OK thanks Sky-Guy.

I am shocked that anything less than 50/50 was *ever* palatable to the state. What did we gain by giving away those impacts in the horse trading?

I suppose this is where the "a bad deal is better than no deal" phrase came from.

So, if I understand from your earlier comments, the notion is that they are "horse trading" impacts in a way that they get more than 50% of a certain fishery, but somehow non-tribal fishers get more than 50% in some other fishery? Is that right?

If so, where are non-tribal fishers supposedly making up their 50% in a 65/35 split proposal?

Thanks fb. I appreciate the pat-on-the-back.

Lots of good discussion on this thread. Salmo g’s summary is likely very accurate. His views on the different negotiating styles is very insightful. The Tribes often negotiate based on values, not on science. WDFW likely negotiates on science, not values. That dichotomy makes for a difficult negotiation, regardless of the issue.

The Tribes have the same concerns regarding mark-selective fisheries in the Columbia River. They believe pre-spawn mortality on C/R fish is significantly higher than is being used for incidental take purposes. But if NMFS decides the mortality rate estimate is 100% as the Tribes would like, mass-marking and mark-selective fisheries become worthless as a conservation tool. So I don’t expect NMFS to ever conclude that C/R mortality rate is 100%. They might conclude that it’s higher than it is now (if supported by the data), but 100% mortality would mean that all fish caught must be considered ESA listed, and would count against the ESA impacts. The result would be a drastic reduction in harvest by recreational and commercial fishing, and perhaps Tribal fishing too, but that’s not clear.

However, if harvest is curtailed significantly, the resulting high numbers of hatchery fish on the spawning grounds will be an impact that NMFS will want to avoid. NMFS would likely ask for a significant reduction in hatchery releases, including Federal hatcheries. That’s an outcome nobody wants. But if the recreational and commercial fishermen can’t catch those fish anyway, due to ESA restrictions, there is no sense for the State to raise and release them. So they might be okay with big reductions in hatchery releases. But the Tribes will scream loudly.

This underscores what NMFS has been saying. That is, if the State and the Tribes go forward together, the outcome can be reasonable, and perhaps predictable. But if they go separately, the path forward is uncertain, and fraught with peril. But given the breakdown as described by SkyGuy going-it-alone is the likely the path forward.

That puts NMFS in a difficult position given that they want the State and the Tribes to work together in the future. Giving one side or the other exactly what they want, and in a timeframe that allows fishing to continue, will guarantee that future negotiations will fail. That will put NMFS in the primary fishery management position on Puget Sound. That’s an outcome NMFS will go to great lengths to avoid. My sense is that both sides are going to feel some pain before this is over.

The 65/35 ratio not the allocation. It's the ratio of the ESA incidental take necessary to reach the 50% allocation.

For example:

Let's say NMFS decides that incidental take cannot exceed 2% of the wild fish. Since the State has a mark-selective fisheries, they only need 35% of the ESA incidental take (35% of the 2% wild fish) to reach their 50% allocation. But since the Tribes don't fish selectively, they need 65% of the incidental take (i.e., 65% of the 2%) to get their 50% allocation.

Hope this helps.

cohoangler - this is enlightening. Thanks.

This leads to my other big question (and I apologize if this is pedantic)...

Why does NMFS basically rubber-stamp the plan when tribes and state have an agreement at NOF, but when they don't (like now), the path forward with NMFS is totally unclear? I understand there's more work when there are 2 plans instead of 1, but going from rubber-stamping to "totally unclear" is a vast difference.

Thanks, cohoangler.

From a legal perspective, I would think that there is a good case that impacts/mortality should be split 50/50 as well. My thinking is that, regardless of whether you are talking about trees, fish, or iron ore, if you destroy the resource or sell it, that should count toward your 50% interest in the resource, and should count as "taking fish" in the language of the treaty.

Does anyone know if this has been adjudicated?

No it has not...and the concept of ESA impacts, if course, was not discussed in all of the US v Washington cases, as it didn't exist at the time...s fait sharing of impacts is what we would like, but due to the relatively high use of impa ts in the tribal fishery to get their share of the harvestable fish I don't see them going for it willingly... this is likely to be the next big US v Washington issue, and will directly pit treaty rights versus conservation policies.

Fish on...

Todd

MPM/Cohoangler,

To my knowledge it hasn't been adjudicated, but seems likely to be the new battleground. To me it's seeming like we're entering a new phase of management (and resulting legislation/litigation).

The first phase was the time of plenty, and the treaty was struck. Nobody ever considered that the fish might be a limited resource, so it was easy to split it.

The second phase, the 70's fish wars, was the phase where it became clear the fish were limited and we fought over access to those harvestable fish.

This third phase, now seems like it's likely to me that the driving factor will pivot to being ESA impacts. Given the dominant share of impacts the tribes (gillnets) have, it seems at least possible (likely?) that this is a weakness of their position going forwards.

I'd like to just clarify something here. If harvest managers utilize the reduced mortality estimate, to expand the fishery time frame, as is done with most, maybe all MSF fisheries, there is no conservation benefit. You are killing the same amount of ESA fish, your just doing it at a slower rate. How can that be considered to have a conservation benefit? It's a harvest benefit. Please call it for what it is.....

Incorrect.

If the share of takes is a 60/40 split then one group is, in fact, killing more ESA fish.

Legally, the only thing that’s been adjudicated is the 50/50 split on the allocation.
The rest is the mathematical analytics necessary to reach that legally binding outcome. It’s also an attempt to harmonize ESA with the Treaty rights. The Tribes believe their 50% should be allocated BEFORE the ESA is implemented. That is, they get their share first. If there is any allocation left after ESA, that remaining allocation could go to the State. And that might not be 50%.

