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#144751 - 03/15/02 12:24 AM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
CF,

Thanks for your apology above, I appreciate it. Not a big deal, at least once it's cleared up!

Fish on...

Todd.

P.S. Still waiting for the rest of the answers, too!!

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#144752 - 03/15/02 02:55 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
cowlitzfisherman Offline
Three Time Spawner

Registered: 06/14/00
Posts: 1866
Loc: Toledo, Washington
Todd

I have already answered all 3 of your question earlier. Obviously, you did not like my answers, but that the way it is!

But just to make you feel better, I will give you another set of answers.

Question 1)
1. Do you have to be a Christian to have this "God-given right"? Or, in His benevolence, do even non-believers get to fish?

Answer; No, to first part, and yes to second part.

Question 2)
What if your personal god/religion tells you that you have the privilege of the Earth and its resources? Are you screwed, because a guy like you has the right and the other guy only has a privilege? Perhaps you'd have the right to lowhole him, but not someone who believes the way you do? If so, you really scored being born with your right. We'll all have to put stickers on our boats spelling out if we carry the right or merely the privilege so we know who gets to hit the good holes first

Answer; first part, I stand on what I said, "Yes, just look at the Bolt decision". That legal decision gave the Tribes certain religious "rights" that you or I do not have (i.e. ceremonial fishery rights, no fishing license requirement, self policing, etc, etc. right? Second part, if you only believe that fishing is only a "privilege" to YOU, the answer is yes. If you believe like many do, the answer would be no. Feel free to make your own choice. The Tribes did! Third part of question; yes, you do have the right to lowhole him if you choose to do so. It happens every day on every river. No WAC or RCW, which I know of, says different. It appears to be a "choice" issue. Fussy answer, to a fussy question!

Question 3)
Mankind has not always had the right to fish. Being a fisherman in many cultures throughout time has been a position of honor, and people who weren't granted that position of honor did not fish. Did that honor come as a privilege granted by society, or a right granted by God? If it was a right, why didn't they all have it? Are some people just better than others?

Answer; ("Mankind has not always had the right to fish. Being a fisherman in many cultures throughout time has been a position of honor, and people who weren't granted that position of honor did not fish.") That is not a question to me; it is just your own point of view! So the real answer to your "first question" is; first, I would have to know what "society" you are referring to before I could answer that question. Secondly, not all societies had such an "honor" system as you have referred too. Depending on the "society", that "you" are talking about, god may, or may not, have been the one who make the decision. You also asked; If it was a right, why didn't they all have it? Answer; They did all "have it" at one time, but people just like you, conceded in giving up their rights. Bad mistake! The world has a history of people giving up their "rights"; we call it "communalism" now! And finally, your last answer is Yes, some people are better then others. It may be a real hart burner, and pill for you to swallow, but look around, that too is a FACT!

Question 4)
If you have a GGR (God given right) to fish, is it better than the logger's GGR to harvest trees just as you harvest fish? Or the developer's GGR, perhaps order, to conquer the earth through growth and development? They feel just as strongly about their GGR's as you do. Who's takes precedence? Based on your various opinions, I get three guesses and the first two don't count.

Answer; "that's a "loaded one" and you know it! I'll pass!" Your reply to me was; Agreed, it is most certainly a "loaded one" So Todd, you did get your answer, just not one that you tried to set me up to give!

Todd, you still did not meet my earlier request; If someone is going to quote case law on this board to support their opinion, then please post the entire case, be it by email or on your posting!

Finall question for you Todd;

If the act of fishing isn't "your right", then please explain to me how YOU can fish all YOU want on YOUR OWN property in YOUR OWN private lake or pond without needing to have a "fishing license". Is that act not "fishing"? Will you or anybody please post the WAC or RCW that says that the "act of fishing" on your own property, on your own fish, is govern by law? Think hard before you answer this one!

