Bob,

I think we probably agree on 95% of things...we just don't go on and on about them on the BB's...

Your quote from above is from the Boldt decision, U.S. v. Washington, 384 F.Supp 312, 409 (1974).

That portion of the case is where the State submitted questions to the judge to help them implement the rest of the ruling...the question is listed, then the judge answers it. That is question #6 from the case.

The Col. R. fishery is a great example of how the answer to that question is playing out. We have a very abundant hatchery run, mixed with very depressed listed runs.

*Remember, the only time the state can regulate tribal fishing is if it is reasonable and necessary for conservation, and is not discriminatory towards tribal fishing* (U.S. v. Washington, 384 F.Supp. 312, 402).

The court's answer is "Not necessarily", and that the state must pursue "other" alternatives.

What does that mean?

I know you won't like the answer, folks, and this is not intended to re-hash the "right vs. privilege" argument, but...

"If alternative means and methods of reasonable and necessary conservation regulation are available, the state cannot lawfully restrict the exercise of off reservation treaty right fishing, even if the only alternatives are restriction of fishing by non-treaty fishermen, either commercially or otherwise, to the full extent necessary for conservation of fish." U.S. v. Washington, 384 F.Supp. 312, 342 (1974)(italics added for emphasis).

Now, back to the "not necessarily" language.

If there is no way to conserve the weak stocks without restricting the treaty harvest, then the state can restrict the treaty harvest.

If the state can restrict non-treaty fishing, commercial or sport, enough to conserve the fish, even if they don't get to fish at all, they have to do that first. If after restricting all non-treaty fishing, if the tribes can fish without endangering the run, they still get to fish.

The reason is, whether folks believe it or not, non-treaty fishing is a privilege, and the federally protected treaty right to fish has precedence. (see U.S. v. Washington, 384 F.Supp 312, 332 (1974)).

So, back to your question...

Yes. If there is no healthy run mixed in, and if after stopping all non-treaty fishing, commercial and sport, there still is no way for the tribes to conduct a fishery without jeopardizing the existence of the run, then the state can stop them from fishing.

If such a case came up, the State would have to go to Fed. Court and ask for an injunction to stop the tribal fishery from taking place, assuming they had one planned.

The key, though, as that the tribal fishery must jeopardize the continued existence of the run.

Fish on...

Todd.