Because the tribes own the state leadership. Money talks.

Legally, Federal law trumps State law, every time. We know whose side the Feds will take, should this come down to the courts. I think our best hope for change is that the Tribes start to worry that the media coverage this is getting has potential to tarnish their image among the non-fishing, casino-going public as the unflappable, incorruptible stewards of the land. I think this effort is doing a good job of creating some of that pressure, but it may take a lot more....

Flea, you're correct. We need a very strong campaign to bring out the truth, and change public perception that the Tribes are 'Champion's of Conservation". And that EVERYTHING they do is about preserving the fish! A DEAD Native Steelhead in a gill net in the Nisqually has noting to do with conservation!!

But, there is another very important outcome of this that the State will now have address. It is something that Salmo g spoke of:



The Asst. Director that replied to my letter, and I understand that Unsworth's letter to THFWA, both admitted that WDFW is held hostage and unduly influenced by the Tribes ability to force concessions under threat of walking out of negotiations.

The State will have to address that, since it is the only objection the State has to fall back on. ("The Tribes will walk out if we pursue having the public in attendance at these meetings...")

I don't see why the state can't craft fisheries that take only the NI 50% and meet ESA guidelines; they use the same models. The tribes may not "like" it, but if the state meets the treaty mandated sharing then what beef do they have?

I know that the state is often put in the position of not forcing the tribes to deal with each other. The Makah overage on Chinook was ultimately borne by the NI side.

I think that is what NOAA fears. If WDFW crafts a 50% sharing and complies with ESA law then that should get approved. Even if, internally, the tribes can't agree on how to share their 50% because it isn't enough.

I agree. Some tribes are already laying the PR groundwork for the fight now with vague concept commercials. We can only get so far discussing this on Bob's site. I don't have the talent or know-how, but would be happy to contribute to a PR fund to the get the word out (news/TV/newspapers) if an organized effort could be piggy-backed onto an existing framework. You can only get so far on a niche issue like this if you use internet alone. Only 5% of people care about this issue, and we need to reach enough of them, so gotta use a wide net.

fb

So how do you force the state to do this? Organized mass license boycott?

fb

Since WDFW is license income drive, the license buyers need to take control. So, yes, indicate that if they don't do a better, more transparent job of representing the license buyers then licenses won't be bought.

It might be time, since WDFW is asking for increases, that sporties suggest to the Leg licenses similar to hunting where you need a deer tag, elk tag, bear tag, etc.

This ould give us something like:

1. Warmwater
2. FW resident trout
3. Andromous salmonids
4. Marine species except salmonids
5. Shellfish
6. Seaweed??

Part of this would be that the fees have to cover management and artificial production for the license. So, the warm water folks would support warm water hatcheries and so on. Need to kick in a fixed-rate for habitat, enforcement, and the like. In that way, folks opposed to how salmon are managed could still fish in WA but would not be forced to support management and hatcheries not in their interests.

With the new proposed increases and license changes the licenses will be a clusterfvck just like the management itself.

Just imagine, to go fishing you need to have on your person:

A discover pass, your license, you crab catch card, your salmon card, potentially a separate steelhead card.... and if you're like me you will keep the items all together in the truck and every trip you will be hauling along aditionally a halibut card as well. So now instead of having a "license" you're carrying with you a BOOK with 6 pieces of paper all folded and rolled up into a nice convenient pile of clutter sh!t.

You unfortunately forgot the most important item> A smartphone that gives you instant access to WDFW Emergency Closures. It is getting silly now isn't it?? BTW Thank You Bay Wolf as I signed 4 days and I admire your dedication and determination!

How many people do you suppose are upset about the license increase?

How many of those would support a 1 month Boycott and hold off buying a license?

How many current license holders, really have no idea what a mess the system is in right now?

How many are going to buy a license no matter what?

Just curious about what you guys thing the numbers work out as....

I know I'm not buying until there is a specific fishery I want to participate in. Like I said, I will be buying Wyoming and maybe Yellowstone for sure.

And that includes hunting.

