waters, returning to the Fraser River

through Johnstone Strait off the west coast of the British Columbia mainland. In other (non-El

Niño) years, Fraser River sockeye exhibit a somewhat more southerly distribution and return

through the Strait of Juan de Fuca.14

As a result of these migration patterns, fishermen in the United States and Canada intercept fish

originating in and returning to rivers of the other country, often in substantial numbers. Canadian

commercial troll fisheries15 off the west coast of Vancouver Island (WCVI) often catch Chinook

and coho salmon bound for the rivers of Oregon and Washington, including some threatened and

endangered stocks. WCVI trollers and recreational anglers also harvest Puget Sound Chinook.

Fishermen in southeast Alaska catch salmon returning to rivers in Canada and the Pacific

Northwest. In some years, Washington State commercial fisheries, both tribal and non-tribal, may

catch large numbers of Fraser River sockeye as they migrate through the Strait of Juan de Fuca.

For many years, these interceptions caused tension between the United States and Canada. Thus,

salmon migration patterns and interceptions complicate negotiations.16

(...continued)

marine capture and the drainage of origin can be identified and further clarified as additional tag recoveries of fish from

the same drainage are recorded along the population’s entire migratory route.

This report focuses on the salmon species covered by the PST. However, other international agreements pertaining to

Pacific salmon fisheries exist, e.g., the North Pacific Anadromous Fish Commission, which was established under the

Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, signed on February 11, 1992 and

entered into force on February 16, 1993 (Senate Treaty Doc. 102-30, 102nd Congress, 2nd Session). Parties to this

Convention include Canada, Japan, the Russian Federation, and the United States. The goal of this Convention is to

promote the conservation of anadromous stocks in the North Pacific Ocean http://www.npafc.org/.

K. A. Thomson, et al., “The influence of ocean currents on the latitude of landfall and migration speed of sockeye

salmon returning to the Fraser River,” Fisheries Oceanography, v. 1, no. 2 (1992): 163-179.

Trolling is a vessel fishing technique whereby multiple lines with hooks are pulled behind moving vessels to catch

fish.

For example, upper Columbia River Chinook stocks (along with Oregon and Washington coastal Chinook) are

predominantly wild fish that migrate far north. These fish are caught in southeast Alaska and northern British

Columbia. Lower Columbia River Chinook stocks are predominantly hatchery fish, which typically do not migrate

north of Vancouver Island. These fish are caught in southern British Columbia and in oceanic Washington fisheries.

Thus, U.S. hatchery salmon are caught by Canadian fisheries off the west coast of Vancouver Island, while Alaskan

and Canadian fisheries compete for upper Columbia River wild stocks. Because depleted wild stocks, unlike hatchery

stocks, cannot withstand substantial fishing pressure, competitive fishing begets problems for the United States

concerning conservation, Indian treaty allocation, and the U.S. Endangered Species Act. Canada recognizes these

concerns and, in the past, has exploited these circumstances to influence the U.S. negotiating position.

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A 1937 arrangement between the United States and Canada to conserve and equitably divide the

harvest of Fraser River sockeye salmon was an early success story in the management of shared

salmon stocks. The Fraser River lies wholly within Canada, but sockeye salmon generally pass

through U.S. waters as they return to spawn. Thus, Fraser River sockeye supported large fisheries

in both the United States and Canada, setting the stage for an international drama.

In the late 1800s, Canadian fishermen dominated the Fraser River sockeye fishery. By 1900, with

the expansion of U.S. purse seine fisheries, U.S. harvest quickly surpassed the Canadian harvest.

From 1900 through 1934, U.S. fisheries produced from 61% to 70% of the sockeye salmon

canned from the Fraser River run.17 In 1913, crews blasting a railroad right-of-way through the

canyon walls above the Fraser River triggered a massive rock slide that choked the river

canyon. 18 The effects of the slide were most detrimental at a narrow section of the river known as

Hell’s Gate, blocking access to spawning areas upstream from the slide. 19 United States and

Canadian harvest of sockeye salmon dropped dramatically. 20 By 1918, with substantial U.S.

assistance, the Hell’s Gate reach was restored, and sockeye salmon could again move upstream to

spawn.

The rise of competing U.S. and Canadian fisheries, natural fluctuations in salmon stock

abundance, and the events at Hell’s Gate provided impetus for negotiations between the United

States and Canada over the cooperative management of the sockeye salmon stocks. In 1937, after

seven years of negotiation,21 the Fraser River Convention22 was ratified. The Convention

established the International Pacific Salmon Fisheries Commission, with principal responsibility

for protecting, preserving, and extending the sockeye salmon fisheries of the Fraser River (pink

salmon were later added to the Convention).23 The commission operated under two objectives: (1)

restore Fraser River sockeye runs; and (2) equally divide the catch, within practical limits,

between U.S. and Canadian fishermen. 24 In 1946, the commission recommended that regulations

be implemented to:

•

provide closures designed to permit adequate escapement of all races of salmon

comprising the run;

•

protect in the greatest possible degree the most seriously depleted runs;

•

divide the total catch as equally as might be possible between the fishermen of

the two countries; and

D. Gilbert, Fish for Tomorrow (Seattle, WA: University of Washington, School of Fisheries, 1988), p. 10.

T.C. Jensen, “The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview,”

Environmental Law, vol. 16, no. 3 (1986): 373.

Gilbert, supra footnote 17. p. 27.

Jensen, supra footnote 18.

U.S. fishermen dependent on Fraser River salmon objected to ratification. Before 1934, U.S. sockeye harvest far

exceeded Canadian harvest. After 1935, strict Washington state fishing regulations (eliminating certain gear types)

greatly reduced U.S. sockeye harvest, and the U.S. perspective on the Convention quickly changed. Jensen, supra

footnote 18. p. 374, note 24. “In 1936, the British Columbia catch was more than triple that of Puget Sound.” J.A.

Crutchfield and G. Pontecorvo, The Pacific Salmon Fisheries: A Study of Irrational Conservation (Baltimore, MD: The

Johns Hopkins Press, 1969), p. 141.

United States-Canada Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fishery in

the Fraser River System, signed May 26, 1930, 50 Stat. 1355 (1930) 8 UST 1058, TIAS No. 3867.

Gilbert, supra footnote 17. p. 83.

Crutchfield and Pontecorvo, supra footnote 21. p. 141.

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•

permit the largest catch possible consistent with attainment of these objectives. 25

However, because of the diversity in salmon fisheries and recurring disagreements over how best

to address the interception problem, the 1937 agreement eventually proved inadequate.26 The

Fraser River Convention was an ambitious experiment, which unquestionably met its twofold

mandate to rebuild and equally allocate Fraser River sockeye and pink salmon. However, a much

broader forum was necessary to solve the overall problem of U.S. and Canadian salmon

interceptions. It would be nearly half a century before the two countries agreed to terminate the

Fraser River Convention and replace it with an expanded institution. 27

The Pacific Salmon Treaty

In 1985, after several decades and a great deal of international and regional deliberation, the

United States and Canada successfully completed negotiations on the Pacific Salmon Treaty

(PST).28 The PST created an arrangement for cooperative management, research, and

enhancement of shared Pacific salmon stocks to ensure sustainable fisheries and maximize longterm benefits to both parties. In the absence of a fish-sharing arrangement, benefits derived from

unilateral conservation and enhancement efforts are diminished by another nation’s interceptions.

The PST created a regime aimed at ensuring sustainable fisheries through conservation and

enhancement, and optimizing benefits to each party.

The PST established a commission (the PSC) to make recommendations to the parties concerning

management of the salmon fishing regime. The PSC meets annually to review fishing activities in

the previous year, to advise the PST parties on the status of the fishery, and to suggest any

necessary adjustments to the regime. The PSC is divided into two national sections, each with

four commissioners and four alternate commissioners.29 Voting structure was defined for the

United States by the Pacific Salmon Treaty Act, as discussed below.

Gilbert, supra footnote 17, p. 82. It should also be noted that, while the commission had no power to enforce limits

on fishing, in practice its recommendations were implemented by the United States and Canada. See also Crutchfield

and Pontecorvo, supra footnote 21, p. 142.

Several changes in the United States and Canada created new pressures, which eroded the footings provided by the

1937 agreement. These include (1) the Boldt Decision (United States v. Washington, 384 F. Supp 312 (W.D. Wash

1974), aff’d, 500 F. 2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976)) which entitled certain U.S. treaty tribes

to 50% of the U.S. harvest of salmon passing through “usual and accustomed waters;” (2) the rise of the recreational

fishing industry, which increased pressure on coho and Chinook salmon; (3) the advent of salmon aquaculture as a

powerful economic and political force; (4) the increased Canadian harvest of sockeye outside of Convention Waters

made possible by new technologies that allowed Canadian trollers to efficiently catch sockeye in the ocean; and (5) the

increased catch of Canadian net fisheries in northern British Columbia, also outside of Convention Waters. Because of

these latter two points, while sockeye catch in Convention Waters was shared equally, fish caught outside of these

waters (and not counted under the sharing-agreement) reduced the U.S. share from 50% to about 41%. Many U.S.

fishermen, who had already lost half of their share to treaty Indians, were concerned that their share would continue to

decline further as Canadians increased fishing outside of Convention Waters. Thus, these U.S. fishermen were easily

persuaded that a new treaty could be in their best interests.

