WA Fish Commissioners Talk North Of Falcon Policies, Politics

As anglers demand more transparency in Western Washington’s salmon-season-setting process, a state Fish and Wildlife Commissioner is asking for clarification on how much daylight can be shed on the negotiations.

Certain aspects of North of Falcon are very public — the unveiling of return forecasts and meetings with sportfishers each March and April to shape fishery proposals, for example.

But other parts are not whatsoever, such as final state-tribal meetings on how to divvy up harvestable Chinook, coho, sockeye, pinks and chums.

WASHINGTON DEPARTMENT OF FISH AND WILDLIFE COMMISSIONERS MIRANDA WECKER, CONRAD MAHNKEN, LARRY CARPENTER, JAY KEHNE AND DAVE GRAYBILL. (WDFW)

WASHINGTON DEPARTMENT OF FISH AND WILDLIFE COMMISSIONERS MIRANDA WECKER, CONRAD MAHNKEN, LARRY CARPENTER, JAY KEHNE AND DAVE GRAYBILL. (WDFW)

That part of the annual talks have been particularly contentious the past two years due to low preseason salmon forecasts.

So before 2017’s begin with Westside tribes, Miranda Wecker of Naselle filed a “blue sheet” with WDFW to ask state staffers for a briefing on how laws such as the Open Public Meetings, Administrative Procedures and Public Records Acts govern transparency, as well as case law on their applicability to fishery negotiations between sovereign entities.

“Our laws include ‘sunshine laws’ that guarantee accountability and transparency,” Wecker stated during the Dec. 9 commission meeting during consideration of and comment on WDFW’s NOF policies. “The tribes may or may not have such sunshine laws. So when we get together to negotiate, is it necessary that we accept the relinquishment of these civil protections? Is that absolutely necessary or is it legal for us to do?”

The longest current serving member of the citizen panel and its longtime former chair, as well as a natural resources policy expert, Wecker is also looking for recommendations on how the process can be made more transparent in the future.

She heard an idea from a fellow member that morning.

Commissioner Conrad Mahnken of Bainbridge Island asked a representative with the state Attorney General’s office to look into whether outside observers could be put on WDFW staff on a $1 contract during the talks.

“It’s important to ask and answer that question,” said the retired federal fisheries biologist.

The commission is reacting to increasingly heated calls from recreational anglers as the agency it oversees also goes to the legislature with hat in hand for large license fee increases.

During the meeting, Tim Hamilton of Twin Harbors Fish & Wildlife Advocacy pointed to a 1999 delegation of authority from the commission that instructed WDFW’s director to include anglers and citizens in NOF.

“We’ve got to restore the public’s meaningful role,” he said during the meeting.

THE DISCUSSION FOLLOWS a late Chinook shock at NOF 2015 and long, drawn-out talks this year on coho and kings that cut into recreational opportunities — even as some tribal fisheries began before all was settled.

The strife hasn’t been good for either side or the comanagement process.

WDFW’s Fish Program manager Ron Warren told Wecker, Mahnken and other commissioners that tribes have been looking to “re-engage and repair” relationships as much as his agency has.

“What happened this last spring was not a good thing for the tribes either,” agreed Commissioner Larry Carpenter of Mount Vernon. “Many, many of the tribes were upset with the delays and finding a solution, with the way people were being painted into corners, the way we had all the feds involved coming and going. I think a lot of the tribes want to have a better process this (coming) year. I really believe that. I think (our) staff is ready to set the tone for that.”

(Editor’s note: It should be noted that the collective term tribes is often used by sportfishers but in reality the nearly two dozen individual tribes may not always operate as a block. The Coastal Conservation Association’s Andrew Marks put it this way at that Dec. 9 meeting: “It’s a collection of people who don’t like each other and don’t talk to each other, except when they have a common enemy.”)

“But I guess in closing, I do think openness and transparency is probably a very, very healthy thing,” added Carpenter, who is the vice chair and a Skagit Valley boat dealer. “And hopefully we can achieve more in 2017.”

Warren noted that allowing a small group into the discussions to report back to the wider sportfishing world “gives some credibility to what we’re doing behind closed doors,” but he also added that it had been met with a “stern no for this year.”

In fact, an organization representing 20 treaty tribes doesn’t appear much in favor of it, ever.

“Treaty tribes – as sovereign nations – are not bound by the state’s open public meetings laws,” the Northwest Indian Fisheries Commission chair Lorraine Loomis told KING 5’s Alison Morrow in a statement out earlier this week.

It should be noted that certain parts of Fish and Wildlife Commission meetings are closed to the public – – executive sessions where personnel and legal matters are discussed in private.

Loomis claimed that the “practice (of letting select members of the public sit in at NOF) ended after the observers publicly mischaracterized tribal and state negotiating positions, further complicating an already challenging process.”