I'm on the fence, on the one hand I don't want to defund the one agency that's (supposed to be) working with our interests in mind. On the other hand, it sounds like that agency is misfiring, and maybe they need some motivation.

fb

It is a tricky dilemma. On the one hand, if we double the amount we're paying in, we have a much stronger argument about how much if the budget is provided by sport fishers, which SHOULD translate to increased emphasis on our fisheries. On the other hand, we've been the bulk ratepayers for many years, and yet we are the first to lose opportunity, every time. What reason have we been given to expect a different outcome?

Here's the way I (think) I see it:

WDFW and the Legislature are already counting on us to provide an increased amount of revenue in the budgets they are developing. When forecast revenue does not materialize, either the General Fund takes another hit it can't afford, or else we lose funding for hatcheries, etc. in the next cycle. In this case, because they are counting on us for so much more than in the past, it would be devastating if a large amount of the planned revenue didn't come in. That, combined with the largely negative outlook for next year's fisheries, makes this the ideal year to vote with our wallets, in my mind. Others have brought to light the fact that even simply postponing purchasing your license for a month or two might well be all it takes to send the message that must be delivered, so perhaps we can have our cake and eat it, too.

WDFW doesn't even now get much from the General Fund. Licenses, DJ/PR, Mitchell Act, vanity license plates, and mitigation are primary sources. GF has been going down for years.

And the plot thickens!


January 9, 2017 via: email in PDF format


James Unsworth, PHD Director, WDFW
600 Capitol Way N. Olympia, WA 98504

Dear Mr. Unsworth:





Re: Transparency Initiative


The Twin Harbors Fish & Wildlife Advocacy is appreciative of your letter dated December 30, 2016 that responds to the Advocacy’s letter dated November 14, 2016 addressed to you and Lorraine Loomis of the North West Indian Fisheries Commission (NWIFC) requesting the co- management meetings wherein agreements are reached on tribal and non-tribal fishing seasons be opened to the public. We thank you for taking the time to provide a thoughtful document that with one notable exception, candidly discusses the transparency problems in the North of Falcon season setting process.

We appreciate your statement “.....WDFW as an agency values deeply and embraces transparen- cy....” So do the members of the Advocacy. However, we can not agree with the statement “.... our agency’s policies, leadership, and staff follow closely the requirements of the Administrative Procedures Act and Open Public Meetings Act.” In our opinion, the NOF process utilized by the Department is contrary to the intent and expressed provisions of both the APA and OPMA.

Your letter recognizes that the public is locked out of meetings with the tribal co-managers wherein agreements on harvest seasons are negotiated and set. You reference times past when a few select observers were allowed to attend the meetings, but not participate. Then, you confirm the position taken by the NWIFC with the media recently with “The tribes ended the practice of allowing observers in the meetings several years ago, and have indicated that they felt the nego- tiation positions of the state tribes were being mischaracterized outside of the meetings.”

The Advocacy does not believe the presence of a few observers approved by the Department and tribal comanagement staff rises to the level of transparency required under state law. Neither
do we believe it appropriate for the co-managers to require all in attendance to relinquish their constitutional right of free speech as a condition of participation.

You correctly point out that tribal co-managers are sovereignties not covered under the transpar- ency laws of the state of WA. However, while the OPMA does not apply to a tribal government meeting, it is the Advocacy’s position that the transparency laws governing the Department’s ac- tions are not stood down due to the fact a tribal entity is involved. The sovereign rights of a tribe and “government to government relations” do not relieve the Department from its obligation to

Page 2, Advocacy Transparency Response

honor the rights of the citizens of Washington under state statutes.1 Therefore, the Advocacy does not, and never will, agree with your statement “Unfortunately, this means the general public has not direct access to the negotiations without an invitation by the tribes”.

As for assessing the language of the laws, the Advocacy respects the opinions and support pro- vided WDFW by the Office of Attorney General. We also subscribe to the old saying that if one asks three lawyers the same question, you’ll likely get three different answers.

