MPM - Yes, of course it's illegal to take ESA listed fish without an exemption (permit). And it's not all that unusual for ESA take to be exempted after an action has already occurred, particularly if the situation does not allow early consultation, such as an emergency. I'm not sure NMFS would consider this an emergency, but the Tribes could claim "lost opportunity" to exercise their Treaty rights to harvest excess Chinook salmon (i.e., harvestable surplus) as the reason for after-the- fact consultation. Indeed, those excess Chinook won't be there for long.

Also, under the hypothetical circumstances I described, how would anyone know whether ESA listed fish were taken? What evidence would anyone have to make that claim? The Tribes or the State could claim they killed zero ESA listed fish. All fish harvested are excess hatchery Chinook. No ESA listed fish were killed. No harm, no foul. Innocent until proven guilty.

This puts the burden of proof on NMFS. Unless NMFS is out there taking pics or gathering evidence, they may have difficulty making that claim. And so would anyone on this BB........

Clearly, this is no way to manage a complex fishery involving the State, several Tribes, and at least one ill-equipped, understaffed, and bewildered Federal agency. There has to be a better way.