"The mind that does not challenge itself, is a mind that does not exist"

Cowlitzfisherman
Is the taste of the bait worth the sting of the hook????
_________________________
Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

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#144753 - 03/15/02 04:11 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
CF, and others,

Here's a link to that case...

http://ccrh.org/comm/river/legal/boldt.html

(sorry if you can't link from here, but I'm on a Mac at work and the UBB codes are anything but reliable on this computer)

(EDIT: The quote regarding rights and privileges is near the beginning of the case, look under Sec. 7 of the "Finding of Facts and Conclusions of Law")

As you may have guessed, the law regarding right vs. privilege is in the Boldt decision. While I know that many fishermen don't like that case, here's a little background on it.

1. This was not a case written by one biased judge that controls a good majority of sportfishing in Washington. This case spent four years going from J. Boldt's courtroom, to the 9th Circuit Court of Appeals, to the U.S. Supreme Court, and back and forth, until it was reviewed by perhaps as many as twenty-two other federal judges and affirmed almost in its entirety.

2. Because it controls more than just fishing rights, it is also viewed nationwide as a seminal part of our country's civil rights case law, reviewed in law books right next to cases that shot down "separate but equal" cases, public school education cases, and many other cases controlling race related issues in our country.

3. It's not really about how much we like it or agree with it. It is what it is, and must be dealt with.

4. For some reason many (most?) fishermen who don't like tribal fishing argue that the State, or conservation/fishing organizations, are shirking the real issues by not attacking tribal fishing, or doing away with it. Ten times per month on the various BB's someone says that WDFW is slacking because they haven't outlawed tribal fishing.

Here is a legal reality: THEY CANNOT DO ANYTHING ABOUT IT AT ALL. Period.

Tribal fishing rights are federally protected. The only group that can do anything about it at all is the U.S. Legislature, who has the power to create or overturn federal law. Of course, then it must be signed by the President. No one else can do anything to modify it or stop it.

These were the questions that I was referring to last night about having answers to, not the initial ones because either they were not necessarily on point or they just weren't going to get answered. Here they are:

1. What is the "fact" that established your GGR, other than the "fact" that you have one? (Still haven't heard anything other than "I have it because I have it).

2. Is there something unclear from the cited federal court case? (I'm sure you've already read the case, but now you have it again).

3. Where are those links that I bailed on and started a new one to avoid an argument? (Already got this one, thanks, again.)

Your question about fishing in your own pond is good, but not controlling in this debate.

The reason you can fish whenever, however, and why ever you want in a pond on your property as in your example is that they're your fish. You own them. The state owns the fish and wildlife in our state. Therein lies the rub.

It's the same as why you can't fish whenever and however you want on the Cowlitz River because you have riverfront property. It's not your river, and they're not your fish. State regulations don't apply if they are your fish in your pond.

Fish on...

Todd

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#144754 - 03/15/02 04:42 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Land Tuna Offline
Juvenille at Sea

Registered: 02/22/00
Posts: 152
Loc: Kirkland Wa USA
Great debate here and one that is discussed amongst fishermen over the last year more than a lot of folks would think. I know Tod and I have discussed it a few times over a beer or two.
Rights vs privledge can be discussed three ways from the posts so far. One as theology, two as philosophy and three politicaly. Too bad we can't get Fawell vs Joseph Cambell in on the debate on the theology side, Homer vs Jung on the philosophical side and Slade Gordon vs B Clinton on the political side. Now that would really up the debate. But so far everyone has brought up points to think about and they are points that go beyond just fishing but a lot of things in our daily lives. Being somewhat of a leftist and not a politicaly correct liberal I'm not about to voice my thought on the subject but I sure enjoy and respect the more conservative view point as long as they think beyond the Rush Linbaugh retoric.
And Todd don't be affraid to say your an envriomentalist be proud of the fact and if the movement has flaws which it does say so. Cowlitzfisherman keep up the good work, this thread has hopefully got folks around here thinking about how we have got to where we are at.
Land Tuna

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#144755 - 03/15/02 05:37 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
Hey, Steve, welcome to the show!