Without challenging other’s opinions, the Advocacy recognizes that the state supreme court ruled in 1992 in Salmon For All v. Department of Fisheries that the NOF comanagement meetings held in the Columbia were not covered under the OPMA. “While Fisheries is a public agency,
it is a single-agency department where the Director is vested with full decision-making author- ity under RCW 75.08.014. There is no “governing body”, as defined, at Fisheries since there is no multimember rule-making body rather, there is a single director management. As Fisheries is governed by an individual director who has full decision-making authority, and agencies which are, in fact, operated under full decision-making power of a single director are excluded from the OPMA, Fisheries is exempt from the OPMA’s requirements.”2

Today, with the establishment of a multimember Commission as the governing body by pas- sage of Referendum 45 in the 1995 election, it is our position that the OPMA (RCW 42.30) is governing on the Commission itself and delegation downward to the Department brings the open meeting requirements along with it. (2) “Governing body” means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. 3

Additionally, courts have ruled that the delegation down from the initial governing body car- ries the OPMA requirements along with the power to take action. In 2001, the 9th Circuit Court of Appeals took this issue head on in Brian Clark v. City of Lakewood wherein the city council referred to an citizen advisory group a request to review city ordinances. The advisory group then formed a “task force” that held meetings closed to the public. The recommendations from the task force were forwarded to the advisory group which then forwarded them on to the City
Council which adopted the recommendations. The court ruled the delegation of the OPMA came down to the advisors on to the task force level and invalidated its actions due to the closed door meetings.4

Finally, your letter contains a vague reference to a negative impact to the state’s fishers if the demands of the tribes (keeping the doors closed) are not adopted by the Department. “The reality is that meetings and negotiations with the tribal comanagers must occur for fishing seasons to be set - refusing to meet with the tribes because they will not allow the public to attend negotiations
1 https://app.leg.wa.gov/rcw/default.aspx?cite=43.376&full=true#43.376.020
2 http://law.justia.com/cases/washington/supreme-court/1992/57757-9-1.html
3 http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30
4 http://openjurist.org/259/f3d/996/brian-clark-v-city-of-lakewood-


would likely lead to an unproductive outcome for state fisheries.”

The Advocacy assumes you are referencing the role of federal agencies that approve tribal and non-tribal fisheries in regions such as Puget Sound with ESA designated stocks. If so, the Advo- cacy feels compelled to “lay all cards on the table face up” in a clear and precise fashion. The actions of NOAA and the Bureau of Indian Affairs (BIA) in the approval stage has undermined the comanagement process by granting the tribal co-managers tremendous leverage over the state.

In a 8-page letter dated November 14, 2016, NOAA Assistant Regional Administrator Robert Turner provided an explanation of what NOAA would do if the two co-managers didn’t reach a joint agreement on tribal and non-tribal fishing seasons in Puget Sound. The Advocacy’s review of this letter found a very disturbing process wherein if the state agreed with the tribal co-manag- ers, NOAA would approve both fisheries in time for the season to occur. However, if no agree- ment is reached, both have to submit their own seasons for separate approval. Then, through a remarkable interpretation of a maze of federal regulatory authorities, NOAA explains how the tribes can use BIA support to get their season approved under a fast track system referred to as “Section 7” in time for a fisheries to commence. Then, remarkably, NOAA states that the state isn’t entitled to the Section 7 process and approval of the state season would not likely occur until after the season was over.

The result is the impression that the tribal side can simply walk away from the table if the state doesn’t agree to their demands and still have a reasonable opportunity to fish while the state its season. Comanagement reverts to a dual-management with the one having the leverage dominat- ing the other. This will not change if the Department continues to agrees to keep comanagement meetings closed to the public. Rather, we believe it will likely get worse for the state side.

If it hasn’t already, this abnormal leverage granted the tribal side by NOAA will simply work its way into the allocation of the fish available for harvest. The comanagement and 50/50 share of the harvest intended under the Boldt Decision and other segments of U.S. v. WA are effectively stood down. The Advocacy strongly suggests that the Department consider re-opening U.S. v. WA to seek a remedy to this problem. We also suggest it is time for the Commission members to publicly engage the federal congressional delegation to seek a remedy on a legislative level.

