EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: February 2, 2009, 6:00 a.m.
Purpose: The purpose of this rule making is to provide for treaty Indian fishing opportunity in the Columbia River while protecting salmon listed as threatened or endangered under the Endangered Species Act. This rule making implements federal court orders governing Washington's relationship with treaty Indian tribes and federal law governing Washington's relationship with Oregon.
Citation of Existing Rules Affected by this Order: Repealing WAC 220-32-05100J; and amending WAC 220-32-051.
Statutory Authority for Adoption: RCW 77.04.130, 77.12.045, and 77.12.047.
Other Authority: United States v. Oregon, Civil No. 68-513-KI (D. Or.), Order Adopting 2008-2017 United States v. Oregon Management Agreement (Aug. 12, 2008) (Doc. No. 2546); Puget Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979); State v. James, 72 Wn.2d 746, 435 P.2d 521 (1967); 40 Stat. 515 (Columbia River compact).
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Sets the treaty Indian winter season. Allows sales of fish caught with platform and hook and line gear. Allows the Yakama Nation to conduct C&S fisheries in the area below Bonneville Dam consistent with the 2007 MOA between Washington and Yakama Nation. Sales and retention of fish in this area are described in subsection (6)(a) of this document. Changes the measurement standard for sturgeon to a fork length measurement, rather than a total length measurement, which is consistent with the regulations adopted for non-Indian fisheries. Fisheries are consistent with the 2008-2017 interim management agreement and the biological opinion. Rule is consistent with the 2007 MOA between Yakama Nation and Washington state. Rule is consistent with action of the Columbia River compact on January 29, 2009. Conforms state rules with tribal rules. There is insufficient time to promulgate permanent regulations.
The Yakama, Warm Springs, Umatilla, and Nez Perce Indian tribes have treaty fishing rights in the Columbia River and inherent sovereign authority to regulate their fisheries. Washington and Oregon also have some authority to regulate fishing by treaty Indians in the Columbia River, authority that the states exercise jointly under the congressionally ratified Columbia River compact. Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969). The tribes and the states adopt parallel regulations for treaty Indian fisheries under the supervision of the federal courts. A court order sets the current parameters. United States v. Oregon, Civil No. 68-513-KI (D. Or.), Order Adopting 2008-2017 United States v. Oregon Management Agreement (Aug. 12, 2008) (Doc. No. 2546). Some salmon and steelhead stocks in the Columbia River are listed as threatened or endangered under the federal Endangered Species Act. On May 5, 2008, the National Marine Fisheries Service issued a biological opinion under 16 U.S.C. § 1536 that allow for some incidental take of these species in the fisheries as described in the 2008-2017 U.S. v. Oregon Management Agreement.
Columbia River fisheries are monitored very closely to ensure consistency with court orders and Endangered Species Act guidelines. Because conditions change rapidly, the fisheries are managed almost exclusively by emergency rule. As required by court order, the Washington (WDFW) and Oregon (ODFW) departments of fish and wildlife convene public hearings and invite tribal participation when considering proposals for new emergency rules affecting treaty fishing rights. Sohappy, 302 F. Supp. at 912. WDFW and ODFW then adopt regulations reflecting agreements reached.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 1; Federal Rules or Standards: New 1, Amended 0, Repealed 1; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 1.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: January 30, 2009.
Phil Anderson
Director
1. Open Areas: SMCRA 1F:
a. Season: 6:00 a.m. Mondays through 6 p.m. Fridays, weekly, from February 2 through March 21, 2009.
b. Gear: No mesh restriction on gillnets. Hoop nets, dip bag nets, and rod and reel with hook and line.
c. Allowable sale: steelhead, walleye, shad, carp, walleye, bass, yellow perch and sturgeon. Sturgeon between 43-54 inches in fork length in The Dalles and John Day pools and between 38-54 inches in fork length in the Bonneville Pool may be sold or retained for subsistence purposes. Live release of all oversize and under-size sturgeon is required. Salmon may not be sold, but may be retained for ceremonial and subsistence purposes. Fish landed during an open commercial period may be sold at any time. Sale of platform or hook-and-line-caught fish is allowed during open commercial seasons.
