Need to add that IF The DFW Commission writes public oversight into the NOF policy, we will more than likely lose our fishing season because the Tribes have absolute control over the permits and will almost assuredly NOT participate in the negotiations if the public can see what’s going on in the meeting. This is what Director Unsworth has said repeatedly and why he will do nothing other than ask the tribes permission to have transparency.

Unfortunately it is increasingly apparent that it will take more than just us disenfranchised recreational fishers being negatively affected to have the potential to effect a meaningful change.

Protest at which door?

WDFW? I actually still believe they would like to have that visibility so do we demand that they install the camera, show up and wait to see which tribal reps actually walk in and sit down? Or for not moving forward to request its own permit rather than being piggybacked on the tribal permit process?

NOAA? For not moving forward to separate the tribal and State permits on their own recognizing the intolerable position the State is in?

BIA? For being a shill for tribal interests thereby subverting the ESA responsibilities of NOAA?

All of you that think the tribes can refuse to negotiate and the state can do nothing are drinking the Kool Aid. I keep harping on it, but the state all ready has a way for recourse. The path has already been laid out by the courts. Unfortunately they keep trying to live up to the bicentennial accord which calls for negotiations, when the tribe is not. (the accord states that neither side is bound by the agreement to only negotiate and that judicial relief is still an option in times of disagreement).

I believe that bringing back the court mandated Fisheries Advisory board is the only path the state can take if the tribes refuse to negotiate. Any attempt to seek judicial relief or federal help would most likely lead to the final conclusion that there is already a remedy laid out. The state is simply lying when they say they have no recourse. Every time they say they have no recourse simply retort back, go back to the Fisheries Advisory board. It may be a messy process and not the best path to take, but if we have no other choice the state needs to do it. Perhaps if they did it once or twice in obvious cases the tribes would start negotiating in good faith again.

Larry, I think trying to get a separate permit could easily be shot down as it is not the court prescribed method when there are disagreements.

I for one am willing to sacrifice the entire 2018 season to make things right. It's time to put the foot down.

Speaking of permits, WDFW is rewriting FW regs. Extending seasons. How have the tribes and NOAA responded to that?

The FAB may be the best way to go. I am pretty sure that the formal (adversarial) meetings are on the record. As such, anybody could read what was said and how the decision was reached. It would mean going against the Centennial Accords. Werethe purpose of those to ensure the Tribes' got their way?

I voted no. Just don't know what it would accomplish. I think we would lose opportunities.
I would prefer to remove WDFW from the process, they don't represent the recreational community.

Pretty much agree with your assessment of the situation. One question. In prior discussions and meetings I never once heard that obtaining a separate permit would be a violation of a court prescribed methodology for dispute resolution. Lots of hand wringing that it would take several years, etc. etc. but never that it could not be done. So, to the question.

Would not the issuance of a permit by the BIA also have been in violation of the court prescribed methodology?

I think that the BIA permit was in violation, but the state never challenged it. The tribes had the same path to resolution that the state did. They likely knew they would lose if they went to the Board, so they simply got a permit from the BIA and started fishing. Remember, this all just my opinion. I just can't see how the courts could ignore a standing order and issue a new path. It should be pretty clear that the state does not want any conflict or simply has no idea what they are doing. We just need to keep pushing the correct way. Until I hear a good reason as why the Fishery Advisory Board won't work or that that pathway has been closed by a binding legal agreement or court ruling, I will continue to believe that it is the correct way to get a resolution to any dispute for which a solution can not be adequately negotiated.

I don't believe that the NOF process is enshrined in a Court Order. Even pre-Centennial Accords there were negotiations at PFMC and such. As I recall, NOF was developed to have a single, joint process.

It was NOAA that said they could issue separate permits but their "special relationship" with the Tribes would get a permit faster. The BIA action was probably not legal but nobody had the huevos to challenge it.

