My question is if sportsman and Natives are supposed to split the steelhead 50-50 how come they are netting 5 days a week and only out 2 days a week. To me if it were 50-50 they would be in 3 days one week and 4 days the next week. This seems to make a lot more sense to me as 50-50.
Maybe Rich Potter can help us out here and let us know the thinking or lack of it behind this scheduling, because I just got off the phone with the people at the WDFW office in Monte and they are of no help what so ever. Actually a third grader would be more helpful then they were. How do these people get these jobs???????

Peace
Superfly

Its a bunch of crap Superfly, who said they ever were gonna just take there 25%, they dont give a [Bleeeeep!] what the law says because who is gonna stop them. WDFW has no nutts!!!!

Superfly,

It isn't about 50% of the fishing time. The treaty - nontreaty allocation is about 50% of the harvestable number of steelhead estimated in pre-season forecasts and updated by in-season runsize adjustments.

In some cases, notably the Quillayute as far as I know, the tribe negotiated with WDFW for a fishing schedule rather than a % allocation, based on recreational steelheaders not catching their 50% share of the harvestable number (and hence the scare tactic of foregone opportunity we hear about).

If a tribe is netting 5 days a week, or 7 days a week, that should be OK as long as the tribe's catch remains within the bounds of its 50% share. Because of low ex-vessel fish prices, fewer people are fishing in many tribes now, especially those with alternative economic opportunities. If only 2 or 3 people are fishing from a particular tribe, then they might fish more days per week to try to harvest their tribe's 50% share.

The upshot, is that within legal limits, the number of treaty fishing days per week shouldn't have any significant affect on the number of harvestable steelhead available for you and me.

Sincerely,

Salmo g.

Let's read that again...

SAY WHAT???

If it doesn't matter how many days they fish then I guess it doesn't matter how many fish they catch either. Why not just have nets in the water every day of the year. There will still be just as many fish available, Right?

The truth is that the tribal harvest on the Quillayute system has exceeded the sport harvest consistently for a decade or more. Despite that they always want more because the sport harvest is seldom enough to catch what is left of the share even after the tribes whittle it down to less than half.

If you remember right, the tribes threatened to take even more several years ago if the state didn't raise the sport limit to more than one fish per day and something like three per year on that river. That's when the wild fish release radicals went nuts with their protests and stymied the states interest in increasing the harvest.

The result is that the tribes get the foregone harvest and if all retention of wild fish is made illegal then they will get even more. The wild fish release radicals continue to seek total allocation of the sport share for catch and release at the expense of normal fishing but simply end up giving that allocation to the tribes.

Oh Well! At least steelhead make good halibut bait!

Plunker....You just made alot of sense....WDFW is no help because they just refer you to tribal authorities for info on catch records and netting schedules, normally. Now if you believe that the tribes are honest about catch numbers then OK. They regulate themselves and only make agreements with WDFW that they can choose to abide by or not at their whim...When push comes to shove the tribes usually pick shove, as in SHOVE IT! WDFW!.....

The forgone opportunity hammer the tribes hold over our heads is a real problem even though the WSR advocates choose to not put that in their equation. We release more fish and the tribes just lay claim to them with more time on the rivers and more wild fish caught..perhaps even more wild fish taken that without WSR???

The question of tribal netting was a pivotal issue in the loss of the net ban initiative a few years ago. As I gathered signatures so many people scoffed at the petition saying that if it didn't apply to the indians then they weren't going to sign it. It did not apply to the tribes and was essentially unfairly targetting the small non-indian commercial fleet.

So the real question I would like answered by the gurus on this site is this: What can WDFW do and/or what can NMFS do to make fishing rights more equal in this state taking the Boldt and Rafeedie decisions into account?

Is it legally possible to close certain fisheries for conservation reasons? If so which rivers would qualify for such a complete closure? This would only include rivers that are currently being netted? If a closure was implemented would the law stop the tribes or could they wave the independent nation flag?

Plunker,

Excuse me. Sometimes I think I shouldn’t have to repeat every thing that has been written on this subject, falsely assuming that long term PPBB members have read and remembered from the previous threads. You’re a long time participant, and I thought I presented enough information for the meaning to be clear. Evidently not, so I’ll return to a point closer to the beginning.