Jensen, supra footnote 18. p 375.

Ibid., p. 363.

In practice, all eight commissioners from each section have attended commission meetings and been involved in all

decision-making.

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The PST’s fundamental principles are to “a)

Pacific Salmon Treaty

prevent overfishing and provide for optimum

Article III—Principles

production [of salmon]; and b) provide for

1. With respect to stocks subject to this Treaty, each

each party to receive benefits equivalent to the

Party shall conduct its fisheries and its salmon

production of salmon originating in its

enhancement programs so as to: a) prevent overfishing

waters.”30 In addition, parties are to take into

and provide for optimum production; and b) provide for

each Party to receive benefits equivalent to the

account the desirability of reducing

production of salmon originating in its waters.

interceptions, the desirability of avoiding

disruption of existing fisheries, and annual

2. In fulfilling their obligations pursuant to paragraph 1,

the Parties shall cooperate in management, research, and

variations in stock abundance. For many

enhancement.

years, the parties strongly disagreed over the

3. In fulfilling their obligations pursuant to paragraph 1,

meaning of benefits equivalent to the

the Parties shall take into account: a) the desirability in

production of salmon originating in its waters,

most cases of reducing interceptions; b) the desirability

as specified in Article III of the PST, most

in most cases of avoiding undue disruption of existing

notably in terms of what benefits should be

fisheries; and c) annual variations in abundance of the

considered. Canada stated that benefits

stocks.

equivalent should be interpreted strictly on a

fish-for-fish basis. That is, either Canada harvests the salmon produced in its rivers or harvests an

amount of U.S. fish equal to the number of Canadian salmon intercepted in U.S. fisheries.31 The

United States has viewed this interpretation as an oversimplification, believing that all of the

PST’s principles must be considered in unison, and that there is no simple definition of benefits

equivalent. For example, who benefits when salmon are caught in Alaska but processed in

Canada?32 And, how are the issues of protecting fish habitat by forgoing development

opportunities (e.g., logging, mining, petroleum development) to be balanced?

The Memorandum of Understanding (MOU), 33 which elaborated on elements within the PST,

provided minimal guidance. It stated that because data on salmon interceptions and total

production by rivers of origin are imprecise, each nation’s method for determining benefits

equivalent may differ. Thus, the MOU stated that complete and comprehensive implementation of

Article III (1)(b) would not be possible until some time in the future (without identifying a date or

timeline). The MOU stated that, in the short term, annual fishery regimes shall be conducted in an

equitable manner and that “the Commission’s decisions take into account changes in the benefits

flowing to each of the parties through alteration in fishing patterns, conservation actions, or as the

result of changes in the abundance of the runs.”

For the long term, “if it is determined that one country or the other is deriving substantially

greater benefits than those provided from its rivers, it would be expected that the parties would

develop a phased program to eliminate the inequity within a specified time period, taking into

account the provisions of Article III, paragraph 3, of the PST (i.e., the desirability in most cases of

reducing interceptions), avoiding undue disruption of existing fisheries, and accounting for

annual variations in abundance of stocks. The MOU also stated that correcting imbalances is a

PST, Article III (1).

Daniel D. Huppert, Why the Pacific Salmon Treaty Failed to End the Salmon Wars, SMA 95-1 (Seattle, WA:

University of Washington, 1995), p. 12.

Ownership and residency also complicate this issue. Many companies operating in Alaska and British Columbia are

either owned by or are subsidiaries of the same parent company. Many permit holders for southeast Alaska commercial

fisheries are not residents of Alaska, and a large number of U.S. citizens participate in Canadian recreational fisheries.

Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific

Salmon. Memorandum of Understanding. §A. Implementation of Article III, paragraph 1(b) (Ottawa, Canada: 1985).

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

national responsibility and may involve adjusting fishing effort or enhancement projects on a

regional basis, and that the party with the advantage shall propose corrective measures to the

PSC.34

Despite the joint commitment embodied in the PST to conserve and protect the shared salmon

stocks, the United States and Canada spent many years in a diplomatic stalemate, and the health

of the salmon stocks suffered as a result.35 After the initial disagreements over the equitable

sharing of intermingled stocks in the early 1990s, a number of mechanisms were employed to

resolve this issue. In 1993 and 1994, Canada and the United States appointed new negotiators to

address the benefits equivalent principle. By 1995, government-to-government negotiations

proved unsuccessful and New Zealand Ambassador Christopher Beebe was appointed to guide a

mediation of the PST’s equity (benefits equivalent) principle. When this failed, the parties

established two stakeholder panels, composed of fishermen from both countries, in an attempt to

settle the controversy. While stakeholder negotiations provided considerable progress, this

process also eventually broke down. 36

In August 1997, the United States and Canada appointed William Ruckelshaus and Dr. David

Strangway, respectively, to conduct a joint investigation of the controversy and to make

recommendations for ending it. Their report,37 published in January 1998, contained four specific

recommendations:

1. The governments should cause to be adopted interim fishing-sharing arrangements for

up to two years, stressing that it was incumbent on the governments to ensure that

these arrangements are developed and implemented.

2. During the two-year period, both parties should develop a practical framework for

implementing Article III (i.e., leading to establishment of long-term fishing

arrangements.)

3. The stakeholder process should not be reconvened.

4. The parties should also undertake a comprehensive review of the PSC and dedicate

themselves to making it a functional institution for preserving and managing Pacific

salmon. 38

They concluded that to accomplish their recommendations, “meaningful compromises of

positions strongly held will be necessary.” Moreover, to ensure long-term sustainability of the

In developing such proposals, imbalances should be addressed where possible through enhancement programs rather

than adjustments in established fisheries. See Richard Lugar, Congressional Record, vol. 31, part 4 (Mar. 7, 1985):

4772.

Trout Unlimited USA and Trout Unlimited Canada, Resolving the Pacific Salmon Treaty Stalemate (Seattle, WA:

1999), p. 1.

Ibid., p. 5.

David W. Strangway and William D. Ruckelshaus, Pacific Salmon Report to the Prime Minister of Canada and the

President of the United States (Ottawa, Canada: Department of Fisheries and Oceans, 1998).

Ibid., p. 8.

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

shared resource, “rules must be established for the preservation of the [salmon] and time is not on

their side.”39

Disparate efforts to protect and conserve salmon habitat, which contributed to the relatively weak

southern stocks and more robust northern stocks, may be equally to blame for the lack of stability

in the PST regime. Southern boundary stocks (e.g., Pacific Northwest Chinook salmon) have

suffered extensively from habitat degradation. Most salmon stocks in the Pacific Northwest (and

a few in some areas of southern British Columbia) have been subjected to major habitat damage

from dams, irrigation projects, agriculture, logging, ports, and pollution. Such habitat damage can

degrade salmon production without the damaging activity bearing any of the related costs of

resource conservation. A significant problem with the PST was that the framers did not anticipate

the magnitude of harm caused by non-fishing activities on Pacific Northwest stocks (and some

isolated Canadian Chinook stocks).40

As noted previously, after the long-term harvest agreement expired in 1992, Canada and the

United States argued over equitable harvest-sharing and conservation of salmon stocks. After

years of failed negotiations, cooperative studies (e.g., Ruckelshaus-Strangway), joint-fishery

restrictions to protect wild stocks, and the involvement of high-level government representatives

(e.g., Lloyd Cutler, Senior White House Representative on Pacific Salmon) helped to ease

tensions between the United States and Canada in the late 1990s. Moreover, the two nations

recognized that failure to reach a long-term conservation and harvest-sharing agreement was in

no one’s best interests. In 1999, these factors permitted U.S. Negotiator James Pipkin and

Canadian Negotiator Don McRae to overcome years of failed negotiations.

On June 3, 1999, Lloyd Cutler, Canadian Fisheries Minister David Anderson, Alaska Governor

Tony Knowles, Oregon Governor John Kitzhaber, Washington Governor Gary Locke, and Tribal

Negotiator Ted Strong announced that, after intensive negotiations extending over several years,

U.S. and Canadian officials had reached a comprehensive agreement to resolve their longstanding dispute relating to Pacific salmon and the PST.41 On June 30, 1999, the United States

and Canada formally signed the 1999 Agreement on Pacific Salmon. Terms of the agreement are

discussed below.

The Pacific Salmon Treaty Act of 1985 and U.S.

Decision-Making

The 1999 Agreement was reached within the framework of the Pacific Salmon Treaty Act of 1985

(P.L. 99-5, 99 Stat. 7; 16 U.S.C. §§3631-3634). This act implemented PST provisions and

established the institutional framework for U.S. negotiations. The structure of the U.S. Section

was a critical element in framing negotiations between the United States and Canada. Because

Ibid.

The gauntlet presented by dams, river channelization, agriculture, and pollution causes significant harm (some say as

much as 90% of human-caused mortality) to certain Chinook salmon stocks. However, these diversified industries, that

benefit from the activities or conditions that cause substantial salmon mortality, are not involved in PST negotiations.

While the PST is unable to address these threats to salmon stocks, many U.S. salmon stocks have received protection

under the authority of the Endangered Species Act.

