Ned,

5 years is NOT a given. A specific permit for WDFW (the state) can be pursued via Section 10 of the ESA and possibly under the Section 4(d) rule, but I am not very familiar with that latter one. Under Section 10 the product is often known as a "Conservation Plan," and the more complex ones have taken 3 to up to 5 years, so I suppose that's where the 5 years came from, using the worst case example. On the other hand, for what is necessary for an ESA fishing permit for WDFW could very realistically be completed in less than 2 years. Under the law, they are supposed to be a lot less than that, but in practice I don't know of any that were done in less than one year.

To me, the time line isn't so much the issue. I'm perplexed that WDFW doesn't seem the least bit motivated to pursue an independent permit. One of the likely snags is that if NMFS receives separate fishing proposals from the state and tribes, and the conservation requirements set by NMFS aren't achieved by the two separate proposals, NMFS is most inclined to want to stay out of the dispute and tell the two parties to iron it out. Of course if ironing it out were on the menu, a joint proposal would be submitted in the first place. The state (or tribes) would be in the position of telling NMFS that it is the federal responsibility (like the federal court in US v WA) to be Solomon and cut the baby in half. And NMFS, being a federal bureaucracy, could not possibly complete that task before the beginning of the fishing season. However, due to the presidential executive order regarding Indian tribes, NMFS would cut a quick temporary permit for the tribal seasons to begin on time. Not so for the state, where no similar requirement exists.

What would be necessary is for the state to pull on its big boy pants, submit its usual conservative non-treaty fishing proposal, and then open seasons accordingly, basically challenging NMFS to initiate legal action against the state for allowing NT fishing prior to getting the NMFS-blessed permit. If so challenged, the state would be in pretty fair standing in federal court stating that the state is not responsible for the federal government's inability or unwillingness to timely process and approve reasonable and conservative fishing season plans. So why don't they do it? Most likely, the state has no big boy pants.