In general, and excluding the specific exceptions - like the Quillayute - the treaty and non-treaty allocations are limited to 50% of the harvestable salmon and steelhead that occur in usual and accustomed treaty fishing areas. The Quillayute is not an appropriate example for this discussion; very apples and oranges, so to speak. Let’s use a specific example, like the Skagit River, that is close to your homeport.

If the pre-season forecast for 2003-2004 wild steelhead is less than the escapement goal of 6,000, then both the treaty and non-treaty harvest shares are zero. Technically, there is some allowance for incidental harvest, that is, wild steelhead harvested by treaty fishermen while fishing for hatchery steelhead, and wild steelhead that are incidentally killed by non-treaty fishermen while fishing for hatchery steelhead in the early season and during the late season CNR steelhead fishery.

If the hatchery steelhead run is predicted to be 6,000, and the broodstock requirement is, say 600, then there are 5,400 harvestable hatchery steelhead, with 2,700 allocated to the treaty and non-treaty shares. (There also used to be a factor inserted to adjust the harvestable numbers to compensate for the non-treaty sector’s inability to harvest more than 80% of the available harvestable fish. I don’t know if that is still used, or is deemed redundant due to a hatchery spawning escapement requirement that didn’t use to exist on the Skagit because all juvenile hatchery fish were produced at Tacoma and Chambers Creek Hatcheries, but I digress.)

With a treaty allocation of 2,700 steelhead, the Skagit tribes devise a fishing schedule that suits their interests and gets them to their harvest allocation primarily during the hatchery run, since there are no harvestable wild steelhead in this example. The Swinomish used to have a fairly small number of fishermen who fished for steelhead, say, about 12. The Tribe would schedule fishing 3 or 4 days a week from mid-December through the end of February. Based on catch statistics from previous seasons, they generally had a good chance of taking their portion of the treaty share in that time period. The Upper Skagit Tribe, however, had more fishermen who fished steelhead, and better fishing locations for steelhead. Each fisherman tended to average a higher catch per landing for each day fished than did the Swinomish fisherman. Consequently, the Upper Skagit Tribe would schedule steelhead fishing for 2 days per week from mid-December to about mid or late January, again, quite likely to have taken their portion of the treaty share within that time. And, if the treaty share was taken before the end of the scheduled steelhead season, the fishery then closed for the year.

Now, addressing your question regarding why not fish 7 days a week all year? Since total catch does matter, the amount of fishing time matters. But it matters in relation to the number of fishermen fishing, the average catch per landing (called CPUE in fish management parlance, or catch per fisherman per day), the number of days fished during the season, the standing stock of fish, and the run timing of the fish population,all of which are related to the instantaneous exploitation rate of the fleet. If the fishing fleet is large, then the number of fishing days will be small, relative to any given run size. If the fishing fleet is small, as has occurred for many of the tribes because of declining fish prices, like the Upper Skagits, then the number of scheduled fishing days per week can be increased to compensate for the fewer number of nets in the river. The Tribe’s goal of taking its harvestable allocation remains the same, but it cannot exert the same instantaneous harvest rate with 6 or 8 nets as it could with 20 or more.

So if a tribe’s fishing fleet has shrunk, and it schedules more days of fishing per week, but is still governed by the same harvest allocation as before, why does it matter to you how many days per week they fish? They are going to harvest the same (fewer in many cases) number of steelhead, not more. If this is still not clear, I’m not sure I can improve the explanation, but in the interest of accurate understanding, honestly, I’ll try.

The Quillayute fishery is different, is based upon a schedule, and not related to the above discussion. I don’t know the details of why WDFW agreed to that instead of the more common 50%, but I think it is related to the concept of foregone opportunity. Foregone opportunity is a separate subject and should be treated separately.


Grandpa,

I think that there is some uncertainty about foregone opportunity and a decision to regulate statewide WSR. I believe the situation is made more difficult by coastal WDFW managers who don’t support WSR. There needn’t be anything foregone by regulating for WSR if the principle is to manage for maximum recreational opportunity. Opportunity is a key concept in the Boldt ruling. Just as the treay fishing right is meaningless if it consists only of an opportunity to set a net and have it repeatedly come up empty. This was in connection to the treaty tribes fishing second in line after the non-treaty ocean and sound fisheries. Similarly, the non-treaty fishing privilege (the federal court says you and I have a fishing privilege, not a right, CFM notwithstanding) is meaningless if the river is open to fishing, but there are few or no harvestable steelhead in it. WDFW could do more to legitimize CNR and WSR and fisheries management concepts that have maximum sustained recreation, rather than maximum sustain yield or harvest and the management goal. If WDFW adopted MSR, instead of MSH, as its wild steelhead management goal - and the state does have that right - then I believe most of this perceived risk associated with foregone opportunity would evaporate because under MSR, the management goal is realized by having the largest possible steelhead population consistent with recreational fishing and incidental hooking and handling mortality.

