Former WDFW Employee Video Deposition 9/30/19

FIRST VIDEO DEPOSITION IN WDFW LAWSUIT SET FOR MONDAY SEPT 30, 2019

Scott Bird's resignation as reported in the above link is interesting insofar as he is an attorney and lying under oath could jeopardize his professional standing in WA.

True...not to mention it's perjury.

Did not know he is an attorney. It will be very interesting to see if AAG Mike Grossman is at the deposition, or perhaps Scott is representing himself now?!

Grossman woild probably be there just to see what was said as he will have to defend WDFW. An interesting piece would be if he represents Bird in any way if he is no longer a State Employee.

What would also be interesting is if Grossman has standing to be at a deposition if Bird is no longer an employee of WDFW. However, Grossman would no doubt have access to the results of the deposition under the rules of discovery.

My feeling is that Bird is a minnow in this circus. Resignation may allow him to name the toads.

Very much on point - where does the buck stop?

That would make an interesting pool, Larry.

The Gov's Office is, I believe, the ultimate Big Toad. But, this has been going on fro decades so Inslee is not really any worse than many predecessors. Within WDFW, I dunno. Certainly Phil, when he was there, is in the mix. I don't think that folks even at Warren's level are the actual instigators; just the implementers.

My thoughts as well hence my having used a version of "the buck stops here" Presidential quote. In short, at the top.

Now, how far will this lawsuit and its discovery process peel the bureaucratic onion?

What are these cats accussed of?

Update to: http://www.piscatorialpursuits.com/forum/ubbthreads.php/topics/1009794/WDFW_LAWSUIT:_RULES_COORD._SCO.html#Post1009794.

How'd it go?

So it's been a couple weeks. I haven't received any update via email but maybe I missed it. Any info on the depositions? After making a couple of contributions towards this I hope it doesn't stall out...

Okay. A new update is out. The fight continues.
http://thfwa.org/legal-issues

So the former WDFW Rules Coordinator was simply a paper shuffler??? AKA the Sgt. Shultz defense.......

Right. So a couple of things stick out to me:
Mr. Bird confirmed he did not know how or where a member of the public could find a complete record of the NOF process.
Is there even a record?

The actual seasons laid out in the forms were determined by a team within WDFW that included over 85 individuals.
OMG! Is that like 5 or 8 guys per season?

It's closer to 85 per year.

Let me see if I've got this straight. It takes over 85 individuals to write the rules that the tribes demand in meetings of which there are no public records of.

You can't make this stuff up!

"The team of 85" probably refers to the technical staff who develop the forecasts and do the fishery modeling along with the policy folks that participate in the annual discussions that eventually produce the seasons that converted to the regulation rules.

And each one of those technical folks knows how the regs for their particular waters must be written.

It is not easy to actually write a regulation that does what you intend it to do.

How many of those technical folks does it take to write "closed"?

And the new darling of the regulation crowd; "Closed to avoid gear conflicts"
Really? I've set my rod down next to netting before and not once have they become "conflicted"!

85 doesn't surprise me. I heard a few years ago that within the anadromous fish section of WDFW's Fish Program, from December through mid-April 70% of all staff labor is directed toward NOF. That's a lot of staff time and tax dollars spent. Given that the outcome of NOF is tribally driven and dictated, this has me wondering if we would notice any difference in NT salmon fishing seasons if WDFW didn't participate at all in NOF. I mean we are investing millions of dollars annually in NOF, so what exactly are we getting for our money?

Got a question for you Salmo, based on your experience in/near NOF and the Fed Mindset.

When there was the argument over the MA10 fishery, the Tribes went and got their fisheries "approved". NOAA said that they could do the Tribes faster than the NI.

But, IF (and the is a big IF), the Tribal fisheries are based on expected NI fishery, and they must be in order to evaluate impacts, then reviewing one must include review of the other because if NI don't fish the run sizes and stock compositions all change and the impacts are different. Seems to me that unless one side proposes the other has no fishery, any analysis has to include both, and approval of one has to include approval of the other.

It sure seems like the approval process hinges on the iterative analysis of both T and NT fisheries, but I don't think it needs to. So long as whatever fishing is proposed doesn't exceed allowable ESA impacts, NMFS has no dog in the fight. Absent ESA impacts, it's just an allocation decision between the co-managers. But because the NOF process is a harvest allocation down to the very last paper fish, and harvest is limited more by ESA impact limits than stock abundance usually, approval is contingent on the sum of all modeled ESA take.

