Legally, the only thing that’s been adjudicated is the 50/50 split on the allocation.
The rest is the mathematical analytics necessary to reach that legally binding outcome. It’s also an attempt to harmonize ESA with the Treaty rights. The Tribes believe their 50% should be allocated BEFORE the ESA is implemented. That is, they get their share first. If there is any allocation left after ESA, that remaining allocation could go to the State. And that might not be 50%.

So here’s where it gets complicated. Let’s say the stock size is 500,000 fish, and the harvestable surplus is 20,000 fish. The Boldt decision says each side gets 10,000. But since the fishery takes both hatchery and wild fish, and some wild fish are ESA listed, NMFS needs to establish an incidental take limitation.

So let’s say NMFS sets the incidental take at 2%. That means for the Tribe to catch their 50%, they need 100% of the incidental take. That’s 2% of 500,000 which is 10,000. That leaves zero incidental take for the State, and the State gets zero allocation. Recall that the Boldt decision says the Tribes get 50% of the harvestable surplus. It did not say the State gets the other 50%. In this instance, the State gets zero.

That’s the outcome the Tribes believe is appropriate. That is, make the allocation (10,000 each), implement the ESA (2% incidental take), and then follow Boldt. That is, the Tribes get their Treaty reserved fish (10,000) before the State gets theirs. So for the State, 50% becomes 0%.

Now that’s not how the State sees it. (NMFS isn’t real keen on that interpretation either.) The State believes that ESA should come first. In that case, the math is a lot easier. For this example, the harvestable surplus is the amount remaining after ESA has been applied. So the harvestable surplus becomes the incidental take (i.e., 10,000), so the split is 5,000 each.

NMFS is attempting to split the difference. They believe that ESA and Boldt are important legal mandates, and they have to implement both. So they split the incidental take differently (e.g., 65/35) so each side can get roughly what they are expecting. It ain’t perfect, but up to this point, it keeps both sides reasonably happy.

But we’re now in unchartered waters. If both sides agree on the allocation, the legal risk to NMFS is very low. But now that the State and the Tribes are in different places, either side could go to court over this. That’s why NMFS has to be very careful in how they make their decisions since their legal risk becomes enormous. That might be why doing the State and Tribal allocation separately takes longer. But that’s just speculation on my part.


JB - You're exactly correct. My bad. Mark-selective fisheries is a harvest benefit, not a conservation benefit.