Regarding transparency, the draft of the NOF Policy is up for review by the Commission this weekend in Vancouver, WA. In order of preference, the Advocacy sees the following options available at this point in time. The Commission could:

1. Delay adoption of the current draft until its next regular meeting to allow the co-man agers additional time to develop a solution to the closed meeting issue;

2. Insert language into the draft clarifying and strengthening the Commission support for opening the NOF comanagement meetings to the public;

3. Remove the delegation to the Director of rule making authority in ESA effected areas which will remove any doubt over the application of the OPMA;


4. Adopt the draft policy as currently written.

In closing, we would like to assure you and the Commission that the Advocacy fully appreciates the difficult task of comanagement that is presented to staff of both WDFW and the NWIFC. We further accept the duties of both to represent the interests of their stakeholders to the best of their abilities. Additionally, we understand it would take an invitation for non-tribal citizens to attend tribal meetings. What we can not accept is the Department refusing to honor the citizens
rights under state transparency laws, regardless of whether by its own initiative or as a result of a demand from the tribal co-managers.

When considering the options listed earlier, the Advocacy would support Options 1-3. Option 4 (adoption as currently drafted) would leave the public having to choose between acceptance of the status quo or seeking review by a court. The status quo will simply result in more of the
same. Continuing deteroation of the comanagement process is simply unacceptable to the Advo- cacy. We believe a majority of public feels the same way.

In the eyes of the Advocacy members, litigation over secret closed door NOF comanagement meetings presents a “lose, lose scenario” for the Department. Even if the combination of the impressive talents of the AG’s staff and the substantial state treasury were to prevail, the Depart- ment loses as it would be attempting to defend the secret meetings in NOF. While it might be different in a tribal culture, such a stance would not sell well within the state’s culture.

As a means to gauge the public opinion on this issue, please review the petition to you and the Commission filed by Perry Menchaca of Tacoma supporting the Advocacy’s request for transpar- ency.5 At the time of this writing, the petition filed on New Year’s Eve has been signed by 1,025 individuals. More come on each day. One simply can’t show the public’s support for transpar- ency any clearer than Mr. Menchaca did by starting this petition and asking friends and acquain- tances to share it with others.


Respectfully,


Tim Hamilton Art Holman Ron Schweitzer
President Vice-President Secretary/Treasurer


Cc: Members of the WDFW Commission, via email Lorraine Loomis, NWIFC, via email



5 https://www.change.org/p/open-the-wdfw-tribal-co-manager-north-of-falcon-meetings-to-the-public

Twin Harbors Fish & Wildlife Advocacy
PO Box 179
McCleary, WA 9855 THFWA@comcast.net

November 14, 2016 via email

Director Jim Unsworth Chairman Lorraine Loomis
WDFW Northwest Indian Fisheries Commission
1111 Washington St SE 6730 Martin Way East
Olympia, WA 98501 Olympia, WA 9850

Dear Chairman Loomis and Director Unsworth:

The Twin Harbors Fish & Wildlife Advocacy is a nonprofit corporation duly filed in the state of Washington. The stated purpose of the Advocacy is to “Provide education, science, and other efforts that encourage the public, regulatory agencies and private businesses to manage or utilize fish, wildlife and other natural resources in a fashion that insures the sustainable of those resources on into the future for the benefit of future generations.”1

Over the last five years, the members of the Advocacy have extensively researched the issues surrounding fisheries management in Washington state. Advocacy members played a significant role in adoption by the Commission of the management policies in Grays Harbor and Willapa Bay. At the same time, we have researched management practices in Puget Sound and the Columbia that closely resemble those used on the Coast. In doing so, we have adhered to the practice of providing commentary that is respectful and at the same time, lays out our position in as clear and precise fashion as possible.

We have come to the conclusion the controversies that plague the Department and the tribal co-mangers during the North of Falcon season setting process are rooted in two areas of harvest management. First, the “prior intercept” from Alaska south of salmon destined for Washington streams often results in over 85% of the harvest related mortalities occurring north of the Canadian border. As a result, the small percentage of fish remaining available for harvest is making it nearly impossible for the co-managers to adopt tribal and non-tribal seasons that satisfy in-state fishers without undermining the escapement needed for natural spawning populations. The efforts of co-managers to provide reasonable instate fishing opportunities are further complicated by declining habitat and poor ocean productivity. Then comes the significant restraints occurring when runs decline to the point we cross over the ESA thresholds as found in Puget Sound and the Columbia.

