EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: February 26, 2010, 6:00 p.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 (ESA). 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 220-32-05100B and 220-32-05100C; 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: Closes the gillnet fishery in The Dalles Pool (1G) at 6:00 p.m. March 3, 2010, and in the John Day Pool (1H) 6:00 p.m. February 26, 2010, based on the projections of when the pool-specific sturgeon guidelines will be met. Prohibits the sale of sturgeon harvested in the Bonneville Pool (1F), The Dalles Pool (1G), and the John Day Pool (1H) using subsistence gear (platform/hook and line) once gillnet fisheries close. Continues to allow sales of fish, other than sturgeon, caught with platform and hook and line gear. Continues to allow the Yakama Nation to conduct ceremonial and subsistence fisheries in the area below Bonneville Dam, consistent with the 2007 memorandum of agreement (MOA) between Washington and the Yakama Nation. Fisheries are consistent with the 2008-2017 interim management agreement and the associated biological opinion. Rule is consistent with the 2007 MOA between the Yakama Nation and Washington state. Rule is consistent with action of the Columbia River compact of February 23, 2010. Conforms state rules to 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 ESA. 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 ESA 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 2; Federal Rules or Standards: New 1, Amended 0, Repealed 2; 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 2.
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: February 25, 2010.
Lori Preuss
for Philip Anderson
Director
1. Open Areas: SMCRA 1F, 1G, 1H:
a. Season: 6:00 p.m. February 26, 2010 through 6:00 p.m. March 21, 2010.
b. Gear: Hoop nets, dip bag nets, and rod and reel with hook and line.
c. Allowable sale: Salmon, steelhead, shad, carp, walleye, bass, yellow perch and catfish. Sturgeon between 43-54 inches in fork length in The Dalles and John Day pools (1G-1H) may only be retained for subsistence purposes, except legal size sturgeon in The Dalles Pool may be sold if caught prior to 6 pm March 3, 2010. Sturgeon between 38-54 inches in fork length in the Bonneville Pool (1F) may only be retained for subsistence purposes. Live release of all oversize and undersize sturgeon is required. Sale of platform or hook-and-line-caught fish is allowed during open commercial seasons.
2. Open Areas: SMCRA 1G:
a. Season: 6:00 p.m. February 26, 2010 through 6:00 p.m. March 3, 2010.
b. Gear: Gill nets. No mesh restriction on gillnets.
c. Allowable sale: Salmon, steelhead, sturgeon, shad, carp, walleye, bass, yellow perch and catfish. Sturgeon between 43-54 inches in fork length in The Dalles Pool may be sold or retained for subsistence purposes. Live release of all oversize and undersize sturgeon is required. Fish landed during an open commercial period may be sold at any time.
3. River mouth sanctuaries remain in effect, except for the Spring Creek Hatchery sanctuary (WAC 220-32-058(5). 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 Memorandum of Agreement (MOA) between Washington and the Yakama Nation.
a. Season: 6:00 p.m. February 26, 2010 through 6:00 p.m. March 21, 2010.
b. Gear: Hoop nets, dip bag nets, and rod and reel with hook-and-line.
c. Allowable sale: Salmon, steelhead, shad, carp, walleye, bass, yellow perch and catfish. 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. Sale of platform or hook-and-line-caught fish is allowed during open commercial seasons. Sales may not occur on USACE property.
4. 24-hour quick reporting required for Washington wholesale dealers, WAC 220-69-240, for all areas.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER
The following section of the Washington Administrative
Code is repealed effective 6:00 p.m. February 26, 2010:
| WAC 220-32-05100B | Columbia River salmon seasons above Bonneville Dam. |
The following section of the Washington Administrative Code is repealed effective 6:01 p.m. March 21, 2010:
| WAC 220-32-05100C | Columbia River salmon seasons above Bonneville Dam |