THE HONORABLE RICARDO S. MARTINEZ
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UNITED STATE DISTRICT COURT
7 WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
Case No. C70-9213
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10 DECLARATON OF PATRICK
11 PATTILLO
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PATRICK PATTILLO declares under penalty of perjury under the laws of the State of
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Washington that the following is true and correct.
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17 I am over 18 years of age and competent to testify, and make this declaration based
18 upon my own personal knowledge.


19 2.

I have a Bachelor of Science degree from the University of Washington School of


20 Fisheries. I was employed with the Washington Department of Fisheries (WDF) and Washington
21 Department of Fish and Wildlife (WDFW) for 36 years. I have extensive experience with the
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management of salmon fisheries in Washington State and throughout the Pacific Northwest. My
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responsibilities over those 36 years with the State of Washington was as a Fishery Management
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25 Scientist (1978-1991), Statewide Salmon Fishery Manager (1991-2000), Policy Lead for Inter­
26 jurisdictional Fisheries Management (2000-2009), and Special Assistant to the Director (2010-




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-DECLARATION OF PATRICK
PATTlLLO - Page 1 of 6

S··CHE·· FATiiaE,·iRiey&s" aFiRLaAwW, ···LEY-
1415 College Street SE

Case 2:70-cv-09213-RSM Document 22288 Filed 10/05/20 Page 2 of 6





1 2014).

2 3.



I was the lead negotiator and writer for state-tribal fishery management agreements

3 including the joint Tribal-WDFW Puget Sound Chinook Fishery Management Plans approved by
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the federal government under the Endangered Species Act ("ESA") from 1999 to 2014. I was
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WDFW's lead negotiator for annual fishery management agreements with the Puget Sound Tribes
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in the North of Falcon ("NOF") season-setting process, as well as WDFW's lead policy
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8 representative directing the public involvement component of the annual North Falcon process. I
9 was a member of the Pacific Salmon Co1mnission (PSC) Chinook Technical Team (1989-1997),
10 and a member of the Pacific Fishery Management Council's Salmon Technical Team (1983-1989).
11 I was WDFW's alternate Pacific Fishery Management Council member (2011-2014). I was a 12
member of the U.S. delegation negotiating long-term fishing agreements for Chinook salmon, coho
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salmon and chum salmon as part of the Pacific Salmon Treaty between the United States and
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15 Canada (1999 and 2009). I have testified a number of times in this case as an expert witness.

16 4.

Since retiring from service with the State of Washington in 2014, I have continued


17 to be involved in salmon fishery management. I contracted to assist WDFW with the North of

18 Falcon process from February-April of 2015. Since 2015, I have participated in the annual North
19 of Falcon salmon fishery management process either as a contracted representative of recreational 20
fishing organizations, or as a volunteer member of WDFW's Puget Sound Sport Fishing Advisory Group.
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23 5.

As discussed above, I have been the lead negotiator for WDFW during NOF a

24 number of times. I am intimately familiar with the NOF process. I am familiar with the legal
25 framework, with the biology, and with the politics involved in the process. I have worked with
26 and know most of the current, key state, tribal, federal and public participants in NOP.



DECLARATION OF PATRICK

SCHEFTER & FRAWLEY
· Attorneys at Law- ·

Case 2:70-cv-09213-RSM Document 22288 Filed 10/05/20 Page 3 of 6




1 6. NOP is the process used by WDFW and the Treaty Tribes (Indian tribes with
2 treaties that guarantee them the right to harvest salmon in Washington) to reach agreement
3 annually on salmon fishing seasons and regulations, as well as the division of the annual salmon
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harvest. Once that agreement is reached, the federal government, through the National Oceanic
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and Atmospheric Administration, conducts an analysis of fisheries planned by WDFW and the
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7 Treaty Tribes for the year for compliance with conservation objectives, including fishing limits
8 defined by the co-managers and other restrictions recommended by federal authorities to ensure
9 consistency with the Endangered Species Act ("ESA"). The analysis is intended to ensure that the

10 salmon harvested or otherwise harmed incidentally during the process of fishing (after or during
11 release, for example) by the state fisheries (managed by WDFW) and the treaty fisheries will not
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jeopardize salmon runs and other species listed as threatened or endangered. The agreement
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between the state and treaty tribes is reduced to writing in a document called the "List of Agreed
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15 Fisheries" ("LOAF"). Those fisheries, as set forth in the LOAF, are then the basis for both the
16 state's Washington Administrative Code to open salmon fisheries and for NOAA's analysis. Once
17 the LOAF is set, no substantive changes can occur without agreement between WDFW, the Tribes
18 and concurrence by NOAA. 19
7. The annual NOF process begins in January with the creation of forecasts for the
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number of salmon potentially available for fisheries in that year. These forecasts are agreed to by
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WDFW staff and their tribal counterparts and ultimately transmitted to NOAA to serve as the basis
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23 for the season setting process.
24 8. In theory, once the agreed forecasts for the number of salmon are available,
25 WDFW, the treaty tribes, and NOAA calculate a number of "harvestable" fish for each salmon
26 population or run. These are hatchery fish over and above the number deemed necessary for



