In the post thread "Unfair Salmon Allocation" (on www.ifish.net), I mentioned that I would try to get to the bottom of why the Col. R. Tribes are getting a much bigger allocation than non-Indian fishers of chinook salmon, deemed harvestable by state and federal guidlines; which is obviously outside of the already controversial infamous Judge Boldt decision for Indian and non-Indian fishers to share 50% each of these fish. These principals apply to such as the Oly Pen Indian netting harvest as well. I appreciated recieving a very lenghthy letter back from Guy Norman, InterJurisdictional Fisheries Director, who has been at the forefront of negotiations with the Col. Tribal Commission and the Fed. NMFS. His letter is very lengthy and retorically optomistic, but unfortunately did not address the main question asked about the unfairness of allocation to us sportfishers in comparison to Indian allocation; of fish we largely paid for. I will re-print the 3 most pertinent paragraphs from his letter. After that I will re-print my return letter in a followup reply post.
Steve Hanson
ReelTruth1@aol.com

Steve:

Establishing appropriate fishing levels within conservation objectives for deppressed salmon and steelhead populations in the Coumbia River Basin is certainly a major task. The primary challenge in planning for this fall was to find ways to manage fisheries to access large numbers of returning hatchery salmon and wild Hanford Reach produced Upriver Bright fall chinook within the conservation limits of several stocks listed under the ESA.

The question of how to balance fish conservation, Treaty Indian fishing rights, and non-Indian fishing opportunity in the Columbis River has been historically settled in a series of court decisions and fish management plan agreements. The issues have become more complex in the past decade when many salmon and steelhead stocks were listed under the ESA, and even more complexity was added when the 10 year Colummbia Fish Management Plan expired after 1998. We are hopeful to sort out these complexities by negotiating longer term with Col. R. Fish Manage. Plan that will address winter, spring, summer, and fall fisheries. Our priority in a harvest agreement will be to assure that fishing levels will contribute to the rebuilding of the Col. R. naturally produced fish resourses, and then to provide stability in fishing opportunity for the public. Will we continue to advocate for a fair sharing arrangement between Treaty Indians and non-Indian fisheries.

We are hopeful that a longer term Col. R. Fish Manage. Plan can be agreed to in the near future. The harvest component of an agreement must be consistent with a longterm recovery of salmon and steelhead when combined with habitat, hatchery and hydro-powered actions, and should provide fair harvest opportunity for non-Indian and Treaty Indian fisheries. A longer term agreement should provide more stability to fisheries. We recognize a level of certainty is important to fishers in order to make plans for a fishing season.

Thanks for your interest in Columbia River salmon management.

Guy Norman
guy.norman@STATE.OR.US

* I think I can speak for most of us in expressing our appreciation to Mr. Norman and the ODFW & WDFW for their efforts toward the above stated objectives. At the same time it does not answer THE question of unfair allocation. And why they couldn't negotiate a better agreement with the "Unfair Pair" of the NMFS and Col. Tibal Comm.! To adhere to the principals laid down in the Judge Boldt decision it sure seems that a reduction of Indian harvest and an increase in non-Indian harvest (which is much less indescriminate to Fed. ESA fish, BTW) is very much in order. NO answer. Thus I mailed back another letter that I will share in the following post. - Steve




[This message has been edited by Reel Truth (edited 08-02-2000).]

Re-print of my letter to Guy Norman of ODFW.
8/2/00
Dear Mr. Norman:

I want to thank you very much for taking the time to answer my letter pertaining to the negotiated Columbia River salmon and steelhead allocation issues. As mentioned, I will be posting it on the internet, first via our www.ifish.net Bulletin Board.
While your letter answered some of our questions, it left unanswered perhaps the most important question among most sport fishers. Why, under the infamous Judge Boldt decision giving Treaty Indians and non-Indians a 50% share each of salmon and steelhead deemed harvestable, do the Indians continue to come out with much more of the share of the Columbia fish (and other fisheries)? This is despite the fact they can both net and sportfish Columbia tributaries and most importantly cannot release unharmed the Fed.(protected) ESA fish that they inevitably net! While us sportfishers can release the percent of non fin-clipped wild fish (that are protected, and keep only the abundant clipped hatchery fish available).
As you are aware, sportfishers were not given any chance at the abundant Col. R. springers this year as the Treaty Tribes were. Now on the heels of that we are still not being given a fair allocation of the fall fish (that we mostly paid for)! Within your letter you stated your objective is "..... fair harvest opportunity for non-Indian and Treaty Indian fisheries." When and how will this be achieved?
Before I give your letter responses to our questions to other net and print media, beyond our net site, I will await your response to the 50/50 questions in this letter. Thank you for your time and consideration.
Sincerely, Steve Hanson (Ifish.net)

