And CFM got the boot????

He wasn't near this bad.

Inland great post

Thank You, William!

So you think the commissioners are fisheries experts? Some of the people that you mentioned may not be experts in the fisheries department but they should know plenty about the law and the process which is what is in question here.

Ok...I'll take a look at the letter from the legislators now...

******************
April 13, 2004
Washington State Fish and Wildlife Commission
ATTN: Commission Members
600 Capital Way North
Olympia, WA 98501
Dear Members of the Commission:
We are writing to express our disapproval of the commission's action to institute a two year ban on the retention of wild steelhead on western Olympic Peninsula rivers. We believe the commission's action violated the Administrative Procedures Act, is unsupported by fish management science and is contrary to state law expressed in RCW 77.

***Cool...now tell me 1. how the Commission violated the APA, how their decision is unsupported by fish management science, and how it violates RCW 77.***

This letter will clarify the relationship between the legislature and the commission and then explain the reasons for the opposition to the ban on wild steelhead retention.

***Cool again. Let's hear it.***

RCW 77.04.012 defines the mandate of the department and commission when it states:
"The commission may authorize the taking of wildlife, food fish game fish and shellfish only at times or places or in manners or quantities, as in the judgment of the commission does not impair the resource."
"The commission shall attempt to maximize the public recreational game fishing and hunting opportunities of all citizens...."

**OK...the Commission may use its judgment to set the time, place, and manner of fishing. Right...whether you agree with what they did or not, they definitely did this. "Maximize opportunity"...OK...there are many ways to do this...ranging from harvest the max now for greatest present harvest opportunity, to close it for future opportunity, to everything in between. "Maximizing" opportunity is a judgment call as to what that means and how to do it. Again, whether you agree with what the Commission did or not, they made a judgment call as to how to maximize opportunity, as they are mandated to do.**


RCW 77.04.013 further clarifies the legislature's intent saying:
"The legislature supports the recommendations of the state fish and wildlife commission with regard to the commission's responsibilities in the merged department of fish and wildlife. It is the intent of the legislature that, beginning July 1, 1996, the commission assume regulatory authority for food fish and shellfish in addition to its existing authority for game fish and wildlife.

**OK...Commission, we the Legislature give you regulatory authority...**

It is also the intent of the legislature to provide to the commission the authority to review and approve department agreements, to review and approve the department's budget proposals, to adopt rules for the department, and to select commission staff and the director of the department."

***OK, doesn't really apply, except for maybe the "adopt rules" part, which if it does apply, they definitely did here.**


"The legislature finds that all fish, shellfish, and wildlife species should be managed under a single comprehensive set of goals, policies, and objectives, and that the decision-making authority should rest with the fish and wildlife commission.

**OK, this first refers to the legislative mandate to combine the Deptarments of Fisheries and Game from a few years back, and to put the Commission in charge of the newly formed WDFW, and that the Commission has decision-making authority. No problem here.**

The commission acts in an open and deliberative process that encourages public involvement and increases public confidence in department decision making."

**OK, first point that has some teeth...we all want to have confidence in our WDFW, and the more public involvement, the better. This is a very good piece of advice, and is controlled by the rulemaking process under the Administrative Procedure Act, which I'm sure we'll get to later.**


RCW 77.04.055 sets out the duties of the commission:
"Commission - Duties, (1) In establishing policies to preserve, protect, and perpetuate wildlife, fish, and wildlife and fish habitat, the commission shall meet annually with the governor to:
(a) Review and prescribe basic goals and objectives related to those policies; and
(b) Review the performance of the department in implementing fish and wildlife policies.
The commission shall maximize fishing, hunting, and outdoor recreational opportunities compatible with healthy fish and wildlife populations.

**The Commission must meet with the Governor once a year...doesn't apply to this issue.**

(2) The commission shall establish hunting, trapping, and fishing seasons and prescribe the time, place, manner and methods that may be used to harvest or enjoy game fish and wildlife.

**As above, this is exactly what they did, whether you agree with what they did or not, they did establish a manner to harvest or enjoy wild steelhead**

(3) The commission shall establish provisions regulating food fish and shellfish as provided in RCW 77.12.047.