So, whattaythink Joe Campbell would have to say? I've got pretty good opinions on the rest, but I think that he'd find some way to tie them all together, thereby answering the question without ending the debate.

Not that I think that's a bad thing, and I think Joseph Campbell is one of the superstars of the modern world. Gave me a little more to think about, that's all.

Fish on...

Todd.

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#144756 - 03/15/02 05:46 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Land Tuna Offline
Juvenille at Sea

Registered: 02/22/00
Posts: 152
Loc: Kirkland Wa USA
Yes Tod he is a modern hero and you would be right to say he would answer all the questions and by doing so the debate would go on and on. Bill Moyers took two years of intensive study just to interview Cambell before he died. Some have said that Cambell loved to fish.

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#144757 - 03/15/02 10:47 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Anonymous
Unregistered


please read this below, it is part of the medicine creek treaty

ARTICLE 3.

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding-horses, and shall keep up and confine the latter

the part where it says "in common" with the rest of the citizens is the part that tells me its my right.

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#144758 - 03/16/02 12:43 AM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
boater,

The phrase "in common with" confers nothing to the benefit of non-Indians.

I'll show you how it works in the case law when I'm back in my office on Monday, but here's the gist of it:

"In common with" means that during the exercise of Indian treaty rights, Indians are able to fish off their reservations in "usual and accustomed" grounds and stations, alongside non-Indians who are exercising their privilege to fish there. It also means that the harvestable portions of runs within those U and A areas are split 50/50.

Without that, they would be limited to their exclusive right to fish on their reservations, which is what the state was trying to make them do prior to 1974.

The 50/50 split does not give you any right to fish, either. It gives the state half the harvestable portion, which can be divvied up as the state sees fit, between hatcheries, sportfishermen, commercial fishermen, or to be used for conservation purposes.

Fish on...

Todd.

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#144759 - 03/17/02 05:41 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Anonymous
Unregistered


ok todd, i`l wait for your "legal" post on this from your office. i do have another question though, do you consider it a right or a privilege to be able to walk into a spoting goods store and buy a fishing license ?

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#144760 - 03/17/02 06:01 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
Boater,

Here is the relevant portion of the Boldt decision that defines what "in common with" means:

First, the court goes on to clearly state that off-reservation treaty fishing is a right and that non-tribal fishing is a privilege:

"...off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited, or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require." U.S. v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974).

Second, citing to the Puyallup-I case, the court finds a statement there that is contrary to established treaty law...

"Moreover, the right to fish as those respective [usual and accustomed] places is not an exclusive one. Rather it is one 'in common with all citizens of the territory.' Certainly the right of the latter may be regulated [non-Indian fishing]. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State." 384 F.Supp at 337, citing Puyallup-I, 391 U.S. 398.

The court goes on to say "This statement seems to say that because a state has police power to regulate fishing privileges [non-Indian fishing] which the state has granted and may limit or entirely withdraw, that it is somehow a legal reason for state regulation of federal fishing rights which are expressly reserved in a treaty which only Congress has authority to limit or modify." Id. at 337.

The court further goes on to outline the obvious fallacy in such an argument and entirely discredit it, citing several cases that support the legal basis for allowing state regulation of state granted privileges while generally prohibiting state regulation of federally granted rights.

I encourage everyone who has any interest whatsoever, much less an opinion, about tribal fishing and state/federal regulation, and the distinction between Indian fishing rights and non-Indian fishing privileges to read the entire case, if they wish. However, the majority of the case is dedicated to delineating which tribes hold the rights and the geographical extent of such rights. The law setting out the nature of the rights is all in the first quarter or so of the case.

Fish on...

Todd.

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#144761 - 03/17/02 06:44 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Anonymous
Unregistered


todd, read this link , this guy has a difrent opinion than you do, interesting....

