WSR 98-05-080

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed February 18, 1998, 10:15 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-01-174.

Title of Rule: To adopt WAC 232-12-24402 Colville Indian Reservation--Prohibiting the taking of big game and grouse.

Purpose: Adopt new WAC 232-12-24402 Colville Indian Reservation--Prohibiting the taking of big game and grouse.

Statutory Authority for Adoption: RCW 77.12.010, 77.12.040.

Statute Being Implemented: RCW 77.12.040.

Summary: The rule makes it unlawful to hunt for big game or grouse within the Colville Indian Reservation boundaries.

Reasons Supporting Proposal: Adoption of this proposed rule would allow the Department of Fish and Wildlife to maximize public recreation opportunity without impairing the supply of wildlife within and around the Colville Indian Reservation.

In the late 1970s, the state and the Confederated Tribes of the Colville Indian Reservation (Colville Tribes) engaged in protracted litigation over enforcement of state fish and game laws against non-Indians on the Colville Reservation. Several inconsistent rulings during this protracted litigation created an air of legal uncertainty. Rather than continue litigation, however, both sides in 1982 decided to negotiate an agreement. In this agreement, the department and the Colville Tribes recognized that in light of conservation concerns that the population of wild animals within the reservation boundary would support only subsistence hunting by members of the Colville Indian Tribe. The agreement accommodated departmental concerns regarding maximization of recreational opportunity and wise use management of the resource. Based upon the management concerns underlying the agreement, the Wildlife Commission adopted WAC 232-12-24401. Currently, WAC 232-12-24401 prohibits hunting or trapping of wild animals and certain species of grouse within the Colville Indian Reservation boundaries.

Beginning in September 1996, the department conducted a comprehensive formal review of its hunting and fishing regulations and policies regarding the Colville Indian Reservation. As part of this review, the department conducted public meetings, received public comments and had intensive discussions with the Colville Tribes.

The overlapping nature of state and tribal jurisdiction, and responsibilities on and around the Colville Indian Reservation, creates a relationship between the state and the Colville Tribes in which it is essential that the parties work together. Maximization of public recreational opportunities without impairing the supply of wildlife on and around the Colville Indian Reservation requires cooperation with the Colville Tribes.

Based upon this recognition that maximization of public recreational opportunities without impairing the supply of wildlife on and around the Colville Indian Reservation requires cooperation with the Colville Tribes, the department has developed a proposal for a new agreement with the Colville Tribes. The following proposal which would form the basis of a new agreement with the Colville Tribes is based upon discussions with the Colville Tribes, public meetings, and public comments to date. This tribal agreement proposal includes the following:

1. The department and Colville Tribes would intensify biological cooperation through consultation on season setting and regulation, mutual support of supplemental efforts where transplanting wildlife is appropriate (e.g., turkey, sharptail grouse, sheep), joint surveying of wildlife populations, and joint habitat protection efforts;

2. Hunting opportunity for nonmembers would be expanded to include all upland birds including pheasant with the exception of grouse;

3. Hunting opportunity for nonmembers would be expanded to include all migratory birds including doves;

4. Hunting opportunity for nonmembers would be expanded to include small game animals, such as rabbit;

5. Hunting opportunity for big game animals within the Colville Indian Reservation would continue to be prohibited;

6. The Colville Tribes will commit to working with landowners within the Colville Indian Reservation experiencing damage problems. The commitment will include the option of lethal removal by the landowner of dangerous wildlife;

7. The Colville Tribes will commit to maintaining or enhancing existing nonmember fisheries on the Colville Reservation;

8. The state license will be the permit recognized by both the state and tribe on boundary waters;

9. The cross deputization provision of the 1982 agreement will be eliminated, thereby reducing liability to both the department and the Colville Tribes;

10. Both parties will commit to mule deer conservation in areas of mutual concern (Okanogan and Ferry counties). This conservation effort is dependent upon the needs of mule deer and will vary from year to year. The proposed immediate strategy includes reducing the Colville tribal hunting season by one month; setting no season for mule deer west of the Okanogan River; redirecting tribal harvest to more robust whitetail deer populations; setting a conservation season limited to mule deer bucks with at least three point antlers; and a joint effort to influence habitat issues in favor of mule deer.

At the October 3, 1997, Fish and Wildlife Commission meeting, the department presented its review and the above tribal agreement proposal to the Fish and Wildlife Commission. At this commission meeting, the commission also received public comment regarding hunting and fishing regulation and policies regarding the Colville Indian Reservation. After considering the department's presentation and the substantial public comment, the Fish and Wildlife Commission directed agency staff to commence the rule-making process relative to this topic. The commission also delegated to the director authority to conclude an agreement consistent with the above proposal.

The new agreement between the department and the Colville Tribe is currently being drafted. The director will decide whether to adopt this agreement at the April 1998 commission meeting. If the department and the Colville Tribes adopt this agreement, the commission will then decide whether to adopt the above proposed rule.

The director will consider the comments on the proposed rule when making his decision regarding the adoption of the proposed agreement.

The proposed rule is a necessary component for effective fish and wildlife management which maximizes public recreational opportunity without impairing the supply of wildlife on and around the Colville Indian Reservation.

Name of Agency Personnel Responsible for Drafting and Implementation: Dave Brittell, Assistant Director, Wildlife Management, Olympia, (360) 902-2504; and Enforcement: Ron Swatfigure, Assistant Director, Enforcement, Olympia, (360) 902-2932.

Name of Proponent: Washington Fish and Wildlife Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

This rule is not required as the result of federal law or federal or state court action. There are, however, potential conflicts regarding the scope of state and tribal jurisdictions and responsibilities regarding fish and wildlife management on and around the Colville Indian Reservation. See White Apache Tribe v. Arizona Dep't of Game and Fish, 649 F.2d 1274 (9th Cir. 1980) (Colville Tribes entitled to preliminary injunction preventing the state from enforcing its hunting and fishing license requirements against non-Indians on reservation). The proposed rule is an important component of a management scheme which attempts to maximize public recreational opportunity on and around the Colville Indian Reservation and to retain state jurisdiction over wildlife within the Colville Indian Reservation.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule would prohibit hunting and trapping for big game or grouse within the Colville Indian Reservation boundaries. The proposed rule's purpose and anticipated effects are to maximize public recreational opportunities without impairing the supply of wildlife in and around the Colville Indian Reservation for the reasons stated above in the reasons supporting rule proposal section. This proposed rule would replace WAC 232-12-24401. This proposed rule would increase hunting opportunity within the Colville Indian Reservation over the opportunity which currently exists under WAC 232-12-24401.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not affect small business.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Doubletree Hotel, 1225 North Wenatchee Avenue, Wenatchee, WA 98801, phone (509) 663-0711, on April 3-4, 1998, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by March 25, 1998, TDD (360) 902-2207, or (360) 902-2267.

Submit Written Comments to: Washington Department of Fish and Wildlife, Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, FAX (360) 902-2940, by March 25, 1998.

Date of Intended Adoption: April 3, 1998.

February 18, 1998

Evan Jacoby

Rules Coordinator

NEW SECTION

WAC 232-12-24402 Colville Indian Reservation - Prohibiting the taking of big game and grouse The taking of big game or grouse within the Colville Indian Reservation boundaries is prohibited.