Obsessed and RT,

Can you tell me what document or person(s) in NMFS or USFWS validates foregone opportunity by the non-treaty fishery as allowing increased harvest by treaty tribes? I think the topic of foregone opportunity was mentioned in Hoh v. Baldridge (Commerce/NMFS), but I’ve never actually seen a decision or court order that establishes it. I think the “flag” of foregone opportunity has been waved around by both sides as a scare tactic at times, but I wonder if it is really anything more than a boogie-man.

As for fishing regulations on the Columbia, the feds are calling some important shots. Last year, Will Stelle was alledgedly given official policy from NMFS headquarters. (I’ve asked a couple people who work under that policy if I could get a paper copy - No.) The policy has three priority rankings. 1) ESA; 2) Treaty fishing; 3) Non-treaty commercial and recreational fishing. It’s executed in part like this: the tribes contend that ESA doesn’t apply to them. The feds contend that it does (USFWS enforces eagle hunting against native Americans). But neither side wants to contest this in court. So when NMFS determines the allowable take on a listed species, like the wild spring chinook, most of that take is allocated to the tribes, following the policy on priorities. Apparently this keeps the tribes happy enough to not contest in court whether the ESA applies to them or not.

I usually avoid posting hearsay on this BB. But this is one of those cases where I couldn’t get documentation of a policy. But the managers certainly are acting like this policy is directing their actions. It may not make anyone feel any better, but it may help understand what’s going on and why the non-treaty springer allocation is so much lower than the treaty allocation.

Sincerely,

Salmo g.

Salmo,

I can't answer your Q about the 'ground zero' document specific to "foregone opportunity" language and how that affects Indians supposedly getting additional netting oportunity when non-Indian fishers choose to C&R valuable native steelhead spawning stock rather than harvest them. Part of the answer may lay within the complex Dept. of the Interior Secretarial Order #3206. You can access that entire order document at
http://endangered.fws.gov/esatribe.html

Take note in Section 2 that it declares the order will be remain consistent with established law. ... NOT! ... It fly's directly in the face of Treaty law and Federal Court review interpretations pursuant to the stated sharing of harvestable salmon and steelhead equaly, 50/50! I can see why the Indians don't want to go to court again over these issues. I'm not quite clear why the U.S. Government is adverse to going to court. The States of Washington and Oregon sure aren't afraid to - they filed a joint lawsuit against the "Unfair Pair" of the Confederated Tribes of the Columbia Region and the NMFS (National Marine Fisheries Service) in order to first re-secure our right to fish the Columbia for fall chinook last year and then for negotiating leverage for sportfishing Columbia spring chinook this year. I thought the States backed out of their suit a little too easily when the Indians negotiated allowing sportfishers and non-Indian commercial netters combined to up our ESA impact (on native spring chinook) from 0.5% to 2% if they were allowed to up there ESA impact from a whopppingly unfair 8.5% ESA impact to 13% ESA impact. The States dropped pushing the lawsuit and accepted that "compromise". Some deal, huh? About as insane as this purported 'foregone opportunity' by sportfishers increasing the Indian netting take opportunity. How do these Treaty Tribes have the Feds by the balls so tightly on these ridiculous deals?!?

RT