I think that even without ESA impacts you have to evaluate both fisheries simultaneously because populations sizes differ absent on side's catch. I agree that with ESA it is simply allocation and NOAA doesn't care about that. But with ESA, not evaluating all fisheries directly changes impacts.

If they were to approve one without consideration of the other, then when number 2 came in they would have to re-evaluate 1. If there was an intent for something approaching accuracy. If the review is more is more ion an exercise in shadows, then no problem.

Another, more pressing question is: What role is the Bureau of Indian Affairs (BIA) play in the approval process for permits.

It is because the tribal permit requests are sent first to the BIA, that their permits get fast tracked through NOAA. Since having the BIA in the tribal "approval" chain creates a nexus of "multi-federal agencies" and therefor qualifies for fast tracking.

The state does not have the additional step of passing it's permit application through another federal agency before submission to NOAA, therefor, the states permits go on the bottom of the stack. Taking months if not years for approval.

This, then has lead to the the practice of the state asking the tribes if we can "piggy back" our permit request on theirs in order to have the states looked at by NOAA at the same time, and have approval done in time to have a season.

Consequently, it sets up a "quid pro quo" scenario in the North of Falcon negotiations. Even if it is not said, it is understood, that IF the state does not AGREE with what tribal negotiators offer, then the state CANNOT piggy back on the tribal permits! Which, of course means, the states permit application goes to the bottom of the stack at NOAA. The result...the Tribes fish, the state waits for permit approval for months if not years.

So, this brings us back to original question: What role does the BIA have in the approval process? Having sent several request to the Director of the Bureau, and receiving no reply to our request. And not having any satisfactory answer from anyone associated with WDFW, nor the Northwest Indian Fisheries Commission, I suppose we will have to wait for the lawsuit to find out.

If the BIA were not in the approval chain for the tribes, the playing field would be a little more level...and isn't that how "Co-management" is supposed to work?

Bay wolf,

The BIA has next to nothing to do with treaty tribal fishery management as a general rule. Until it serves tribal interests, which in the case of ESA approvals, it coincidentally does. It's not so much a matter of "fast tracking" or "slow tracking," but basic attributes of permitting processes under the ESA. Section 7 consultations - that can result in a permit approval by NMFS - are between federal agencies. WDFW is not a federal agency. Treaty tribes are not federal agencies. So neither can consult with NMFS under Section 7. However, the BIA is a federal agency, so the tribes bundle their Puget Sound fishing plans in a BIA planning document and have the BIA as a figurehead do the consultation with NMFS. Section 7 consultations are quite routine, and by law must be completed within 135 days (although many of the complex consultations take 2 years or longer despite the legal requirement). And many Section 7 consultations are completed much faster than 135 days, and since NMFS participates in NOF, they are aware of the fish abundance forecasts and the proposed fisheries and can process the BIA consultation quickly under the rules of Section 7.

WDFW has no pathway to use Section 7 unless the state fishery plans are attached to the treaty tribes' plans and submitted together to NMFS under the BIA consultation. And this is how and why co-management breaks down. Co-management can only work when both parties share roughly equal power. Under the current permitting process the tribes possess 100% of the power, so they have no incentive to accommodate WDFW interests other than basic allocation sharing under US v WA.

I think WDFW's only recourse is to persue an independent permit under Section 10 of the ESA, known as a "Conservation Plan." Section 10 consultations are between the federal agencies, either USFWS or NMFS, and a non-federal party, either private like a person, corporation, or a state agency like WDFW. For example, WDNR has a Section 10 Conservation Plan known as the "Forests and Fish" plan for management of state timber lands to protect ESA-listed species. WDFW could develop a Conservation Plan for Puget Sound marine and freshwater fisheries, but it would be a general multi-year plan, missing the specific numbers of fish of each ESA stock, which would have to be supplemented on an annual basis for NMFS review and approval. NMFS doesn't want WDFW to do this because the present system of the co-managers using the BIA consultation is easier for NMFS to process. However the current process is obviously broken, and it isn't WDFW's job to make NMFS' job easier.

It will take a lot of pushing and shoving for WDFW to go the Section 10 route, but it is doable if they have the spine to work for their non-treaty constituents (98%) and not just the treaty constituents (2%). It would take a couple years to complete that Section 10 Conservation Plan, and it would be up to NMFS to reconcile the disparities between the tribal and state annual plans, something that NMFS doesn't want to have to do. But under the rules of problem ownership . . . NMFS would get to explain to a federal judge why WDFW should be forced to use a planning system in which it has no negotiating power even though US v WA is clear about equal sharing.

