RoJo is correct. The biggest risk is from third party lawsuits, not ESA enforcement by the Feds.

The State has a huge legal risk if it does not get ESA clearance. WFC would like nothing more than to file yet another ESA lawsuit on WDFW. Given the outcome of previous lawsuits, it's likely the Attorney General's office is not going to allow WDFW to take any additional ESA risks, even if that means no salmon fishing on Puget Sound.

I wonder if there might be any interested parties willing to file a suit against any tribal fishermen that decide to fish for salmon without a federal ESA permit.

my point is any party should be held liable for impacts on ESA stocks.... the state (WDFW) has lower status than the agency that makes ESA listings... it should override all laws in state as they are US government.....

the WFC created this, the tribes will punish us, and the WDFW will punish them as well (including us)....

yes some factors of the weather come into play, but so do alot of other things... main thing is the tribes are pissed....

theres always Shad right?

What is the WFC's position on this activity?

We really do need to know which of the two is superior. Unfortunately, there are some large risks to both sides to find out. I was appalled that the WA AG's argued, in the culvert appeal, that the State had the right to extirpate stocks as needed for "progress".

Carcass - The courts would likely rule that both the Treaties and the ESA are equally as important. The question you're asking is: Which should be implemented first?

That is, if we apply ESA first, the harvestable surplus would be exactly the incidental take limit (I think this was MPM's point a few pages back, which I missed, but now I get it). Conversely, if the Treaties are implemented before ESA, the incidental take limit might need to be applied to the Tribal harvest to ensure they get their Treaty reserved 50%. In that case, the State might not get any harvest since the ESA incidental take has all gone to the Tribes.

I thought the Puyallup supreme court rulings which came after Boldt were clear that the state could regulate tribal fisheries, if necessary for conservation, and if that regulation doesn't discriminate against the tribes.

Doesn't that clarify that ESA can diminish the treaty tribes rights if required by conservation?

But does this answer the question of allocating impacts? Say a treaty fishery requires 90 percent of the available impacts to access the 50 percent of the harvestable surplus they're entitled to. Wouldn't this satisfy both ESA and Boldt requirements? Maybe the ruling above only applies if a treaty fishery required more than 100 percent of available impacts to access their half.

I'm no lawyer and am still learning a lot of the details of Boldt and ESA, but it sure seems like (based on the way things have gone in the past) if this does go to court the tribes will win. We'll have an arrangement where the treaty side get to fish until they catch their half, then if there's any impacts remaining the non-treaty side gets to fish. Maybe I'm being too pessimistic...

You are not being too pessimistic. The situation you describe is where we are headed. No one wants to hear this, but the answer is lawyers. Sport anglers are absolutely horrible at hiring/using lawyers. Frankly, I think sport anglers don't know much about lawyers (even though there are a few on PP), don't have any idea what they cost, and are generally suspicious of them. That needs to change, quickly.

The recreational angling community got lucky when the commercial crab industry hired less than outstanding counsel to represent them in their appeals of the crab change regulations favoring recs a couple years ago. The AG's office was able to prevail against them.

That is unlikely to happen again this time. The larger tribes are much better financed, more sophisticated and, apparently, have been thinking about this for a long time. I guess it's fine that folks will protest NOAA, but realistically that is not what is needed. The folks at LLTK, CCA, PSA should be raising a pooled litigation fund from wealthy supporters and seeking to hire a couple passionate attorneys or firms to aggressively represent sport-fishing interests with the ESA/Treaty issue and other NOF fallout. Absent that, the recreational community is really just watching, and this isn't going to end well.

A major point that needs both litigation and gonads is AK and BC.

When the US/Canada Pacific Salmon Treaty was first being debated, the WA Tribes had a lawsuit threatening, the "All Citizens" which was to establish that the Indian share was 50% of all US harvestable. AK was refusing to agree (remember that the treaty needs US Senate approval). Bill Wilkerson developed the current Co-Management framework to get the Tribes to at least not file the suit. That is still out there. Maybe it needs refiling.