Earlier this year, the members of the Advocacy traveled out of state to address the Pacific Salmon Commission which effectively controls the prior intercept under the international treaty between Canada and the United States. We expressed our concern that the prior intercept was unfair to WA tribal and non-tribal fishers. More importantly, we raised the issue repeatedly that the prior intercept was interfering with our ability to manage fish runs to meet conservation standards. The tribal co- managers have raised the northern intercept issue for decades.2 We are now looking forward to the Department’s upcoming presentation to the Fish & Wildlife Commission regarding the northern intercept. We believe Washington taxpayers who have invested heavily into salmon production and natural spawning restoration are entitled to understand where and by whom the salmon produced in WA hatcheries and streams are being harvested and marketed.

1 Article 2 Purpose, Bylaws of the Twin Harbors Fish & Wildlife Advocacy 2 See U.S. v- Washington

Page 2, THFWA November 14. 2016
The second major challenge faced by the co-managers is the allocation of the fish available for harvest that actually make it back to WA waters. Recent disagreement between the co- managers has resulted in a threat to seasons, especially for the non-tribal fishers in Puget Sound. For many citizens, tribal and non-tribal, the NOF process seems mired down wherein co-management on harvest seasons appears to have evolved to “dual-management” wherein each side tries to manage in its own way. At this point, the Advocacy with those who have come to the conclusion the NOF season setting process is failing all the citizens, including those who don’t fish. The co-management cooperation envisioned by the courts in the rulings in U.S. v- Washington has deteriorated to the point NOF is deserving of the label “threatened” if not “endangered”.

While the Advocacy members are often approached by tribal fishers who are also trying to figure out why the fishing opportunities continue to decline, the frustration has reached the “boiling point” for many of those fishers utilizing licenses issued by WDFW. The relationship between the Department and its stakeholders can aptly be described as “in the toilet”. The Advocacy is not attempting to blame either co-managers or any of the staff involved in the process. Rather, we believe both co-managers need to recognize that the NOF process as currently utilized will no longer will pass scrutiny with most non-tribal and many tribal fishers.

The blanket of secrecy surrounding harvest discussions between the two co-managers has resulted in a mirage of public perceptions. We recognize perceptions are often off-base or completely inaccurate. However, perceptions become facts in many minds when accountability and verification is missing from the equation.

Examples of perceptions that the members of Advocacy hear regularly include:

• The tribal fishers want to exceed the 50/50 formula set forth in the Boldt decision;
• The Department is unwilling or unable to negotiate in a manner that its stakeholders can be assured their rights to half the fish will be honored
• The federal government (NOAA/BIA) is pressuring the Department to agree to the tribal seasons proposed by threatening to deny permits for state sponsored fisheries
• The Office of Governor and/or Legislators are likewise pressuring the Department to agree to tribal season proposals that disadvantage the non-tribal fishers

It is appropriate to recognize that tribal members are less likely to be disappointed in NOF than state stakeholders. As sovereign governments holding treaty rights to fishing, the tribal fishers can interact with its tribal leadership in ways non-tribal citizens can not. As a result, tribal members may feel comfortable with their representation in the process.

The non-tribal stakeholders are another matter. State stakeholders can only turn to the Department when seeking assurance their interests are being adequately represented. In the state culture, the citizens rely upon government transparency laws to participate and educate themselves. Unfortunately, the co-management harvest meetings between the co-managers are closed to the public. The speculation by many is the secrecy is supported either by the tribal co-managers, WDFW staff, or both. Regardless, the blanket of secrecy is a major impediment to the Department’s ability to maintain the confidence of its stakeholders. The closed process

Page 3, THFWA November 14. 2016
also results in the non-tribal sector becoming frustrated with tribal fishing due to the growing perception of unfairness.

The Advocacy fully recognizes tribal sovereignty and corresponding treaty rights. Since none of the members of the Advocacy are members of a tribe, we can only respectfully submit a request for consideration. In that spirit, we ask that the tribal co-managers consider allowing the tribal and non- tribal citizens an opportunity to observe (without participation) during co-management meetings wherein the discussion includes proposals for an upcoming harvest season(s). As clarification, the request does not extend to technical staff meetings wherein a harvest season is not on the agenda.