* Do you think they will anwser this appropriate question? Is there a coverup of Indian Treaty fishing abuses, enabled and abbetted by THE mysterious actions of the Fed. NMFS. Will Gov. Kitzhaber or Sen. Wyden, or Wash. counterparts, be able to help us? Will there have to be a citizen class action suit against the "Unfair Pair"? - We await the answers. - Steve

Steve,

I appreciate the effort you're putting forth here. And don't let up until you get a satisfactory answer. Anyone can talk in warm, fuzzy politico-speak and really say nothing, and will continue to do so if you go away after a feel-good response. So don't go away.

If the rest of us who took the time to post 90+ responses to the Slade Gorton question took the time to bug our elected officials (are you listening guys/gals?) maybe somebody WOULD come up with a satisfactory answer. We had the best springer run in decades, and yet were allowed NO main stem fishery in the Columbia. What crap! Who the hell do they figure paid to produce said fish?

This isn't a dig on the tribes, either. They get their share, and we should get ours. The split should be fair. But what are the split #'s? Try getting a solid answer on that question from ODFW, WDFW, NMFS or anyone else. I'm just getting tired of carrying commercial netting on my back, whether they be tribal or non-tribal nets. Let the commercial netters pay more if they want to net more. Pay less, get more. I need to find a scam like that!

Keep us posted, Steve. I'm crafting a letter to the WDFW and NMFS right now. Hell, I may even drop ol' Slade an email! Anything to get this issue addressed.

Fish on.........

Back on July 19th, I posted a rather long, somewhat confusing post that might help answer the question. I didn't get any replies to my post which indicates I probably confused everyone. I will re-print it here and can clarify in the future if it helps.

"This has more to do with legal interpretation of the court decisions rather than mathematics. The interpretation regarding the Tribal/State allocation (per the Boldt decision) is as follows:

First and foremost, the needs of the fish must be met. That is, THE FISH COME FIRST. Let's not forget that.

Second, if there are any fish above that needed for spawning, harvest is allocated as follows:

Tribal subsistence and cerimonial fisheries (not commerical) have first rights. However, this fishery is usually quite small.

Second, the Tribes get 50% of the available harvest for commerical purposes. The current interpretation by the Feds is that the Tribes get their allocation first. The State would get the other 50% percent but only if they are not constrained by other factors (e.g., the Endangered Species Act - ESA).

In the case of the Columbia River, the harvest is constrained by ESA listed stocks on the Snake River. Therefore, the level of fishing is dictated by the level of "incidental take" of listed Snake River fish. The National Marine Fisheries Service has set the "incidental take" at 31%. That is, fishing can proceed only until 31% of the Snake River Chinooks are caught. Therefore, the Tribes, States and Feds negotiated the level of incidental take. They are NOT negotiating the overall harvest levels.

Now comes the tricky part. Since the Feds believe (and the courts appear to agree) the Tribes get their 50% share before ESA kicks in, the Tribes are entitled to 100 percent of the incidental take (all 31%) in order for them to achieve their 50% overall allocation. Since the Tribes are entitled to the entire incidental take, the States 50% allocation CANNOT BE HARVESTED. The States end up with zero.

An example might help.

If the overall harvest level for the Columbia River (after spawning escapement and Tribal cerimonial fishery) is say 50,000 Chinook, the Tribes are entitled to 25,000 and the State is entitled to 25,000. But if all 50,000 fish are havested, the harvest of listed Snake River fall Chinooks would exceed the 31% incidental take level (i.e. the Snake River fish might go extinct). Therefore, the overall harvest level must be reduced to prevent the Snake River fish from vanishing. Unfortunately, the levels are not reduced equally. So, let's say that to prevent harvest from taking too many Snake River fish, the total harvest level (as dictated by the incidental take limit) can only be 25,000 Chinook. According to Feds, the Tribes get their cut before the State. Therefore, the Tribes get all 25,000 since they are entitled to 50% of the allowable harvest before ESA kicks in. The other 25,000 (the States 50% share) cannot be harvested because it would exceed the incidental take limit imposed by the ESA. So, the States 50% share of the overall allocation is still there, but it can't be harvested by anglers, commericals, tribal folks, or anyone else.