Attributable in large measure to Canadian domestic politics, British Columbia was excluded from the negotiations

leading to the 1999 Agreement.

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this institutional framework is likely to affect future PST negotiations, a brief discussion of the

Pacific Salmon Treaty Act of 1985 is warranted.

The Pacific Salmon Treaty Act of 1985 is the implementing legislation for the PST. Section 3

defines the composition of the U.S. Section to the PSC, the voting requirements for the U.S.

Section, and other matters necessary for U.S. participation in the PST. The U.S. Section is

composed of four members: a non-voting representative of the U.S. government, and three voting

members from Alaska, Oregon or Washington, and the “treaty Indian tribes.”42 Subsection (g)

defines the voting requirements for the U.S. Section, which operates “with the objective of

attaining consensus decisions in the development and exercise of its single vote within the PSC.43

A decision of the U.S. Section shall be taken when there is no dissenting vote.”44 In the event that

the U.S. Section is unable to arrive at a consensus, §3(g) of the act authorizes the creation of a

Conciliation Board to assist in resolving disputes.45 The Secretary of State, when concerned that

the United States is in jeopardy of not fulfilling international obligations pursuant to the PST

because of disputes within the U.S. Section, is empowered to refer these matters to the

President.46 If state or tribal actions or omissions place the United States in jeopardy of not

fulfilling its international obligations under the PST, the Secretary of Commerce may take steps

to supersede state or tribal fishery regulations.47

It is of concern to some that the structure of the U.S. Section could offer the opportunity for U.S.

politics to paralyze the PSC.48 In contrast to the Canadian Section, where the Canadian federal

government decides the position to be taken by its section, the U.S. position is shaped by the state

and tribal representatives in the U.S. Section as defined by the act. There is no U.S. federal

government position, and the U.S. position is based solely on unanimity among its three voting

commissioners.49 However, the interests of Alaska, Washington/Oregon, and the treaty tribes are

often competing and, in the past, have impaired the ability of the U.S. Section to arrive at a

unified position.50 Observers of the process suggest that an overarching difficulty that hindered

past attempts to reach consensus is the lack of a requirement compelling the U.S. and Canadian

parties to reach an agreement. Related to this is the absence of any penalty for non-resolution.

Because both countries could continue to fish in the absence of an agreed harvest regime, there is

Treaty Indian tribes are defined in §2 of the act.

“All decisions of the commission must be made by a unanimous vote, and clearly this will ensure that the views of

each will be heard and will also mean that the commissioners will have to work closely to arrive at decisions that will

protect the interests of all parties.” Frank H. Murkowski, in: Senate Committee on Foreign Relations, Pacific Salmon

Treaty, S. Hrg. 99-19 (Washington, DC: U.S. GPO, Feb. 22, 1985). See also: Ted Stevens, “United States-Canada

Salmon Treaty Negotiations: The Alaskan Perspective,” Environmental Law, v. 16 (1986): 423-424.

16 U.S.C. §3632(g)(1). However, this language does not say that no decision may be taken by the U.S. Section when

there is a dissenting vote.

Although use of the conciliation provision has been discussed, the Conciliation Board has not been convened to

resolve disputes within the U.S. section.

This step has never been taken. The President has both the power and duty to take whatever actions are necessary to

carry out and enforce U.S. obligations under the PST, including preemption of the U.S. section if conflict threatens

salmon conservation.

16 U.S.C. §3635.

See Robert J. Schmidt, Jr., “International Negotiations Paralyzed by Domestic Politics: Two-Level Game Theory and

the Problem of the Pacific Salmon Commission,” Environmental Law, vol. 26 (1995): 108.

In addition, if an alternate commissioner disagrees on an issue, the U.S. section vote would not be unanimous.

Although informal, this practice is generally followed.

Robert J. Schmidt, Jr., “International Negotiations Paralyzed by Domestic Politics: Two-Level Game Theory and the

Problem of the Pacific Salmon Commission,” Environmental Law, vol. 26 (1995), p. 122.

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no incentive to reach agreement and the parties can abandon negotiations without fear of

consequences.

In sum, because the U.S. Section is required by law to work by consensus, the PSC cannot make

recommendations to the parties without the approval of all voting members of the U.S. Section.

The PST’s salmon fishing regimes are based entirely on the recommendations of the PSC.51 Many

believe that the PST negotiation process has been hampered by the structure of the U.S. Section,

in which dissent by any single voting member can bring PST negotiations to a halt.

The 1999 Agreement52

On June 30, 1999, U.S. and Canadian officials signed a comprehensive agreement to resolve

long-standing disputes relating to Pacific salmon and the PST. The agreement established

abundance-based fishing regimes for the Pacific salmon fisheries under the jurisdiction of the

PST. These regimes, which allow fishery harvest to vary from year to year, are designed to

implement the conservation and harvest-sharing principles of the PST. That is, larger catches will

be allowed when salmon abundance is higher, and catches will be significantly constrained in

years when stock abundance is lower. It was believed that this type of regime would be more

responsive to the conservation requirements of salmon than the fixed-catch ceilings53 that existed

under the original PST arrangements.54

Additionally under the agreement, two bilaterally managed regional restoration and enhancement

endowment funds were established. These funds are used to promote bilateral cooperation,

improve fishery management, and aid stock and habitat enhancement efforts to improve the status

of weakened salmon stocks.

The agreement also included provisions to enhance bilateral cooperation, improve the scientific

basis for salmon management, and apply institutional changes to the PSC. At the heart of the new

accord was agreement between the parties to focus on conservation and habitat protection, rather

than division of shared salmon stocks. The 1999 Agreement:

•

renewed cooperation between the United States and Canada concerning the

management of salmon;

•

ensured that the conservation and harvest-sharing principles of the 1985 PST

were realized;

•

stabilized the management regime; and

The Pacific Salmon Treaty, § IV(5).

Compiled from the U.S. Department of State, information available at http://www.state.gov/www/global/oes/oceans/

990630_salmon_index.html; and the Canadian Department of Fisheries and Oceans.

Fixed-catch ceilings were specific upper limits on salmon catch that, over time, came to be regarded as guaranteed

quotas. With such a view, fishermen perceived a right to catch these “quotas” regardless of whether the stocks could

sustain that level of fishing. Such practice, in a period of fluctuating stock abundance and declining ocean productivity,

contributed to the deterioration of many stocks.

However, while generally supportive of abundance-based management, for this approach to work, both nations

needed to develop better scientific methods for pre-season estimates of stock abundance (fishery managers in the past

have tended to over-estimate stock abundance). It was a questionable management presumption that reductions in catch

and improvements in habitat would actually occur.

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•

provided a firm and complementary base for other salmon recovery efforts, such

as habitat restoration, underway in both countries to restore depleted stocks of

salmon.

Abundance-Based Management

The cornerstone of the new fishing accord was abundance-based management. Under this

management approach, harvest rates for each salmon stock are set relative to stock abundance.

The objectives of abundance-based management are to:

•

sustain wild stocks;

•

prevent overfishing;

•

set a predictable framework for sharing the burdens of conservation and benefits

of stock recovery;

•

provide cost-effective, responsive fishery management; and

•

establish a common basis for stock assessment, fishery monitoring, and

performance evaluation.

The parties to the PST believed that the new management regimes would be more responsive to

natural stock fluctuations and more environmentally responsible. To be effective, this approach

requires an informed pre-season and a responsive in-season approach to fishery management. The

parties surmise that by matching harvest levels to actual salmon abundance, this management

scheme reduces the tendency to overfish, removes mortality resulting from ineffective liverelease practices, and prevents unnecessary loss of fishing opportunities. They also believed that,

under the 1999 accord, curtailment in fishing would be shared proportionately among fishermen

in all areas covered under the PST.

Fishery Regimes

Most elements of the agreement were contained in several new chapters that replaced earlier

expired versions of Chapters 1-6 of Annex IV of the PST. Additionally, an understanding was

reached regarding management of certain northern fisheries affecting coho salmon, a topic not

specifically covered in previous agreements.

Most of the fishery arrangements are in effect through 2008, except that for Fraser River sockeye,

which will be in effect through 2010. The United States and Canada agreed that the new fishery

regimes were consistent with all the principles of the PST, and that compliance with those

regimes would constitute satisfaction of all obligations under those principles.

Transboundary Rivers

This agreement specified arrangements for sockeye, coho, Chinook, and pink salmon

management for several rivers that flow from Canada to the Pacific Ocean through southeast

Alaska, including the Stikine, Taku, and Alsek Rivers. The United States and Canada agreed to

establish a Transboundary Rivers Panel within the PSC to address transboundary river issues.

Ongoing programs for joint enhancement of sockeye salmon in the Taku and Stikine Rivers

would be continued.

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Northern British Columbia and Southeast Alaska

This agreement addressed the management of sockeye and pink salmon fisheries in southeast

Alaska and northern British Columbia. The agreement specified how the fisheries would be

managed to achieve conservation and fair sharing of salmon stocks that intermingle in the border

area between British Columbia and southeast Alaska. The fixed-catch ceilings contained in

previous agreements were replaced with abundance-based provisions that allow harvests to vary

from year to year depending on the abundance of salmon. Several provisions, because they

address long-contentious issues, were particularly noteworthy. These provisions affect Alaska’s

purse seine fisheries near Noyes Island and gillnet fishery at Tree Point; and Canada’s troll

fishery for pink salmon and various marine net fisheries.

