EMERGENCY RULES
FISH AND WILDLIFE
Effective Date of Rule: July 12, 2012, 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 220-32-05100U; 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); 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: Closes the mainstem Columbia River platform and hook-and-line fisheries in Zone 6 and in the area immediately below Bonneville Dam to subsistence and commercial fishing. Also closes the Zone 6 experimental shad fishery. Prohibits the sale of sockeye in the Yakama Nation tributary fisheries consistent with tribal regulations. Based on current run size and harvest estimates, sockeye ESA impact rates have been exceeded. Allows sales of legal fish to continue once the season is closed, as long as the fish were caught during an open period for the gear type they were caught with. Fisheries are consistent with the 2008-2017 management agreement and the associated biological opinion. Rule is consistent with action of the Columbia River compact on May 14, June 20, and July 11, 2012. 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 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: July 12, 2012.
David Giglio
for Philip Anderson
Director
1. Mainstem Columbia River:
a. Platform and hook-and-line (PH&L) fisheries are closed to subsistence and commercial fishing.
b. Date: Immediately until further notice.
c. Area: SMCRA 1E, IF, 1G, 1H (Below Bonneville Dam and Zone 6).
d. Miscellaneous Regulations: Sales of fish caught during open gillnet or PH&L seasons are allowed after the end of the open period, as long as the fish were landed during the open period for that gear type.
2. Columbia River tributaries upstream of Bonneville Dam:
a. Date: Immediately until further notice, but only during those days and hours when the tributaries listed below are open under lawfully enacted Yakama Nation tribal subsistence fishery regulations for enrolled Yakama Nation members.
b. Area: Drano Lake, Wind River, Klickitat River, and Icicle Creek.
c. Gear: Hoop nets, dip bag nets, and rod and reel with hook and line. Gillnets may only be used in Drano Lake.
d. Allowable Sales: Salmon, steelhead, shad, carp, catfish, walleye, bass, or yellow perch, except sockeye sales prohibited.
3. 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. July 12, 2012:
| WAC 220-32-05100U | Columbia River salmon seasons above Bonneville Dam. (12-128) |