I'm impressed by the States ability to negotiate ANY fishing season on the Columbia River this fall since they are, in effect, trying to negotiate part of the Tribes 50%allocation. Which they did. But you can bet the States will challenge the Federal interpretation at some point in the future. But it won't be this year.

There will be a fishing season at Buoy 10 this August and I'll be there, along with a million other anglers. But it's hard to believe that, in effect, I'll be trying to catch part of the Tribes allocation...

Given the complexity of the issues, it's easy to see why misunderstandings abound. I'm not sure if I've cleared anything up but at least you have more information.

Salmo G. help me out if I've missed something or my explaination is off.


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MSB

coho,

Thanks for the clarification of the numbers we're dealing with here. I guess after your example, my olny nagging question is, " Why are tribal harvest shares calculated without regard to ESA, and sport harvest IS calculated within the constraints of the ESA?" Fairness is NOT the word I'd use to describe this situation.

How much are sport anglers going to be expected to take? The states (OR and WA) are luck that the numbers of returning fish are sohigh this year, as many anglers are willing to get screwed if they can go out and have "stupid-fishing" where fish can be caught without much skill. But get a year with low returns and low harvest numbers, and I could see a drastic decrease in license revenues. Maybe not, but sport anglers can only be expected to take so much.

Fish on.......

Coho, thanks for your insight. You being a fish biologist gives your post credibilty. The interpretion by the Fed.s sounds far more rediculous than the Judge Boldt treaty interpretation of "to be shared in common with" should mean 50% to a minority of people. It's ludicrous for the Indians to be given 100% of fish deemed harvestable via ESA guidelines!!! I think I just heard even Boldt roll over?

Coho, thanks for the explanation, it does clarify things. I am exasperated that a similar response was not given to RT in his letter to ODFW, particularly when it was a well written, intelligent request for a complete explanation. Just makes the relationship between sporties and the agencies worse.

I don't get the basis for why the tribes would get their 50 percent share before ESA regulations, particularly since recreational fisheries can do a better job of harvesting fewer of the ESA incidental take fish. Assuming 100 percent release of ESA fish, you would just apply a hooking mortality figure. I recall recent studies on hooking mortality of chinook conducted at Willamette Falls showed the figures to be quite low--around 3 percent. At these rates, it seems quite unlikely that sport catch would even approach the 31 percent incidental take figure.

Even without the number crunching, I don't see a legal basis for allowing tribal fisheries first. In most all other fisheries, tribal and sport fisheries occur concurrently until the surplus over escapement is harvested. Am I missing something here? If this is the Feds doing, because of ESA issues, the States should mount a legal challenge. If I've kept up with the posts over the past few months, this is indeed in the works--Is this correct?

But now I wonder if the States are serious about mounting a challenge to the Federal interpretation given the vague response to RTs letter. Sounds like they think its a done deal.

Gotta wear you chest waders to walk through this.

You folks have hit the nail on the head. What is the legal justification for the Federal position that Tribal rights come before ESA? That's the legal question that the States would litigate over if it came to a court challenge. The State is likely to argue that the Consititutional guarantee of equal protection under the law applies. The Tribes will argue that the States "share" of the fish are either killed at the dams or are taken in the high seas fishery so the States have already gotten their fish. The Tribes are simply at the end of the line. The real problem of course is that both sides are correct (to a degree).

(By the way, this issue is not confined to just the Columbia River basin and salmon. The Feds are very concerned over how the ESA should be implemented when it affects Tribal trust resources throughout the country. It has major implications.)

However, both the States and the Tribes have strong reasons for not going to court over this issue. The Tribes don't want to litigate because they have everything to lose and nothing to gain. Plus, the States control most of the production since the Tribes don't have hatcheries. So if the States end up with zero, the States would have no reason to produce the fish in the first place and might shut down their hatcheries. The Tribes don't like that idea at all. The States don't want to litigate since if they do, the Tribes will likely not negotiate ANY level of fishing in the Columbia until the issue is settled. That could take years. In the meantime, fall Chinook fishing by non-Tribal anglers could shut down between Astoria and the mouth of the Snake River. Perhaps for many years. In addition, if the Federal position is upheld, the States would lose control of the fishery on the Columbia River as long as ESA is in effect. That prospect has the States very concerned.

