EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: February 11, 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 220-32-05100A and 220-32-05100B; 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 Bonneville Pool (1F) as the pool specific sturgeon guideline has been met. Prohibits the sale of sturgeon harvest in the Bonneville Pool (1F) using subsistence gear (platform/hook and line). Continues to allow sales of fish caught with platform and hook and line gear with the exclusion of sturgeon in Bonneville Pool. Allows 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 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 Yakama Nation and Washington state. Rule is consistent with action of the Columbia River compact in January 2008 and February 11, 2010. 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 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 11, 2010.
Lori Preuss
for Philip Anderson
Director
1. Open Areas: SMCRA 1F, 1G, 1H:
a. Season: 6:00 p.m. February 11, 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, sturgeon, shad, carp, walleye, bass, yellow perch and catfish. However, sturgeon caught in the Bonneville pool (1F) may not be sold. Sturgeon between 43-54 inches in fork length in The Dalles and John Day pools (1G-1H) may be sold or retained for subsistence purposes. 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 under-size sturgeon is required. 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 p.m. February 11, 2010 through 6:00 p.m. March 21, 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 and John Day pools may be sold or retained for subsistence purposes. Live release of all oversize and under-size sturgeon is required. 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.
d. River mouth sanctuaries (WAC 220-32-058) remain in effect, except for the Spring Creek Hatchery sanctuary (section 5).
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 the Yakama Nation.
a. Season: 6:00 p.m. February 11, 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 Sales: 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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The following section of the Washington Administrative
Code is repealed effective 6:00 p.m. February 11, 2010:
| WAC 220-32-05100A | Columbia River salmon seasons above Bonneville Dam. |
| WAC 220-32-05100B | Columbia River salmon seasons above Bonneville Dam. |