The Advocacy does not believe acceptance of our request would create an undue burden on tribal governments or infringe upon tribal sovereignty. Representatives of the tribes regularly participate in public meetings at the federal, state, and local government levels including fisheries co-management processes of the Pacific Fisheries Management Council and the Pacific Salmon Commission. To our knowledge, the only time the door closes is when representatives of the tribes meet with the staff of WDFW to discuss upcoming seasons within WA waters.

The Advocacy also extends the request for open meetings onto the Washington Department of Fish & Wildlife. Simply put, the Advocacy members are asking all the co-managers to recognize and respect the sovereign rights of the tribal and non-tribal citizens of the state of Washington under state law.

RCW 42.30.010
Legislative declaration.
The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people’s business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

Clearly, NOF violates at least the intent of the Open Meeting Act (OMA)3 quoted above. The Advocacy also believes NOF is contrary to the expressed sections of the act requiring decision makers with delegated authority to conduct its affairs in open meetings in a transparent fashion. Unlike times prior to the establishment of the Commission, the delegation of the rule authority from the Legislature to the Fish & Wildlife Commission brings the OMA downward to the Commission. Likewise, the delegation by the Commission to a group within the Department brings the OMA down to staff determining state sponsored seasons.4

Further, NOF results in agreed upon fishing season (s) negotiated behind closed doors. Said season is subsequently adopted into a WAC rule carrying the effect of law. The meetings held with the public are of little consequence to the decision earning NOF the common title of a “Dog and Pony Show”. The Advocacy believes NOF currently results in the Department operating contrary to the intention and expressed conditions of the Administrative Procedures Act (APA)5.
3 Chapter 42.30 RCW: OPEN PUBLIC MEETINGS ACT
4 http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 5 Chapter 34.05 RCW: ADMINISTRATIVE PROCEDURE ACT

Page 4, THFWA November 14. 2016
While legal advisors to both co-managers may disagree, we believe the two state statutes referenced are applicable to WDFW staff during NOF. Further, compliance with these statutes can be fulfilled by the Department under its own will. While the tribes can choose to not allow the public to attend a meeting of tribal representatives, the Advocacy finds no statement within court rulings such as U.S. v- WA that grants the tribe the power to take the position “my way or the highway” while exercising its treaty rights of co-management. To the contrary, the state Supreme Court ruled state transparency law was applicable to the state entity when interacting with tribal governments.6

The application of the OMA is not stood down by the location where the meeting is held. The Department can not hold its meeting in Oregon and avoid application of the OMA. The same holds true for a NOF meeting held in a tribal office building located on a reservation.

Again, recognizing the sovereignty of the tribal governments, the Advocacy can only assert its rights with WDFW. We do point out that members of a tribe are also citizens of the state. As such, tribal members residing in Washington are likewise entitled to insist that WDFW honor their state citizen rights under state law.

We would prefer to avoid seeking a court ruling. Such a litigation would once again “pit the Advocacy member’s wallets against the state treasury”. Also, court proceedings can be lengthy and often leave uncertainty on how to proceed into the future.

As stated at the beginning of this letter, we are fully committed to assisting the public in management of natural resources for the benefit of future generations. The option that is unacceptable to the members of the Advocacy is to simply turn our heads and walk away. We also subscribe to the time tested philosophy of “more of the same will get you more of the same”. A simple and effective solution is to simply open the door and turn on the light so all can see. Transparency has proven time and again to be an effective tool for finding solutions to difficult challenges that are negatively impacting the relationship between governmental entities and their respective stakeholders.

We await your decision. NOF for 2017 is approaching rapidly and the Department will shortly file a CR101 onto the state register to notify the public. We respectfully suggest that time is of essence.

Sincerely,



Tim Hamilton Art Holman Ron Schweitzer
President Vice-President Secretary-Treasurer

cc: The Honorable Members of the Fish and Wildlife Commission Governor Jay Inslee (via J.T. Austin)
National Oceanic and Atmospheric Administration (via Bob Turner & Kathryn Sullivan) The United States Department of Commerce (via Steve Haro)
The US Department of Interior, Bureau of Indian Affairs (via Amy Dutschke) Individual staff within the NWIFC and WDFW
Representative Brian Blake, Chair, House Agriculture and Natural Resource Committee Senator Kirk Pearson, Chair, Senate Natural Resources and Parks Committee


6 135 Wn.2d 734, CONFEDERATED TRIBES v. JOHNSON

And here is the response from the Director.