2. Open Areas: SMCRA 1G, 1H.
a. Season: 6:00 a.m. February 2 through 6:00 p.m. March 21, 2009.
b. Gear: No mesh restriction on gillnets. Hoop nets, dip bag nets, and rod and reel with hook and line.
c. Allowable sale: steelhead, walleye, shad, carp, walleye, bass, yellow perch and sturgeon. Sturgeon between 43-54 inches in fork length in The Dalles and John Day pools and between 38-54 inches in fork length in the Bonneville Pool may be sold or retained for subsistence purposes. Live release of all oversize and under-size sturgeon is required. Salmon may not be sold, but may be retained for ceremonial and subsistence purposes. Fish landed during an open commercial period may be sold at any time. Sale of platform or hook-and-line-caught fish is allowed during open commercial seasons.
3. Open Area: On the Washington shoreline from 600 feet below the fish ladder at the Bonneville Dam North shore powerhouse, downstream to Beacon Rock (bank fishing only), for enrolled Yakama Nation members. Consistent with the 2007 MOA between Washington and Yakama Nation.
a. Season: 6:00 a.m. February 2 through 6:00 p.m. March 21, 2009
b. Gear: hoop nets, dip bag nets, and rod and reel with hook-and-line.
c. Allowable Sales: Steelhead, walleye, carp, shad, catfish, bass and yellow perch. Chinook may not be sold, but may be retained for Ceremonial and Subsistence (C&S) purposes. Sturgeon retention is prohibited, and may not be sold nor retained for ceremonial & subsistence purposes. Fish landed during an open commercial period may be sold at any time. Sales may not occur on USACE property.
4. 24-hour quick reporting required for Washington wholesale dealers, WAC 220-69-240, for all areas.
5. Notwithstanding the provisions of WAC 220-32-058, the closed area at the mouth of:
a. Hood River, are those waters along the Oregon side of the Columbia River and extend to mid-stream at right angles to the thread of the Columbia River between markers located approximately 0.85 miles downriver from the west bank at the end of the break wall at the west end of the port of Hood River, and 1/2 miles upriver from the east bank.
b. Herman Creek, are those waters upstream from a line between deadline markers near the mouth. One marker is located on the east bank piling, and the other is located on the west bank to the north of the boat ramp.
c. Deschutes River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between points 1/2 miles upstream from the eastern shoreline to one mile downstream from the western shoreline.
d. Umatilla River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between points 1/2 miles upstream from the eastern shoreline to one mile downstream from the western shoreline.
e. Big White Salmon River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between a marker located 1/2 miles downstream from the west bank, upstream to Light ""35".
f. Wind River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between markers located 1-1/4 miles downstream from the west bank and 1/2 miles upstream from the east bank.
g. Klickitat River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between the downstream margin of Lyle Landing; downstream to a marker located near the railroad tunnel approximately 1/8-mile downstream from the west bank.
h. Little White Salmon River, are those waters of the Columbia River extending to midstream at right angles to the thread of the Columbia River between Light ""27" upstream to a marker located approximately 1/2 miles upstream from the eastern shoreline.
6. Notwithstanding the provisions of WAC 220-22-010, during the open periods described above:
a. Area 1F (Bonneville pool) includes those waters of the Columbia River upstream from the Bridge of the Gods, and downstream from the west end of the 3 Mile Rapids located approximately 1.8 miles below the Dalles Dam.
b. Area 1G (The Dalles pool) includes those waters of the Columbia River upstream from a line drawn between a deadline marker on the Oregon shore located approximately 3/4 miles above The Dalles Dam fishway exit, thence at a right angle to the thread of the river to a point in mid-river, then downstream to Light ""1" on the Washington shore, and downstream from Preacher's Eddy Light below John Day Dam.
c. Area 1H (John Day pool) includes those waters of the Columbia River upstream from a fishing boundary marker approximately 1/2 miles above the John Day River, Oregon, extending at a right angle across the thread of the river to a point in mid-river, then downstream to a fishing boundary marker on the Washington shore approximately opposite the mouth of the John Day River, and downstream from a line at a right angle across the thread of the river one mile downstream from McNary Dam.
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Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER
The following section of the Washington Administrative
Code is repealed effective 6:01 p.m. March 21, 2009:
| WAC 220-32-05100J | Columbia River salmon seasons above Bonneville Dam. |