Foregone opportunity is not a hammer; it has been a convenient crutch for WDFW and people like you who are unwilling to move forward to the next logical stage of wild steelhead management that provides the greatest benefit to the greatest number of citizens.

Regarding the honesty of catch reporting by tribes, do you really think they are less honest than non-treaty commercial and recreational fishermen? I don’t. I know liars in both camps.

Regarding what WDFW and NMFS can do to make fishing more equal, well, you’re not gonna’ like this. According to the U.S. Supreme Court, treaty and non-treaty fishing are equal. Each side gets 50% of the harvestable numbers of salmon and steelhead occuring in usual and accustomed treaty fishing areas. There is nothing that WDFW nor NMFS can do about that. In fact, every federal agency, even those that have nothing to do with fishing, are obligated to look out for tribal rights under what is known as the fiduciary trust responsibility. Abrogation of treaty fishing rights, or modification thereof, are possible only through an act of Congress. That was tried in the 80s by former Senator Slade Gorton, who got nowhere with it. The vast majority of Americans support honoring Indian treaty rights. That could change, but that’s the track record to date. Regarding legal avenues, I’ll mention that nationwide, tribes have won 95% of all federal court decisions relating to treaty and tribal fishing rights over the last 108 years.

The state and federal fisheries agencies can close a treaty fishery for conservation reasons, but the situation has to be so extreme, that you and I probably wouldn’t like it. ESA closures most likely qualify, but NMFS was unwillling to test that on the Columbia with treaty tribes there, and instead came up with an allowable incidental harvest of ESA fish. If they hadn’t, the tribes were threatening to push the issue of removing the Snake River dams. In court, they would likely have a very good chance, as incredibly few fisheries biologists would testify that the 4 lower Snake River dams aren’t primarily responsible for Snake River salmon and steelhead being listed under the ESA. The Tribes are not independent nations. They are legally sovereign nations within a nation, whatever it is that means. The courts have rules that they are sovereign, but that they also are dependent nations within the U.S. Legally, it gets pretty murky after that, and I’m not qualified to explain it.

Sincerely,

Salmo g.

WHOOO Salmo,
You have to be the first person in the history of this site to admit or perhaps even realize they were not qualified to explain something.

HAPPY FUNNY NEW YEAR TO ALL

Salmo,

Do you thing WDFW would have any choice but to change to MSR from MSH if we decided we wanted our portion of the steelhead for CnR opportunity instead of harvest?

Like you said if that was the case and it was changed to MSR would the tribal portion still be managed under MSH? If this was the case and they could no longer tap into Sport Anglers half of the harvestable take they would really have to be much more precise with their harvesting?

I dont see how Forgone Opportunity could exsist if we managed our portion on recreation instead opf harvest. I have always thought the Forgone Opportunity bull was just a scare tactic.

I truely believe CnR will be the beginning of change. It isnt the saving grace but the key that opens the door.

CnR will give our fish managers no choice but to change current management and go 180 degrees away from harvest minded management.

Salmo you said about me:

"Foregone opportunity is not a hammer; it has been a convenient crutch for WDFW and people like you who are unwilling to move forward to the next logical stage of wild steelhead management that provides the greatest benefit to the greatest number of citizens."


What part of my last 20 postings where I said I am FOR WSR did not register with you?

I am certainly not unwilling to move forward at all. I am simply searching the waters for a more comprehensive long term solution. Do not make incorrect assumptions about my willingness to do anything...it is not up to your usual standards.

Salmo

What a way to start off my new year! A new debate with old Salmo again!

Salmon you say;

Well how does that one work? Don't they set harvest rates on fish that are "harvestable" ? If not, why not? Why is it that sport anglers have to let "wild" steelhead go, while tribes can, and do harvest them? Why are we not setting escapement goal on wild fish and hatchery fish separately for both the tribes and sporters?

