*COURT DECISION - On December 19 the U.S. Ninth Circuit Court of Appeals
released four decisions that may have an amazing impact on fisheries in
Washington State should the Governor of the State of Washington decide he
wants to implement them.
I have been waiting for a ruling like this for twenty-two years.
This is a summary of what those decisions were;

1. The Chehalis Tribe does not have any treaty fishing privileges granted
to
other tribes since they were not party to the treaties. Any commercial
fish
they catch in Grays Harbor, the Chehalis River, or elsewhere must come
from
the non-treaty half of the catch.
2. The Lummi Tribe does not have any treaty fishing privileges in the
Straits of Juan de Fuca. Their treaty fishing areas
(usual-and-accustomed)
exist only in the Bellingham Bay area and Admiralty Inlet.
3. The Lummi Tribe does not have treaty fishing privileges in Area 10
(Edmonds south to Vashon Island).
4. The Muckleshoot Tribe does not have treaty fishing privileges beyond
Elliot Bay.

This ruling is huge in its implications because it is the first time
since the infamous Boldt court decision in the late 1970s that the courts
have seen fit to define what "usual-and-accustomed" places are for
individual
tribes. Judge Boldt never did define that term which is what lead to the
free-for-all unregulated commercial fishing by the tribes and possible
endangered species listings of Puget Sound steelhead. As long as each
tribal
commercial fisher could fish anywhere he wanted free of any regulation
simply
because he was a treaty fisher, no tribe had a vested historical interest
in
protecting an individual run. The Lummi's in particular poached fish from
the territory of other numerous tribes even though, historically, those
tribes had been mortal enemies for hundreds of years. The Muckleshoots
have
been doing the same with geoduck clams, a resource we will probably lose
within the next three years due to tribal overharvest.
If Judge Boldt had originally decided to define usual-and-accustomed
places for each tribe, it would have gone a long way to curb our state
bureaucracies' irresponsible fisheries management policies and
search-and-destroy goals for fisheries for the last twenty years. As
capitalism teaches, we tend to protect the things we own.
Another astounding effect of these decisions will be the effect on
future salmon treaties with Canada. The Lummi Tribe among others have
been
insisting on being treated as a coequal with the United States and Canada
in
talks over catch of Canadian sockeye salmon from the Frasier River as they
passed through the Straits of Juan de Fuca. Canada has insisted that our
"aboriginals" such as the Lummis are U.S. citizens and therefore would not
deal with them directly. On occasion, the Canadian negotiators have even
walked out of negotiations rather than negotiate with these supposed
tribal
sovereign nations of U.S. citizens. The Lummi's and other tribes like the
Swinomish have even insisted they were not bound by decisions to limit
their
ability to hijack valuable Canadian sockeye salmon in the Straits of Juan
de
Fuca. This court decision has effectively removed the Lummi's as barriers
to
these international talks.
Effectively, this ruling has given the state the power to regulate
the
fisheries of these tribes anywhere outside of their "usual-and-accustomed"
areas (the Chehalis no longer have the one they illegally demanded) and,
therefore, these tribal fishers become just like the rest of us with no
special privileges.
This court ruling is a huge chink in the propaganda armor of the
tribes
as promoted by the mainstream media and the Democratic Party that
resistance
is futile to any outrageous tribal demand.
Don't get your hopes up too high for any immediate effect in our
state,
however. Treaty tribes funnel millions of dollars of gambling and other
money into the state Democratic Party and provide it numerous services for
good reasons. This situation will be fun to watch develop.

That's a good start. If!If!If! The Gov will do anything about it. We will have to wait & see.

Wow! That is good news Hairball. Thanks for posting it. I will copy it to our BB. Would you mind copying it to other fishing BB's? This is not only good news but should encourage fishers to get behind writing and protesting campaigns to enhance our chances at fair sportfishing quotas. ...

And to think, when I read that topic heading I thought that you went and cut your hair . - RT

Does anyone know the impact this decision will have upon the Ballard Locks net fishery?

Thanks

I posted the above letter and got grilled because I didn’t have permission. I sent e-mail to the author asking for permission and more info and got this response.


Greetings. This is Ward Norden.
Feel free to send out my political commentaries to anyone you like.
I write a political newsletter about events in the natural resources arena in
Olympia during the legislative session and invite the readers to forward
copies of that to anyone they think would be interested. I am always amazed
at how far it travels. It has appeared in the Yakima and Spokane papers and
I have gotten responses from several other states
I do the newsletter on the web for free and for fun because I am a
political junkie besides being an addict of hunting and fishing.
Beware, however. I am a firebreathing, attack-dog; conservative who
takes no prisoners. My biggest goal is to get our spawning areas in our
rivers full of salmon and steelhead as a property rights issue in order to
destroy the political agenda of the leftist greens and Gary Locke who are
deliberately preventing salmon recovery. I have a low tolerance for green
pseudo-religious mantra.
Take care - Ward


Thanks Ward for the info and Holiday market for helping spread it.