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#144762 - 03/17/02 07:57 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
cowlitzfisherman Offline
Three Time Spawner

Registered: 06/14/00
Posts: 1866
Loc: Toledo, Washington
Rights may be "regulated" but they are still rights, and not privileges, correct Todd?

Just look at our rights to bare arms!

I have spent several hours rereading the bolt decision, RCW, WAC's and I have seen where you have pulled out your information from. But, and it's a big "But" there is just as much that one can pull out to support the "right" issue for us. The Bolt discussion clearly spells out the Tribes rights, but there is a ton of stuff that is in "conflict" with you analogy of what is or is not "our rights" to also fish.

I can now see why you didn't want this tread to get too much "out of control". The Bolt decision has tons of issues that could be brought back to the courts to decide (and they are not issues that would affect the tribes fishing rights either). This thread is already getting to long for the average reader to follow.

Suggestion, either you or I will make another post on "how does the bolt decision effect our right to fish". Is the taste of the bait worth the sting of the hook?

The only bad thing about this debate is that you will probably be getting paid to do it, and I am not!

Cowlitzfisherman
Is the taste of the bait worth the sting of the hook????
_________________________
Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

Top
#144763 - 03/17/02 08:42 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
Boater,

I can't for the life of me figure out what that article has anything to do with this conversation.

CF, you absolutely have not seen why I "don't want this t[h]read out of control", because it's not, and I haven't said or felt anything along those lines.

I'm also certainly not being paid for my time as I write here. What ever gave you that idea?

Lastly, if you feel there are issues in the Boldt (with a "d") decision that should be brought back to the courts and argued, I'd encourage you to go for it. This debate isn't about what anyone's opinion is, or what could be, or should be, or might be.

It's about what it is. Right now, the Boldt decsion and everything in it is "what it is". If you go to court and change some aspects of the Boldt decision so that it doesn't say what it says now, then that new case is the one I would quote if it controlled the issue. I'm not here pushing my "opinion" of rights vs. privilege. I'm simply stating what the state of the law is.

If you'd like to start a new thread, then make some rules right up front, like opinions aren't welcome unless they are backed up by laws or facts, and that those laws and facts are quoted in the thread, then I'd be up for it. I don't want to hear anymore "I feel" or "that's not fair" or "it could be this or that".

If the thread will be titled "How does the Boldt decision affect our right to fish", which already begs the question by calling it a right, then let's make sure it's limited to "how it does", not what we wish, or hope, or don't know.

Fish on...

Todd

P.S. Cf, there're still some questions back there a few posts that I'm waiting on...

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#144764 - 03/17/02 10:56 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
cowlitzfisherman Offline
Three Time Spawner

Registered: 06/14/00
Posts: 1866
Loc: Toledo, Washington
Todd, Todd, Todd,

That's a good one Todd! "P.S. Cf, there're still some questions back there a few posts that I'm waiting on..". Todd, don't hold your breath any longer! Correct me if I am wrong, (and I'm sure that you will) didn't you not make these statements to us during this thread;

"I'm also certainly not being paid for my time as I write here. What ever gave you that idea?"

Well Todd, this is what gave me, and several other readers, that idea!

Fact; "(sorry if you can't link from here, but I'm on a Mac at work and the UBB codes are anything but reliable on this computer)

Fact; "I'll show you how it works in the case law when I'm back in my office on Monday, but here's the gist of it:" We are not all dumb Todd!

Now if I was in the jury, I would have to say your "guilty"!

I rest my case on that issue!(that's funny)

I am a early raiser (up at 4:00 am each day) and I am getting pretty tired right now, so I am going to take a shower and then head to BED, but I will get back with you tomorrow...when you at work again...right?

Cowlitzfisherman
Is the taste of the bait worth the sting of the hook????
_________________________
Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

Top
#144765 - 03/18/02 01:35 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
Cf,

The fact that I have an office shouldn't lead you to the conclusion that I get paid to write on bulliten boards. I don't.