I am still learning the process, but I think it goes something like this. The PMFC divides the fish among the states. Then, Oregon and Washington and the states meet to divide up the allocations in the state. The first division would not be under Boldt, but the second is. At this stage, the tribes and the state are court mandated to split the fisheries at no less than 50% of harvestable numbers. What happened in 2016 was that the state of Washington could not get the tribes to agree to negotiate in good faith. Alaska, Canada, Oregon, and California could fish, but the Fisheries in the State of Washington were in limbo. At this point, the process would fall under the court mandate in Boldt. If no agreement could be reached in any area, they were ordered to each present their side to the Fishery Advisory Board and then the Board would make a decision and forward that to the court which would make a decision, usually agreeing with the board but not having too. The Centennial Accord was an agreement to stop using the Board and just negotiate in good faith as best as possible. The process is a whole lot cleaner this way, with each side reaching an agreement that should be somewhere close to the middle. The agreement, how ever, acknowledged that at times this might not work and that no one was giving up their right to address the courts if necessary. NOAA is not under the court order and probably could issue any permit they wanted, but I do not think that the order would mean anything if the order was challenged. Really, the NOAA should have nothing to do with it. This is a state issue that settled in BOLDT. Does anyone think the NOAA could issue a permit that gave 100% to either side? If they are not subject to Boldt then what difference would it make?
Again, I am just starting to learn this but I think I am starting to get a grasp of it all. What I assume happened is that the state and tribes could not get NOAA approval for any fisheries of the states total shared until the tribes agreed. The tribes simply ignored it all and got approval from the BIA, which really has nothing to do with the process. I am not sure if the NOAA then agreed to the fishery or if they simply stepped back. The state then rushed to the tribes and gave them what they wanted so they could get a the NOAA approval for there share. The proper and court ordered path would have been for the state or the tribes to petition the courts and take the issue to the fishery advisory board and then eventually to the courts. The federal departments should have stepped back until this took place. They should have nothing to do with the internal division within the state, except I can see their point that since both side have 50% of the fisheries, both sides would have to sign off on the agreement. If one side refused to and no court direction was given, then they step back and wait for the two sides to go through the process. Which is what they did. An issue of a permit for one side or the other in an adverse situation (sides don't agree) , especially one from the BIA, most certainly appears to be in violation of the court mandated process.

So yes, agreements have always taken place at the north of Falcon meeting, and under the best circumstances that is how it should be done. When an inability to reach an agreement takes place, then the courts were always a possibility. The truth is, both sides realized that the Board would almost always come out with something that they could just as easily get to. Since it was a whole lot messier, took a whole lot more time and effort, both sides agreed it was a waste of time to fight. The Centennial agreement was simply an acknowledgement of that fact. Since Billy Frank has died, however, the tribes seem to have forgotten how the process works and the state has simply caved into their new approach.

Remember, I know very little about all of this. I just have read the court orders ( they are all on line) and read some legal journal articles that discussed and outlined the history of the issue and how the courts ruled to solve the problems. So, feel free to point out where in the process I am off, for I am sure I am missing something.

I should clarify, that obviously the treaty is a federal issue, but that the division of fish listed in the treaty is left up to the states under the jurisdiction of the courts. So, I was wrong above to state that it is none of the Federal governments business. It clearly is, but they have left it up to the state and tribes to work out the agreement under the courts direction. With out the court order we would have no clear direction, which is what happened in 2016.

NOAA is involved because of ESA issues. Absent ESA they have no involvement. The permits they issue are for the take of listed fish. Boldt covers "harvestable" fish. It can be argued that a stock at less than biological escapement goal (MSY, for example), has zero harvestable. So, under a strict interpretation of Boldt there would be no take of those fish. No mixed stock fishing. Period. This would directly impact the marine mixed stock fisheries of the state and tribes (rec and troll) and the incidental take in Fraser directed fisheries. NOAA has to issue permits, and they seem to bend over backwards to ensure the tribe's get the fisheries they want.

This is a side bar, and only for clarification. Has anyone ever seen a physical copy of that mythical BIA Permit issued a while back? If so, how did you access or obtain it?

