And the plot thickens!


January 9, 2017 via: email in PDF format


James Unsworth, PHD Director, WDFW
600 Capitol Way N. Olympia, WA 98504

Dear Mr. Unsworth:





Re: Transparency Initiative


The Twin Harbors Fish & Wildlife Advocacy is appreciative of your letter dated December 30, 2016 that responds to the Advocacy’s letter dated November 14, 2016 addressed to you and Lorraine Loomis of the North West Indian Fisheries Commission (NWIFC) requesting the co- management meetings wherein agreements are reached on tribal and non-tribal fishing seasons be opened to the public. We thank you for taking the time to provide a thoughtful document that with one notable exception, candidly discusses the transparency problems in the North of Falcon season setting process.

We appreciate your statement “.....WDFW as an agency values deeply and embraces transparen- cy....” So do the members of the Advocacy. However, we can not agree with the statement “.... our agency’s policies, leadership, and staff follow closely the requirements of the Administrative Procedures Act and Open Public Meetings Act.” In our opinion, the NOF process utilized by the Department is contrary to the intent and expressed provisions of both the APA and OPMA.

Your letter recognizes that the public is locked out of meetings with the tribal co-managers wherein agreements on harvest seasons are negotiated and set. You reference times past when a few select observers were allowed to attend the meetings, but not participate. Then, you confirm the position taken by the NWIFC with the media recently with “The tribes ended the practice of allowing observers in the meetings several years ago, and have indicated that they felt the nego- tiation positions of the state tribes were being mischaracterized outside of the meetings.”

The Advocacy does not believe the presence of a few observers approved by the Department and tribal comanagement staff rises to the level of transparency required under state law. Neither
do we believe it appropriate for the co-managers to require all in attendance to relinquish their constitutional right of free speech as a condition of participation.

You correctly point out that tribal co-managers are sovereignties not covered under the transpar- ency laws of the state of WA. However, while the OPMA does not apply to a tribal government meeting, it is the Advocacy’s position that the transparency laws governing the Department’s ac- tions are not stood down due to the fact a tribal entity is involved. The sovereign rights of a tribe and “government to government relations” do not relieve the Department from its obligation to

Page 2, Advocacy Transparency Response

honor the rights of the citizens of Washington under state statutes.1 Therefore, the Advocacy does not, and never will, agree with your statement “Unfortunately, this means the general public has not direct access to the negotiations without an invitation by the tribes”.

As for assessing the language of the laws, the Advocacy respects the opinions and support pro- vided WDFW by the Office of Attorney General. We also subscribe to the old saying that if one asks three lawyers the same question, you’ll likely get three different answers.

Without challenging other’s opinions, the Advocacy recognizes that the state supreme court ruled in 1992 in Salmon For All v. Department of Fisheries that the NOF comanagement meetings held in the Columbia were not covered under the OPMA. “While Fisheries is a public agency,
it is a single-agency department where the Director is vested with full decision-making author- ity under RCW 75.08.014. There is no “governing body”, as defined, at Fisheries since there is no multimember rule-making body rather, there is a single director management. As Fisheries is governed by an individual director who has full decision-making authority, and agencies which are, in fact, operated under full decision-making power of a single director are excluded from the OPMA, Fisheries is exempt from the OPMA’s requirements.”2

Today, with the establishment of a multimember Commission as the governing body by pas- sage of Referendum 45 in the 1995 election, it is our position that the OPMA (RCW 42.30) is governing on the Commission itself and delegation downward to the Department brings the open meeting requirements along with it. (2) “Governing body” means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. 3

Additionally, courts have ruled that the delegation down from the initial governing body car- ries the OPMA requirements along with the power to take action. In 2001, the 9th Circuit Court of Appeals took this issue head on in Brian Clark v. City of Lakewood wherein the city council referred to an citizen advisory group a request to review city ordinances. The advisory group then formed a “task force” that held meetings closed to the public. The recommendations from the task force were forwarded to the advisory group which then forwarded them on to the City
Council which adopted the recommendations. The court ruled the delegation of the OPMA came down to the advisors on to the task force level and invalidated its actions due to the closed door meetings.4

Finally, your letter contains a vague reference to a negative impact to the state’s fishers if the demands of the tribes (keeping the doors closed) are not adopted by the Department. “The reality is that meetings and negotiations with the tribal comanagers must occur for fishing seasons to be set - refusing to meet with the tribes because they will not allow the public to attend negotiations
1 https://app.leg.wa.gov/rcw/default.aspx?cite=43.376&full=true#43.376.020
2 http://law.justia.com/cases/washington/supreme-court/1992/57757-9-1.html
3 http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30
4 http://openjurist.org/259/f3d/996/brian-clark-v-city-of-lakewood-


would likely lead to an unproductive outcome for state fisheries.”