Chinook Salmon

Because they pass through fisheries regulated by many jurisdictions in both the United States and

Canada, Chinook salmon were the focus of concern and controversy. Although some Chinook

populations were relatively healthy, other Chinook salmon stocks had been so diminished that

they have been listed as threatened or endangered under the U.S. Endangered Species Act. Many

factors, in addition to harvest, contributed to the decline of these stocks, including habitat

destruction, water diversion, hydroelectric dams, and oceanic and climatic change. The parties

believed that the conservation-based fishery regimes established by the 1999 Agreement would

help to ensure the effectiveness of public and private investments in habitat restoration and other

aspects of salmon recovery.

The 1999 Chinook salmon regime encompassed marine and certain freshwater fisheries in

Alaska, Canada, Washington, and Oregon. All Chinook salmon fisheries were to be managed

based on abundance, rather than the fixed-catch quotas that applied previously. Two types of

fisheries were designated: (1) those that would be managed based on the aggregate abundance of

Chinook salmon present in the fishery, and (2) those that would be managed based on the status

of individual stocks or stock groups in the fishery.

The three fisheries designated for aggregate abundance-based management (AABM) were ocean

fisheries that occur in large areas and affect a complex aggregation of many stocks. These were:

•

southeast Alaska troll, net, and sport fisheries;

•

northern British Columbia troll and Queen Charlotte Islands sport fisheries; and

•

west coast Vancouver Island troll and sport fisheries.

Each of these AABM fisheries would be managed to achieve a specific harvest rate that varied

based on an index of abundance of salmon present in that particular fishery for that particular

year. Because each fishery is comprised of a different group of stocks that have different survival

rates, the allowable catch would vary between fisheries and between years. Larger catches would

be allowed when abundance was greater and, importantly, catches would be increasingly

constrained when abundance is diminished. Table 1 in Chapter 3 of the 1999 Agreement’s Annex

IV provided maximum catch targets for each of the 3 AABM fisheries through the range of

Chinook abundance indices.

All other ocean and freshwater fisheries targeting Chinook salmon were designated for individual

stock-based management (ISBM). Fisheries in this category included, but were not limited to:

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•

central British Columbia troll, net, and sport fisheries;

•

southern British Columbia marine troll, net, and sport fisheries (other than the

west coast Vancouver Island troll and sport fisheries); and

•

all troll, net, and sport marine and freshwater fisheries in Oregon, Washington,

and the Snake River basin in Idaho.

The ISBM fisheries generally occurred in marine waters closer to the rivers of origin, or directly

in the rivers. These fisheries often are aimed at harvesting hatchery-produced salmon or species

other than Chinook. The catch in these fisheries is comprised of a relatively small number of

Chinook salmon stocks, some of which were depleted. Accordingly, these fisheries fell under a

“general obligation” that specified certain reductions in exploitation rates relative to a 1979-1982

base period. This general obligation required Canada to maintain at least a 36.5% reduction in

fishing mortality on Chinook salmon stock groups identified as depleted relative to the base

period. This general obligation required the United States to maintain at least a 40% reduction

relative to the same base period. In those cases where the general obligation was insufficient to

achieve escapement objectives for natural stocks, additional reductions were to be taken as

necessary to meet agreed escapement objectives or, when taken with the general obligation, were

at least equivalent to the average reduction for the specific Chinook stock group during the years

1991-1996.

The 1999 Agreement provided a degree of flexibility, allowing U.S. and Canadian management

agencies to decide how best to distribute harvest across their various fisheries to reflect domestic

fishery priorities, provided the over-all reductions were achieved. For some Chinook stocks, the

reduction would have to be much greater than the general obligation, due to the need to provide

extra protection for certain very depleted stocks. The general obligation did not apply to hatchery

stocks or healthy natural stocks that were achieving escapement objectives and could support

harvest.55

In addition to predetermined harvest schedules, the 1999 Agreement specified conditions (e.g.,

failure of a stock to meet agreed escapement objectives for 2 consecutive years) under which

even greater harvest reductions would apply. These so-called “weak stock” provisions serve as a

safety valve to afford additional protection to stocks that may fail to respond to broader recovery

programs. Finally, the United States and Canada agreed to implement by 2002, subject to

improvements in technical information, a total mortality approach to Chinook fisheries, taking

into account indirect or incidental mortality. This would provide more accurate information on

which to make fishery management decisions. These arrangements introduced incentives to

reduce incidental fishing mortality and harvest more selectively.

Fraser River Sockeye and Pink Salmon

The U.S. Department of State noted that, although much of the structure of previous agreements

relating to the Fraser River was retained, the 1999 Agreement required a substantial reduction in

the U.S. share of Fraser River sockeye. This reduction was phased in over three years and

completed by the 2002 fishing season. When this reduction was completed, the U.S. share taken

in Washington State fisheries was 16.5% of the total allowable catch. (In contrast, the U.S. share

Neither these stocks nor how health was to be determined were specified in the information provided by the U.S.

Department of State or the Canadian Department of Fisheries and Oceans.

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of Fraser River sockeye, as specified in the original Annex IV to the 1985 PST, was

approximately 26%.)

To mitigate the effect of the reduced share on commercial fishermen in Washington state, the

Washington State Legislature and the U.S. federal government were to be asked to contribute to a

fishing vessel license buy-back program. 56 This program resulted in the removal of a significant

portion of the Washington sockeye fishery. Because the buy-out affected only the non-Indian

share, the usual 50/50 sharing rule (per the Boldt Decision)57 in Washington was altered. The

shares resulting from the revised sharing rule were 68% for the treaty tribes and 32% for the nontribal fishermen. This revised sharing rule applied only to U.S. harvest of Fraser River sockeye.

The U.S. share of Fraser River pink salmon was 25.7% of the total allowable catch. 58

Coho Salmon

The coho agreement essentially provided a strategy and specifications (i.e., biological criteria) for

a conservation-based regime covering border area fisheries in southern British Columbia and

Washington State. The specifics of the regime were cooperatively and bilaterally developed for

implementation in 2000. The coho regime included rules establishing harvest limits in specified

border area fisheries. These rules were designed to limit exploitation rates on natural coho stocks

to sustainable levels, taking into account all fisheries affecting the stocks, and thereby improving

the long-term prospects of sustainable, healthy fisheries in both countries.

For southern coho stocks, abundance-based management reduced catches to sustainable levels as

the United States and Canada worked to rebuild these depressed stocks. Specifically, the coho

management program:

•

constrained fishing to enable natural coho stocks to produce long term

sustainable harvests while maintaining genetic and ecological diversity;

•

responded to the status of stocks, was cost-effective and flexible enough to take

advantage of technical capabilities and information;

•

provided a predictable framework for planning fishery impacts on natural stocks;

and

•

established an objective basis for monitoring, evaluating and modifying the

management regimes.

For northern coho stocks in times of low abundance, certain fisheries were curtailed to assist

conservation of these stocks. These closures include:

•

southeast Alaskan troll fishery for 10 days from July 25 when early season catch

indicators show a low abundance (less than 1.1 million total catch);

NMFS officials believed §312(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.

§1861a(b)) provided sufficient authority to implement this buy-back program.

See supra footnote 26.

Because pink and sockeye salmon are often caught in the same fishery, the rules affecting one fishery may also affect

another. It is unclear whether catching the allocated amount of one species will halt the entire fishery, which could

result in forgone catch of the other species.

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•

border area59 Alaskan fisheries for three weeks starting in statistical week 31,60

when the catch-per-unit of fishing effort (CPUE) does not reach 10;

•

border area Alaskan fisheries for two weeks starting in statistical week 31 when

CPUE does not reach 14; or

•

border area Alaskan fisheries for 10 days starting in statistical week 31 when

CPUE does not reach 22.

Comparable curtailments were applicable to Canadian border fisheries.

Southern British Columbia and Washington State Chum Salmon

This agreement incorporated refinements to provisions that trigger adjustments to chum salmon

fisheries in the Strait of Georgia and Puget Sound. These refinements had only a minor impact on

catch allocation, but improved the effectiveness of the regime. Additionally, at the request of the

United States, Canada agreed to require the live release of chum salmon in certain Canadian net

fisheries in southern boundary areas at those times of the year when “summer chum”

(components of which have been listed as threatened under the U.S. Endangered Species Act)

might be present in the area. Specifically, from August 1 to September 15, Canadian purse seine

vessels targeting sockeye and pink salmon in the Strait of Juan de Fuca were required to release

chum salmon to protect threatened U.S. salmon stocks.

Regional Endowment Funds

The two endowment funds established by the 1999 Agreement are managed bilaterally and

address science, restoration, and enhancement needs relating to salmon production. The Northern

Boundary and Transboundary Rivers Restoration and Enhancement Fund (Northern Fund)

addresses needs in northern and central British Columbia, southeast Alaska, and the Alsek, Taku,

and Stikine Rivers. The Southern Boundary Restoration and Enhancement Fund (Southern Fund)

addresses needs in southern British Columbia, the states of Washington and Oregon, and the

Snake River basin in Idaho.