It was a letter from BIA. Because the Tribes are wholly soverign nations and immune from any sort of disclosure to the US Citizen rabble, it might not actually be available for public viewing.

President Clinton enacted a policy which was designed to reduce paperwork and to speed up federal approval process for agencies where multiple federal agencies were needed in the approval proses. For example, land acquisition where it had to go through the BLM, the Natural Resources and Department of Interior. Those requests with multiple federal agencies could be "Fast Tacked".

What the Tribes did, as an end run to get around having to wait, and consequently give themselves a clear advantage over the state, was have BIF put a check mark on their permit requests that need NOAA approval due to the ESA issue, effectively making it a "multiple agency" request. Thereby qualifying for "fast track"

The State (us) do not have a multiple agency situation, there for if we don't "piggy back" on the Tribes fast track, our permits take months to get approval. They fish, we don't. And they hold that over our heads in the negotiations...you can only imagine how that goes when all they have to do is threaten to walk out and we don't fish..think the state has a fair bargaining position?

This whole situation screams for a return to the Supremes. Alternatively, since DT hates anything Democratic, maybe he could be requested to issue an Executive Order to quash the Fast Track and put everybody on an equal footing.

If all the above is true--and I have no reason to believe that it's anything else--the practicality that the present Co-Management system will result in good faith bargaining, treat both factions fairly, and create any degree of ongoing cooperation is 0%. It totally escapes me how the various State agencies and Federal bureaus can ignore this nightmare and allow it to continue on, as is. The adverse of the old axiom "if it ain't broken...don't fix it!" certainly comes into play here. The system IS broken, IS totally dysfunctional, and IS in need of immediate modification. If a single check mark on a multiple "fast track" gov't. form can deprive or grant one party from fishing at the expense of the other, the end result is an epic fail. This isn't rocket science, dammit!

A slight clarification regarding NOAA/NMFS role. (Hope I get this right.) NMFS has oversight of PFMC and NOF to ensure that the process complies with the Magnuson-Stevens Fisheries Conservation Act (MSFCA) and the ESA. PFMC has a federal nexus and is subject to the relatively (speaking) quick ESA Section 7 review and biological opinion. PFMC and NOF covers ocean fisheries. Then comes fishing in "inside waters." This is subject to the Puget Sound Chinook Salmon Resource Management Plan, which is reviewed by NMFS under the ESA Section 4(d) provision that exempts specific activities from more extensive ESA reviews under Sections 7 and 10. When the co-managers agree on a plan, like the PS Chinook plan, NMFS conducts a speedy review for ESA compliance under the existing exemption of 4(d).

When the co-managers don't agree, all hell breaks loose from an ESA review perspective. The tribes used the BIA because, as a federal agency, a "federal nexus" exists, and the review and permit can occur under ESA Section 7, a formal consultation, that while extensive, and be fast tracked and was in 2016 so the tribes didn't miss out on any fishing. WDFW is NOT a federal agency, has no federal nexus, and has no access to ESA Section 7. WDFW could proceed under ESA Section 10, but that is more time intensive and wouldn't be completed within a single salmon fishing season. That means a permit for 2018 might be issued in 2019, but more likely in 2020. So not very useful. Further, the Section 10 plan and application would be reviewed against pre-existing ESA coverages like what the tribes would have through their more speedily reviewed and approved ESA Section 7 permit obtained via BIA. This is truly the tail wagging the dog, but it gets the tribes fishing for salmon in the same season that they are present, whereas the state has no such option.

WDFW needs to pursue a Section 10 long-term plan (they are limited to 5 years, maybe 10, can't remember), or have 4(d) re-visited - if that's even possible - so that plans independent of co-manager agreement can be considered and reviewed.

And all of that ESA-related stuff is independent of catch sharing under US v WA - Boldt.

Thanks for the clarification.