DECLARATION OF PATRICK PATTILLO-Page 3 of6

SCHEFTER & FRAWLEY
Attorneys at Law
1415 College Street SE

Case 2:70-cv-09213-RSM Document 22288 Filed 10/05/20 Page 4 of 6




1 spawning or wild fish that can be harvested while meeting conservation objectives. These
2 harvestable fish are then supposed to be allocated between the various WDFW-managed
3 (commercial and recreational) and Tribal fisheries under consideration for that year during the
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NOF process, consistent with applicable management plans, such as the Puget Sound Salmon
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Management Plan, and legal requirements, such as US. v Washington or the Pacific Salmon
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7 Treaty. In recent years, WDFW has ignored important provisions of the applicable management
8 plans and legal requirements.
9 9. This committee adopted the Puget Sound Salmon Management Plan (PSSMP, 1985),

10 which was implemented by the co-managers to ensure that treaty and nontreaty fishermen each are
11 afforded the opportunities to catch their shares of harvestable numbers of Puget Sound salmon
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stocks. The PSSMP remains in effect, but WDFW has failed to follow that plan's key
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requirements, including, most importantly, identification of harvestable numbers of chinook and
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15 coho salmon for each of six Puget Sound allocation units. Without harvestable numbers, there is
16 no ability to determine shares for nontreaty fisheries. The requirements and express intent of the
17 PSSMP to ensure that treaty fishennen and non-treaty fishermen will be afforded the opportunities
18 to harvest their shares cannot be evaluated.
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10. The 2020 NOF process is illustrative. Prior to the start of the 2020 North of Falcon
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process, at the request of recreational fishery constituents, WDFW agreed to provide public
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22 estimates of the harvestable number of Puget Sound chinook as part of the decision process. Those
23 estimates were not provided to members of the public participating in the 2020 North of Falcon
24 meetings. Estimates of the total allowable harvest for Puget Sound coho stocks that are to be

25 allocated between treaty and nontreaty fisheries also were not made available to the public by
26 WDFW during the North of Falcon pre-season planning process. Without calculating the total

Case 2:70-cv-09213-RSM Document 22288 Filed 10/05/20 Page 5 of 6




1 number of harvestable fish, it is impossible to evaluate achievement of the sharing intent of the


2 PSSMP.
3 11.



If the number of harvestable fish were calculated, as required by the PSSMP and

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other existing orders in this case, then such calculations would show that non-treaty fisheries
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adopted by WDFW were not sufficient in providing the opportunity to take 50% of the total
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7 number of harvestable fish. The catch estimates provided by WDF\V for the 2020 NOF show a
8 disparity between tribal and non-treaty catch and fishing opportunity of 42,000 chinook salmon.
9 For coho salmon the estimates show a disparity between tribal and non-treaty catch or fishing

10 opportunity amounting to 40,000 coho salmon,

11 12.
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WDFW adopted fishing seasons in 2020 that precluded the opportunity to harvest

up to 50% of the total number of harvestable chinook and coho salmon. Nontreaty fisheries
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could have been increased in 2020 while being consistent with conservation objectives and
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15 without exceeding the non-treaty fisheries 50% share. Nontreaty fisheries have the capability to
16 harvest hatchery chinook and coho salmon at a relatively higher rate, while minimizing impacts
17 on wild salmon stocks, using techniques that selectively harvest fin-clipped hatchery produced
18 fish.
19 13. The harvest imbalance is known and has occurred consistently for years. For 20
example, I have reviewed the Fisheries Regulations Assessment Models ("FRAM") for Puget
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22 Sound Chinook for the years of 2020, 2019, 2018 and 2017. These FRAM models are used by
23 WDFW, the treaty tribes, and NMFS predict the harvest of both hatchery and wild salmon based
24 on the proposed, and eventually implemented, fishing regulations and seasons. Based on the
25 seasons approved by WDFW, the treaty tribes and NMFS and reflected in the final 2020 FRAM,
26 the forecasted catch of Puget Sound Chinook salmon was 111,615 for the treaty tribes and

Case 2:70-cv-09213-RSM Document 22288 Filed 10/05/20 Page 6 of 6




69,622 for the nontreaty fishers. In 2020, the non-treaty harvest of Puget Sound Chinook is

2 predicted to be 38% of the total harvest. In 2019, the non-treaty harvest of Puget Sound Chinook
3 was predicted to be roughly 42% of the total harvest. In 2018, the nontreaty harvest of Puget
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Sound Chinook was predicted to be roughly 43% of the total harvest. In 2017, the nontreaty
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harvest of Puget Sound Chinook was predicted to be roughly 41% of the total harvest. For the
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years of 2017 through 2020, it is estimated, based on the FRAMs, that the non-treaty fisheries
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8 harvested 124,696 less Puget Sound chinook salmon than did the treaty fishers. In each of those
9 years, the treaty tribes harvest significantly more wild Chinook than do nontreaty fishers. It is
10 worth noting, for purposes of calculating conservation impacts, that the non-treaty fisheries
11 account for only 25% of the impacts on wild chinook in 2020.

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