Yes. But you are describing the same situation that WFC sued WDFW and won. Cohoangler forgot to add that others can sue you for doing something that need an ESA permit for that is proven after the fact that you needed it for.

Essentially the state can open fisheries anytime it wants, NOAA can't force them to close. Heck they could open wild only fisheries right now if they wanted to...but the REAL risk the state is thinking about is that anyone then has the opportunity to sue WDFW for not having a federal permit. Very simple (& exactly the same suit WFC brought in the hatchery realm), as this is how it'd go:

Judge: "ok, wdfw do you need a permit to run these fisheries? This litigant says you do..."
wdfw: "I don't think so"
Judge: "nmfs, do they need a permit"
nmfs: "yep".
Judge: "ok, wdfw stop what you're doing till you get a permit to do it, oh and pay the litigants attorney fees since you f'd up".
Litigant: ($ cha-ching $)!!!!

That's the real issue. Without ESA authorization that what any party is subject to, even the tribes...