As it stands now, we get none…and the tribes get all the wild fish that they manage to catch! How does that one work? Do we get to harvest 50% of whatever the tribes hatchery produce?


You say; That's almost a no brainier; when you consider that we are playing the tribes to hire the best attorneys that our money can buy! They are always being represented by our own government funding. .. right? If that's true, then how can any one state, person or group compete, or take on the government?

Finally, you said;

This is what I have found it to mean :

"NATO(Nah-Toh) indicates inherent ancestral freedoms of spirituality, self-government, self-determination, and our own version of the pursuit of happiness. The title of the Native American Tribal Organization is only a convenient acronym, which may assist us in operating in today’s society. ‘NATO is also an Arapaho word which roughly translates to “we have had enough.”
Originally, the chiefs of the Cherokee, Keetoowah and Choctaw were approached with the idea of a sovereign, humanitarian and legal umbrella for the people. Their counsel was that ‘NATO should be a separate Indian nation that would be free of any connection with the Bureau of Indian Affairs so that ‘NATO’S services would then be available to members of all tribes, not just the Cherokee, Keetoowah or Choctaw.
Generally, when people ask if a tribe is recognized by the Federal Government, they are really asking if that tribe appears on a list of B.I.A. supervised tribes – for the Bureau of Indian Affairs is about the only entity keeping such a list while at the same time not being the exclusive authority or source of these lists. However, there are many tribes that do not appear on the B.I.A. list; and, it is interesting to note that non-supervised tribes seem to fare much better financially, in general, than supervised tribes.
Therefore, recognition is a separate and different legal construct than supervision. How does one ascertain recognition? It is evidenced by the existence and application of a tribe operating on a tribe-to-tribe and/or tribe-to-government basis. ‘NATO has not only maintained legal, political, and business relations with other tribal governments and including Federal, State, and Local government entities, but also has worked with foreign government entities as well. We have a wealth of correspondence from government officials and other Indian Tribes at all levels in several countries, all dealing with ‘NATO on a government-to-government basis.
A major reference text used by the United States Supreme Court is “The Handbook of Federal Indian Law,” by Felix S. Cohen. Page 270, details the legal status of Indian Tribes; and, states:
The practical question, then, is, who were the Indians whose amity was to be maintained? Who were the Indians so affiliated with the depredators in fact that the depredators might reasonable be regarded as a part of them and they be be regarded as a body whose amity it was desirable to maintain.
In dealing with this question, the [Supreme] court has held, first, that a Nation, tribe, or band will be regarded as an Indian entity where the relations of the Indians in their organized or tribal capacity has been fixed and recognized by treaty; second, that where there is no treaty by which the Government has recognized a body of Indians, the [Supreme] court will recognize a subdivision of tribes or bands which has been recognized by those officers of the Government whose duty it was to deal and report the condition of the Indians to the executive branch of the Government; third, that where there has been no such recognition by the Government, the court will accept the subdivision into tribes or bands made by the Indians themselves.
(Tully v. The Apache Indians, 32 C. Cis. R., 1.) . . .
The question of what groups constitute tribes or bands has been extensively considered in recent years by administrative authorities of the Federal Government in connection with tribal organization effected pursuant to section 16 of the Act of June 18, 1934. A showing that the group seeking to organize is entitled to be considered as a tribe, within the meaning of the act, is deemed a prerequisite to the holding of a referendum on a proposed tribal constitution, and the basis for such a holding is regularly set forth in the letter from the Commissioner of Indian Affairs to the Secretary of the Interior recommending the submission of a tribal constitution to a referendum vote. In cases of special difficulty, a ruling has generally been obtained from the Solicitor of the Interior Department as to the tribal status of the group seeking to organize. The considerations which, singly or jointly, have been particularly relied upon in reaching the conclusion that a group constitutes a “tribe” or “band” have been:
1) That the group has had treaty relations with the United States.
2) That the group has been denominated a tribe by Act of Congress or Executive order.
3) That the group has been treated as having collective rights in tribal
lands or funds, even though not expressly designated a tribe.
4) That the group has been treated as a tribe or band by other Indian tribes
5) That the group has exercised political authority over its members,
through a tribal council or other governmental forms.
Further, the Technical Corrections Act of 1994 (Pub. Law 103-263; 108 Stat. 707) which amended Section 16 of the Indian Reorganization Act of 1934, 25 U.S.C.-476, clarified that the Indian Reorganization Act was not intended to authorize the Secretary of the Department of the Interior to create categories of federally recognized Indian tribes. The intent of Congress is that all tribes are Historic irrespective of their origin because of genealogical connections. A person’s ancestry cannot be adjudicated or legislated. (This sounds like my DNA argument on; "DNA vs fishing rights" )

