The pathway has been cleared for WDFW to obtain its own section 7 permit, independent of the treaty tribes, but only after FNW directly challenged NMFS to reform its position

In 2014 the co-managers (WDFW and the Puget Sound Tribes) multi-year ESA fishing permit issued by National Marine Fisheries Service (NMFS) expired. This permit had allowed each of the co-managers to conduct fisheries under their authority. To this date, the co-managers have not agreed on the specifics of a new multi-year management plan. Without such a plan, the co-managers have obtained federal authorization to conduct their fisheries with NMFS approval of a series of single-year fishing plans using an ESA permitting process known as section 7. But access to that permitting process was not equal for the co-managers. NMFS and the treaty tribes took the position that the tribes were able to obtain a section 7 permit, but NMFS told WDFW that the ESA would not allow the state agency the same process. WDFW was told the only route to permitting available was for non-Indian fisheries to be considered under the tribes’ section 7 permit (commonly referred to as ‘piggybacking’). Notably, this required agreement with the tribes on all fishery issues for the North of Falcon process to move forward. And if the WDFW did not agree to the demands of the tribes, then the recreational fisherman would not be allowed to fish that year. And so, over the last eight years of North of Falcon negotiations, WDFW repeatedly capitulated to the tribes’ demands for managing non-Indian fisheries that weren’t necessary to meet ESA conservation objectives. Taking the path of least resistance, WDFW acquiesced to NMFS’s initial assertion that the state’s own consultation was unavailable, and the recreational fishermen of Puget Sound paid the price.

Some in the recreational fishing community persisted in pointing out the absurd nature of this situation and asked WDFW why they did not push NMFS for their own permit. We were repeatedly told that NMFS could not consult with the state under section 7 of the ESA, and therefore a pathway for the state to be granted its own permit did not exist. And so, in January of this year, after becoming fed up with watching their fishing seasons being gutted, the board at Fish Northwest decided to challenge the WDFW’s misinformed unwillingness to pursue section 7 permitting independent of the tribes. In short, if significant fishery issues remained irreconcilable through the normal North of Falcon negotiation process, then Fish Northwest would resort to the courts in an attempt to bring about an equitable resolution. In January Fish Northwest filed a 60-day intent to sue both NMFS and WDFW in the Federal Court, Western District of Washington. In April the suit was filed.

Just days ago Fish Northwest obtained the 2021 Biological Opinion (BiOp) written by NMFS. In the BiOp, NMFS acknowledged that it is legally required to consult concerning state fisheries pursuant to Section 7 of the ESA. What this means, in short, is that the WDFW can now obtain its own section 7 permit independent of the treaty tribes and the Bureau of Indian Affairs (BIA). What’s more, NMFS is required to conduct the consultation, and the BIA was never the proper basis for a section 7 permit. Lastly, and perhaps most importantly, WDFW could have, and should have, pushed NMFS to allow them to obtain their own permit back in 2014. Had they taken this clearly available alternative path to permitting, outcomes of the North of Falcon process for the last eight years would have been much different, providing real opportunity for non-Indian fisheries to harvest a fair share of healthy, available salmon stocks and avoid the closures we’ve seen that are unnecessary to meet the conservation needs of our salmon.

Of note, NMFS completed the Biological Opinion in just 5 months (January to May). Hardly the 12-18 months needed that was floated by some, and last week WDFW and the Puget Sound Tribes finally began formal (and Federally mediated) meetings which will eventually lead to a multi-year management plan.

Things are slowly beginning to move in the right direction, but it’s going to be a long, painful, and expensive haul before we see our seasons restored. Please consider donating.

Brett Rosson

President, Fish Northwest

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Brett Rosson