The United States contributed $75 million and $65 million to capitalize the two funds,

respectively, over a four-year period. In tacit recognition that U.S. fishermen have, for years,

taken more than their fair share of salmon and would continue to do so under the 1999

Agreement, Canada was compensated through majority capitalization of these funds by the

United States.61 Either country, as well as third parties, may contribute to the funds in the future,

upon agreement of the parties.

For each of the regional funds, a bilateral committee composed of three representatives appointed

by each of the two countries is responsible for approving expenditures of the funds. Annual

This area includes the southern portions of Alaska Commercial Fishing Districts 101, 102, 103, and 104, and all of

District 152.

Statistical weeks in Alaska’s state fisheries begin on January 1, with statistical week 1 ending on the first Saturday in

January. Statistical week 31 is, approximately, the last week in July.

T. Kenworthy and S. Pearlstein, “U.S., Canada Reach Landmark Pact on Pacific Salmon Fishing,” Washington Post

(June 4, 1999): p. A17.

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expenditures are not to exceed the annual earnings from the invested principal of each of the

funds; only the interest generated by the funds is spent.

The funds are used to (1) improve resource management information (including data acquisition)

and scientific understanding of factors affecting salmon production; (2) rehabilitate, restore,

and/or improve natural habitat to enhance the productivity and protection of Pacific salmon; and

(3) enhance wild stock production using “low-technology” methods.

Cooperation on Scientific and Institutional Matters

The 1999 Agreement included a commitment by the two countries to improve how scientific

information is obtained, shared, and applied to the management of the salmon resource. Among

other things, the agreement encouraged staff exchanges between management agencies, bilateral

workshops, and participation in the public domestic management processes of the other country

(e.g., the U.S. regional fishery management councils).

Additionally, a bilateral Committee on Scientific Cooperation was established under the PSC.

Composed of two persons each nominated by the two national sections of the PSC, the committee

assists the PSC in setting its scientific agenda, advises on research and monitoring needs, and

assists in arranging peer review and evaluation of scientific reports. The PSC also was

encouraged to resolve scientific issues through its technical committees and asked to elaborate

rules and procedures, as necessary, for implementing the process set out in Article XII of the PST

for addressing technical disputes.62

Habitat

The 1999 Agreement highlighted the importance of habitat protection and restoration to achieving

the long-term objectives of the parties. While the primary focus of the agreement was on setting

provisions that govern fishery management, it was well understood that achieving optimum

production of salmon depended on other initiatives as well. These included, but were not limited

to, maintaining adequate water quality and quantity, achieving improved spawning success and

migration corridors for adult and juvenile salmon, and other measures that maintained and

increased the production of natural stocks. The PSC reports annually to the parties to identify (1)

stocks for which measures beyond harvest controls are required and non-fishing factors that limit

production; (2) options to address these factors; and (3) progress of the parties in implementing

measures to improve production.

This arrangement improved the conservation elements of the PST and extended the PST

framework to include coordination on habitat protection objectives. This provision supports the

principle that stock conservation and rebuilding goals require coordinated and effective programs

Although most disputes under the PSC relate to technical issues, such as run-size predictions and total allowable

catch, the PSC’s Article XII provisions for technical dispute resolution have rarely been used. The modifications in the

1999 accord aimed to promote scientific decision-making more independent of political and policy pressures. Prior to

the 1999 Agreement, scientists related to the PSC and salmon management appeared, with rare exception, unable to

reach objective conclusions, with analyses uniformly supporting their parent agency’s desires. This lack of objectivity

was apparent when scientists working with identical data uniformly reached different conclusions, that could be viewed

as self-serving.

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in freshwater to maintain productive habitat or restore degraded habitat, particularly, when it

constrains sustaining populations at optimum production.

The two Endowment Funds provide tangible capacity to undertake remedial action to enhance the

productivity of freshwater habitat. The initiative on habitat was a significant complement to the

PSC’s overall mandate to coordinate achievement of optimum production of salmon.

Concerns with the 1999 Agreement

The attention given to several concerns by Congress, other U.S. officials, and fishery managers

was believed crucial in determining the degree to which bilateral salmon management under the

1999 Agreement was likely to succeed. These issues, and how they have been addressed, include:

•

Acceptance of the 1999 Agreement. The 1999 Agreement consisted of more than

simple amendments to the PST annex, which the PST provides for acceptance by

exchange of notes. Thus, there was ambiguity over whether the PST was a

separate treaty requiring Senate action, or merely a supplement to the existing

treaty that improved its implementation. In either case, it called for funding that

could only come by way of congressional authorization and appropriation.

The 1999 Agreement was determined to be an executive agreement, and thus did not require

Senate advice and consent to ratification. See the next item on funding.

•

Congressional appropriation of $140 million for the two Endowment Funds.

Obligations under the 1999 Agreement were contingent upon legislative authority

and appropriations from the U.S. Congress for these two funds. The full

capitalization of these two funds relied on repeated action by the U.S. Congress

to appropriate monies over four years. Any hesitancy in providing this funding

might have been seen by Canada as a repudiation of U.S. responsibility for

compensating Canada for larger U.S. salmon harvests in the recent past. In

addition, the joint diplomatic statement accompanying the 1999 Agreement stated

that the agreement would be “suspended” if funds were not available at times

certain through FY2003, at least suggesting that, as noted above, acceptance of

the agreement was contingent upon appropriation of funds by Congress.

The U.S. Congress appropriated full funding for the two endowment funds within the time

prescribed.

•

Allocation of and expenditures from the Endowment Funds. If these two funds

were fully funded and grew at 10% interest, about $14 million would be available

for expenditure annually, to be used for salmon restoration and enhancement

projects benefitting both countries. If, however, the funds were not capitalized at

the anticipated amount, Canada might have regarded the resulting interest

insufficient, compared to the perceived damage U.S. fishing had caused Canadian

salmon stocks.

In 2006, about $7 million (U.S. dollars) was derived from interest on these funds and allocated to

various projects (see “Implementing the Regional Endowment Funds,” below).

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•

Equity. Since the 1999 Agreement did not specifically and directly address the

issue of salmon interceptions, 63 many Canadians remained skeptical that the 1999

Agreement would result in any improvements toward each party receiving

benefits equivalent to the production of salmon originating in its waters. For

years, the United States and Canada debated different interpretations of this

objective and how it should be measured. In addition, Canadians called on the

United States to abide by obligations under the PST’s Memorandum of

Understanding for implementing Article III, paragraph 1(b), wherein the party

with the advantage was to propose corrective measures. However, the 1999

Agreement did not provide any mechanism to reimburse one party if the other

overharvested.

Both parties appear comfortable with the equity achieved under harvest regimes of the 1999

Agreement, and no particular concerns related to overharvesting have arisen.

•

Decision-making within the U.S. Section to the PSC. Section 3632(g)(1) of the

Pacific Salmon Treaty Act of 1985 requires consensus among the U.S. Section to

the PSC before a decision can be made. Critics of U.S. Section action charge that

this requirement has been used as a ploy to paralyze operation of the PST and

frustrate rational salmon management. If the inability to reach consensus within

the U.S. Section results in fishing activities that threaten the conservation of

salmon stocks, the United States could be in breach of its PST obligations. In

such circumstances, the federal government is to assume leadership, with the

option for intervention and preemption.64 Past hesitancy of the U.S. federal

government (i.e., the President, Secretary of State, and/or Secretary of

Commerce) to exercise authority and assume this necessary leadership role had

contributed to the erosion of a cooperative relationship with Canada beneficial to

Pacific salmon.

No particular problems have arisen within the U.S. Section relative to achieving consensus.

•

Failure to include British Columbia. The exclusion by Canadian federal

negotiators of British Columbia from negotiations leading to the 1999 Agreement

could have been a recipe for failure, some contended. They suggested the United

States should have requested that British Columbia remain involved since British

Columbia is where the majority of the Canadian salmon originate. It is also the

location of fishing and other interests affected by the implementation of the 1999

Agreement. For the 1999 Agreement to work, it had to address regional interests

pertaining to salmon as perceived by British Columbia, in addition to Canadian

interests as perceived by the federal government in Ottawa. The cooperation of

British Columbia fishing interests was probably essential to achieving rational

management of Pacific coastal salmon stocks.

This does not appear to be a current issue, as Canada appears sensitive and responsive to regional

concerns.

For example, particular concerns remain about the southeast Alaska pink salmon fishery in District 4 intercepting

increasing numbers of Canadian sockeye salmon after statistical week 31.

Theodore G. Kronmiller, Pacific Salmon Treaty, Hearing, Senate Committee on Foreign Relations (Feb. 22, 1985), p.

45.

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The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

•

Perception by some Canadians of the 1999 Agreement as a sellout of Canadian

interests. Some Canadians felt the United States had been, and continued to be,

the principal transgressor in failed salmon management, and always achieved the

better outcome in any bilateral dealing. For example, many Canadians perceived

that the United States had the ability to force Canada to curtail fisheries to

address U.S. conservation concerns (e.g., Juan de Fuca summer-run chum

salmon), but that Canada lacked any mechanism to force Alaska to do the same

when Canada was concerned about conservation (e.g., southeast Alaska harvest

restrictions are triggered by low U.S. coho abundance, not low Canadian coho

abundance). 65 Such attitudes focused considerable attention on how the United

States conducted itself in implementing the 1999 Agreement, particularly

appropriations for and allocations from the two Endowment Funds.

