Fishnorthwest.org

https://fishnorthwest.org/
"On Jan 29th, 2021 FNW filed a sixty-day notice of intent to sue for violations of Section 7 of the Endangered Species Act."

Any news on this? Was thinking of contributing some $$ to the cause. Would it be worth it? Is there any chance for success?

Even in retirement, Miranda Wecker is a SUPERSTAR!

I read her ENTIRE declaration... and it thoroughly outlines the problems of public distrust due to lack of transparency in the NOF negotiations with the treaty tribes.

She also highlights the "insufficiency" (dare I say incapacity?) of WDFW in managing salmon populations for sustainability. Instead, the wild salmon population trajectory is one of progressive depletion practically everywhere the critter swims... even in largely "habitat-intact" basins that could otherwise stand out as veritable salmon strongholds. Even there, salmon are slowly swirling the toilet bowl toward extinction.

And just like all the past presidents in my lifetime who have rhetorically pledged to balance the budget and reduce the national debt on their personal watch... the fiscal monster perpetuated by each administration (regardless of red or blue) only plunges the nation ever deeper into exponential and unsustainable debt.

WDFW pays similar and notoriously EMPTY lip service to its supposed mission to preserve, protect, and perpetuate the wild salmon resource. Instead their historic performance record is shamefully steeped in negligent and progressive overharvest, habitat degradation, and depletion... but that charge wouldn't make for a very poetic mission statement.

The present leadership at WDFW has boxed itself into a state of utter irrelevance. Yeah everybody's working hard and spinning their wheels.... but to what end?

Beyond discouraging.

Patillo's declaration regarding NOF inequities and forgone harvest by WDFW-managed fisheries shows that on average the sharing of chinook harvest in Puget Sound is about 60:40 in favor of the tribes. Impacts on wild chinook are even more disproportionate... closer to 75:25.

Bottom line, too many fish are being harvested to sustain viable populations... and the state is being bullied into an ever smaller share of that harvest.

Bingo, Doc. Too many fish are being harvested. I am seeing conversations in Canada that they herring resources, which is a food base for salmon, is being clobbered so that industry can fish.

The whole NE Pacific ecosystem is poised for a giant crash and WDFW is simply content to pick up a few pieces annually, keep the lid on, and trust in people's short memories.

I wish them luck. I can't see how WDFW is compliant with law even though the AAGs argue othewise. And it's pretty clear that NMFS is forcing WDFW to "negotiate" with PS tribes with "a gun to its head." And the whole BIA sec. 7 nexus is weak sauce at best, but likely isn't without precedent.

Like the GOP Senators were never going to convict, the State and Feds are not going to challenge the Tribes, unless the Tribes ask them to.

Not understanding this part...

Can you expound on the Section 7 ESA violations to which this group is filing suit?

WDFW needs a permit, as do the Tribes, in-hand I think. The suit may be at least in part because the players' are simply "wink-wink" agreeing to fish without dotting the i's and crossing the t's. WDFW has shown a penchant for not complying with the law in setting seasons because the law is inconvenient in its application. May be the same thing.

Fish Doc - Let me try to help. Apologies for the lengthy post.....

Both Tribal and Non-Tribal fisheries in Puget Sound catch salmon listed under the ESA. So both Tribal and Non-Tribal parties need ESA clearance from NMFS to implement their respective fisheries. The easiest way to get ESA clearance is thru Section 7 of the ESA. But Section 7 only applies to actions that a Federal agency “authorizes, funds, or carries out”. For the most part, the ESA is set up to regulate Federal actions, primarily thru Section 7, but non-Federal actions also effect listed species.

So how do non-Federal actions get ESA clearance? That occurs thru a Section 10(a) permit or a 4(d) rule which allows non-Federal parties to receive a similar clearance as Section 7. (Note that 4(d) rules only apply to species listed as ‘Threatened’. Species listed as ‘Endangered’ cannot be covered under 4(d)).

Getting a Section 10(a) permit is difficult, complicated, labor intensive, and time-consuming for everyone (NMFS , the Tribes, and WDFW). To get around this, the Tribes enlisted BIA as their surrogate Federal agency to get clearance under Section 7. By using BIA, the Tribes are able to get ESA clearance without going thru Section 10(a). WDFW has no such recourse. But NMFS gave them a way out. NMFS appears to have told WDFW that they would issue them ESA clearance (I’m not sure what legal mechanism they’re using) but they have to negotiate with the Tribes. If the negotiations were successful, both Tribal and non-Tribal fisheries could proceed. If they were not successful, the Tribes would proceed under Section 7, but WDFW would not proceed at all. If so, this puts WDFW in a tough spot.

I agree with Salmo G that hitching ESA clearance to BIA is weak. BIA does not ‘authorize, fund, or carry out’ any Tribal fisheries. But BIA is a Federal agency, so NMFS is assuming they can speak for the Tribes (in this case only). The petitioners appear to be challenging this arrangement. I haven’t read the filings so I can’t comment on the strength of their arguments. But this regulatory arrangement does seem rather unique, and would suggest that having a court review it would provide legal clarity. I won’t place any bets on the outcome, but the legal history of fisheries in Puget Sound isn’t favorable to the State of Washington.