So here’s where it gets complicated. Let’s say the stock size is 500,000 fish, and the harvestable surplus is 20,000 fish. The Boldt decision says each side gets 10,000. But since the fishery takes both hatchery and wild fish, and some wild fish are ESA listed, NMFS needs to establish an incidental take limitation.

So let’s say NMFS sets the incidental take at 2%. That means for the Tribe to catch their 50%, they need 100% of the incidental take. That’s 2% of 500,000 which is 10,000. That leaves zero incidental take for the State, and the State gets zero allocation. Recall that the Boldt decision says the Tribes get 50% of the harvestable surplus. It did not say the State gets the other 50%. In this instance, the State gets zero.

That’s the outcome the Tribes believe is appropriate. That is, make the allocation (10,000 each), implement the ESA (2% incidental take), and then follow Boldt. That is, the Tribes get their Treaty reserved fish (10,000) before the State gets theirs. So for the State, 50% becomes 0%.

Now that’s not how the State sees it. (NMFS isn’t real keen on that interpretation either.) The State believes that ESA should come first. In that case, the math is a lot easier. For this example, the harvestable surplus is the amount remaining after ESA has been applied. So the harvestable surplus becomes the incidental take (i.e., 10,000), so the split is 5,000 each.

NMFS is attempting to split the difference. They believe that ESA and Boldt are important legal mandates, and they have to implement both. So they split the incidental take differently (e.g., 65/35) so each side can get roughly what they are expecting. It ain’t perfect, but up to this point, it keeps both sides reasonably happy.

But we’re now in unchartered waters. If both sides agree on the allocation, the legal risk to NMFS is very low. But now that the State and the Tribes are in different places, either side could go to court over this. That’s why NMFS has to be very careful in how they make their decisions since their legal risk becomes enormous. That might be why doing the State and Tribal allocation separately takes longer. But that’s just speculation on my part.


JB - You're exactly correct. My bad. Mark-selective fisheries is a harvest benefit, not a conservation benefit.

I posted this on another earlier thread. I found it on iFish:

Quote:

This is a loser for the nonIndian fisheries in Puget Sound.

Haven't you folks ever wondered why say, in the Columbia the tribes get about 10 to 14x the ESA impacts on spring Chinook, or sockeye, or steelhead?

The reason is that's essentially the law. In the mid 90's the US government clarified how federal tribal trust responsibility intersected with ESA: http://www.fws.gov/endangered/what-w...ial-order.html

It states this: "Accordingly, the Departments will carry out their responsibilities under the Act in a manner that harmonizes the Federal trust responsibility to tribes, tribal sovereignty, and statutory missions of the Departments, and that strives to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species, so as to avoid or minimize the potential for conflict and confrontation."

Essentially, the feds have to err on the side of the tribes. You could add that portions of the Boldt decision (the major decision affecting Puget Sound salmon fisheries) also directs that the tribal fisheries are the last to close. Folks can get bent out of shape by this, but its all case law that's been in place for close to 40 yrs now. Plus its how fisheries have been set for decades now. Good luck going it alone, as NOAA already went on the record saying it would be near impossible for nontribal fisheries to get approval w/out agreement with the tribes back in January: http://www.pcouncil.org/wp-content/u..._MAR2016BB.pdf

A conservation benefit would mean that, whatever % of the total impact you have, is used to conserve the fish. It is not, it is used to it's maximum extent to access the available harvestatble fish...

The tribes argument: "here, count our dead ESA fish". The states argument: "All our dead ESA fish are at the bottom of the Sound"...

Not sure if this is accurate, but it stands to reason that, as long as the State and the Tribes reach an agreement, that approval of the plan is reasonably simple. The agreement implies that there are no treaty disputes, and as long as the impacts pencil out, a rubber stamp treatment is probably not entirely inappropriate.

Absent an agreement, both plans submitted may violate treaty terms, and NMFS will be required to make any necessary determinations to that end. To further complicate matters, NMFS will have to consider the cumulative impacts of both proposals in deciding whether ESA restrictions are sufficient to meet conservation objectives. This all adds up to more time and money, neither of which NOAA has in the budget. The result would likely be a slow, painful process that takes months or even years to complete, as NMFS is warning both sides.

I'm not trying to be an ass here, I'm just trying to point out that fishing is not good for fish, no matter how it is prosecuted. That doesn't mean there aren't imbalances in total, it just means that if you fishing, your killing fish, no need to sugar coat it.

Except when I'm fishing..... I've been out for springers 5-6 times this year. No fish. Not even a strike. When I'm on the water, the fish are completely safe (LOL).

And yet, the boat, tackle, and service industry comes out exactly the same! :-)

Same here. Since late December, assuming I haven't trashed any redds, my impact has been zero. Of course, I'm glad I had the OPPORTUNITY to get skunked fishing for steelhead. Looking like we won't have opportunity to fish for salmon, steelhead, or even pikeminnow pretty soon. More skunkings, please!

cohoangler - I read your post a bunch of times and it's starting to sink in. I'm learning alot here! The problem with education is it tends to deflate my righteous anger

From that perspective, I can see why tribes would think they should get their allocation before ESA is applied. They pre-dated us and think they are not responsible for fish being ESA listed anyway.

Non-tribal anglers (like myself) by default just assume that ESA (or any conservation-related measure) always comes first for any user group.

Add in the "values" and the fundamental divisions are huge.

Still...begs the question...how can tribes claim to be conservation focused (and that we are not) when they don't think ESA limitations apply to them?

Because Indians are the First Conservationists who make their decisions based seven generations in the future.