Every day that WDFW delays in developing its own ESA permit it is hurting the 98% of constituents who pay the taxes and license fees that keep the doors open and the lights on at WDFW . . . and the paychecks coming regularly.

This is probably a stupid question, but since there are fisheries inside the Federal Park System could they piggy back on a proposal from the Park system to ok a fishery in the park? I realize the Park system would have to agree, but perhaps political pressure could let it happen. With the Orca issue, perhaps there is another one that would work with WDFW. Lastly, I wonder how an agency could approve a plan knowing that it might be in violation of a federal court order, and purposefully ignore that issue. That is, they know any fishery must, by court order, include co management or an agreement on the split. It seems they should know that by agreeing to the tribes proposal, without including the state, they are agreeing to a fishery that is in disagreement with a federal court order. It is clear that the tribe is taking the path to avoid the court order under Boldt and the NOAA is participating in allowing this to happen.

As we see daily in politics, it is only a problem if someone takes legal action in response. WDFW won't respond, therefore it is acceptable.

The kicker in Boldt is that, while shares are define, planning is defined, that the two sides can agree to deviate. WDFW apparently has agreed that the Tribes can do what they want. The agreement supersedes the Decision unless it is taken to Court. The betting is that nobody will. Ask the folks in the Twin Harbors how difficult court is.

Questions for those in the know......

Could WDFW if they had the gumption, apply for a section 10 permit in the background and still allow fishing under NOF agreements in the interim?

Say it took three years to get the section 10 permit. During those three years they negotiate with the tribes and come to an agreement each year at NOF.
Now the fourth year rolls around and they get the section 10 permit and say goodbye to NOF....or would all NT fishing need to stop during the section 10 permitting process?

Maybe a better way to ask this is can there be two permitting processes going on simultaneously?
SF

The annual after action (NOF) hand wringing inevitably brings out the call for a separate permit for WA State (WDFW). As soon as the separate permit discussion begins the "risk" of there being no permit for the State fishery during the permitting process comes up.

As with prior posts I am going to opine that the process is broken. Co-management/NOF is a sham. And hiding behind closed doors during the NOF process is symptomatic of that failure and also perpetuates it.

What needs to occur is a paradigm shift and WDFW could (and should) toss that rock by applying for its own permit and see what happens.

Salmo:

Thank you for a very succinct description of the situation and what could/should be done.

Krijack: Just remember that the BIA is a component of the Dept. of Interior which also manages National Parks. In short, NP and Dept. of Interior are not neutral parties.

If the Tribes found out WDFW was going for their own permit they just "might" blow up NOF and just go off by themselves. The two process sound fine, but as Salmo said, one side holds all the cards. Or at least they hold all the cards willing to be played.

That would be interesting especially if NOF was being live streamed.

If WDFW were to submit and the tribes essentially boycott NOF resulting in no agreement would BIA (again) issue a permit? Would Commerce/NOAA/NMFS in response issue an interim permit to WDFW? How much pressure would our Congressional delegations put on all of the involved Federal agencies? Paradigm shift????

Larry, I doubt if anybody would support the State. NOAA already rolled over last time. Heck, I doubt the Gov and Leg would support WDFW going off on its own.

Then we seem to be doomed......

The Governor and many Democratic legislators receive campaign contributions from casino-owning tribes. It's reasonable to assume that they are "owned" in terms of what they will direct WDFW to do. It's up to the Commission to direct WDFW's Director in regards to what action to take. And it's up to us to tell the Commission what they need to do to serve the 98% of their constituents who pay to keep the doors open, lights on, and paychecks coming to WDFW.

Salmo has it. Bought and paid for legislators make the policy decisions long before NOF. We do have the power ($) to get policy made more in our favor, but in order to realize that dream, we'd have to be willing to compromise on the dumb issues that divide sport fishers and open up our wallets, and those are two things we've shown we're not inclined to do. (Not suggesting I think it's okay that anyone with enough money can buy the political outcomes they want; just stating the reality of why NOF is the joke it has become.)

The governor and legislators are all whored out for re-election money. Until campaign reforms happen and money is taken out of the equation (not like this will ever happen) these "people" will never do what is best for the fish and the fishermen or the country, or the environment.