I think the Tribes recognize that ESA may, in fact, apply to them as it does everyone else. But they don't want to test that assumption in court, lest they lose. That would have huge implications for future interpretations of all Tribal Treaties. That is, statutory law would be equivalent to Treaty rights. That would be a disaster for the Tribes nationwide.

So, Plan B is to ensure the ESA impacts on them are as minimal as possible. In that sense, they are no different than anyone else. They just have a few more legal "tools" to make that case (e.g., the Treaties, the Boldt decision, and Federal trust responsibilities).

As a practical matter, NMFS believes ESA and the Treaties have to be implemented simultaneously. Not an easy task, and it carries considerable legal risk. More so, in this instance where the State and the Tribes are going in different directions.