**Doesn't apply here**

(4) The commission shall have final approval authority for tribal, interstate, international, and any other department agreements relating to fish and wildlife.

**Doesn't apply here**

(5) The commission shall adopt rules to implement the state's fish and wildlife laws.

**OK, again, whether you agree with WSR or not, they definitely adopted a rule**

(6) The commission shall have the final approval authority for the department's budget proposals.

**Doesn't apply here**

7) The commission shall select its own staff and shall appoint the director of the department. The director and commission staff shall serve at the pleasure of the commission."

**Doesn't apply here**

Conversations with commissioners reveal the commission believes it is a policy making body.

**It's not really a policy making body in and of itself, but the legislature delegated authority to the Commission to effectuate policy regarding setting the time, place, and manner of taking and enjoying fish and wildlife**

This is not the case. The state constitution clearly gives the legislature the job of creating public policy. The commission has the job "In establishing policy to preserve, protect and perpetuate wildlife, fish, and wildlife and fish habitat" of meeting with the governor annually to review and provide basic goals and objectives; and to review the performance of the department in implementing those policies.

**OK, the Commission is not a policy making body, and then they quote the state law where they delegated policy making authority to the Commission, and to meet with the Governor once a year to review goals and objectives, and to review performance of them**

Changes in policy direction are to be presented to the governor and the legislature for enactment into law. The commission has no ability to create its own policy and is limited to the role of a consultant in presenting new directions it feels the state should follow. Changes from existing legislative direction to those new directions are not to be pursued unless legislation is enacted giving the commission authority to implement the change.


**This may or may not be true, but the fact is the people of the state, through the legislature, have enacted RCW 77.04, et seq., expressly delegating authority to the Commission to take the legislature and politics out of fisheries management. The Commission does not need the Legislature's permission...the people, through this RCW, have expressly given it to the Commission. This is the reason why the people of the State of Washington passed laws creating the DFW Commission, to take politicians OUT of fisheries managment. If they had to run to the legislature and ask them to pass a law every time they wanted to do anything, they would have no authority. We, the people of this state, expressly said, in the very RCW that the letter cites, that we do not want it to be that way.**

With this in mind,...

**They've already missed the boat, what they "have in mind" is directly opposed to what we, the people, have said it will be through RCW 77.04, et seq.**

...the commission's decision to ban retention of wild steelhead for two years is a policy change made without legislative approval.

**First, it's not a change in policy, on many levels. The law has given the Commission the power to make this decision. The previous regulation was already WSR, it just allowed for exceptions...the new regulation removed the exception. Lastly, it does not need legislative approval...the law specifically takes this decision away from the legislature and gives it to the Commission to keep the legislature out of fisheries management.**

In fact, legislators have consistently told the commission over a two year period that a rule of this type would be considered a policy change and further indicated that legislative approval would not be forthcoming unless WDFW fish management showed the runs were in trouble.

**Tell them all they want, the people have spoken through forming the Commission under RCW 77.04, et seq., and what they've said is "Politicians will not be making fisheries decisions in this state anymore." Again, that was the entire point of passing RCW 77.04, et seq., and forming the Commission.**


Wild steelhead runs on the western Olympic Peninsula rivers are not endangered. According to WDFW and tribal biologists they are not impaired and are capable of supporting the limited retention called for in 2003-2004 fishing regulations.

**Endangered or no, they make seasons regulating the time, place, and manner of ALL wildlife in Washington...the Feds are pretty much in charge, at least with total veto power, over endangered animals.**


Therefore, the decision violates the legislative directive that the commission "SHALL" attempt to maximize the public recreational game fishing and hunting opportunities of all citizens..."

**That's only if you believe that "attempting to maximize...opportunities" means harvest whenever possible, which is a policy decision, which we have given the authority to make such decisions to the Commission, again, through RCW 77.04. If you think that "attempt to maximize...opportunities" means harvest whenever possible, fine...but it doesn't have to mean that, and the Commission has decided that maximizing opportunities may mean many things, depending on the situtation. Other state laws require that alternate forms of wildlife utilization be proactively put into fisheries and wildlife policy, such as CnR fisheries, flyfishing only, juvenile only, etc., etc....this is clearly within the mandate that we the people gave them in RCW 77.04.***


AND the commissions duty that it "shall maximize fishing, hunting, and outdoor recreational opportunities compatible with healthy fish and wildlife populations."