December 30, 2016



Mr. Tim Hamilton Mr. Art Holman Mr. Ron Schweitzer
Twin Harbors Fish and Wildlife Advocacy Post Office Box 179
McCleary, WA 98557
Email: THFWA@comcast.net

Dear Mr. Hamilton, Mr. Holman and Mr. Schweitzer:

Thank you for writing to share the concerns of Twin Harbors Fish and Wildlife Advocacy (THFWA) regarding salmon fisheries management in Washington, with particular focus on the topic of transparency during the North of Falcon (NOF) pre-season salmon fishery planning process. We have heard from many stakeholders expressing a variety of concerns about the 2016 NOF process inparticular. As the Director of the Washington Department of Fish and Wildlife (WDFW), I can assure you that WDFW leadership and staff have heard these concerns and are committed to continue working with stakeholders, tribal co-managers, federal agencies, as well as representatives from the State Legislature and the Governor's office to improve the NOF process for 2017 and beyond.

I feel that it is important to point out that WDFW as an agency values deeply and embraces transparency with our stakeholders and public. WDFW works hard to maintain openness and transparency with stakeholders, advisors, and the general fishing public throughout the North of Falcon process, giving the public numerous opportunities to attend meetings and provide needed input to department staff in developing and refining fishing proposals that provide meaningful fishing opportunities and meet conservation objectives. With oversight from the State Fish and Wildlife Commission, as well as regular input and guidance from the State Attorney General's Office, our agency's policies, leadership, and staff follow closely the requirements of the Administrative Procedure Act and Open Public Meetings Act.

Nevertheless, WDFW's efforts to maintain transparency must operate within the confines. and realities of highly sensitive government-to-government negotiations with 20 individual Treaty Tribes during the North of Falcon process. At times during the NOF process, State-Tribal negotiations may benefit from a private setting where individuals can speak freely and frankly, enabling the candid and necessary conversations that must happen during any tense negotiation.



Regardless of the setting for negotiations, the tribes are sovereign governments and, as such, they need only to meet with or negotiate agreements with the representatives of the government of the state of Washington, in this case the Director of WDFW and the appropriate agency staff. The state cannot impose its authority onto the tribes to open the government-to-government negotiations to the public. Unfortunately, this means the general public has no direct access to the negotiations without an invitation by the tribes.

In recent years, the Department has sought consensus from all of the tribes at the beginning of North of Falcon to allow a limited number of observers to attend the comanager meetings. In the past, the tribes allowed a limited number of members of the public to enter the comanager meetings to observe, but not actively participate. While this was not open access for the general public, it provided access beyond government representatives, which we felt was a positive for providing transparency. The tribes ended the practice of allowing observers in the meetings several years ago, and have indicated that they felt the negotiation positions of the state and tribes were being mischaracterized outside of the meetings. WDFW will continue to pursue methods like observer attendance for allowing direct public participation in comanager meetings, but would ultimately need agreement of the tribes for this to happen.

In spite of the legal realities that restrict public attendance at comanager meetings, WDFW works to provide transparency throughout the series of government-to-government negotiations that occur during North of Falcon. Beginning in February, WDFW holds more than a dozen public meetJ.ngs across Washington to discuss potential state fisheries and the latest updates from state-tribal negotiations. WDFW staff posts fishery proposals online for public comments and revises those proposals based on the latest outcome from negotiations. During the final negotiations that occur during the April Pacific Fishery Management Council/NOP meetings, WDFW staff regularly meets with our advisors and others from the public to convey the results of negotiations and positions taken by the tribes, and to seek input for the continuing negotiations. This often includes the use of updates by conference call to seek input from those who cannot attend the meetings, as well as phone trees set up by advisors to get quick input from constituents in their communities.

