In another post, Reel Truth threw out several good questions regarding the Federal position on ESA and the Tribes and how this might conflict with the Boldt/Belloni decisions. Rather than continuing on that somewhat unfortunate thread (dissing Salmo G), I will post some thoughts on the issue.

The Federal policy on ESA and Tribes is set at the national level and is applied to each Federal agency. The position and the reasoning behind it is simple. The Tribes had nothing to do with fish and wildlife species going extinct since there are too few Tribal folks with too little authority to make a difference. Therefore, if restrictions on natural resource use must be made to protect the resources, all reasonable restrictions must be applied to the non-Tribal folks before restrictions are applied to the Tribes. This policy is consistent from the Quinault Tribe in northwest Washington to the Penobscot Tribe in northeastern Maine and everywhere in between. NMFS is carrying out that policy to the letter. That's their job.

This policy is based on the Federal tribal trust responsibilities and the treaties on which that trust originates. Therefore, this predates the current Administration and will outlast the next one, regardless of whether it's R or D.

The Boldt/Belloni decision did NOT state that the Tribes and the State get to split whatever fish are out there. The decision was that the spawning needs of the fish come first, Tribal subsistence/cerimonial harvest is second, Tribal commerical is third (they get 50%), and non-Tribal commercial is fourth (they get the other 50%). The non-Tribal folks can take their 50% but only if they are not constrained by other factors, such as ESA.

The first part of my previous paragraph has been tested and verified in court. But the last statement is policy and has not been tested yet. So, the question being debated is - "What is the legal justification for restricting the non-Tribal folks before restricting the Tribes?" As we have seen on the Columbia River, that is not a trivial question. Someday, the State of Oregon or Washington may challenge that policy position in court but not this year. So I encourage continuing discussion and debate on this issue.

Meanwhile, I'll be headed for the Kalama River. Maybe I'll get me a summer-run before summer is over......




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MSB