**Same as the last comment...and "compatible with healthy fish" does not mean "must harvest everything until they are endangered"***

The commission's failure to consult coastal Indian tribal co-managers when considering the ban violates federal court requirements for co-management of the runs under US v Washington.

***No it doesn't. The Boldt decision requires that the co-managers set escapement levels, determine the amount of fish available over escapement, and set seasons to make sure that no party catches the other party's fish. We DO NOT have to ask permission on how to treat our half, just like they don't have to ask us permission on how to treat our half. It's none of their business. Read my thread on "Foregone Opportunity" to see all the federal court decisions that control this issue.**

The commission's failure to provide adequate public notice that the rule would be considered is at least a violation of the spirit of the Administrative Procedures Act if not an outright violation of RCW 77.04.130.

**The easy one first...the "open" language in 77.04.130 requires compliance with the APA, so that's the only issue here. Let's hear how the Commission broke the law...**

**Oh...I guess we're not going to say how the APA was violated...we're just going to say that it must have beeen, "at least in spirit". Fine sentiment...won't get you very far in court.**

It is also a violation of the public's intent for an open commission process as expressed in R-45 (RCW 77.04.013) that specifies "The commission acts in an open and deliberative process that encourages public involvement and increases public confidence in department decision making."

***Third repition of a statement that assures compliance with the APA, with no discussionn of the APA or how it was or was not violated.***

The legislature spends a good deal of taxpayer money to employ wildlife managers at WDFW. The ban ignores the science presented by these managers and in doing so brings into question the commission's commitment to sound wildlife management.

***Yes it does, lots of money. The moratorium does not ignore WDFW managers' science...it accepts all of their data, and doesn't like the way the trends are going, especially based on 40 years of downward trends. Is sound wildlife management blindly following the department's recommendations? If so, then why do they call them recommendations? Why not call them mandates? If they're going to be mandates, why do we need the Commission? If they have to do what Bob Gibbons says for steelhead, then why doesn't he just make the rules? Why do we need public input if they can't even listen to it, whether they want to or not? This whole statement is a horrible *******ization of the Commission's regulatory authority, and the APA's mandate to take and listen to public comment.***


The legislature has also spent a great deal of money on salmon recovery. One must question why, if the commission is going to prevent fishers from retaining fish from healthy runs.

***Is this for real? Since we're spending so much money, even if we are decades away from salmon recovery, if at all, we should harvest as many as we can? Now THAT"S a wast of salmon recovery money!! Even when 97% of the steelhead retained in the state are hatchery fish? This kind of shortsighted statement is WHY we spend so much money on salmon recovery...it's the kind of attitude that lead to salmon needing recovery.***

In conclusion, we feel the commission short circuited the legislative process when it adopted the rule.

**There is no legislative process for fish and wildlife rules...the people have spoken...RCW 77.04 specifically took fisheries management OUT of the legislative process.**

The rule should be rescinded and if the commission still believes it is necessary should be submitted to the legislature as request legislation in time for the 2005 Legislative session.

**Wrong. The legislature flat out DOES NOT tell the Commission how to run fisheries managment. When the people of Washington passed RCW 77.04, they specifically gave that authority to the Commission, in part to specifically take the legislature out of fisheries management. Do they really expect that every time the Commission wants to pass a rule it must ask for the legislature to pass a law? That is patently BS.**

We look forward to your response.
Sincerely,
Reps who have signed: Buck, Sump, Blake, Schoesler, Pearson, Kessler, Orcutt, Armstrong, Hatfield, Hinkle
Senators who have signed: Sheldon, Morton, Hewitt, Hargrove, Doumit, Honeyford, McCaslin

**I greatly look forward to the advice letter that the AGO will send to the Commission when the Commission sends this letter across the plaza to the Attorney General's Office. I expect that it will be a lot like the stuff I wrote above.**

Remember, this is not about whether or not anyone, including the above signed legislators, agree with the rule. It's about whether or not it was done legally.