The Supreme Court has rendered decisions in the modern era that tribes have an existence independent of any recognition by Congress and that tribalism is ultimately a matter of self-determination. Tribalism continues until the members themselves extinguish it. The court pointed to self-determination as the key factor in establishing a legal Indian entity, notwithstanding Federal recognition. Menominee Tribe of Indians v. United States, 391 U.S. 404; United States v. John, 437 U.S. 634.
Because of the unique legal status of Indians in American jurisprudence, legal doctrines often must be viewed from a different perspective from that which would obtain in other areas of law. White Mountain Apache Tribe v. Bracher, 448 U.S. 136,143. Moreover, “standard principles of statutory construction do not have their usual force in cases involving Indian law.” Rather, “the canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,766; Oneida County v. Oneida Indian Nation, 470 U.S. 226,247.
For instance, a tribe is unlike a city or other subdivision of a state. When a question arises as to the power of a city to enact a particular regulation, there must be some showing that the state has conferred such power on the city; the state, not the city, is the sovereign body from which power must flow. A tribe is its own source of power. Thus a tribe’s right to establish a court or levy a tax is not subject to attack on the ground that Congress has not authorized the tribe to take these actions; the tribe is sovereign and needs no authority from the federal government. Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149.
Two consequences have emanated from the fact that tribal powers are inherent and not derived from the federal government. First, the provisions of the Bill of Rights that restrict the federal government have been held not to apply to the tribes. Secondly, inherent tribal powers do not violate the Fifth Amendment provision against double jeopardy for the tribe and the federal government to prosecute a defendant for the same offense; both independent sovereigns are entitled to vindicate their identical public policies. Talton v. Mayes, 163 U.S. 376; United States v. Wheeler, 435 U.S. 313.
The right to change is consistent with the protection against the effects of the passage of time. Tribes requested and received assurances from the United States that tribal lands and societies would be insulated from outside forces – and build “strong fences.” These assurances against encroachment are formed into Nonintercourse Acts, protective statutes and judicial doctrines. Winters v. United States, 207 U.S. 564; Fisher v. District Court, 424 U.S. 382; Kennerly v. District Court, 400 U.S. 423.
The most basic and fundamental to the establishment of a tribal entity is membership. “Enrollment” is a common means of establishing membership in a tribe, but it is not the only means. A person may be a member of a tribe without being enrolled. Membership criteria may be established by tribal ordinance or custom and will be unique to that tribe. “The Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” Montana v. United States, 450 U.S. 544, 564.
25 USC
Section 450. Congressional state of findings
(a) Findings respecting historical and special legal relationship, and resultant responsibilities
The Congress, after careful review of the Federal Government’s historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that –
 (1) the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indian of the full opportunity to develop leadership skills crucial to the realization of self-government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities; and
 (2) the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons.
25 USC
Section 450a. Congressional declaration of policy
(a) Recognition of obligation of United States
The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs of those communities.
(b) Declaration of commitment
The Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in planning, conduct, and administration of those programs and services. In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.
In conclusion, inherent native sovereign powers existed prior to the advent of European discovery of the Americas. The right to govern ourselves is not dependent upon the approval of The United States Government or anyone else. Our societies and the right to govern are embedded in the fact that we as indigenous native peoples exist and have never surrendered our right to govern ourselves or to be self-determined. Our powers to govern can only be limited by mutual agreement through government-to-government relations as exhibited by some 800 treaties signed by tribal governments and the United States, and through legislative and judicial decisions that are based on those treaties.
“Mitakuye Oyasin”
(We are all related)

Well now you know why tribes have sovereign and we have to treat it at nation to nation!
Cowlitzfisherman

Slug,

Thanks, I think. I know enough to know that there is a lot that I’m not qualified to explain, and I usually try to stop at that point. Happy New Year!

Rich,

Yes, I think WDFW always has a choice to listen to the public or not. If a large enough public - and this BB is a very tiny public - sponsors a biologically and socially and legally sound management policy, then the odds of WDFW adopting it are high.