We will continue to seek agreement from the tribes on methods to provide additional transparency during the NOF process. Attendance of observers at comanager meetings has been successful in the past, and is one of the communications steps the Fish and Wildlife Commission's North of Falcon Policy instructs us to pursue. However, we ultimately need to reach agreement with the tribal comanagers on fishing seasons that meet conservation objectives in order to receive federal authorization for fisheries under the Endangered Species Act. The effects of tribal and non-tribal fishing combined must be within acceptable impact levels on all stocks. There is also the long and complicated legal history of the US v. Washington court case that must be considered in setting seasons. The reality is that meetings and negotiations with the tribal comanagers must occur for fishing seasons to be set -refusing to meet with the tribes because they will not allow the public to attend negotiations would likely lead to an unproductive outcome for state fisheries.



Many of the perceived issues with the co-management of fisheries are the result of the shared interest of state and tribal fishermen in protecting and harvesting a resource that has diminished from historic levels due to deterioration of habitat. We support co-management of the state's shared resources and believe the state and tribes are far more effective when we work together to conserve fish and wildlife and their habitat. WDFW remains committed to working with the tribes and our constituents to improve the North of Falcon process, to working to make that process as transparent as possible, and to working to ensure our state's resources are sustainable for future generations.

Once again, thank you for sharing your thoughts and concerns. We look forward to continued conversations with Twin Harbors Fish & Wildlife Advocacy in the future.





James Unsworth, Ph.D.
Director

cc: Lorraine Loomis

Thanks River,

I will have the THFWA groups reply to Director Unsworth posted very shortly...

It is extremely good news to know that we have such a great Advocacy group, who is also working to get these doors open!!

OK, here is the link to the THFWA's response to Director Unsworth's letter.

They CLEARLY STATE what many, many of us are saying. These meetings and the WDFW's stand is completely unacceptable.

THFWA Letter of response to WDFW, Dir. Unsworth

WE ARE NOT ALONE IN THIS FIGHT!

Today we received a copy of an Email that was sent out from The Twin Harbors Fish and Wildlife Advocacy, (THFWA) to it’s NOF Interested Party Contact List.

THFWA has been involved in the betterment of our fishers for many years, and has spearheaded many important initiatives. AND they have gotten good results! They are ACTIVELY INVOLVED IN THE CLOSED MEETING ISSUE.

The combined efforts of THFWA, along with your signatures and support on this petition has truly created a force that cannot be ignored!

Here is a copy of the THFWA email, which address’s Dir. Unsworth letter, and links to their web site where the full letters and more information on their actions can be read.


January 10, 2017
To:    NOF Interested Party Contact List
Recently, the Twin Harbors Fish & Wildlife Advocacy shared a letter addressed to WDFW Director Jim Unsworth and Lorraine Loomis of the Northwest Indian Fisheries Commission.  The letter ask the two comanagers to cease the practice of meeting behind closed doors when setting fishing seasons in the North of Falcon process.

WDFW Director Jim Unsworth has responded to the Advocacy's letter and the NWIFC did so with the media. The Director states that the meetings are closed by the tribes due to "mischaracterization" of the tribal positions by observers allowed to sit in on meeting in the past.  He goes on to state "Unfortunately, this means the general public has not direct access to the negotiations without an invitation from the tribes."
The Advocacy has issued a response to the Director.  The response outlines how the Advocacy will never accept the notion that citizens can only participate in governmental processes by invitation from the tribal comanagers. Then, only if the citizens agree to give up their constitutional rights to free speech.  In doing  so, the Advocacy explains the case law and application of the Open Public Meeting Act (OPMA).  In an effort to avoid the need for intervention in the courts, the Advocacy asks the WDFW Commission to take actions during its meeting in Vancouver this weekend to insure the Department operates within the state's transparency laws.  The Advocacy response is available on the Advocacy website here.  The Director's letter is also available here. THFWA HOME PAGE
When the Advocacy originally published the initial letter, Perry Menchaca of Tacoma took the initiative of creating an electronic petition of support for opening up the secret meetings between the state and tribal comanagers.  In a truly remarkable show of unity, over 1,000 citizens have signed the petition with more coming on each day.  The petition is available on this link to the change.org website.
More to come.....
Respectfully,
Tim Hamilton, President
Twin Harbors Fish & Wildlife Advocacy