FNW responds to letter from PSA president

The sentences in quotes are taken directly from the recently circulated letter from Ron Garner, the president of PSA. Our responses are directly beneath.

  1. “A Fish NW advisor on our PSA State Board meeting talked about this lawsuit and he said that he sees this as the end of fishing”.

What was actually said was “…if something isn’t done about the North of Falcon process soon, this could be the end of salmon fishing in Puget Sound”.

  1. “Are we ready to roll the dice on shutting down our fishing with the possibility of it not reopening for years, or possibly forever? This lawsuit could do that. This has to be said”.

FNW’s lawsuits seek to address existing inequities in allocation and return cooperative management to North of Falcon. FNW is not seeking, nor will its suits result in, long term or permanent fishing closures.

  1. “What has happened in the last 7-8 years is the warm water blob off of our coast really damaged our marine environment. It killed off our salmon and their food web. We saw scrawny fish return from it and you have to remember that these fish were the survivors. Most others died off.  Recently the warm water has subsided and the ocean temperatures have dropped where our fish reside. It is colder than it has been in years.”

What did happen seven years ago was the State’s ESA permit expired leaving the North of Falcon process vulnerable to manipulation by the tribes. Warm blobs and scrawny fish are smoke screens meant to deflect from the real issues of the lawsuit; allocation of harvestable salmon and fairness in the NOF process.

  1. “We are seeing snowpack in the mountains again and just had one of the best herring and anchovy spawning events in the PNW in many years. These are all positive signs that things are getting better with marine survival. So now it looks like the salmon are going to rebound.”

FNW’s lawsuits are not addressing climate change or the oceans ability to sustain life. The suits are intended to address the unequal allocation of harvestable salmon and lack of fairness in the NOF process.

  1. “This lawsuit could take away our ability to fish when they come back. The ocean and coastal salmon are rebounding with some problems of a few rivers. The Puget Sound is starting to look like it might rebound in 2022.”

If Puget Sound salmon returns do rebound, FNW’s lawsuits will have set the stage for further increases to recreational fishing by already addressing allocation disparities and unfairness within the NOF process.

  1. “We have a resource problem-not enough fish. When our hatchery production was cut, we were making 163 million more hatchery chinook and coho in 1992 than we did this year. At the average return rate of 1% would put 1.63 million more fish annually in Washington state, for us all to catch. That’s a big reason why we were fishing instead of fighting over the last fish.”

FNW is 100% behind increased hatchery funding and production of fish. However, if there are no seasons open to catch hatchery fish, then what are the license purchasing/tax paying anglers of Washington State paying for?

  1. “The tribes were against these cuts too. The Endangered Species Act started cutting the hatchery production, then Hatchery Science Review Group or hatchery reform was next putting more constraints on hatchery production. Then continued funding cuts since 2008, on WDFW who makes the fish for us to catch was added onto the stack.”
FNW is 100% behind increased hatchery funding and production of fish. However, if there are no seasons open to catch hatchery fish, then what are the license purchasing/tax paying anglers of Puget Sound paying for? 
  1. “The reason we are not fishing is due to a lack of fish. The warm water has had a major impact on fish and fishing. Stilly Chinook has been below the low threshold for 4 years now. The blob started in 2014 and didn’t fish last year’s winter fishery because of being 4 fish short.”

FNW is not disputing some wild Puget Sound chinook stocks are in decline, but the evidence is clear that hatchery stocks remain abundant and harvestable. If NMFS is going to allow fishing on those healthy, harvestable hatchery stocks, as well as incidental impacts on wild stocks, then those harvestable fish need to be equally shared.

The Tribes and WDFW have documented that degraded spawning and rearing habitat currently limit the productivity of Chinook in the Stillaguamish River system.  The co-managers’ 12% limit applied to Stillaguamish hatchery chinook was the reason for Puget Sound sport fishing closures in 2020.  That limit has no scientific basis and is not supported by NMFS or required as a condition of permitting under the ESA.

  1. “We have several things we are working on now on the Stilly to help it. Mid Hood Canal and Stillaguamish Chinook are drivers in these years of low abundance. Look back at last year’s PS salmon returns and tell yourself that the fish returns were good. They were not and the reason North of Falcon was so restrained as the forecast was correct.”