But there are also whispers that the off-limits meetings have seen verbal abuse of WDFW staffers by tribal representatives.

Commissioner Jay Kehne of Omak, who acknowledged that he hadn’t been to NOF, stated that that “seems unprofessional and it seems maybe illegal.”

THE STATE AND TRIBES HAVE BEEN comanaging Western Washington salmon and steelhead for several decades now, but there’s growing angst among sportfishers — especially as runs have diminished in recent years — that we’re getting the short end of the stick.

Wecker said she felt there was a “sense that the federal government was ready and willing to serve the interests of the tribes in getting them out fishing, but didn’t have any sense of obligation or responsibility to the state’s fishers, as if the state of Washington’s citizens were somehow second-class citizens.”

“They are our government as well,” Wecker said.

From the perspective of “our government,” there’s a myriad of Endangered Species Act-listed stocks that the National Oceanic and Atmospheric Administration must watch out for.

And, of course, there’s that 1974 ruling by a federal judge which led to comanagement in the first place — the Boldt Decision and its affirmation that half the harvestable surplus be set aside for Westside treaty tribes.

“In the end, U.S. v. Washington is about the federal government bringing suit against the state over treaty rights,” Peter Dygert, the head of NOAA’s Anadromous Harvest Management Branch in Seattle, told Northwest Sportsman. “We do have a trust responsibility with the tribes. I think the state interests need to appreciate there’s a treaty right — and I think they do — but it comes with some consequences.”

Fair enough, but 2016’s extended negotiations also laid bare how dependent state fisheries are on reaching an agreement with all the tribes, and how to a degree individual tribes don’t even need to reach one with us to be able to prosecute certain spring fisheries.

In early May, the Lummi Nation, and Nooksack, Swinomish, Tulalip and Puyallup Tribes were able to begin fishing for Chinook because through Section 7 of ESA the Bureau of Indian Affairs found those fisheries would have limited impact on listed stocks.

A final state-tribal agreement was not reached until late May, but even then federal coverage for sportfisheries didn’t kick in until late June, when Skykomish steelhead, Cascade springers and Skagit sockeye could finally be opened.

Anglers had to sit on the banks for a long time, and with very few coho fisheries originally scheduled, it was a bleak year for the industry to look forward to.

“It puts us in a very difficult position because NOAA has been very blatantly on the side of the tribes and it is not an equal playing field,” said Commissioner Dave Graybill of Leavenworth. “Because of their position, we’re not in a position to win at all. But it enhances the ability of the tribes to delay because they know … they’re going to fish. (NOAA’s) best estimate for a separate path could be 18 months for permitting … They’re using it as a lever against us.”

The 18 months refers to NOAA having to run stand-alone state fisheries through the Federal Register, public comment, etc., etc., etc. By piggybacking a year’s fishery package with the tribes, that allows for the use of a federal nexus through BIA to fasttrack review and approval of state fisheries.

“If you don’t have access through Section 7, there’s just a practical constraint on how we could review a state proposal,” says Dygert. “It’s not a choice we have, but a feature of the Act.”

Maybe so, but it’s beginning to rub the wrong way.

Wecker said that WDFW shouldn’t “accept the status quo as unchangeable and inevitable.” She says she’d like to continue to look into whether state fisheries can be performed under a separate permit from the tribes.

Warren told her WDFW is looking into “individualized coverage so that if what happened last year were to ever transpire again that we would have some confidence in getting our constituents on the water,” but also stated that work has slowed due to workload and pursuing 2017’s permit.

Besides the timing constraints, Dygert says his staff would also need to look at stand-alone state fisheries in terms of treaty rights and “whether it meets 50-50 sharing.”

He really doesn’t seem too excited about running separate reviews.

He says that over three decades comanagement has allowed the state and tribes to meet their fishery needs without having to manage fish by fish to an equal split. WDFW’s North Sound and Strait of Juan de Fuca fisheries tend to harvest more than 50 percent of the available fish, while tribes tend to take more than 50 percent in the South Sound, Dygert says.

“I don’t think the state and tribes are in a good spot if there’s no agreement,” he says.

WDFW needs the federal permit and the tribes take a risk by going it alone,  Dygert says.

“I appreciate the frustration,” he adds. “The comanagement relationship is being tested. I hope they learned from last year” and do better this year.

Dygert says that NOAA stands ready to support the comanagers as NOF 2017 goes forward.

One thing WDFW appears to have learned from 2016 is to include in-season update placeholders in the LOAF, or list of agreed-to fisheries with the tribes, to be able to open waters that otherwise are scheduled to be closed due to low forecasts.

Something like that could have made opening coho on a series of North Sound river a bit easier than it was this year when far more came back than were originally predicted.

In January, the commission will make a final decision on that and other WDFW policies to carry out at 2017’s North of Falcon negotiations.

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