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.......