Ahhh,...foregone opportunity. The legitimate fear for steelhead advocates, the war cry for harvest-minded fishermen.

Without going too much into it right now, foregone opportunity has only been tested in the courts a smattering of times with only one consistent feature; it doesn't mean that "they kill half, and we kill half, and if one of us doesn't kill their half the other guys do".

What it means is that both sides must be assured of their opportunity to harvest their half, not be assured of killing their half.

An open season, whether to harvest or to catch and release, provides the opportunity to "harvest" our non-tribal share of the fish.

There are two ways to harvest (by non-tribal fishers). Direct harvest, i.e., catch and kill, or indirect harvest. Indirect harvest would be accomplished by acknowledging that cnr does have a measurable mortality (exactly what that is varies depending on the study, but 2% to 7% seems to cover about 90% of the studies).

If cnr results in 5% mortality, then it is possible that enough fish can be cnr'd that the non-tribal share would be harvested, albeit indirectly.

I say possible, but know that it is very improbable, maybe even almost impossible. If there are 4500 harvestable native fish (non-tribal), and cnr mortality were 5%, then 90,000 cnr's would have to take place to actually kill 4500 fish.

No matter how good of fishermen we are, we're not going to have 90,000 cnr situations on any river, perhaps not even state wide on all rivers.

That, however, is not particularly relevant. The relevant part is that we have the opportunity to do so by having a cnr season and going out and trying to do so.

So long as we have the opportunity, and take advantage of it, our opportunity has not been foregone.

The relevant case law is in, of course, U.S. v. Washington (Boldt decision), where the fish were split 50/50, and Hoh v. Baldridge, where the opportunity to harvest each half was insured.

In the future, a few months give or take, I will post either a full legal explanation of these concepts, or a link to the explanation.

I think that foregone opportunity is a fascinating and at times intimidating prospect, but that it actually works in our favor to assure that we will get to fish for the non-tribal share of native steelhead.

Fish on...

Todd Ripley
Wild Steelhead Coalition