The Advocacy assumes you are referencing the role of federal agencies that approve tribal and non-tribal fisheries in regions such as Puget Sound with ESA designated stocks. If so, the Advo- cacy feels compelled to “lay all cards on the table face up” in a clear and precise fashion. The actions of NOAA and the Bureau of Indian Affairs (BIA) in the approval stage has undermined the comanagement process by granting the tribal co-managers tremendous leverage over the state.

In a 8-page letter dated November 14, 2016, NOAA Assistant Regional Administrator Robert Turner provided an explanation of what NOAA would do if the two co-managers didn’t reach a joint agreement on tribal and non-tribal fishing seasons in Puget Sound. The Advocacy’s review of this letter found a very disturbing process wherein if the state agreed with the tribal co-manag- ers, NOAA would approve both fisheries in time for the season to occur. However, if no agree- ment is reached, both have to submit their own seasons for separate approval. Then, through a remarkable interpretation of a maze of federal regulatory authorities, NOAA explains how the tribes can use BIA support to get their season approved under a fast track system referred to as “Section 7” in time for a fisheries to commence. Then, remarkably, NOAA states that the state isn’t entitled to the Section 7 process and approval of the state season would not likely occur until after the season was over.

The result is the impression that the tribal side can simply walk away from the table if the state doesn’t agree to their demands and still have a reasonable opportunity to fish while the state its season. Comanagement reverts to a dual-management with the one having the leverage dominat- ing the other. This will not change if the Department continues to agrees to keep comanagement meetings closed to the public. Rather, we believe it will likely get worse for the state side.

If it hasn’t already, this abnormal leverage granted the tribal side by NOAA will simply work its way into the allocation of the fish available for harvest. The comanagement and 50/50 share of the harvest intended under the Boldt Decision and other segments of U.S. v. WA are effectively stood down. The Advocacy strongly suggests that the Department consider re-opening U.S. v. WA to seek a remedy to this problem. We also suggest it is time for the Commission members to publicly engage the federal congressional delegation to seek a remedy on a legislative level.

Regarding transparency, the draft of the NOF Policy is up for review by the Commission this weekend in Vancouver, WA. In order of preference, the Advocacy sees the following options available at this point in time. The Commission could:

1. Delay adoption of the current draft until its next regular meeting to allow the co-man agers additional time to develop a solution to the closed meeting issue;

2. Insert language into the draft clarifying and strengthening the Commission support for opening the NOF comanagement meetings to the public;

3. Remove the delegation to the Director of rule making authority in ESA effected areas which will remove any doubt over the application of the OPMA;


4. Adopt the draft policy as currently written.

In closing, we would like to assure you and the Commission that the Advocacy fully appreciates the difficult task of comanagement that is presented to staff of both WDFW and the NWIFC. We further accept the duties of both to represent the interests of their stakeholders to the best of their abilities. Additionally, we understand it would take an invitation for non-tribal citizens to attend tribal meetings. What we can not accept is the Department refusing to honor the citizens
rights under state transparency laws, regardless of whether by its own initiative or as a result of a demand from the tribal co-managers.

When considering the options listed earlier, the Advocacy would support Options 1-3. Option 4 (adoption as currently drafted) would leave the public having to choose between acceptance of the status quo or seeking review by a court. The status quo will simply result in more of the
same. Continuing deteroation of the comanagement process is simply unacceptable to the Advo- cacy. We believe a majority of public feels the same way.

In the eyes of the Advocacy members, litigation over secret closed door NOF comanagement meetings presents a “lose, lose scenario” for the Department. Even if the combination of the impressive talents of the AG’s staff and the substantial state treasury were to prevail, the Depart- ment loses as it would be attempting to defend the secret meetings in NOF. While it might be different in a tribal culture, such a stance would not sell well within the state’s culture.

As a means to gauge the public opinion on this issue, please review the petition to you and the Commission filed by Perry Menchaca of Tacoma supporting the Advocacy’s request for transpar- ency.5 At the time of this writing, the petition filed on New Year’s Eve has been signed by 1,025 individuals. More come on each day. One simply can’t show the public’s support for transpar- ency any clearer than Mr. Menchaca did by starting this petition and asking friends and acquain- tances to share it with others.


Respectfully,


Tim Hamilton Art Holman Ron Schweitzer
President Vice-President Secretary/Treasurer


Cc: Members of the WDFW Commission, via email Lorraine Loomis, NWIFC, via email



5 https://www.change.org/p/open-the-wdfw-tribal-co-manager-north-of-falcon-meetings-to-the-public