Someone mentioned that it seems odd the Tribes would be so obstinate in negotiations, considering the significant jeopardy their own seasons may be in....

Seems to me the Tribes hold all the cards here, and they know it. What they don't take in fish, they will take in entitlements or via lawsuits. If they don't get to fish because NOAA takes too long to approve their plan, they'll simply claim economic hardship and get paid more than they would if they went fishing in a down year like this. That's what the Quinaults did after their ill-advised gillnet fisheries overharvested the weak returns last year in Grays Harbor.

The reason co-management isn't working is that there is no incentive for one side to compromise when they can't take what they want with cooperative planning.

Here are a couple things I've been wondering about and can't seem to find answers to...

From what I am hearing, the Muckleshoots and Puyallups have been driving the "negotiations" from the tribal side. But, there are at least 19 other Treaty Tribes. I can't imagine they are all in agreement with these two tribes. Do those two tribes have more influence than the others? I am pretty sure the Lummis and the Makah are are larger in terms of fishing. And the Makah tribe has a vested interest in there being a sportfishing season since alot of their tribes income is from tourism.

Can anyone shed some light here?

Secondly, if the end of the month comes and there is no deal...

I assume the tribes have already applied for their NOAA-F permit, and it's been alluded to that they will get it fast-tracked. IF that happens and they hit the water and we are not permitted, how does that jive with Boldt? Seems like it would be outright discrimination on the part of the feds and would open them up to a lawsuit by WA.

From what I heard on Tom Nelson's show, NOAA is essentially trying to strongarm WDFW to cave to the tribal demands "or else" (I guess "or else" means that they are threatening a long, drawn-out permit process).



I wonder if ultimately this should be legitimized and tribes could be compensated to NOT fish commercially and instead back off to just sustenance and ceremonial catch.

I'm going to go ahead and guess that's been proposed before and is a hot-button issue.

Chasin, In my experience the tribes don't GAF what the rules are, they'll fish anyway. They know Cenci and her green goons won't do shlt and that they're virtually untouchable. The tribes do whatever they want whenever they want WITHOUT repercussions. They'll fish, they'll wave and they'll laugh at enforcement and they'll laugh at us. They've been doing it for years with NO repercussions why would they do any different this year?

"I wonder if ultimately this should be legitimized and tribes could be compensated to NOT fish commercially and instead back off to just sustenance and ceremonial catch.

I'm going to go ahead and guess that's been proposed before and is a hot-button issue."

It was certainly proposed in terms of fishing for steelhead. Yes, it is a hot button issue and the fact that tribes still fish commercially for steelhead should indicate their position.

I am still a bit confused on the NOAA permit. Does the tribes application still have to address Boldt, or would they be able to ask for all the available fish and show how they meet the ESA requirements. If so, then would the state be able to file a quick injunction to show that Boldt was being violated? If they do have to address Boldt in their application, does the state get to put in a response and wouldn't any permit then have to tactically agree to the allowable take by the non-treaty fisheries. I realize that the non-treaty side would have to show how they are meeting the ESA take limitations via the different fisheries and methods, but it should be a lot easier if we all agree on an allowable take number. It would also seem it would make it very easy to meet the requirements for a lot of the in river fisheries.

The restrictions of the Boldt Decision still apply.

Even if the State/Tribes agreed their plan would have to go to the Feds to make sure it complied with ESA/conservation requirements.

In this case they will presumably be attempting to get their individual plans approved by the Feds, and those plans will still have to satisfy Boldt, ESA, and conservation requirements.

Fish on...

Todd

Or, if the NI don't have a competing plan that is either approved or will be approved before the fishery takes place they could go for foregone opportunity.

That's a real nightmare scenario.

Im tempted to comment on a lot of the questions here, but I'll wait to see what happens this week.

One major issue right now for the tribes is that in years past, their fisheries ESA impacts have been partially absorbed by a reduction in sport fishing quota and seasons in order for their proposed fisheries to occur and fall under the total allowable impact. Yes, part of the horse trading includes a transfer of impacts. Without agreement this year, the tribes will be required to meet the ESA standards on their own. A tough pill to swallow.... in many cases.

I've already posed this question directly to Ron W, and he indicated under this scenario Forgone Opportunity is not an issue in the event we aren't fishing.

Good Luck Ryley and thanks for all the hard work!

Certainly not something I'd be very good at .

If you're not fishing you have chosen not to take the fish. For whatever reason. Not to catch them certainly foregone.

Here’s more information on this issue that may be "news" to some folks on this BB.