The only leg to stand on is a violation of the APA, which was not even touched on in the letter beyond mentioning it. If they feel that there was a violation of the APA, they should have at least pointed to ONE section of it that they thought was violated.

Fish on...

Todd

P.S. I have to run, so I won't get to edit or preview this post at this time...I'll just post it and make sure it's cool in just a little while, later this evening.

Todd,

Did the WSC ever consider including a ban on harvest that included tribes, commercials, and sportsfishers equally? Why should the sportsfisher shoulder the load of conserving the fish when no one else is asked to? If not, why not? Did you choose your course of action because you felt it was the only way to get something done? Why does the WSC feel it's up to the sportsfishers to ben dover?


And on another note, it sure seems like you were the unknown legal opinion a certian commissioner enlisted the help of. Is that acurate?

Hairlip,

By law there is no non-tribal commercial steelhead fishery...the only ones they catch in nets are in the Columbia River, and they are caught incidentally during legal salmon fisheries, not as targets. The to catch is controlled by the feds through the ESA, as all those fish are listed.

As noted here and elsewhere, the WSC is intimately involved with trying to stop as much of the incidental bycatch of those fish as is possible. The only way to stop it completely would be to pass another B.A.N. Initiative so as to completely outlaw commercial fishing.

While the WSC would probably support such a measure, it's way outside of our charter to take the lead on such a project.

As far as the tribal share goes, as you know, no one but the United States Congress can stop them from catching it with nets. Negotiations can work, though, and part of the push for WSR is to get that rolling. Remember the statement from the Quileutes when WSR passed? They were afraid that the general public would "resent" them for exercising their treaty rights now that WSR had passed.

D@mn right! With WSR they are the ONLY ones directly harvesting wild steelhead...of course it makes them look bad...and it would open the door for negotiations.

On the other question, in no way, shape, or form have I given any advice or consultation to anyone on the Commission about this rule. I've been asked several times about that on this BB and others, and the answer has always been the same..."no". They have their own attorneys...

On a different thread I wrote a very long rant about being tired about being asked questions like that about making the sportsmen "ben dover". Please read it...it talks about all the stuff that I am doing with the WSC right now, and asks for everyone else to step up and either get your own clubs involved, or join one that is involved, or get some work done on your own.

There is A LOT more going on RIGHT NOW than just wsr, this is one of many, many issues that the WSC is dealing with. Check them out on the other thread.

Fish on...

Todd

Thanks Todd, honest answers. There is some common ground here. To be honest, it would be a nice change. IMO, if what pans out in this whole WSR deal is that we use science and process as a manual for success, we're all better off. This will empower the facts, and the people who do the work for our fisheries, whom are too often submarined by another agenda. Your diligence has made me pay attention. I'm bettin I'm not the only one.....

Thanks for your reply.

Hairlip.

Some more info
I work with different Tribes on different projects
There after the same thing we are after HEALTH STREAM
Tribes have been and will be GREAT partners on related issues
They take the LEAD in a lot projects (big and small) no one hears about it but Watershed Councils
Go to your local Watershed Meetings and see what is going on!
You might be surprised.

*********************

Peace
Superfly

Let's stick to the topic at hand.

If wild steelhead are in such danger and the state does not want to allow retention of these fish, and you are not allowed to remove them from the water to take a picture then things really must be bad.
IF things are this bad then ALL fishing for WILD steelhead should end for four years, not even catch and release should be allowed. If you are worried that you would not be able to target the hatchery fish because of this, then just shut that down as well. IF the problem is so bad and you all want to do something about it, then leave the poor fish alone. Shut it down and see what happens. Those of you who are so worried about the declining wild fish in this state should agree to this.

Got a good feeling I'm digging my self in a huge hole here since I don't know nearly as much as you guys about this subject. I just don't see why some people are angry, about having to release native steelhead. They are such a special fish and don't deserve to be killed, if you want meat in the freezer have your fill on hatchery boots that is what they are there for. There are many good examples here in the Great Lakes where over harvesting of fish have lead to depleated runs. The Ganaraska is a good example back in the late 80's early 90's that river got on average 15000 wild steelhead now about 4-5 thousand is the average. I would just hate to see the same thing happen out west.