Smalma,
Good questions all...I'll see if I can do them justice.
1. You probably know the answer to this one better than I, but I guess I'd say "no".
"...'[H]arvestable' means the number of fish remaining to be taken by any and all fishermen, at usual and accustomed grounds and stations, after deducting the number of fish required for spawning escapement and tribal needs." U.S. v. Washington, 384 F.Supp. 312, 343 (1974).
Strictly speaking, this means each and every fish above escapement is "harvestable"...
Escapement, strictly speaking, the number of fish that is "reasonable and necessary to the perpetuation of a particular run or species of fish." Id., at 342.
This seems to me to say that the minimum amount of fish needed to stave off extirpation of a run is this "escapement", and that any fish beyond that is "harvestable".
Through my conversations with you, I think I've gleaned that this "escapement" and escapements set under MSY are not the same number. Escapement under MSY is the minimum amount of fish that will perpetually produce the greatest amount of harvestable fish without appreciably changing the amount of fish that make it to the spawning beds each year.
To further confuse the issue, I believe that the co-managers throw in an additional conservation buffer up from the traditional MSY escapement level.
So that gives us three different definitions of "escapement", which in turn gives us three different levels of "harvestable".
Clearly, the co-managers can agree to any level of exploitation above the bare minimum described in the case. This would be strict MSY, or the modified MSY that I believe the co-managers use now.
Without an agreement to that effect, however, I'd say the default definition of escapement/harvestable fish would be the "extirpation" level talked about in the case.
I think, however, that either party could use newly and better understood science to keep the other from actually pushing that scenario. The court is mindful of the dangers of trying to strictly define and regulate such a variable and dynamic thing as an anadromous fishery. I think the co-managers are, too, so I don't see that issue coming up.
2. The "right vs. privilege" language refers to the extent of regulation that the State can legally impose on treaty or non-treaty fishers.
Non-treaty fishers can be regulated from a high of no regulation to a low of a total restriction on fishing whatsoever. Treaty fishers can only be regulated to the extent necessary for conservation of the species, and even then after avenues of non-treaty regulation have been used first to protect the treaty fisher's right to fish.
The "reciprocal rights/duties" idea that I'm suggesting in the "wisest and best use" area of the article relies more on traditional jurisprudence. Unless expressly denied one party or expressly retained for one party, rights and duties explained in court cases are reciprocal.
The court expressly held that treaty fishermen have fishing rights that are paramount to non-treaty fishing privileges. The court, however, in holding that the state could not tell the treaty fishers what they could and could not do with their fish, did not expressly say that the tribes could tell the non-treaty fishermen what they could or could not do with theirs, nor did it hold that the state didn't have the ability to do so.
3. "Harvest" under the Hoh v. Baldridge case was defined as "opportunity to harvest". Hoh v. Baldridge, 582 F.Supp 683 (1981).
My point is not that a WSR regulation will result in the same amount of dead fish as a harvest season would. I think using the latest wild fish harvest numbers, combined with the latest release mortality numbers, something in the neighborhood of 150,000 wild fish would have to be caught and released in order to approach the amount of fish directly harvested.
However, having access to the entire non-treaty share provides the "opportunity" to do exactly that. It won't happen, but the opportunity for it to happen is secured by the definition of "harvest".
I'd say that "playing with them" (your words) would be both exercising the opportunity to harvest, in what we would consider the "wisest and best" use of our non-treaty allocation.
You make an interesting point about needing to kill some fish, even if it is just hooking mortality rather than direct harvest mortality, to be exercising our opportunity to avoid foregone opportunity. I believe that if I make the argument in one direction, that our "opportunity to harvest" satisfies our "harvest" obligation, then I'd say it does indeed work the other way. To avoid foregone opportunity, we must exercise our opportunity to harvest, and that opportunity will have an associate mortality.
I could just as easily go with saying that even if every single fisherman in the state managed to get totally skunked and not catch and release a single wild steelhead, so that there is not even any incidental mortality, that we would still have satisfied "harvest" by exercising our "opportunity" to do so.
4. I'd say that #4 is more of a comment than a question, but I'll comment back.
There's no doubt that outside of our crowd, steelhead are just another salmon.
By law, however, the non-treaty allocation cannot be harvested commercially, so our economic value must come in other ways.
Using release mortality numbers and evidence of the eventual increase in anglers after the inception of WSR/CnR (B.C., PS CnR seasons, other CnR fisheries around the nation for other game fish), the economics, without hard numbers, are obviously in our favor.
Everyone buys gear, gas, food, clothes, lodging, etc. Some buy guides, too. The evidence shows that an initial downward trend in angler effort is quickly followed up by an increase that surpasses the angler effort before WSR was implemented.
So we have more anglers fishing and spending money, over fish that cost ten to twenty times more to harvest than before WSR, over fish runs that will be bigger due to the biological effects of more fish on the spawning grounds.
The economic benefits are obvious...however, it would be nice to have some hard numbers, as judges don't like to have their questions answered by "it's obvious, Judge, don't you see it?" That's perhaps a little more stupid than waving a red flag at an angry bull.
There are several studies involving dollar amounts on the WSC website, under articles, in the "Catch and Release Economics" section...but I won't bother copying them over here.
I imagine that a quick phone call to NSIA or NMTA would get me all kinds of numbers about angler dollars per day. Using those with the projected numbers of longer seasons and more fishermen should provide pretty clear cut evidence of the economic value of using our allocation this way. The guides I know are mainly WSR only on their boats, and they're never hurting for business. As runs improve and there are more fish to catch, I think it's safe to assume that it would be even harder to book a date with any guide.
While the amounts of fish and dollars may be a bit speculative, there's no speculation that the fishermen, fishing days, fish encounters, and dollars spent will be more if we have more fish.
There's also no argument whatsoever that a fish taken from our allocation and given to the treaty allocation would provide anything but a fragment of the economic value that it would provide staying in the non-treaty allocation. No tribal fisher could argue that a ten pound fish he could sell for $15 is more economically important to the economy than it would be if it were fished for and not even caught by non-treaty sportfishermen. It's probably a factor of ten more valuable to non-treaty fishers.
Given the uncertainly from above my question for you is how much of the harvestable wild steelhead should a given tribe be allowed to take to stay out of court? Is the risk of going to court such that allowing a tribe to take 70% of the harvest number a reasonable trade off? 80%? 90%?
Zip, zero, nada. I'd trade some of the hatchery fish for wild fish, but I wouldn't trade any of the wild fish for promises. I don't think we have to...I think we can win on the merits if pushed.
We really have nothing to lose. Worse case scenario is the tribes win on foregone opportunity, and plan on harvesting some or all of our allocation.
The Commission passes an emergency rule putting the WSR exceptions back in, followed up by a permanent rule, and we're back to square one.
Except now, anyone involved sees the treaty fishers as doing nothing but chasing the dollar...so far their best PR is the perception that they are "stewards of the resource".
I'd remind them of the old saying "Pigs get fat, hogs get slaughtered". They'll benefit from larger fish runs, because they still get half. Why be greedier than that?
You risk losing your PR, and we take our allocation back anyway. They and WDFW lose a chunk of management flexibility. Sectors that don't trust them already will really see red, sectors on the fence will be pushed away, and some of their supporters will either move onto the fence or maybe even over it.
I think we will win if it comes up...which is reason one to not push it.
They gain nothing if they win on it, and lose lots of things, reason two.
There's just no reason for them to do it.
Fish on...
Todd
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