I'm not sure what your pushing at with this thread. I'm not sure why whether or not I was getting paid to do this would matter in any way to what I'm writing. I'm not sure why you think I'm hiding the ball, or using facts or laws out of context.

1. What is your interest and how would you describe your style of arguing, in this thread in particular?

2. What do you think mine is?

I ask the second question because you seem to keep making little backhanded comments about me or what I say, rather than just come out and say something, if you have something to say. I'm speaking particularly now about your "jury" and "guilty" comments about me "getting paid". And who the hell are the "other readers" that are wondering, too, and why the hell are they wondering? I'm wondering what your point is, and also what the heck you're talking about when you make those stupid comments.

I'll post some stuff here that's none of your business, but perhaps will stop this nonsense.

1. I have my bachelor of science in marine biology, from Western Washington University.

2. I have my JD from Gonzaga University, with an emphasis in environmental law.

3. I used to be a Washington State Assistant Attorney General. The client that I represented was the WDFW. I worked with the enforcement folks at the department, the commercial licensing division, and tribal fishing.

4. I'm a vice president and the legal advisor for the Wild Steelhead Coalition, which is a volunteer position. If they were paying me, I doubt they'd pay me to spend time arguing on BB's.

5. I'm a co-owner of a business that represents an up and coming local artist. (That I do get paid for). I work in a home office, and make my own hours. Sometimes I access my e-mail accounts and all the fishing BB's from other people's computers.

6. My interest in these types of issues are manifold. I enjoy these issues because they affect steelhead fishing, one of my greatest joys. I think that I have a unique background that gives me some insight and education about these topics that a lot of fishermen don't have, and I think information and education are the greatest tools we can use to help sportfishermen and sport fish get the attention they deserve. I give my own information freely. I find that many of the folks that participate in these debates have different facts or perspectives that broaden my own base of knowledge.

Can we get back to the topic at hand, now?

Fish on...

Todd.

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#144766 - 03/18/02 06:32 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
cowlitzfisherman Offline
Three Time Spawner

Registered: 06/14/00
Posts: 1866
Loc: Toledo, Washington
_________________________
Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

Top
#144767 - 03/18/02 07:26 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Chuck Offline
Juvenille at Sea

Registered: 03/12/99
Posts: 157
Not neccassarily a CNR fan, but I got to give this one to Todd, he smoked you guys. CF, your "provoke then make excuses" debating style is getting real obvious. Oh well, hopefully it will get old for you too! smile
_________________________
Chuck

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#144768 - 03/18/02 08:12 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Anonymous
Unregistered


todd, who owned the fish before the boldt case gave 1/2 to the state and 1/2 to the indians ? and wouldnt you say that we as citizens of washington had the right to fish in places where the indians didnt and now they have quarented rights and we have the same regulated rights as we did before the case ?

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#144769 - 03/19/02 02:59 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Todd Offline
Bumpin the 6X9's

Registered: 03/08/99
Posts: 26239
Loc: Seattle, Washington USA
Boater,

I guess there are a couple of ways to look at that.

One is that the Boldt decision was a recognition of what had always been there, but that wouldn't really reflect the practical difference between fishing pre- and post-Boldt.

The other is that the state had ownership of 100% of the fish, minus those that the tribes harvested in their exclusive on-reservation fisheries.

Fish on...

Todd.

P.S. I think this topic has had its fill...

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#144770 - 03/19/02 03:10 PM Re: Is "Fishing" a "privilege" or it a "natural born right"?
Land Tuna Offline
Juvenille at Sea

Registered: 02/22/00
Posts: 152
Loc: Kirkland Wa USA
Didn't know anyone owned the fish before or after bolt. We humans sure are Bolt, I mean bold.
Rights or priveledge? Me thinks the with the way the world is today the debate should be are we quickly loosing the RIGHT to have PRIVLEDGES?

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