There are international laws about trafficking in Endangered Species (CITIES). This could be applied to salmon but it would be difficult to pass the red-faced test of hammering Canada for harvesting WA's ESA listed fish while AK goes on its merry way.

Perhaps recovery of our fish is just too damn inconvenient. We'll nibble around the edges, taking fish from the politically weak (NI commercial and sports fishermen), loggers, farmers, and others who don't get organized.

Did the tribes throw their nets out like planned?

In regards to protest at NOAA Fisheries Thursday 11:30 AM

It is important to make a good showing at this event not by some but by many, in making an impression on NOAA while getting a strong word out to politicians, and the general public.

If you are reading this or are receiving e-mails from various organizations about this event, let’s not depend on the other person being there this time around, but realize that the only person that you can count on being in Lacey Thursday is you.

See you there.

Remember that recreational anglers are State regulated, and we have the privilege to fish because the State allows it. So we have to be represented by the State in negotiations with the Tribes or the Feds. We can't represent ourselves since we don't regulate ourselves. We can represent ourselves if we have a dispute with the State over State-imposed regulations (as happened with crabs). But we can't go to court against the Tribes if the State doesn't also. Conversely, if the State settles with the Tribes, and if we don't like it, we can take the State to court. But we can't sue the Tribes if the State has already settled on a position.

Carcass is correct is his assessment of the international implications of Tribal fisheries. The Columbia River Tribes have always made the same argument for decades. That is, the ocean fisheries must count on the non-treaty side of the 50% allocation. And both Canada and Alaska don't really care. They will take what they think they can take. And the Tribes will demand their share. It surprises me if there is anything left for recreational angling, but there usually is.

But I also wonder whether there is any adults for spawning, beyond just what returns to the hatcheries. Sadly, the number of wild adults spawning in the wild is hardly enough to replenish themselves. But that seems to be a secondary concern for everyone. Their first concern is getting what they believe is their share. And on that point, everyone is in the same boat (Tribes, recreational anglers, commercial fishermen, etc). Me first! Everything else is secondary, including the fish.

From the mouth of a bio with the tribes, they have already done a test fishery and nets go in today. Lot's of springers.

I'm planning on being there. Look out for the super tall guy with short gray hair holding the "SLAYER ROCKS" sign

(haven't quite decided yet what to put on my placard)

The treaty tribes do need a permit to fish. The previous co-management permit expired for both WDFW and the tribes on April 30. The tribes may have filed for a 2017 permit separate from WDFW, but NMFS certainly hasn't issued it yet.

The Swinomish, and Sauk-Suiattle by Swinomish invitation, are fishing for hatchery spring Chinook salmon. The NMFS permit is an approval of the salmon fishery management plan. There are wild ESA-listed spring Chinook intermingled with the hatchery Chinook, so an approved plan is necessary to cover the incidental take of listed Chinook and listed steelhead that are caught incidental to Chinook fishing.

The enforcement responsibility is NMFS'. Unfortunately NMFS LE is more likely to make sure that whale watchers don't get too close to ESA-listed killer whales than they are to interfere with treaty fishing, legal or illegal. I'm sure the tribes will insist that treaties, as the Supreme law of the land, trumps incidental take of ESA-listed salmon, approved fishing permit or not.

This seattle times story says it "appears" the tribes got approval, and it looks like NOAA even gave a comment "NOAA Fisheries indicates this fishery will have limited impacts on wild chinook stocks of concern."

Though that could have been a previous comment by NOAA about that specific fishery.

http://www.seattletimes.com/sports/sport...-gets-underway/

Can anyone say for sure one way or another whether a permit was issued?

...which is exactly why the NOF process needs a complete overhaul. Why negotiate in good faith if you dont really require approval from the other party? That's been a significant thematic undercurrent all along .

I would assume the fishing activity I saw yesterday in the saltwater by some of the Tulalips is without permit also.

Bureau of Indian Affairs approved the fishery. They assumed limited impact and proceeded under Section 7d of ESA....