Carcass - The courts would likely rule that both the Treaties and the ESA are equally as important. The question you're asking is: Which should be implemented first?

That is, if we apply ESA first, the harvestable surplus would be exactly the incidental take limit (I think this was MPM's point a few pages back, which I missed, but now I get it). Conversely, if the Treaties are implemented before ESA, the incidental take limit might need to be applied to the Tribal harvest to ensure they get their Treaty reserved 50%. In that case, the State might not get any harvest since the ESA incidental take has all gone to the Tribes.