More good info to the letter

I don't know about you but every one of those 9th Circuit rulings is
good news beyond belief. I will be doing handsprings all day. I have
been waiting for these rulings for twenty-two years. They fill in the
most
horrendous of the gaps left by the original Boldt decision when Judge
Boldt
refused to define what "usual-and-accustomed" places are.
If the state of Wa. so chooses:
1. It can now regulate the Chehalis Tribal fisheries as part of
"all-citizen" commercial fisheries.
2. The Lummis can be regulated by the state if they want to fish
anywhere else but Bellingham Bay and Admiralty Inlet. They are no longer
a
prime player in hijacking Canadian sockeye during Salmon treaty
negotiation
with our neighbor to the north.
3. The Muckleshoots can be regulated everywhere but Elliot Bay so
they
can no longer hammer on endangered Lake Washington chinook in the name of
taking Lake Washington sockeye.
This precident is huge!!!!
Will the state choose to use its new power? Probably for the
Lummi's
and Chehalis but doubtful for the Muckelshoots since they have so much
casino
money to dump into Democratic party campaign coffers.

Hairball,
In regards to the Chehalis...I am not sure that is good news that we sporties have to share with the Chehalis Tribe our catch numbers...now if you are talking about the Quinaults who are really the fishers of Grays Harbor and the Chehalis up to the Wynoochee (Chehalis Tribe catch is minimal compared to the Quinaults) then I need to take a closer look....can you enlighten me further on this??

Jim

The ruling is good news indeed, Thanks for the posting.
It does seem to limit some of the ex-treaty netting going on, but wont mean much without enforcement. From what I understand, WDFW is forced to cut back on enforcement efforts due to revenue shortfalls, they're blaming I-695, so may not be able to do as much as we would hope. Dont expect too much on that front. Since the sport fishermen are easier targets, and any fines are "free" monies to the local agencies, we'll continue to receive the majority of their attention.
The Cowlitz (my tribe) are still having a problem with the Quinault. Both political, and range-related. For now, the only thing certain is there will be no nets on the Cowlitz River. If anyone ever sees nets in the Cow', we can make them go away by any means necessary. Now, if the same people were only so dedicated about their elk management.
The next logical step would be to engage the treaty-member tribes in a temporary agreement to stop all netting for a specified period, until the runs can be re-established. This would require federal support and funds, as the treaties are federal. How could this be made to happen??

Yes i agree the court rulings are a great step in the right direction, but why slam democrats for stalling fish recovery? Slade has been a sore on the butt of any salmon - steelhead programs for years and a buddy of big agricultural- logging-development business as well. He could not even agree to drop a no brainer dam, like theElwa. All sides are guilty of hedging with the money that supports them, whether it is right or wrong.
Save our wild Steelhead and Salmon

A little clarification, read the Muckleshoot opinion (9th circut court of appeals- http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9935960&exact=1 )

This decision only regulates the saltwater area of the Muckleshoot fishery. They wanted to include a fishery in area 11 by claiming that it was part of the usual and accustomed places. The court rulled they were limited to Elliot Bay. It does not remove fishing rights from Green/Dawamish, Cedar, White, upper puyallup or Lake Washington. They can still hold the fisheries there, including the Lake Washington netting.

I believe the Lummi tribe was the tribe that netted the ship canal for Sockeye last summer and this opinion will end that.
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9936224&exact=1)

Interesting and hopeful news. But if these are court rulings, why does the state have the option to abide by the ruling or not? Isn't this the law, which would require implementation by the state and be indifferent to the political influence of the tribes?

I'm afraid I don't have the background to know exactly what this means, but I would love to hear the opinion of Salmo g., our resident expert on salmon management issues.

The most appropriate response might be to read the court decisions as written by the Court and decide for yourselves whether the news is good or bad. I would hope the 9th Circut would have a website so their decisions would be widely circulated. If anyone knows of such a site, it might be worth posting.

I'm not sure what the court decisions mean since I haven't read them yet but I am a bit concerned by the summary of the Chehalis opinion. If the court ruled that the Chehalis Tribe cannot take their fish from the treaty share of the allocation, then it must come from the non-treaty share. But those fish are the sport angler allocation. Those are OUR fish.

The next question is whether the State of Washington has an obligation to provide a tribal fishery absent a treaty reserved right. I'm not sure. But I suspect the State will provide them with something since the State provides both a non-treaty commercial and sport fishery without a "treaty right". Remember, the Tribes have a right to fish while for the rest of us, fishing is a privledge. If the State provides that same privledge to the Chehalis Tribe, every fish they allocate is one less fish for the sport or commercial folks. In effect, the Chehalis opinion may mean more fish for the tribes and less fish for the sport anglers. To some folks this might be good news. But I suspect the majority of the BB readers wouldn't view it that way.


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MSB

Oops. I goofed. Just saw Thinker's post. Thanks for providing the link to the court decisions. My mistake.