Canadians do not appear to harbor intense emotions in response to how equitably the 1999

Agreement’s implementation and funding of the endowment funds has been perceived.

•

Absence of any penalty for the non-resolution of disputes between the two

parties. The 1999 Agreement did not specify salmon harvest limits, but was a

very complex blueprint for the parties to follow in promulgating harvest limits

and taking other actions to conserve salmon fisheries. As such, it opened the door

to considerable dispute. Canada has repeatedly sought the inclusion of binding

arbitration as an option under the PST. However, the 1999 Agreement did not

provide any additional incentive to settle differences (e.g., it did not prohibit both

nations from fishing when no accord was reached). In addition, no enforcement

mechanism was provided in the PST to guide action if one country should be out

of compliance with the agreement or the PST.

No serious disputes have arisen, so this aspect has not posed any concerns.

•

Technical dispute resolution. The potential for technical disputes could have

increased under the 1999 Agreement, since harvest levels were to be based on the

determination of stock abundance levels. However, only Chapter 5 of Annex IV

on coho salmon required resolution of technical disputes under the provisions of

Article XII of the PST. No similar provision was made for other fisheries in the

1999 Agreement, and even the Article XII provisions appear to have been

ineffective in the past. Thus, a broad-based and readily enforceable means of

resolving disputes applicable to all technical disputes may be lacking.

Again, no serious disputes have arisen, so this aspect has not posed any concerns.

•

Reliability of PSC science. Abundance-based management works when the

supporting science is accurate, particularly as regards salmon abundance

forecasts. Both nations may gain from committing themselves to promoting

greater objectivity and cooperation in the conduct of their scientists.

The objectivity and reliability of PSC science has been widely accepted by both parties.

Canadians were concerned about what they referred to as liberal trigger mechanisms regarding this coho fishery.

Some claimed that if the formula in the 1999 Agreement were applied to past years, it would have resulted in only one

10-day pause in Alaska fishing in the previous two decades.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

•

Use of selective fishing methods. Canada asserted that its future salmon fisheries

would operate differently than in the past, with harvestable fish being selectively

targeted to avoid undesired bycatch of wild or weak stocks. Fin marking66 by

U.S. management agencies also was employed to promote selective fishing. The

degree to which selective fishing practices are used in mixed-stock fisheries by

both nations to protect weaker, wild stocks could minimize conflicts between

fishing and the laws and programs seeking to protect threatened and endangered

species.

This appears an emerging arena of potential conflict due to what some consider to be significant

Canadian harvest of salmon from several populations listed under the U.S. Endangered Species

Act.

There are a number of different ways to evaluate or measure the effects of the 1999 Agreement as

it has been implemented. For example, one could evaluate the Agreement on the basis of its effect

on conservation and sharing of the resource, its benefits and costs to the fisheries and the agencies

who manage them, and its effect on the many people who rely on salmon for their economic and

cultural value.

From the perspective of the Department of State, a salient way to measure the relative success of

the 1999 Pacific Salmon Agreement is to compare the nature and tenor of relations with Canada

concerning the shared Pacific salmon resource during the period before the conclusion of the

1999 Agreement with the period since.

Throughout much of the 1990s, disputes over Pacific salmon repeatedly became significant

irritants in relations between the United States and Canada. The procedures for handling such

disputes established by the 1985 Pacific Salmon Treaty, particularly the mechanisms of the

Pacific Salmon Commission (PSC), had ceased to work effectively. Antagonism over those

disputes provoked incidents that made front-page news. Several different attempts to settle

differences essentially failed.

The conclusion of the 1999 Agreement created a new and much improved paradigm for

addressing Pacific salmon issues, permitting U.S. and Canadian participants in the PSC process to

work together constructively. The two national Sections have reached agreement on many issues

concerning the implementation of the 1999 Agreement. For example, since 1999, they have

agreed to amend some of the fisheries regimes set forth in Annex IV to take account of new

circumstances. They successfully negotiated and implemented a biologically sound management

plan for coho salmon in the southern portion of PSC area. They have used the two endowment

funds created by the 1999 Agreement to advance useful salmon initiatives in both countries. The

two Sections also recently embarked on an effort to give better effect to Attachment E to the 1999

Agreement, concerning salmon habitat and restoration. 67

The Government of Canada highly values the treaty and the work of the PSC, believing that these

legal and institutional features have provided each country with important mutual benefits in the

Prior to releasing juvenile salmon from a hatchery, the adipose fin of each fish is removed (i.e., clipped) to permit

quick visual identification of the usually more abundant hatchery fish when they return as adults. During a selective

fishery, non-marked (i.e., wild stock) fish that are caught can be released in a manner that minimizes mortality.

Personal communication with David A. Balton, Deputy Assistant Secretary for Oceans and Fisheries, U.S.

Department of State, Oct. 11, 2006.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

management of shared salmon stocks. The 1999 Agreement ended a seven-year dispute. That

agreement launched an era of cooperation and conservation in the management of the Pacific

salmon fisheries and a more equitable sharing of catches between the United States and Canada.

Importantly, the agreement also led to improved cooperation on science and management through

the establishment of two new joint committees. The bilateral Committee on Scientific

Cooperation provides advice to the PSC on its scientific agenda and how to improve cooperation

on science issues. As well, the Transboundary Rivers Panel provides advice on management of

the Stikine, Taku, and Alsek Rivers. Discussions in the bilateral PSC have been positive and

productive since 1999.68

Dispute Resolution

The PSC has had to address some difficult issues since implementation of the 1999 Agreement,

and has been successful in its negotiations.69 No formal “disputes” between the United States and

Canada have arisen since the advent of the 1999 Agreement.70

Issues of Potential Conflict between Alaska and

Oregon/Washington/California

The way the PSC implements the 1999 Agreement has the potential to cause friction between

Alaska and the states of Oregon/Washington/California. The 1999 Agreement established fishing

regimes that spanned several years. Multi-year fishing agreements have led to a profound

improvement in working relationships between the various interests involved in the PSC

processes. The parties have been able to focus on other issues with a spirit of cooperative

resolution that would not have been possible under the stresses of the negotiation-driven

atmosphere that existed before. Technical committees on Chinook and coho, for example, have

been able to devote more time to cooperative analysis because the time required to support

competitive negotiation of fishing regimes has been reduced.

Although these multi-year regimes have established a set of rules to govern the conduct of

fisheries, they can have the effect of shifting the conservation responsibility. The aggregate

abundance-based management (AABM) regimes adopted for Alaskan and some Canadian

fisheries relieve these fisheries of stock-specific obligations to conserve individual stocks of fish.

Consequently, managers of other fisheries are required to bear an increasing share of the

responsibility for conservation and meeting jeopardy standards for ESA-listed populations. For

example, the annual allowed salmon harvest is calculated in two different manners—under an

aggregate abundance off of Canada and Alaska, and a weakest stock calculation off of the

Washington Coast. This has caused a reduction in the allowed harvest off of the Washington coast

because the limiting (i.e., weakest) stock for Washington has been reduced due to the increase in

interception off Canada and Alaska, where the limiting stock for WA is aggregated with other,

more abundant, stocks as the basis of aggregate abundance management.

Personal communication with Helene Belleau, First Secretary, Canadian Embassy, Oct. 13, 2006.

Ibid.

Personal communication with David A. Balton, Deputy Assistant Secretary for Oceans and Fisheries, U.S.

Department of State, Oct. 11, 2006.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Implementing the Regional Endowment Funds

The U.S. Congress authorized and appropriated $10 million for FY2000 for each Northern and

Southern Funds ($20 million total); the money was transmitted to the PSC in late 1999 and early

2000. For FY2001, Congress appropriated a second installment of $20 million for each Fund ($40

million total),71 which was transmitted to the PSC in February 2001. Congress authorized a

similar amount for FY2002. The balance of the total commitment—$25 million to the Northern

Fund and $15 million to the Southern Fund ($40 million total)72—was authorized in FY2003.73 In

addition to the amounts contributed by the United States, Canada contributed $250,000

(Canadian) to each of the two funds (total of $500,000 Canadian) in November 2000. By 2006,

the two endowment funds were generating a total of US$7 million annually to finance projects in

Canada and the United States.74

Table 1. Expenditures by Project Category (in U.S. dollars)

Year

Enhancement

Habitat

Improved Information

for Management

Total

Southern Fund

2004

102,385

243,027

1,664,633

2,010,045

2005

96,388

1,513,180

1,568,761

3,178,329

2006

331,004

1,357,905

2,278,249

3,967,158

2004

664,009

106,448

1,134,869

1,905,326

2005

118,362

136,511

2,626,716

2,881,589

2006

580,458

384,904

2,125,596

3,090,958

Northern Fund

Source: Pacific Salmon Commission data.

The combined Northern and Southern expenditures by project activity category for 2004-2006

were:

Enhancement

$1,892,606

11%

Habitat Restoration

$3,741,975

22%

Improved Information for Management

$11,398,824

67%

Several projects were funded that involved cooperators in both countries. Additionally, the

benefits that flow from many of the projects are shared bilaterally, such as projects directed at

improving the Fraser River sockeye fishery.

