I thought I would post this up to spread the word. NOF is fast approaching.
November 14, 2016 via email
Director Jim Unsworth Chairman Lorraine Loomis
WDFW Northwest Indian Fisheries Commission
1111 Washington St SE 6730 Martin Way East
Olympia, WA 98501 Olympia, WA 9850
Dear Chairman Loomis and Director Unsworth:
The Twin Harbors Fish & Wildlife Advocacy is a nonprofit corporation duly filed in the state of Washington. The stated purpose of the Advocacy is to “Provide education, science, and other efforts that encourage the public, regulatory agencies and private businesses to manage or utilize fish, wildlife and other natural resources in a fashion that insures the sustainable of those resources on into the future for the benefit of future generations.”1
Over the last five years, the members of the Advocacy have extensively researched the issues surrounding fisheries management in Washington state. Advocacy members played a significant role in adoption by the Commission of the management policies in Grays Harbor and Willapa Bay. At the same time, we have researched management practices in Puget Sound and the Columbia that closely resemble those used on the Coast. In doing so, we have adhered to the practice of providing commentary that is respectful and at the same time, lays out our position in as clear and precise fashion as possible.
We have come to the conclusion the controversies that plague the Department and the tribal co-mangers during the North of Falcon season setting process are rooted in two areas of harvest management. First, the “prior intercept” from Alaska south of salmon destined for Washington streams often results in over 85% of the harvest related mortalities occurring north of the Canadian border. As a result, the small percentage of fish remaining available for harvest is making it nearly impossible for the co-managers to adopt tribal and non-tribal seasons that satisfy in-state fishers without undermining the escapement needed for natural spawning populations. The efforts of co-managers to provide reasonable instate fishing opportunities are further complicated by declining habitat and poor ocean productivity. Then comes the significant restraints occurring when runs decline to the point we cross over the ESA thresholds as found in Puget Sound and the Columbia.
Earlier this year, the members of the Advocacy traveled out of state to address the Pacific Salmon Commission which effectively controls the prior intercept under the international treaty between Canada and the United States. We expressed our concern that the prior intercept was unfair to WA tribal and non-tribal fishers. More importantly, we raised the issue repeatedly that the prior intercept was interfering with our ability to manage fish runs to meet conservation standards. The tribal co- managers have raised the northern intercept issue for decades.2 We are now looking forward to the Department’s upcoming presentation to the Fish & Wildlife Commission regarding the northern intercept. We believe Washington taxpayers who have invested heavily into salmon production and natural spawning restoration are entitled to understand where and by whom the salmon produced in WA hatcheries and streams are being harvested and marketed.
1 Article 2 Purpose, Bylaws of the Twin Harbors Fish & Wildlife Advocacy 2 See U.S. v- Washington
Page 2, THFWA November 14. 2016
The second major challenge faced by the co-managers is the allocation of the fish available for harvest that actually make it back to WA waters. Recent disagreement between the co- managers has resulted in a threat to seasons, especially for the non-tribal fishers in Puget Sound. For many citizens, tribal and non-tribal, the NOF process seems mired down wherein co-management on harvest seasons appears to have evolved to “dual-management” wherein each side tries to manage in its own way. At this point, the Advocacy with those who have come to the conclusion the NOF season setting process is failing all the citizens, including those who don’t fish. The co-management cooperation envisioned by the courts in the rulings in U.S. v- Washington has deteriorated to the point NOF is deserving of the label “threatened” if not “endangered”.
While the Advocacy members are often approached by tribal fishers who are also trying to figure out why the fishing opportunities continue to decline, the frustration has reached the “boiling point” for many of those fishers utilizing licenses issued by WDFW. The relationship between the Department and its stakeholders can aptly be described as “in the toilet”. The Advocacy is not attempting to blame either co-managers or any of the staff involved in the process. Rather, we believe both co-managers need to recognize that the NOF process as currently utilized will no longer will pass scrutiny with most non-tribal and many tribal fishers.
The blanket of secrecy surrounding harvest discussions between the two co-managers has resulted in a mirage of public perceptions. We recognize perceptions are often off-base or completely inaccurate. However, perceptions become facts in many minds when accountability and verification is missing from the equation.
Examples of perceptions that the members of Advocacy hear regularly include:
- The tribal fishers want to exceed the 50/50 formula set forth in the Boldt decision;
- The Department is unwilling or unable to negotiate in a manner that its stakeholders can be assured their rights to half the fish will be honored
- The federal government (NOAA/BIA) is pressuring the Department to agree to the tribal seasons proposed by threatening to deny permits for state sponsored fisheries
- The Office of Governor and/or Legislators are likewise pressuring the Department to agree to tribal season proposals that disadvantage the non-tribal fishers
It is appropriate to recognize that tribal members are less likely to be disappointed in NOF than state stakeholders. As sovereign governments holding treaty rights to fishing, the tribal fishers can interact with its tribal leadership in ways non-tribal citizens can not. As a result, tribal members may feel comfortable with their representation in the process.