Hope this helps. I may have more to say after I read the legal briefs.

I think that the tribes and WDFW submit a single List of Agreed Fisheries, with the tribes as the driver so that they can use the dubious strategy that cohoangler outlined above.

This has a great benefit of relieving the WDFW from the necessity of justifying their fisheries under the ESA's 4(D) rules...but comes with the great detriment of in essence needing the tribes to sign off on any fishery you'd like to prosecute, or it won't get in the LOAF, and won't have ESA coverage.

Were co-management not so broken this would be a great management route to put together fisheries and have them approved; they are virtually rubber stamped under this process. As it stands now, the tribes use this to their advantage to pretty much tell the State what fisheries it can and cannot prosecute.

If someone wanted to blow up the whole shebang and make the tribes and State follow the law, and perhaps get their own permits, well...attacking this lame Sec. 7 process is a pretty good route.

Be aware, however, that the State would get to craft its own fisheries without the tribes having to sign off on them, but would also have to conduct and defend its own ESA analysis of the fisheries. Things like shutting down our PS coho fishery a few years ago and then putting out gillnets wouldn't happen so easily, but other fisheries that we conduct that have dubious scientific underpinnings for ESA purposes will get far more scrutiny.

Fish on...

Todd

It took years and years of terrible management to get us to this point, and no one has taken any responsibility even though hundred of "prescriptions" have been offered. Many of them, if adopted by leadership could have made a real difference. Prognostication: Olympic Peninsula steelhead will be listed next. Overheard in the halls of WDFW: "We sure managed them fish good while they lasted".

Cohoangler captured this well. There must be a federal nexus in order to conduct a Section 7 ESA consultation. BIA is a federal agency within Dep't. of Interior, but it does not permit, fund, or carry out treaty tribal fisheries. There might be a weak link - indirect - where BIA funnels federal Rights Protection funds to tribes that the tribes then use to manage a fishery. But ask a treaty tribe any other day of the year what connection BIA has to treaty tribal fisheries management and they will say not a damn thing. The tribes are often openly hostile to BIA - long history, long story.

Since ESA listing is for "Wild Chinook", that is the linch pin that impacts all the other salmon fisheries. It's wild chinook impacts that drives the application process and, ultimately the approval permit.

Since it is clearly documented that Tribal non-selective fishing impacts wild chinook at a much higher rate than non-tribal commercial and certainly recreational.

Having a court rule on the current ESA permit process is warranted, as it apparently results in violations of wild chinook impacts that have been ignored.

The tribes contend that such a legal argument is an attempt to restrict the use of non-selective gear (Gill nets) and consequently cultural and historic concerns.

No matter how it's approached, the Tribes are not only prepared, but very well funded and politically backed to proceed with a lengthy court battle since they are assured the end result will ultimately result in the only party that does not have federal protection loosing the ability to fish.

Take a guess who that "party is".

The ESA doesn't care who kills the Chinook, or how, only that there is a permit and that the amount killed is covered by the permit.

The ESA also doesn't care if the tribes get 95% of the allowable impacts and the rest of us get 5%.

US v. Washington does care who gets the impacts, but also doesn't care how they are attained, whether it be by catch and keep, catch and release, or gillnet...and if the tribes and State share the catch, the tribes will likely get a significantly higher portion of the impacts, since their chosen method of fishing uses more impact per fish harvested than ours.

At the end of the day, the ESA cares about how many dead wild Chinook there are, the Boldt Decision cares about how harvest is shared, and the allowable impacts are the nexus that connects the two.

Fish on...

Todd

+ a million

Fish on...

Todd

"Since it is clearly documented that Tribal non-selective fishing impacts wild chinook at a much higher rate than non-tribal commercial and certainly recreational."

Yes, but that is why NMFS divvies up the incidental take differently. The Tribes are allocated more of the incidental take since their impacts are higher.

We need to remember that NMFS is NOT divvying up the allocation. They're divvying up the incidental take under ESA such that both sides achieve the 50/50 split. For example, on the Columbia, the Tribes are allocated about 70% of the incidental take and the State-managed fisheries are allocated the other 30% (for fall Chinook). When these percentages are applied to the annual run-size, the total allocation should be about 50/50. Any residual differences are made up by another process called 'catch balancing', but that's another issue for another thread.

Todd has it right. I just added some extraneous details.......

Unless things changed, at least in PS, the allocation os by region of origin. NOT all of PS. The split is 50:50 for each stock/regional aggregation. So, in south sound, the split is 50:50 for S Sound Chinook or coho or chum and not Minter, Kennedy, Green River, Puyallup, etc.

The problem I have with the Tribes going it "alone" because of no agreement is that their fisheries have to be evaluated against something. Either a situation with no fisheries other than theirs or with some sort of NI fishery. Approval has to cover that situation. Now, the state might not agree, but those fisheries have to be approved in order to approve the Tribal. Or, if the Tribal fisheries are based on no other fishing, then following agreement everything needs shutting down until the new situation is evaluated.