In actuality, the appropriated funds were subjected to a Congressionally-mandated across-the-board “hold-back”

(rescission) of 0.22%, which reduced the FY2001 amount to $19,956,000 for each fund ($39,912,000 total).

In 2003, a rescission of 0.65% reduced the contribution to the Northern Fund by $162,500 and to the Southern Fund

by $97,500.

All funds are in U.S. dollars, unless otherwise stated.

Personal communication with Don Kowal, Executive Secretary, Pacific Salmon Commission, Oct. 27, 2006.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

An unintended, but nonetheless real, effect of establishing the Endowment Funds as part of the

1999 Agreement is that there has been a growing temptation to seek financial support from these

endowment funds to operate basic agency stock and fishery assessment programs. This tendency

has been exacerbated by mounting pressures for fiscal austerity reflected by agency budgets in

both countries.

Effect of Chinook Management on Other Fisheries

The effects of different fisheries on Chinook salmon vary by stock. The 1999 Agreement relative

to Chinook salmon has tended to shift the conservation responsibility to fisheries that are not

managed under AABM regimes to protect individual stocks. The fishing regime established for

fisheries off the west coast of Vancouver Island (WCVI) has had different effects on individual

stocks of Chinook salmon returning to Puget Sound, the Washington Coast, and Columbia

River. 75 When the 1999 Agreement was negotiated, the effects of the ESA were not yet apparent

because NMFS had not yet established jeopardy standards. With those standards now in place, the

ramifications of the PST’s approach to Chinook management can be better understood. For Puget

Sound stocks, Canadian WCVI fishery harvest rates have not been reduced to the extent

anticipated under the 1999 Agreement. Consequently, fisheries that harvest Chinook in Puget

Sound, including those directed at other species, such as sockeye, have been further restricted to

compensate for less-than-anticipated reductions in Canadian fishery impacts. For Snake River fall

Chinook, the impacts of WCVI fisheries have been reduced more than expected, providing

greater flexibility in allocating impacts among U.S. fisheries affecting this stock complex. The

magnitude of Chinook bycatch in groundfish fisheries directed at other species has not been

allocated among individual stocks because data necessary to do so are not available.

Canadian interception of Washington State Chinook salmon can be seen as a quid pro quo for

Alaskan interceptions of Canadian Chinook salmon. However, this situation has resulted in

Washington State salmon fleets, Tribal and non-tribal alike, feeling that they have been denied an

equitable harvest opportunity. Washington salmon fishermen perceive Canada as managing their

allowed ocean Chinook salmon troll harvest to avoid their domestic stocks and target U.S. stocks.

These Washington fishermen see the Canadian use of real time genetic stock analysis, where they

sample the harvest and allow more or less harvest in the area depending on the mix of the stocks

present, as a violation of the existing treaty where one country is not to target the stocks of the

other country.

In addition, Washington’s ability to harvest its share of Fraser River sockeye and pink salmon,

both of which are managed under the PST, is constrained by the ESA listing of Puget Sound

Chinook. After Canada’s allowable harvest of Chinook salmon under the existing Chinook regime

in Annex IV, combined with the U.S. ESA-mandated harvest restrictions on Puget Sound

Chinook, there is insufficient permissible Chinook bycatch remaining to satisfy both the treaty

and non-treaty commercial sockeye and pink fisheries in Washington State.

Pacific Salmon Commission, Report of the Joint Chinook Technical Committee Workgroup on the October 19, 2005,

Assignments Given to the Chinook Technical Committee by the Pacific Salmon Commission Regarding the Conduct of

Canadian AABM Fisheries, TCCHINOOK(06)-1 (July 28, 2006).

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Renegotiated Annex IV

Renegotiation Timeline

The U.S. Section to the PSC envisioned that the renegotiations of Annex IV would take place

within the framework of the PSC process, rather than on a “government-to-government” basis, as

occurred in 1999. Due to the improved atmosphere of cooperation that existed within the PSC,

both parties were cautiously optimistic that that approach would succeed.

Most of the fisheries regimes set forth in Annex IV expired at the end of 2008 (the only

exceptions were the regimes for Fraser River sockeye and pink salmon, which will expire at the

end of 2010). Following informal discussions, the U.S. Section proposed to Canada a framework

for handling the renegotiation of these regimes in accordance with a timeline designed to allow

the parties to bring new fisheries regimes into force no later than the end of 2008. The two sides

discussed the proposed framework at the Executive Session of the PSC in mid-October 2006.76

Recommendations in 2005 and, again, in 2006 on changes to the PST Annex IV arrangements

(chapters 1, 4 and 6) attested to the positive relations in the bilateral PSC and between the two

countries on Pacific salmon overall. 77

U.S. Concerns

Several complex issues challenged the PSC and the parties. The combined implementation of the

1985 PST and the 1999 Agreement continued to pose challenges. Several of these were

considered in the renegotiation of the expiring Annex IV fisheries regimes.

Most participants believed that the most difficult issue associated with the renegotiation

concerned the fishery regime for Chinook salmon found in Chapter 3 of Annex IV. The problems

arising from the status (e.g., U.S. endangered and threatened species listing) of certain runs of

Chinook salmon in Washington, Oregon, Idaho and perhaps British Columbia posed particular

challenges for the negotiators.78

Measures beyond Harvest Control

This issue concerned the PSC’s activities relating to Attachment E to the 1999 Agreement, known

as the Habitat and Restoration agreement.79 This attachment included, among other things, a

section requesting the commission to report annually to the parties on the status of natural stocks

not producing at optimum production, the non-fishing factors which may be limiting their

production, options for addressing these factors, and the progress of the parties in achieving the

objective of optimum production for these stocks.

Personal communication with David A. Balton, Deputy Assistant Secretary for Oceans and Fisheries, U.S.

Department of State, Oct. 11, 2006.

Personal communication with Helene Belleau, First Secretary, Canadian Embassy, Oct. 13, 2006.

Personal communication with David A. Balton, Deputy Assistant Secretary for Oceans and Fisheries, U.S.

Department of State, Oct. 11, 2006.

Attachment E to the 1999 Agreement, concerning habitat and restoration, did not expire and was not directly a part of

the renegotiation process.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

The PSC has discussed this provision of the 1999 Agreement bilaterally on many occasions since

1999. However, bilateral progress had been difficult and limited for a number of reasons, some of

which stemmed from differences within the two national sections, as well as between them.

Non-Fishing Factors Affecting Productivity and Capacity

U.S. domestic concerns relative to non-fishing factors that affect salmon productivity and fishing

capacity influenced the renegotiation of some expiring fisheries regimes of Annex IV, particularly

Chapter 3 concerning Chinook salmon. Canada had a number of domestic concerns that similarly

affected the renegotiation of fisheries regimes.

Interaction with U.S. Harvest Policy

This issue concerned the implications of the U.S. Administration’s salmon policy, as expressed in

the January 25, 2006 speech by White House Council on Environmental Quality Chairman James

L. Connaughton, at the “Future of Wild Pacific Salmon” conference at Oregon State University. 80

The life-cycle and migratory patterns of Pacific salmon, combined with the jurisdictional

landscape of North America’s west coast, places Canada literally and figuratively in the middle of

certain PST issues, with Alaska to the north and several states of the “Lower 48” to the south. As

in the past, some of the biggest challenges confronted by the participants were finding solutions

acceptable to all U.S. stakeholders

Mass Marking and Mark-Selective Fishing

Mass marking (removing the adipose fin) and mark-selective fisheries (harvesting only fish with

the adipose fin removed) were implemented by some of the management entities who participate

in the PSC process to conserve natural stocks of concern and to sustain fishery opportunities by

shifting harvest toward hatchery fish in mixed stock fisheries. However, concerns arose that

unilateral decisions to implement mass marking and mark-selective fisheries (MSFs) diminish the

utility of the coded-wire-tag (CWT) system used by the PSC. Intense fisheries that selectively

remove only marked fish violate the fundamental assumption of the CWT system that tagged and

untagged fish within a population have equal chance of being harvested during their life cycle.

Ambiguity

Ambiguity in Annex IV language allowed different interpretations of expectations from

individual perspectives. Different perceptions of intent emerged, which became manifest as

uncertainty and rhetorical debates over intent. The Chinook regime, for example, was technically

complex to implement and many details were left to be sorted our later. Another example was the

controversy that emerged with how the U.S. share of Fraser River sockeye was to be harvested;

Canada argued that the United States should harvest its proportional share from each major

component of the sockeye run, while the United States argued that the proportion should be based

on the allowable catch of the total sockeye run, taking into account the relative strength of

component populations to the extent practicable. While ambiguity has provided latitude and

For the text of this speech, see http://www.salmonrecovery.gov/newsroom/archives/Research_Reports_Pubs/

speeches/2006/JLC_Salmon_Speech_1.25.06.pdf.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

flexibility to make it easier to reach agreement on fishing regimes, controversy occurred when

obligations had to be transformed into specific terms. Ambiguities in Annex IV language

increased challenges for bilateral technical committees over who and what to evaluate when

monitoring performance or compliance.

