WSR 14-07-038 EMERGENCY RULES DEPARTMENT OF FISH AND WILDLIFE [Order 14-59—Filed March 11, 2014, 5:09 p.m., effective March 12, 2014, 6:00 a.m.] Effective Date of Rule: March 12, 2014, 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 (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 220-32-05100X and 220-32-05100Y; and amending WAC 220-32-051.
Statutory Authority for Adoption: RCW 77.04.020, 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); Northwest Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 628 P.2d 800 (1981); Washington fish and wildlife commission policies concerning Columbia River fisheries; 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.
Reasons for this Finding: This rule opens The Dalles Pool (SMCRA 1G) for commercial sales one day earlier than previously planned. Catch in 1G was less than projected, which allows for an earlier opener[.] The Bonneville Pool (SMCRA 1F) season will be extended by three days, as catch in this area has also been less than projected. During times when the 1F is closed for commercial sales, for subsistence purposes, the legal-size fork length for sturgeon retention is 43-54 inches. Sales of fish caught downstream of 1F continue to be allowed, as long as sales are open in SMCRA 1F, 1D, and/or 1H. The season is consistent with the 2008-2017 management agreement and the associated biological opinion. The rule is consistent with compact action of March 11, 2014, and conforms state rules with tribal rules. There is insufficient time to promulgate permanent rules.
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 allows 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 rules 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: March 11, 2014.
Joe Stohr
for Philip Anderson
Director
NEW SECTION
WAC 220-32-05100Y Columbia River salmon seasons above Bonneville Dam.
Notwithstanding the provisions of WAC 220-32-050, WAC 220-32-051, WAC 220-32-052 and WAC 220-32-058, effective immediately until further notice, it is unlawful for a person to take or possess salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, or yellow perch taken for commercial purposes in Columbia River Salmon Management and Catch Reporting Areas 1F, 1G, and 1H. However, those individuals possessing treaty fishing rights under the Yakima, Warm Springs, Umatilla, and Nez Perce treaties may fish for salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, or yellow perch under the following provisions:
(1) Open Area: SMCRA 1F (Bonneville Pool):
(a) Season: Immediately through 6:00 p.m. March 15, 2014.
(b) Allowable sale: Salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, and yellow perch. Legal size sturgeon (between 38-54 inches in fork length) may be sold or retained for subsistence purposes. Release of all oversize and under-size sturgeon is required. Legal fish caught during open commercial periods can be sold after the season closes. Legal size limit for sturgeon kept for subsistence during closed commercial periods is 43-54 inches in fork length.
(2) Open Area: SMCRA 1G (The Dalles Pool):
(a) Season: Immediately through 6:00 p.m. March 22, 2014.
(b) Allowable sale: Salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, and yellow perch. Legal size sturgeon (between 43-54 inches in fork length) may be sold or retained for subsistence purposes. Release of all oversize and under-size sturgeon is required. Legal fish caught during open commercial periods can be sold after the season closes.
(3) Sanctuaries – As applicable: River mouth sanctuaries (WAC 220-32-058) remain in effect, except the Spring Creek Hatchery sanctuary (sub-section 5).
(4) Gear: Gill nets, hoop nets, dip bag nets, and rod and reel with hook and line are permissible. There is no mesh restriction on gillnets.
(5) Open Area: SMCRA 1E. Each of the four Columbia River treaty tribes has an MOA or MOU with the Washington Department of Fish and Wildlife regarding tribal fisheries in the area just downstream of Bonneville Dam. Tribal fisheries in this area may only occur in accordance with the appropriate MOA or MOU specific to each tribe.
(a) Participants: Tribal members may participate under the conditions described in the appropriate MOA or MOU specific to each tribe. Tribal members must carry an official tribal enrollment card.
(b) Season: Immediately through 6:00 p.m. March 22, 2014.
(c) Gear: Hoop nets, dip bag nets, and rod and reel with hook and line, or the gear defined by each tribe's MOU or MOA, are permissible.
(d) Allowable sales: Salmon, steelhead, shad, carp, catfish, walleye, bass, and yellow perch. Sales of platform/hook-and-line caught fish can be sold during open commercial seasons. Sales are allowed only when lawfully enacted by tribal regulations. Legal fish caught during open commercial periods can be sold after the season closes. Sturgeon retention is prohibited; sturgeon may not be sold or retained for ceremonial or subsistence purposes. Sales may not occur on USACE property.
(6) 24-hour quick reporting required for Washington wholesale dealers, WAC 220-69-240.
Reviser's note: The unnecessary underscoring 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 a.m. March 12, 2014:
The following section of the Washington Administrative Code is repealed effective 6:01 p.m. March 22, 2014:
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