You folks have hit the nail on the head. What is the legal justification for the Federal position that Tribal rights come before ESA? That's the legal question that the States would litigate over if it came to a court challenge. The State is likely to argue that the Consititutional guarantee of equal protection under the law applies. The Tribes will argue that the States "share" of the fish are either killed at the dams or are taken in the high seas fishery so the States have already gotten their fish. The Tribes are simply at the end of the line. The real problem of course is that both sides are correct (to a degree).

(By the way, this issue is not confined to just the Columbia River basin and salmon. The Feds are very concerned over how the ESA should be implemented when it affects Tribal trust resources throughout the country. It has major implications.)

However, both the States and the Tribes have strong reasons for not going to court over this issue. The Tribes don't want to litigate because they have everything to lose and nothing to gain. Plus, the States control most of the production since the Tribes don't have hatcheries. So if the States end up with zero, the States would have no reason to produce the fish in the first place and might shut down their hatcheries. The Tribes don't like that idea at all. The States don't want to litigate since if they do, the Tribes will likely not negotiate ANY level of fishing in the Columbia until the issue is settled. That could take years. In the meantime, fall Chinook fishing by non-Tribal anglers could shut down between Astoria and the mouth of the Snake River. Perhaps for many years. In addition, if the Federal position is upheld, the States would lose control of the fishery on the Columbia River as long as ESA is in effect. That prospect has the States very concerned.

However, you have also hit upon the simple answer to the problem - mass marking of Chinook. As most of us know, virtually 100% of the hatchery coho and steelhead are marked with an adipose clip. However, almost none of the Chinook are marked. Therefore, hatchery Chinook and wild Chinook are currently indistinguishable. With the available technology, the States and Feds can't physically mark all the Chinook that are produced in the Columbia River hatcheries, there are simply too many smolts.

If automated clipping can be improved and hatchery Chinook can be seperated from wild Chinook, this entire issue goes away. The States can harvest their 50% allocation per the Boldt decision while also releasing wild fish thru C&R. The technology isn't there yet but it's coming. Look for mass marking of spring Chinook to start up soon, perhaps next year. Fall Chinook may be next but since there are millions upon millions of fall Chinooks smolts, technology may have to improve before that becomes a reality.

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MSB