Planning Forums for Exchanging Information and Perspectives

Implementation of fishing regimes negotiated by the PSC commonly require coordination and

collaboration between the fishery managers of Canada and the United States. The meeting

schedule and processes of the PSC are not well suited to this purpose. The Fraser Panel convenes

several times throughout the season to coordinate fishing plans on sockeye and pink salmon

bound for the Fraser River, but coordination among fishery managers for other species was far

less formal. For example, the 2002 Southern Coho Agreement includes a provision for the parties

to exchange information on abundance forecasts and fishery expectations for preseason

management planning through manager-to-manger, policy-technical discussions, but this process

was limited to a perfunctory exchange of data through e-mails and conference calls.

The PSC normally convenes three meetings each year. A meeting in January focuses on a review

of previous fishing seasons for the purpose of identifying issues for further discussion and making

assignments to technical committees. An annual meeting in February is devoted to deliberation

and resolution of issues. In the fall, an Executive Session allows the PSC to review work plans for

Panels and Technical Committees and to candidly exchange views regarding issues relating to

implementing the PST. However, the lack of forums to foster and facilitate policy-technical

exchange for implementing PSC regimes was thought to be a serious impediment to cooperative

salmon management between the United States and Canada.

Funding Reductions

In recent years, funding for participation in joint technical committee processes and to support

stock and fishery assessments had become increasingly problematic. The lack of full participation

in technical committees impeded the ability to make progress on understanding and addressing

issues of concern. Participants maintained that many programs that provide the data required for

stock and fishery assessments had been severely reduced or even eliminated. Consequently, these

observers maintained that the foundation for science-based management was being eroded at a

time when demands for more and increasing precision in salmon management were increasing.

Regulation and Accountability in First Nation Fisheries

Under Canada’s allocation policy, after providing for spawning escapement, the first harvest

priority is accorded to First Nations. The proportion of Canadian harvest provided to First

Nations is expected to increase over time. For some First Nations fisheries, the current accuracy

of estimates of harvest and the adequacy of fishery sampling data were highly questionable.

Further, concerns arose over Canada’s reluctance or inability to take action that could interfere

with the ability of First Nations to harvest fish, even when other U.S. and Canadian fisheries on

the same stocks were not permitted due to conservation concerns.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Canadian Concerns81

In general, the Government of Canada was pleased with the degree of cooperation with the

United States on PST issues since the implementation of the 1999 Agreement, and was hopeful

that the PSC would provide additional recommendations concerning Annex IV changes. The

panels, under the direction of the PSC, discussed chapter renewal starting in 2007. Canadian

officials anticipated that Chinook salmon would be an area of particular interest during the

renegotiation.

Prior to the signing of the 1999 Agreement, Canada had been implementing significant

conservation measures to address weak Chinook stocks from the west coast of Vancouver Island.

As a consequence of these actions, Canada reverted to an historic fishing pattern in this area,

moving from a predominately summer fishery to a spring and winter fishery. These changes met

the new AABM regime set in the 1999 Agreement. That agreement also changed both countries’

focus on harvesting respective shares of Chinook quotas set under the old treaty arrangements

when stocks were abundant, to the conservation and abundance-based approach.

The fishing pattern off west coast Vancouver Island not only met Canada’s conservation needs but

also reduced Canada’s overall harvest of U.S. Chinook, particularly Columbia River Chinook

stocks, which includes ESA-listed stocks. As an indirect result of changes in fishing patterns,

Canada harvested other southern U.S. stocks. However, Canada’s catch was within the parameters

of the 1999 Agreement for Chinook salmon. Fundamentally, it was impossible for Canada to

harvest its Chinook stocks without intercepting southern-bound U.S. stocks, whether they were

Columbia River or Puget Sound stocks or others. Canada was not alone in affecting southern U.S.

Chinook, as Alaska also had a significant harvest of southern U.S. Chinook stocks as well as

Canadian stocks.

An additional issue of concern to Canada was the increasing bycatch of Yukon River Chinook

salmon by the U.S. pollock fishery in the Bering Sea concurrent with declining numbers of

Chinook salmon migrating into Canada to spawn in Upper Yukon River tributaries.82 Canadian

managers claimed that salmon bycatch in the pollock fishery had increased substantially, and

blamed this interception for poor salmon returns to the Upper Yukon River tributaries. A

Canadian delegation attended an early November 2007 meeting of the North Pacific Fishery

Management Council to emphasize their concern, citing treaty language binding parties to

reducing marine catch and bycatch of Yukon River salmon. Meanwhile, U.S. pollock fishermen

asserted that severe restrictions on their fishery could make it unprofitable for them to continue

fishing.

Conservation of Canadian Pacific salmon populations was a priority, consistent with Canada’s

wild salmon policy. Access to a fair share of salmon under the treaty arrangements and receipt of

the benefits of Canadian stock rebuilding efforts were also important to Canada. Furthermore,

obligations to Canadian First Nations had to be considered in the renegotiation. The government

of Canada believed that the improved levels of understanding, cooperation, and trust that had

emerged through the work of the PSC would contribute decisively toward the successful

negotiation of new Annex IV arrangements, and strongly supported work through the PSC.

Personal communication with Helene Belleau, First Secretary, Canadian Embassy, Oct. 13, 2006.

Rebecca A. Robbins, “Unintended Catch: Bycatch of Yukon River Salmon in the Pollock Fishery,” Fishermen’s

News, March 2006. Available at http://www.yukonsalmon.org/news/fishermensnews.pdf.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Constituent Concerns

A Pacific Salmon Treaty Reform Coalition, composed of U.S. and Canadian conservation

groups,83 provided constituent input into the renegotiation process. This coalition convened an

independent scientific workshop on January 4, 2007, to evaluate the Pacific Salmon Treaty as a

vehicle for sustainable, conservation-based salmon management. 84 From this workshop, the

coalition defined four principles they believed would improve the PST:

•

uphold the principle of diversity protection and manage fisheries to protect all

stocks;

•

increase the responsibility of each country to protect salmon habitat and account

for habitat loss in setting harvest objectives;

•

meaningfully adopt the precautionary principle, ensuring salmon are protected in

the face of increasing uncertainty from environmental change, particularly

climate change; and

•

make the process of PST negotiation and application more transparent and open

to the public.

Renegotiated Annex IV

On May 22, 2008, U.S. and Canadian representatives to the PSC announced their agreement on

proposed changes to the five PST chapters of Annex IV that were in need of renewal, and

recommended ratification of the renegotiated agreement to their respective governments. After

both governments ratified the agreement, the renewed chapters took effect on January 1, 2009,

and will remain in effect through 2018. Significant revisions include the following.

Chapter 1 (Transboundary Rivers):

•

New harvest sharing arrangements for sockeye on the Taku River.

•

A renewed commitment to the joint enhancement program for sockeye in the

Transboundary Area.

•

New arrangements for the management of sockeye on the Alsek River, including the

ability of either party to recommend new commercial fisheries.

•

Canadian access to fish that are surplus to the spawning requirements outlined in the

agreement.

Chapter 2 (Northern Boundary): No significant changes.

Trout Unlimited, the Wild Salmon Center, the International Environmental Law Project, and the David Suzuki

Foundation.

For a summary of proceedings of this workshop, see http://www.davidsuzuki.org/files/Oceans/

PST_Wkshp_Summary_Report.final_feb_13.pdf.

Congressional Research Service

The Pacific Salmon Treaty: The 1999 Agreement and Renegotiated Annex IV

Chapter 3 (Chinook):

•

Reductions in the allowable Chinook harvest in two aggregate abundance-based

management (AABM) “mixed-stock fisheries” to address conservation concerns in both

countries. The current maximum catch levels would be reduced by 15% in the case of the

(U.S.) Southeast Alaskan AABM fishery and by 30% in the case of the (Canadian) west

coast of Vancouver Island AABM fishery.

•

New provisions to protect weak stocks, including further harvest reductions in the

Alaskan and Northern BC AABM fisheries, as well as the individual stock-based

management (ISBM) fisheries in both countries if certain Chinook stocks fail to meet

escapement objectives.

•

Creation of a fund, endowed by both the United States and Canada, to support

implementation of the Chinook chapter. Key elements include (1) $30 million that

Canada can access to help mitigate the impacts of harvest reductions in Canada; (2) $15

million ($7.5 million from each country) to support the coastwide coded-wire tag

program; (3) $10 million from the Northern and Southern Endowment Funds for a

“Sentinel Stocks Program”; (4) as much as $3 million that Canada can access to support

pilot projects and evaluate mass-marking and mark-selective fisheries in Canada; and (5)

$1 million to improve the analytical models to implement the Chinook agreement.

Chapter 5 (Coho): Incorporates the joint Southern Coho Management Plan developed in 2002

with the abundance-based management framework established in 1999.

Chapter 6 (Chum):

•

Introduction of a 20% fixed harvest rate in Johnstone Strait, linking the U.S. catch ceiling

to the abundance of Fraser River chum (i.e., in the case of a terminal run size below

900,000 chum salmon, the United States would restrict its fisheries in Area 7 and 7A to

20,000 chum).

•

Establishment of a “critical level” for southern-bound chum salmon of one million.

•

A defined start date for U.S. fisheries in Areas 7 and 7A of October 10 and the removal of

the previous “underage” provisions for U.S. harvest.

Author Contact Information

(name redacted)

Specialist in Natural Resources Policy

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

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