The Boldt Decision said the Tribes have the right to 50% of the available harvest. Everyone knows that. But the Boldt Decision did NOT say the States have the right to the other half. So it’s not a 50/50 split as most folks seem to suggest. The Tribes have the right to 50% of the available harvest. Period. If the State can secure the other half, great. But if not, there is no violation of the Boldt decision. It’s not an enforceable statute on the part of the State. Only the Tribes can ask for enforcement since the decision (the original Treaties) was between the Federal government and the Tribes. The States were not yet in existence so they’re not a signatory to the Treaties. So the State can’t ask for enforcement of an agreement their not a party to. But the Tribes can, and they will.

Further, the fishing rights assured in the Treaties is a reserved right. That is, the Treaties recognized that the Tribes ALREADY have the right to fish in their usual and accustomed places. The Treaties did not provide them with that right. The Treaties just recognize the right was already there, and would continue in perpetuity. So even if the Treaties were to vanish today (which won’t happen), the Tribal rights to fish in their usual and accustomed places in perpetuity remains.

The Federal government (in this case the National Marine Fisheries Service) has a trust responsibility to the Tribes. They don’t have a trust responsibility to the State. Clearly, NMFS does not want to get between the State and the Tribes on this issue. But if it happens, the Tribes will play the “trust responsibility” card on NMFS. At that point, NMFS has no choice. They need to address the needs of the Tribes before they address the needs of the State. That is, they would need to secure the Tribal allocation (50%) before going any further.

In my view, there is more at stake than just one season’s worth of fishing in Puget Sound. The breakdown of fisheries management between the two entities authorized to manage the fisheries (Washington State and Tribes) puts the Federal government in charge of fish management that historically been the primary role of WDFW and the Tribes of the Northwest Indian Fisheries Commission. That's not a good outcome for anyone, even the Tribes.

I sincerely hope for a equitable resolution to this issue that enables the appropriate level of fishing to occur, and to preserve the traditional role of the States and the Tribes to manage the fishery for their constituents, and the fish.

Although neither side is "entitled" to more than 50% the implementation of Boldt, court orders, etc. allow for one side or the other to take more than 50% to prevent wastage. Both sides agree that one fish above the escapement goal is wasted and the Boldt Court allowed "foregone opportunity" to ensure that harvestable fish were not wasted. Initially, this was used by the State when tribal fisheries were unable, due to lack of fishing power, to take their share. Even into the late 80s/early 90s there were claims of "foregone opportunity" on both sides that were allowed to proceed.

One of the reasons for a foregone opportunity claim was that if one side exceeded their share they "owed" these fish as an "equitable adjustment". This could create the situation where, if one side didn't fish on harvestable fish the other side would "owe" playback since they fished.

If memory serves, though. equitable adjustment and foregone opportunity did not, by court order, apply to steelhead.

What you guys outlined is horrifying. Sounds like the state has everything to lose, and no leverage. Basically, the worst negotiating position. Ever.

HMMM... in perpetuity, eh?

That's like a REALLY REALLY REALLY long time, right?

Some reporting on the issue:

Story: Impasse-between-fishery-and-tribal-leaders-puts-salmon-season-in-jeopardy



Then an update, with some mention of permitting timelines

Story: Without-agreement-puget-sound-salmon-season-in-jeopardy

I would hope that our sport advocacy groups are planning for the possibility that the tribes will be fishing and sport fishermen will not... The silver lining to that scenario would be to put the tribes on trial at the highest court in the land. The court of public opinion. I know most probably think that the public doesn't care, but then again when have we had this scenario? Runs falling well short and the only ones on the water killing them are the "stewards of nature"...
For the tribes to put out the publicity that they have, bemoaning the dire situation the fish are in, how hypocritical would it be for them to fish - when we are not
The gambling angle is yet another potential way to gain leverage.
We can, as we all know, forget about negating the treaty. So, we are left with negotiation (failed) or gaining leverage. Directing public opinion (about fish and fishing) and going after gambling laws in the state are the two ways I see us gaining the leverage needed to get what we want.
They chose to make this a fight.

Based on the last 20-25 years they bet the State would, as it always did, fold. Statistically, that was the way to bet.

I never realized how well the tribes have positioned themselves and it makes me wonder how the co-manager arrangement was ever supposed to work? WDFW is not an equal partner and the tribes have everything to gain by being difficult. It sounds like a recipe for disaster to me.

How long do you think it will take for a few of the other 17 treaty tribes to follow the trail blazed by their Puget Sound brothers? Imagine if the QIN insisted all of Grays Harbor was closed, including all freshwater, and the salt out front as well. Impossible?