I think Todd is correct.

Sky-guy posted the following (I can't verify if it's correct):

"Under the proposed justification of a "Harvestable surplus" of Chinook Salmon, Lorraine Loomis of the NWIFC has just submitted Fisheries proposals for both the Swinomish and the Sauk Suiattle tribes to gill net Skagit Bay and the Skagit river for Chinook....Starting tomorrow!"

For the sake of discussion, let's say this is correct. The Tribes were careful to indicate there is a harvestable surplus of Chinook. That puts this issue squarely under the Boldt decision, not the ESA. Recall that the Boldt decision did not say who gets to decide whether (or where) there is a "harvestable surplus" of fish. In the past WDFW and the Tribes made that decision together. But, as we now know, WDFW and the Tribes aren't working together. So there is the first casualty of that lack of cooperation. That is, the Tribes may be deciding (unilaterally) whether, when and where there is a harvestable surplus of salmon.

Since there is now a surplus of salmon (according to the Tribes), they are entitled to 50% of those fish (I used the word 'entitled' exactly as it is defined). So, the only thing that would inhibit or prevent their harvest is whether the ensuing netting will take ESA listed fish (incidentally). But if they decide they will not take any ESA listed fish (No Effect,or Not Likely to Adversely Effect), they can proceed with their harvest. It would be NMFS that would 'concur' or 'not concur' with that decision. At that point, the burden of proof falls on NMFS, not the Tribe. NMFS would likely not concur, but it might take them awhile to make that determination. And when they get around to it, the fishery might be completed, and so would any evidence of the take of ESA listed fish. But even if there was, the Tribes would ask NMFS to do a consultation after-the-fact. What's the chance the resulting incidental take of ESA listed fish would exceed the ESA limits? Your guess is as good as mine.......

My point in outlining this completely hypothetical example is to illustrate the problems that are likely to occur if WDFW and the Tribes go their separate ways on fishery management in Puget Sound.

Unfortunately it may already be happening.