The non-tribal stakeholders are another matter. State stakeholders can only turn to the Department when seeking assurance their interests are being adequately represented. In the state culture, the citizens rely upon government transparency laws to participate and educate themselves. Unfortunately, the co-management harvest meetings between the co-managers are closed to the public. The speculation by many is the secrecy is supported either by the tribal co-managers, WDFW staff, or both. Regardless, the blanket of secrecy is a major impediment to the Department’s ability to maintain the confidence of its stakeholders. The closed process
Page 3, THFWA November 14. 2016
also results in the non-tribal sector becoming frustrated with tribal fishing due to the growing perception of unfairness.
The Advocacy fully recognizes tribal sovereignty and corresponding treaty rights. Since none of the members of the Advocacy are members of a tribe, we can only respectfully submit a request for consideration. In that spirit, we ask that the tribal co-managers consider allowing the tribal and non- tribal citizens an opportunity to observe (without participation) during co-management meetings wherein the discussion includes proposals for an upcoming harvest season(s). As clarification, the request does not extend to technical staff meetings wherein a harvest season is not on the agenda.
The Advocacy does not believe acceptance of our request would create an undue burden on tribal governments or infringe upon tribal sovereignty. Representatives of the tribes regularly participate in public meetings at the federal, state, and local government levels including fisheries co-management processes of the Pacific Fisheries Management Council and the Pacific Salmon Commission. To our knowledge, the only time the door closes is when representatives of the tribes meet with the staff of WDFW to discuss upcoming seasons within WA waters.
The Advocacy also extends the request for open meetings onto the Washington Department of Fish & Wildlife. Simply put, the Advocacy members are asking all the co-managers to recognize and respect the sovereign rights of the tribal and non-tribal citizens of the state of Washington under state law.
The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people’s business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Clearly, NOF violates at least the intent of the Open Meeting Act (OMA)3 quoted above. The Advocacy also believes NOF is contrary to the expressed sections of the act requiring decision makers with delegated authority to conduct its affairs in open meetings in a transparent fashion. Unlike times prior to the establishment of the Commission, the delegation of the rule authority from the Legislature to the Fish & Wildlife Commission brings the OMA downward to the Commission. Likewise, the delegation by the Commission to a group within the Department brings the OMA down to staff determining state sponsored seasons.4
Further, NOF results in agreed upon fishing season (s) negotiated behind closed doors. Said season is subsequently adopted into a WAC rule carrying the effect of law. The meetings held with the public are of little consequence to the decision earning NOF the common title of a “Dog and Pony Show”. The Advocacy believes NOF currently results in the Department operating contrary to the intention and expressed conditions of the Administrative Procedures Act (APA)5.
Page 4, THFWA November 14. 2016
While legal advisors to both co-managers may disagree, we believe the two state statutes referenced are applicable to WDFW staff during NOF. Further, compliance with these statutes can be fulfilled by the Department under its own will. While the tribes can choose to not allow the public to attend a meeting of tribal representatives, the Advocacy finds no statement within court rulings such as U.S. v- WA that grants the tribe the power to take the position “my way or the highway” while exercising its treaty rights of co-management. To the contrary, the state Supreme Court ruled state transparency law was applicable to the state entity when interacting with tribal governments.6
The application of the OMA is not stood down by the location where the meeting is held. The Department can not hold its meeting in Oregon and avoid application of the OMA. The same holds true for a NOF meeting held in a tribal office building located on a reservation.
Again, recognizing the sovereignty of the tribal governments, the Advocacy can only assert its rights with WDFW. We do point out that members of a tribe are also citizens of the state. As such, tribal members residing in Washington are likewise entitled to insist that WDFW honor their state citizen rights under state law.
We would prefer to avoid seeking a court ruling. Such a litigation would once again “pit the Advocacy member’s wallets against the state treasury”. Also, court proceedings can be lengthy and often leave uncertainty on how to proceed into the future.
As stated at the beginning of this letter, we are fully committed to assisting the public in management of natural resources for the benefit of future generations. The option that is unacceptable to the members of the Advocacy is to simply turn our heads and walk away. We also subscribe to the time tested philosophy of “more of the same will get you more of the same”. A simple and effective solution is to simply open the door and turn on the light so all can see. Transparency has proven time and again to be an effective tool for finding solutions to difficult challenges that are negatively impacting the relationship between governmental entities and their respective stakeholders.
We await your decision. NOF for 2017 is approaching rapidly and the Department will shortly file a CR101 onto the state register to notify the public. We respectfully suggest that time is of essence.
cc: The Honorable Members of the Fish and Wildlife Commission Governor Jay Inslee (via J.T. Austin)
National Oceanic and Atmospheric Administration (via Bob Turner & Kathryn Sullivan) The United States Department of Commerce (via Steve Haro)
The US Department of Interior, Bureau of Indian Affairs (via Amy Dutschke) Individual staff within the NWIFC and WDFW
Representative Brian Blake, Chair, House Agriculture and Natural Resource Committee Senator Kirk Pearson, Chair, Senate Natural Resources and Parks Committee
6 135 Wn.2d 734, CONFEDERATED TRIBES v. JOHNSON
Posted on Tue, November 15, 2016
by Dave Hamilton