My question is, could not the state immediately apply for a decision under the FOB, limiting the tribes from fishing until the board rules, then run that agreement back to the NOAA for a fast track since a binding agreement exists. From past readings it sounded like the FAB could be assembled and make a decision very fast.

This passage comes from the North American Journal of Fishery Advisory Board could not agree on a proposed regulation opening or closing any fishery, Indian or non-Indian, they should follow the recommendation of the chairman unless and until the matter was brought to court for a ruling. As a result of this order, the chairman, in addition to providing advice on technical matters, became responsible for applying Management, Summer of 1985, Volume 5, Number 3 B and lays out one way the FOB was supposed to work.

" In a similar order for 1978 and subsequent seasons (Memorandum Order and Preliminary Injunction re Salmon Allocation for 1978 and Subsequent Seasons, signed 11 August 1978 and later amended in several respects), the court further provided that whenever the two sides on the Fisheries the principles of the Boldt decision to daily disputes over fishery management--but subject to judicial review. "

The article earlier describes the FAB and its role better, but this section seems to apply to what is going on with NOF.

I am still not sure how long it would actually take a functioning FAB to make a decision, but it seems to have been the courts intention for it to be able to prevent issues like what we are having

The entire article can be found here. http://wdfw.wa.gov/fishing/salmon/fishin..._management.pdf


The author's conclusion is well worth reading and is a one of the main reasons I keep going back to the FAB as the best, and perhaps only, answer.

The way the FAB worked was when there was a dispute, the two parties met in from of the Chair and presented their sides. The Chair ruled, at least initially best on the best science and law as Boldt outlined.

The parties had two choices. Accept the decision and file whatever regulations came from that or go directly to Court where the Chair (appointed by the Court as the Court's expert) would tell the Judge what the best science was in this case. The expectation was that the Judge would agree and then order compliance.

Decisions were often rendered at the end of the meeting. Recall that the FAB was primarily used in-season so a decision had to be made.

The first few Chairmen were pretty good scientists.

The Fisheries Advisory Board (FAB) worked pretty well in my experience too. I always liked Prof. Richard Whitney.

I thought it worked well, too. I dealt mostly with Fred Olney. It wasn't always for disagreements; we also used it to change agreed-to management. Just to formalize the action.

So, this begs the questions:

What needs to happen to get the FAB back, and who's gonna get the ball rolling?

One side or the other needs to request one. Has to be WDFW or one of the Tribe's with whom there is a disagreement over a fishery. Since one or the other has to call one, I doubt it will happen as the Centennial Accords and other agreements put it on the shelf.

So, it's not a viable option then?

There's no reason to believe it will be revived. The Tribes would rather things go to tribal court and WDFW will not do anything that might "upset" the tribes. It's a co-dependancy relationship where the tribes dictate and the department complies. As long as NO MAJOR influence steps in, things will continue in perpetuation, only getting worse until the Sportsmen are no longer able to fish for salmon, and the commercials, both Tribal and Non-tribal will wipe out the stock to extinction. Dismal looking future...

There is no reason that disputes would go to Tribal Court as they don't have authority over the State. That is why the disputes go to Federal Court as they have authority over all parties involved.

The Sportsman's only hole card is the license. Buy it, support WDFW.

From how I understand things, IF the state files against the Tribes, the tribes have an option to take the case to Tribal court or Federal. If the Tribes file against the State, it goes to Federal.

That's why the Tribes just keep not complying, they just wait out the State... Point no Point and Skokomish River come to mind.

I may be wrong. If there are any experts, please chime in.

I can't see how they can go to tribal court as it has no jurisdiction over the State. If it did, then the State would be subservient to the Tribe. Co-Management assumes equality. If the State has to be subject to Tribal Court they aren't Co-Managers but just stakeholders reliant on the Tribes' good will.

If memory serves, the option of going to Tribal Court was for the State to give up prosecuting Tribal members who violated both State and Tribal rules. Which os why, for example, they handled the crab poaching prosecutions.

