JustBecause,

I think the idea that we split impacts 50/50 does not place a disproportionate burden on the tribes, it places a proportionate burden on them. I completely agree that the state cannot ask the tribe to survive with less than 50% of the impacts, but I'm not at all clear on why complying with that means what the tribes think it means -- which is that they get their half first, regardless.

I think the Tribes recognize that ESA may, in fact, apply to them as it does everyone else. But they don't want to test that assumption in court, lest they lose. That would have huge implications for future interpretations of all Tribal Treaties. That is, statutory law would be equivalent to Treaty rights. That would be a disaster for the Tribes nationwide.

So, Plan B is to ensure the ESA impacts on them are as minimal as possible. In that sense, they are no different than anyone else. They just have a few more legal "tools" to make that case (e.g., the Treaties, the Boldt decision, and Federal trust responsibilities).

As a practical matter, NMFS believes ESA and the Treaties have to be implemented simultaneously. Not an easy task, and it carries considerable legal risk. More so, in this instance where the State and the Tribes are going in different directions.

After reading through this all of this, it seems ESA and clipped fish are nothing more then a pain in the ass to the tribes. They fish non selective and a wild and hatchery fish are the same to them.
I've read several times that they consider catch and release fishing as "playing with your food". I'm not sure who that quote came from, but it shows to me that selective fishery practices aren't in the cards for most tribal fisherman.

That being said, we know how difficult it is to get things opened up once they are closed. Is there anything within Boldt that says the state must provide hatchery fish for the tribes?
If Puget Sound was closed for an extended period of time to recreational fishing, why should the state continue to produce fish from state hatcheries?
SF

Stone - You're spot-on correct.

The Tribes can't fish selectively primarily because they use gillnets. Everything is either dead, or will be shortly after they take it out of the net. So mortality is 100% for gillnets.

(Don't ask me how WDFW, in Gray's Harbor, can assume something very different for State-managed commercial fishermen. But I digress.....)

I agree that if the State-managed fisheries are closed, there is no reason to raise and release hatchery fish. That's another reason the Tribes are limited in what they can push for. And it's another reason they're constantly looking to manage their own hatcheries. They could become more autonomous, and immune to hatchery closures.

Coho,
Thanks for the reply.

If the tribes did open more of their own hatcheries, would they be required to get NOAA permits just like WDFW hatchery facilities?

If they didn't get the permits and went ahead with the plants, would they also be open to law suits by organizations such as WFC?
I believe they named the Elwha tribe in a suit over planting of Chambers Creek steelhead.
SF

If splitting the impacts equally means that a tribe cannot get at it's full, equal share of the harvestable fish, then how is that not affecting their ability to access their treaty reserved right and thereby putting a disproportionate conservation burden on them?

Then you say "Yes, but if they fished mark-selectively, they could get at their full share and not exceed 50% of the allowable impacts". Sure, but they don't have to.

Next time your fishing in the ocean or at buoy 10 and it's non-mark selective, just go ahead and throw all those unmarked fish back, even though you don't have to, it's easy!

If a tribe needs to take more than 50% of harvestable surplus of one stock (Stock A) in order to get 50% of harvestable surplus of another stock (Stock B), I'd say there is a pretty good argument they better find out a way to get their share of Stock B without taking more than they are entitled to out of Stock A.

Now, it may be that ESA-allowed impacts and harvestable surplus don't line up perfectly, but it seems like they shouldn't be too far apart.

MPM - You're mixing up allocation and incidental take. They are completely separate.

Allocation is the total number of harvestable fish that are available. Incidental take is the maximum number of wild (ESA) fish that can be killed while fishing for the allocation.

Look at my previous example. The allocation is 20,000 fish, and in reality would like be almost exclusively hatchery fish. The incidental take is the maximum number of wild fish that can be killed while fishing for the allocation. In my example, the allocation is 20,000 (hatchery fish) while the incidental take is 10,000 (ESA wild fish).

JB - You are correct. Splitting the incidental take 50/50 would put a disproportionate impact on the Tribes. That's why it's not done. NMFS splits the take so the State and the Tribe can access their allocation.

The reason they are different is that the State fishes selectively (marked fish only) while the Tribe cannot since they use gill nets. And with gill nets, everything is dead (except in Gray's Harbor) If they used a more selective gear type, they might be able to.

A point of clarification. Unless the tribal fishermen are genetically programmed to fish non-selectively with gill nets, that is a choice. They choose to fish non-selectively. A consequence of that choice should be that they get less hatchery fish.

It eventually gets down to which law is superior. ESA or Treaty. One is superior to the other and it must be decided.

But nobody wants to know the answer to that question.

If the Treaties are superior, the State's fishery is in real trouble. And so are the State hatcheries since there is no sense in raising and releasing hatchery fish if the State folks can't fish for them. So the Tribes may not like that option. But its better than the opposite result, which is that the ESA is superior. That puts their Treaty reserved rights, and perhaps all Tribal rights at risk. Again, not a good outcome. And the Feds have always said that both the Treaties and the ESA are important, and need to be implemented as harmoniously as possible.

