A 2022 rule by the Oregon Fish and Wildlife Commission that allows trap, haul and trucking of fish over barriers, in addition to the already allowed volitional passage for fish, was overturned by the Oregon Court of Appeals.
The Court of Appeals reinstated Oregon’s long-standing requirement that artificial barriers to fish migration, like dams, be upgraded to allow fish to swim freely past, according to a Columbia Riverkeeper news release.
The court’s Nov. 26 decision struck down the Oregon Department of Fish and Wildlife’s December 2022 rule that allows dam operators to trap salmon and load them into trucks for transport around dams—a process with much lower survival rates, Riverkeeper said.
The rule was reversed because the court determined that ODFW had failed to notify the public about making the rule change.
The court wrote in its decision that “It is unclear from the record exactly when, why, and by whom the additional revisions were made. The revisions were made without additional public notice and were adopted at the December 16, 2022 [Commission], meeting. Those amendments became effective on January 1, 2023.”
“The lack of notice [deprived] people whose interests are historically, culturally, and integrally intertwined with the policies at issue of a role in the process…,” the court wrote
“In one assignment of error, petitioners argue that the amendments to those rules were adopted without compliance with applicable rulemaking procedures, in violation of ORS 183.335,” the Appeals Court wrote in its decision (2025.11.26-Columbia-Riverkeeper-v.-ODFW-A182213-Opinion.pdf). “We conclude that the commission did not substantially comply with the notice requirements for amendment of administrative rules under the Oregon Administrative Procedures Act (APA). As a result, the January 1, 2023, amendments to OAR 635-412-0005(20), OAR 635-412-0005(51), and OAR 635-412 0035(6) are invalid.”
ODFW’s new rule or amendment was overturned because ODFW failed to notify Tribes or the public before making this important rule change, Riverkeeper said.
“The CTUIR appreciates the Oregon Court of Appeals for upholding the importance of transparency and public participation in decisions that affect our rivers and fish,” Confederated Tribes of the Umatilla Indian Reservation Board of Trustees Chair Kat Brigham said. “This ruling affirms that agencies must follow the law and respect the voices of all stakeholders, including sovereign tribal nations. It is the right decision for the health of our waterways and the cultural and natural resources that sustain our people and others in Oregon.”
Challenging ODFW’s amendment to the state’s fish passage program in court were Columbia Riverkeeper, Native Fish Society, Northwest Environmental Defense Center, Oregon Wild, Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources, The Conservation Angler, Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation.
“By ODFW’s own count, there are 42,780 artificial barriers to fish migration along rivers, streams, and creeks in Oregon,” said Mark Sherwood, Executive Director for Native Fish Society. “The Department should be doing everything possible to aid these struggling fish populations, not creating more barriers by cutting corners in laws meant to protect these fish.”
The Oregon Commission’s public affairs officer, Michelle Dennehy, said in an email, “We are currently reviewing the ruling and options with our attorneys and are unable to comment at this time.”
In its decision, the court wrote that Oregon’s Fish Passage Rules “exist to protect the ability of native migratory fish to pass through human-made barriers to their migration, such as dams and roads, absent a waiver or exemption.” Fish passage policy was originally adopted into law in 2001 and codified in 2006 by the Fish and Wildlife Commission. “The 2006 rules required that fish be able to pass through obstructions volitionally, i.e., on their own, as opposed to being trapped or moved via human intervention, absent a waiver or exemption,” the court’s decision says.
“This is a highly significant, consequential, and protective decision for native migratory fish in Oregon, for Oregonians, and for Nez Perce people throughout the Tribe’s treaty-reserved territory in Oregon,” Nez Perce Tribal Chairman Shannon Wheeler said. “For us, the decision confirms, for future fish passage requirements on rivers throughout Nez Perce territory in Oregon, and right now at the Wallowa Lake Dam reconstruction in the heart of the Nez Perce homeland, that Oregon’s fish passage regulation requires volitional passage unless an exemption can be proved publicly, and that state regulations cannot be revised by an agency at the last minute in a back room with no public notice and comment.
“The Court of Appeals’ decision is grounded in common sense and clear reasoning, and is a reminder of the indispensable oversight and protective role the courts play for all of us,” Shannon said.