However, you have also hit upon the simple answer to the problem - mass marking of Chinook. As most of us know, virtually 100% of the hatchery coho and steelhead are marked with an adipose clip. However, almost none of the Chinook are marked. Therefore, hatchery Chinook and wild Chinook are currently indistinguishable. With the available technology, the States and Feds can't physically mark all the Chinook that are produced in the Columbia River hatcheries, there are simply too many smolts.

If automated clipping can be improved and hatchery Chinook can be seperated from wild Chinook, this entire issue goes away. The States can harvest their 50% allocation per the Boldt decision while also releasing wild fish thru C&R. The technology isn't there yet but it's coming. Look for mass marking of spring Chinook to start up soon, perhaps next year. Fall Chinook may be next but since there are millions upon millions of fall Chinooks smolts, technology may have to improve before that becomes a reality.

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MSB

Thanks again for your valuable insight Coho. Things are becoming clearer. But not fairer. I talked to people from NISA, who are involved in supporting the States position, that told me prior to trying to organize a protest rally at Cascade Locks in early May that 40% of this year's Col. springers were adipose clipped; and next year a majority will be clipped, lending to optimism we will be given a mainstem Col. springer season on next year's predicted even bigger run, AS IT SHOULD BE! Another thing I don't understand is why the States can't come up with the revenue to clip the fall smolts. If it comes down to keeping these hatcheries open I'm confidant that both sporties and Indians would help financially to get this done. In the meantime, the issue of a fair 50/50 split of ESA guideline harvestable fish still needs rectification. - Would sportfishers mind paying $5 for a special fall Col. tag and would the Indians mind paying a small tax on their commercial sales of these fish. I wouldn't think so, considering the alternatives. - Steve


[This message has been edited by Reel Truth (edited 08-04-2000).]

Finclipping? What a novel idea.

From what I understand all hatchery blackmouth(resident) in Puget Sound are now being marked. This should make Puget Sound anglers happy, ideally the Sound will be open for winter fishing in a few years.

I very much appreciate just recieving a call from an ODFW rep, who prefered anonymity for the time being (due to sensative ongoing negotiations), to give me more information on this subject. He has been following this thread and there are some corrections and explainations due, although he commended "Coho" and others for a very good knowledge base. - The court decisions handed down by Judge Boldt were jurisdictional to the state of Washington inclusive. It was Judge Belloni that handed down a similar court decision concerning the Columbia River fisheries back in 1968. It essentially also gave a 50/50 split of harvestable fish to Indian and non-Indian fishers. As "Coho" eluded to, non-Indian fisheries include ocean harvests and commercial netters in addition to Col. sportfishers. This decision has undergone several court challenges since. Along with the advent of the Fed. ESA, the whole issue has become very complex! The Col. Tribal position is that the causes of the decline of Col. R. fish stocks has been primarily from other factors than their fishing; particularly the dams. They also point out that sportfishers are getting more of the share of steelhead and coho, thus they believe they deserve more of the spring and fall chinook, including the entire allowance of ESA fish (for which they essentially claim non-responsibility for decline). Despite this not being entirely true, the Fed.s have mostly sided with their position. The State's do not agree with their position and have been instructed by a judge to try to negotiate an out of court settlement between the States and the Col. Tribal Comm./NMFS. - As for the issue of fin clipping Col. fall chinooks, that's complicated by the fact that about half the run is unclipped native Hanford Reach fish which have healthy enough stocks to be harvested, unlike Snake R. fish. Since these nates are harvestable with their aidpose fin intact it doesn't warrant the expense to fin clip other hatchery Col. fall runs. It is a different story with the Col. springers that are being clipped now. As previously stated, they will return next spring with over half of a huge run being clipped. So their is much optimism of a mainstem Col. quota fishery for sportfishers next spring! - He said there will be more information forthcoming for us; possibly as soon as next week. - RT

RT
You are doing some great research to keep us informed on some very intricate issues. I also appreciate the others input into the situation. Ultimately this will have to go to court again to resolve many of the issues that need accountability. With out being able to pinpoint these issues our frustrations will only be passified. I sure hope we send a good lawyer this time.

Tight Lines

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Marty
Steelheader.net marty@steelheader.net

Just curious--

Why does the number of fish lost to the dams go against only the non-indian side of the harvest number? I've driven from McNary to Portland, and back, a thousand times, and I've never seen paddle wheels in the river turning indian built power generators. Where do the indians get there electricity from??