The 2021 blackmouth season was closed because of the co-managers agreement to (1) limit the impact on Stillaguamish hatchery chinook in southern U.S. fisheries to an exploitation rate of 12%; (2) provide the majority of Stillaguamish chinook available for harvest to tribal fisheries; and (3) to not consider reasonable and scientifically valid regulation of size limits to marine sport fisheries that would have eliminated the need for closure.  

  1. “We are fishing on the tribe’s permit. They voluntarily write us onto their permit for us to fish. WDFW doesn’t do this. Tribes do. The tribes pay the fees for our environmental impact statements and pay the fees required to put us on the permit.” 

NMFS approves the State’s use of the ESA Section 7 BIA permit, not the tribes. With regard to who pays the fees, heck, FNW will pay them for the State if it helps recover our seasons.

  1. “NOAA says once we apply for a permit that it would probably take about two years to complete it. If we are removed from the tribal permit, that at a minimum of 2 years we don’t fish.”

There has only been rumors and speculation. Those rumors of 12-18 months have been used against the recreational fishermen as a scare tactic, as it is being used here, to keep them from demanding the State pursue their own permit (ref 2016). If the State had pursued a Section 7 one year permit, or a Section 4 (d) ten year permit in 2014 when the previous Section 4 (d) permit expired, then the playing field at NOF would now be level and the FNW challenge would not be necessary.

  1. If Wild Fish groups challenge our permit process and say that more information is required for us to get our permit. They could tie it up by adding additional asks, prolonging our process for additional years. This could extend it 3-4 years. Per ESA there is a possibility that we might not get a permit.”

If either entity, be it the State or tribes, are not complying with the NMFS biological opinion under the ESA, any permit application makes itself vulnerable to a challenge by outside groups.

  1. “What changes put us here? ESA came after the Boldt decision. Boldt decision declared the state to have 50% of the available harvest. ESA came along and determined what available harvest is.”

Neither NMFS nor ESA determines the available harvest.  In fact, the co-managers’ Resource Management Plan defines limits on harvest of wild stocks.  NMFS approves that Plan for permitting fisheries under the ESA but doesn’t specify limits such as the 8% for wild and 12% for hatchery Stillaguamish stocks.

  1. “This changed the way we fish and our fish are counted as impacts not dead fish. We impact multiple ESA listed salmon stocks. We run out of impacts before we catch our quota. Most tribes fish in terminal areas on adult returning fish and they do not typically get as many ESA stocks from other rivers this way, we do not.”  

The impacts of both tribal and non-Indian fisheries are accounted for in terms of dead fish, including catch and incidental mortalities.  Co-manager estimates are the source of the statement in the FNW notice depicting higher impacts with tribal fisheries expected for the 2020 season agreement.  The average across all Puget Sound wild stocks for that year’s agreement is 72% of the total impact associated with tribal fisheries.  

  1. “If a judge decides to grant the Fish NW catch sharing request (Lawsuit #2) of the Boldt Decision, to catch 50% of the fish, our fisheries would be moved to terminal areas (river mouths)”.

Without the restrictions imposed by the tribes as a condition to permitting under the current Section 7 approach, WDFW would be able to devise sport fishing seasons with increased opportunity in both pre-terminal marine and freshwater areas while maintaining impacts within fairly allocated shares of all Puget sound chinook runs. 

  1. “To get the 50/50 sharing, would most likely require the state to bring back the nontribal commercials to go head-to-head with the tribes, in the terminal areas to catch most of our nontribal share.”

Sport fishing has ample power to harvest the full non-treaty share of harvestable hatchery chinook and coho, and, with use of selective fishing regulations, to minimize impacts on wild stocks.  There is no reason to employ commercial gears for these species that are prioritized by policy of the Washington Fish and Wildlife Commission. 

  1. “Chinook and Coho were taken away from the NT commercials and given to the recreationals in the PS. So, if the State is required by a judge, to go back and enter into equal sharing with the tribes, it could be changed back to commercials doing the catching, not the sports, to satisfy the state requirement. “

WDFW is required to provide the opportunity to harvest the full non-Indian share but full harvest is not required.  