Treaty tribes have the right to adopt whatever management policies they wish, so long as they don’t reduce the value of the non-treaty right or jeopardize the fishery resource. Of course, there is a lot of room for legal wrangling over terms like “reduce the value of . . .” and “jeopardize.” Terminal area river gillnet harvests of steelhead are not likely to ever be “precise,” in my opinion. Real-time management relies on estimates, and a certain amount of error is generally assured.

Foregone opportunity is real as a concept, but legally untested as far as I know as a matter of allocation law. Thus far, both tribes and WDFW have had their reasons to avoid adjudication and alleviating the vagueness. I generally disfavor hanging out in areas of political or legal vagueness, with its inherent switching of positions as the occasion merits. I’m of the “call this spade a shovel” philosophy and prefer to be clear about meanings. Since the concept remains untested, it remains available to use as a scare tactic or whatever other need suits a person or entity. Raising foregone opportunity as a caution is OK with me because uncertainty does exist. Using it as a scare tactic is wrong because it presumes to know an outcome that is unknown. That said, my preference is to deal with it. And one of the best mechanisms for doing so that I know of would be to launch an official WDFW policy change to manage wild steelhead for MSR and deep six MSH. If such a test failed legally, then is the time to regroup and develop another alternative. Admitting defeat now is premature and serves to keep us boxed in the anachronistic thinking that harvestable wild steelhead actually occur in significant numbers in this state anymore. I wish they did, but the statistics tell a woefully different story.

I think MSR is but one of the future strategies that will be employed to maintain recreational fishing opportunity in Washington State. It will make a good fit with specific river plans to buy significant fractions of harvestable treaty steelhead shares and have them left in the river to enhance recreational fishing.

Grandpa,

In your previous post in this thread you used the phrase, “The forgone opportunity hammer the tribes hold . . .”. If I’ve read you correctly, you generally indicate your support for WSR conditioned upon its universal application to everyone, including the tribes. That ain’t gonna’ happen; therefore, I interpreted your meaning as being opposed to WSR under the conditions it could actually occur. If I misunderstood your support, and that your support for WSR is not conditioned on its application to tribes, then I’m wrong and I do apologize. I try to make as few assumptions as possible, especially incorrect assumptions.

Thank you for the compliment. I strive for accuracy even here, on a fishing BB.

CFM,

Happy New Year to you, you old codger! Hey, a certain river is dropping, dropping. Want to consider an outing in the next day or so? Call if you do.

How does it work that tribes harvest wild steelhead on rivers where you and I are prohibited? Well, several ways come to mind. First, if a river has a hatchery run, but there are no harvestable wild steelhead this year, the recreational fishery is restricted to WSR for conservation reasons. The tribe may harvest some early returning wild steelhead while targeting hatchery steelhead. That is permissible because the threshold bar for conservation is much higher for the state fishery than it is for treaty protected fisheries. That’s part of the life ain’t fair rule, but Boldt wrote that the state may regulate treaty fisheries for conservation to prevent a tribe from taking the “last spawning salmon.” Now, some tribal lawyers have interpreted that to mean that the state cannot close a tribal fishery if the population contains more than one male and one female salmon and steelhead. Of course, that is stupid, and the state has closed tribal fisheries above that level that were nonetheless in dire straits. But legally, well, we know that murderers are occasionally turned loose on a legal technicality. Part of the life ain’t fair rule.

Another thing that happens, is that harvestable numbers of hatchery and wild steelhead in a specific river system are aggregated. If there are 5,000 harvestable hatchery steelhead and 1,000 harvestable wild steelhead, that’s 6,000 total harvestable, with each fishery allocated 3,000 harvestable. So the side that fishes most in the late season usually ends up harvesting the higher number of wild fish. In years past, the Skagit worked this way, and the tribes focused their fishing in the early season, taking mostly hatchery fish and the sport fishery spread out from December thru March taking a smaller % of the hatchery fish but harvesting the preponderence of the wild fish. Now with more restrictions and few Indians fishing for steelhead, I’m not sure how it’s playing out.

Treaty tribes are generally represented by government or taxpayer provided attorneys, but some hire private attorneys with their own financial resources. I wouldn’t say they are the best attorneys money can buy, but they’re not bad. Big corporations and energy utilities have the best attorneys I’ve ever dealt with.

On the final note, I said I wasn’t qualified to explain. Need I say more about less?

Sincerely,

Salmo g.