AN ACT Relating to establishing a mediation process to settle Indian tribal shellfish harvesting claims and regulating commercial shellfish harvesting; adding a new section to chapter 75.08 RCW; adding a new section to chapter 75.10 RCW; adding new sections to chapter 75.24 RCW; adding a new section to chapter 75.28 RCW; creating a new section; prescribing penalties; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. In 1854 and 1855, the United States entered into a series of treaties with the Western Washington Indians to insure peace and prosperity for the growing population of settlers. The Indians exchanged vast tracts of land for monetary payments and other minimal guarantees while reserving certain smaller parcels for their exclusive use. In each treaty, the signatory tribes expressly reserved the right to fish at all usual and accustomed grounds and stations in common with citizens of the territory. In addition to the right of taking fish, the treaties indicated that the Indians "shall not take shellfish from any beds staked or cultivated by citizens."

The interpretation of the right to fish at all usual and accustomed grounds and stations in common with citizens finally reached the United States supreme court one hundred twenty-four years after the treaties were signed. Years of fighting left its toll on both the Indian and non-Indian fishermen of this state. Feelings are still bitter over the way that the federal court system allocated this state's salmon and steelhead resources. Feelings are still strong about the roles of attorneys and the judicial system in the management of a natural resource.

While the United States supreme court addressed the allocation of the fishery, it did not decide the issue of the treaty right to shellfish. Some tribes have been engaged in the cultivation and harvesting of shellfish. Determinations or allocations regarding tribal shellfish harvesting outside reservation areas will probably affect both commercial and noncommercial shellfish activities of landowners, lessees, and members of the public.

The legislature finds that years of expensive court action to define the extent and applicability of the tribal shellfish right is not in the best interest of all citizens of the state of Washington. While the state recognizes that a right exists the legislature of the state of Washington encourages state agencies to negotiate and attempt to settle the claims to shellfish harvesting through a mediation process.

NEW SECTION. Sec. 2. A new section is added to chapter 75.24 RCW to read as follows:

Until a negotiated settlement is agreed upon by all parties or until the court determines the extent of the treaty right, the department of fisheries and the department of natural resources shall jointly establish interim shellfish harvesting guidelines for tribal members. The guidelines shall be aimed at identifying specific harvesting areas open to tribal harvesting. These areas shall not include privately owned tidelands, state-owned oyster reserves, state-owned tidelands that abut privately owned uplands which are or will be developed as residential within the next five years, and state parks during peak use periods.

NEW SECTION. Sec. 3. A new section is added to chapter 75.24 RCW to read as follows:

The director of fisheries shall contract with an independent mediation, conciliation, or fact-finding service for the purpose of organizing negotiations between the state and Indian tribal entities. The state interests in such negotiations shall be represented by one member of each of the following entities: The department of fisheries, the department of natural resources, the attorney general's office, the office of the governor, and the chairman of the citizens advisory commission on shellfish harvesting established in section 4 of this act. The purpose of the mediated negotiations shall be to attempt to settle Indian tribal shellfish harvesting claims arising as a result of a treaty right. All parties that represent the state shall negotiate in good faith by representing all citizens of the state in its effort to reach a settlement of the Indian tribal shellfish harvesting claims.

The parties who participate in the mediated negotiation process are urged to reach a mutually agreeable settlement on or before December 31, 1988. If a settlement is reached and approved by all affected treaty Indian tribes and state interests, the settlement shall be recorded in federal court for Western Washington as evidence of the settlement of all pending and future claims to shellfish under the treaties.

NEW SECTION. Sec. 4. A new section is added to chapter 75.24 RCW to read as follows:

The citizens advisory commission on shellfish harvesting is hereby created. The commission shall consist of seven members appointed by the governor. Two members shall represent the citizens in general, two members shall represent commercial shellfish growers, two members shall represent residential tideland owners, and one member shall be a shellfish biologist. The commission shall select a chairman from its membership, who shall preside over the meetings of the commission, as well as participate in the mediated negotiations between state agencies and treaty Indian tribes. The purpose of the commission is to allow citizens to have a voice in the settlement of the Indian tribal shellfish harvesting claims.

The citizens advisory commission on shellfish harvesting shall hold at least ten hearings throughout the shellfish harvesting areas of the state for purposes of receiving input from the public on constructive ways to settle the tribal shellfish claims. The chairman of the commission shall report the commission's findings to the legislature and to all the entities participating in the negotiations on or before June 1, 1988.

The office of the commission shall be at the administrative office of the department of fisheries in Olympia and the staffing needs of the commission shall be provided by the department of fisheries. The commissioners shall receive no monetary compensation for their services but shall be reimbursed under RCW 43.03.050 and 43.03.060 for travel expenses incurred while attending official meetings of the commission. Travel expenses shall be paid to the commissioners by the department of fisheries.

The commission shall cease to exist on June 30, 1988.

NEW SECTION. Sec. 5. A new section is added to chapter 75.28 RCW to read as follows:

(1) A commercial shellfish collection license is required for the licensee to harvest commercial quantities of shellfish, except razor clams, from state-owned tidelands. The annual fee for the commercial shellfish collection license shall be as follows:

!tp1,1,2 !tlResident!tl$!sc ,00150.00

!tlNonresident!tl$100.00

(2) It is unlawful for a person to harvest or transport commercial quantities of shellfish, except razor clams, from state-owned tidelands without having on one's person a valid shellfish collection license or a valid Indian treaty tribal identification card.

Harvesting commercial quantities of shellfish is legal only during specific open seasons, in specific geographic areas, and with specific methods as authorized by rules of the director of fisheries.

(3) No person is eligible for a license under this section who has twice been convicted of violations of this section. Bail forfeiture shall be considered a conviction for purposes of this subsection.

(4) As used in this section and section 6 of this act, "commercial quantity" means harvesting or transporting an excess of twice the limit set by the director for harvesting shellfish for personal use.

NEW SECTION. Sec. 6. A new section is added to chapter 75.10 RCW to read as follows:

Persons harvesting commercial quantities of shellfish on private tidelands without written permission of the owner shall be liable for damages to the owner not to exceed three times the value of the harvested shellfish.

NEW SECTION. Sec. 7. A new section is added to chapter 75.24 RCW to read as follows:

The department of fisheries shall establish a twenty-four hour, seven day a week, toll-free shellfish hotline on which citizens may contact the department to get assistance or information on shellfish harvesting concerns, to report shellfish harvesting violations, or to inform the department of shellfish conservation problems. The department shall respond to and seek to help every shellfish hotline caller.

NEW SECTION. Sec. 8. A new section is added to chapter 75.08 RCW to read as follows:

The department shall assign a minimum of three full-time fisheries patrol officers to enforce shellfish harvesting rules in Puget Sound and Hood Canal. A majority of the duties of the three patrol officers shall be the enforcement of shellfish harvesting. The three officers shall have radio contact capability with the shellfish hotline.

NEW SECTION. Sec. 9. The sum of two hundred thousand dollars, or so much thereof as may be necessary, is appropriated from the general fund to the department of fisheries for the biennium ending June 30, 1989, to carry out the purposes of this act.

If Indian tribal entities agree to share mediation service expenses, then the department shall pay only one-half of the total costs incurred for that purpose.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.