The centennial accord has a disclosure at the end that seems to leave the option of going back to the FAB possible.
"Each of the parties respects the sovereignty of each other party. In executing this Accord, no party waives any rights, including treaty rights, immunities, including sovereign immunities, or jurisdiction. Neither does this Accord diminish any rights or protections afforded other Indian persons or entities under state or federal law. Through this Accord parties strengthen their collective ability to successfully resolve issues of mutual concern.
While the relationship described by this Accord provides increased ability to solve problems, it likely will not result in a resolution of all issues. Therefore, inherent in their relationship is the right of each of the parties to elevate an issue of importance to any decision-making authority of another party, including, where appropriate, that party's executive office."

I believe we just need to call the states bluff when they say there is nothing they can do and point out that they are lying and are just opting not to do anything.

The State has many reasons for not challenging the Tribes. The cynical would would say multi-millions. We continue to look at imbalances in fishing issues and that is probably small potatoes in the statewide scheme. Somehow, we need to find out why the State ( and this us above WDFW) is doing what it is doing.

And once it is known why, then what?

It's possible that the reasons driving the State's actions are in the best interest of all the citizens of WA. If we knew them. Or, they may favor one sector and if know, elections can change the players. I was taught that Knowledge is power.

Looking at the current political landscape I am not sure that is true, but I still believe it.

I think what is happening may be a combination of ignorance and the political wrangling Carcassman is talking about. It seems most of the time the State will tell us that the only option there is for them is to go back to court and sue the tribes. That does not appear to be the truth, but it is likely what the people we are talking to believe and have been told by those in charge. They are not paid to dig into the politics, just to do as directed. So when we make a call or ask a question about the path they are taking they will simply parrot back what they are being told and, likely what they believe. Breaking through the chain of command and demanding the full truth is what needs to happen. For years part of my job involved getting permits and wading through regulations and county agencies. I probably pissed off quite a few people, but I never stop asking why until I get an answer. At one point I had a representative start yelling and screaming at me. I knew nothing and the regulation in place was never changing. I ended up going to a county council member, who then called in a manager and asked him about why the regulation was the way it was. At that point it became clear that they simply had made their calculations the easiest way possible and really didn't care that they were grossly unfair or unrepresentative of what was happening in the field. I never will forget the look on his face when my council member stated, "So basically, you are just screwing people because it's easiest." There was silence, she looked up and said, "Get me something in a week or I will get the council to do it ourselves." It saved me about $20-$30 thousand at that time and complete changed the fee structure they were charging, probably costing the department millions. Twenty years later it I don't think anyone there could even envision them doing the calculations the way they were. But, I am not sure if I had not stood up to their bullying that it ever would have changed. Most of the people I know were afraid of rocking the boat and that they would never get another permit if they pushed it issue. Be polite, but never stop asking why until you get the right answer. Most of the times there is a good answer, but it has to be dug out as no one down low knows why, nor do they care. Once you break through, most of those on the top know the issue and will work with you. Pushing those who don't know understand will only get you enemies.

It's not just "wrangling". The business community was/is worried that Tribal push on Bildt II for habitat will kill business, especially big business like Boeing, Weyco, and the like. The habitat hammer is a big one. Got to build bigger hangers to build those big planes and there is a huge environmental impact. If the Tribes, or a Tribe, could stop it dead that would be bad for business. Look at how they have been able to work the various port/fuel loading issues.

I agree with Krijack about how siloed and kept in the dark many staff are. Many a time I knew and agency policy that was totally unknown to the folks I was dealing with. Had to educate them.

In the case of WDFW, it's the Senior leadership who is giving out half truths and are failing to do everything to work towards a real solution. Senior Leadership!! Not staff. These are the guys who are paid BIG MONEY to know, and to fix things when they are brought to their attention.