So a court challenge poses huge risks to everyone. So that's not a path anyone wants to walk down.

I would also add that the 50% allocation from the Boldt decision is not dependent on gear type. The Tribes get that allocation regardless of the gear type they use. It's their decision on gear type.

If we don't answer which law is superior we are back to where we were last year. The Tribes dictate, the State lubricates.

The problem that we have is that the tribes push their wants and needs and that becomes the status quo and then the next year push a little more and then a little more and then a little more. We can see where things are headed so go to court and get a decision even if the court says go to arbitration.

It may be worth re-stating that we are not only looking at no salmon fishing on Puget Sound and its rivers there will also be no fishing for game fish on any freshwater water areas where Chinook may be found. That means come June first none of the local rivers will open for steelhead or other game fish. It also means that starting likely next week there will be no fishing for bass, perch, cutthroat or other game fish on Lake Washington.

The ban of fishing for game fish in those freshwater areas will remain in place until such time as the State gets "federal ESA take coverage" for potential Chinook encounters. We should soon see a extensive listed of emergency regulations closure posted by WDFW that will remain in place until an optimist mid-summer to potentially several years!

While the Puget Sound marine anglers will have Ling cod , Halibut, flounders and maybe cutthroat to fish for the freshwater folks will have nothing for the duration.

Curt

Or, the citizens of the state could step up and push for what's necessary to recovery the fish! Then we wouldn't be in the situation of fighting over scraps, where the tribes will always have the advantage.

as long as fish are sold commercially, there never will be recovery...

pretty sad what its come down too...

It would take an effort not only by the citizens of WA, but of the US and Canada, including the Tribes. It's not just the NI that use electricity and water and lumber and drive the same roads with impassable barriers. As can be seen by catch distributions, complete closure in WA still won't work for the stocks that go north.

Either we are all on the same boat, working to fix the whole problem together, sharing benefits and costs or the fish lose.

The idea that I get all mine first and you fix it so I can is not, to my mind, a recipe for cooperation.

If you think for one second, That the tribes are going to sacrifice anything so we can go fishing, Your crazy. I have spent my entire life growing up with the peninsula tribal people and they know how to play the poor indian card and still drive around in there fancy new trucks and boats yet cry about how we destroyed there way of life. And the crazy part is, Most people believe that crap.

Wow. The backward thinking that goes into this is the sort that can only come from pure, unadulterated greed driving policy.

Thinking about this logically, if we aren't allowed to fish the rivers because of the potential to impact sensitive fish runs, it means there aren't enough fish making it back to the rivers in the first place. The jacked up part is that NMFS has PLANNED to let ocean fisheries take too much of the available impact. In other words, they are effectively planning to fish endangered runs to a point at which their ability to make escapement depends on returns coming in at projected levels or higher. If the runs come in lower, guess what? That's right, over-fished, before they even make it back to the mainland waters.

Logic also dictates that the Tribes, perennially subject to the same low-holing, should be aligned with sport fishers in wanting ocean quotas reduced. Can't we get together on that?

C'mon guys, is the salmon fishing THAT bad in the Puget Sound? And by Puget Sound I mean areas 5-13. I know I'm going to be accused of shifting baseline syndrome here, but it was just 2 years ago we had a bumper crop of coho came thru the sound. The reason that's changed isn't overfishing, it's ocean conditions.

Yes, summer king fishing is lacking. But winter king fishing is off the chain. And that's open (theoretically) 6 months of the year - our longest season by far.

Smalma -- in the past, through what ESA-related process has the state obtained "take" coverage for chinook encounters with respect to the steelhead, cutthroat and bass fisheries you mention? Based on your comments, it would appear that such coverage was obtained via the annual state/tribal agreements on the salmon fisheries and the related sec. 7 consultation on BIA funding of tribal fisheries management. I just want to make sure my understanding is correct.

It seems to me, whether or not the state and tribes reach an agreement for this year, it would be prudent for the state to immediately seek long-term ESA take coverage for listed chinook encounters through a different mechanism (e.g., 4(d) exemption or Sec. 10 permit) least we find ourselves in the same situation year after year. I don't think obtaining such coverage would or should preclude proceeding through the usual state/tribal agreement and BIA sec. 7 consultation process (and I hope the state and tribes stay committed to "co-management"), but it would provide a fall back position that potentially would aid the state's position in future negotiations with the tribes.

Although I may be mistaken, I think Oregon has ESA take coverage for listed coastal coho encounters through a Rule (4) exemption. Tribal treaty rights in Washington would complicate a similar process/analysis for Puget Sound chinook -- and it may force NOAA to make some contentious decisions about allocation of ESA impacts vis a vis treaty fishing rights -- but I still think a Rule 4(d) exemption or Sec. 10 permit could be obtained, especially in light of this year's "focusing event."