  1. “The only thing keeping the Puget Sound Chinook and Coho in MA 5-13 as recreational priority, is a few lines in the WDFW Commission policy. Those lines could be removed or modified per the judge, to allow the sharing to be evened up. FNW would have no control over how or where this goes.” 

Proper allocation of harvestable salmon and fairness within the NOF process will keep MA 5-13 open.  The federal courts are not going to address WDFW policies unless they conflict with the requirements of the Puget Sound Salmon Management Plan and the Boldt decision. The federal courts will also determine if NMFS is in violation of Section 7.   Lastly, FNW would in fact retain legal input and consultation throughout the case.

  1. “Once a judge decides that he or she is going to hear a case, all control of where either of these cases lands is lost. Fish NW cannot control the outcome.” 

FNW would not lose its voice because it went to court. On the contrary, one goes to court so they can have a voice.  The issue will be resolved by a judge consulting with the parties involved and comparing the facts of the case to the law. We believe the facts in this case point to a glaring inequity.

  1. “If you think you will just wait out salmon fishing to return by fishing for halibut, lingcod, rockfish, flounder fish, or even trout or bass, you might think again. Without a salmon permit we cannot fish anywhere where a single salmon or smolt could be incidentally hooked.”

NMFS biological opinions permitting to non-Indian bottom fish fisheries have not found these fisheries to have significant impacts on ESA-listed salmon species. What’s more, during the 2016 NOF impasse, WDFW publicly stated the 2016 bottom fishing season would continue as planned. Further, in the NMFS biological opinions used when authorizing recent salmon fisheries, NMFS concluded that the proposed actions are not likely to jeopardize the continued existence of each species of ESA listed rockfish or other species.   

  1. “All saltwater fishing will close. Every creek, canal, pond or lake that has any kind of connector that goes to a lake or pond that connects eventually to saltwater will be closed to all fishing. That means you cannot bass fish in Lake Sammamish nor Lake Washington. River fishing will close.”

See the response to statement 20 above. Past NMFS biological opinions used in permitting non-Indian fisheries have not found bass fisheries have significant impacts on ESA-listed species. 

  1. “Whether anyone wants to believe this or not, Tribal treaty rights are the only reason we are fishing on ESA fish stocks.”

It would be true to say that non-Indian fisheries cannot be managed in a manner that prevents achievement of Treaty Indian fishing rights. 

  1. “Tribal treaty rights were a treaty between the US and tribes trading fish and game for land. It is not going to be broken no matter how frustrated people are. A treaty is a formal legally binding written agreement between two parties in international law. It is not going to be changed.”

In addressing this, FNW would prefer to rely on ample and accurate descriptions of the history of Indian Treaties found in the record of federal court proceedings related to U.S. vs Washington and the Boldt decision.

  1. “Taken from the Facebook page of Fish NW. “What does “seeking injunctive relief” mean and what are the possible consequences? To seek injunctive relief in this instance is to ask a judge to look at our filing, and based on its merits, take immediate action which may include suspending all tribal and recreational fishing seasons. Yes, you are reading this correctly; filling this lawsuit on April 5th has the potential of holding up summer salmon fishing for Puget Sound anglers, businesses, and tribes.” In 2016, they still got their permit and we sat on the beach. Sounds familiar.”

This is one of the possible outcomes but certainly not an expected outcome. As our lawsuit describes, NMFS is in violation of its use of Section 7, and a judge will decide if that’s true.

  1. “After you read this do you really think the tribes will still be willing to write us into their permit for us to fish? Are you ready to sit for 2-5 or more years awaiting a permit?”

If there is no agreement with the tribes, WDFW can’t get approval based on the tribe’s submittal. At the same time, part of the lawsuit is arguing that WDFW is entitled to its own Section 7 permit, and should get its own permit. NMFS should be conducting a section 7 consultation on WDFW’s seasons based on the existing federal actions taken by NFMS.

It seems odd that someone who is supposed to be promoting and defending fishing opportunities for anglers in Puget Sound is putting so much time and energy into baseless and misleading attacks on Fish Northwest. Don’t you think?

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Brett Rosson