For example, they tell us repeatedly that "There is nothing else they can do other than ask the tribes for cooperation in opening up the NOF meetings. They say, the Tribes are sovereign and do not have to obey the state Open Public Meetings Law. What the DON'T TELL US, is that if the Commission truly believes what they have been saying, about Transparency being so important and vital, all they have to do is ADD a few words into the North of Falcon policy when they vote to adopt it and WALLA! Transparency is now MANDATED by law! Of course, the tribes can now choose to attend or not, but the meetings must, by law have public oversight!

So, why didn't they do that last year when we asked? Why did they bring in the lawyer to give a presentation on how they can get around it?

Because, they are AFRAID of the TRIBES!!! Plain and simple!

They've known about the piggy backed permit problem for a long time. They've know that it was being used to get concessions that in a fair system would not happen.
They knew that IF the public found out about what is REALLY going on, all HELL would break loose.
So, they did nothing, and still say there is nothing more they can do but ask the Tribes permission.... That is the Ugly Truth!

I think some of the tribes are just as scared about Boldt II as the state is. There is that pesky clause Boldt added in about a moderate income. There is no way the tribes would be willing to disclose how much they make or where the money is going to. A quick glance, however, would indicate that many members have more than adequate means to get a moderate income by means other than just fishing. In addition, the tribes have benefited greatly from most of the same development that they would be fighting. Strip malls, a sea port, large timber tracts, hotels, casinos, etc. It is very possible that a reopening of Boldt would determine the tribes can easily make a moderate income from other investments and from other fisheries beside salmon and Steelhead, such as crabs, clams, sea cucumbers, gooey ducs and that the income from these new fisheries is well beyond the original income that they could have imagined from the fisheries taking place at the time of the treaty. Not all tribes have these options, but the ones that do are those that are making the most trouble. A guaranteed fishery that meets subsistence and cerimonial purposes could be all they truely are guaranteed

The thing in Boldt (Supremes review) tied the fish share to a moderate living. They were entitled to 50% or a moderate living from fishing, whichever was smaller. The Commercials begged WDF to litigate moderate living in the 80s and the state wouldn't. Some would argue, then, that the harvest taken in the 80s did not meet the moderate living level.

I think we keep missing the idea that it is the State, not WDFW leadership, that is driving the bus. The whole state has too much to lose, so they believe, to challenge the Tribes.

Was the "moderate living" language really tied solely to fishing income? It has been my recollection that as their general economic status increased that the tribal fishing share could be reduced.

I believe the specific language was that the Share was 50% or a moderate living, whichever is less.

The other aspect to remember is that their share includes C&S. Note that as the number of tribal members increases the subsistence need goes up, too. It is also recognized that conversion to a northern European diet has led to diabetes and other diseases so they probably physiologically need to eat fish.

My feeling is that a readdress should allow for the tribes to 50% of the share or enough for subsistence or ceremonial. In cases where there is excess above the basic tribal needs the tribe and state would split the left over. What that does is take away the tribes ability to fight for historical levels but allows them to fight to keep adequate runs and basically clean waterways. Luckily, with the casino money coming it, there suddenly are new requirements to be a member.

The original Boldt Decision gave the tribes 50% of the off reservation commercial catch. C&S and on reservation did not count in the sharing. Don't think you really want to go back to that. It was the Supremes, the second time around I believe, that lumped all catch together.

The Tribes have threatened to take to AK catch to court and have that count against the NI share. Don't know if they would also go after the WA rec catch in BC, too.

If the Tribes want to have the runs restrored to levels at treaty times I am all for that for the watersheds that still have lots of anadromous access. In the other areas (Columbia, for example) hatcheries will be needed.

That was a mistake, carcassman, what I was trying to say was that if there was enough to justify both fisheries the Non-treaty side would get half, but that the C&S tribal fishery would always take precedent and always be guaranteed. Which, considering the history and the fact that our/non-indian side did most of the habitat damage, is probably fair.

I would agree that C&S should take precedent over all other harvest. Same up in AK. If you subsist on salmon, regardless of race, then you are first in line. The folks way out in the boonies can't hit safeway whenever they want.

People ahead of profit.