The Nez Perce Tribe's desire to gain a fuller share of upriver salmon and steelhead harvest is being pursued for the third year in a row and, again, the lower Snake and Clearwater gill-net plan is being conducted without Endangered Species Act sanctions.

"They don't have a take permit for the fish," said Peter Dygert, chief for NOAA Fisheries' Sustainable Fisheries Division salmon branch in the Northwest Region. A fishing plan was forwarded to the federal agency last month but with fishing "imminent," there was no time for review and completion of required ESA processes.

"There's nothing more we can do this year," Dygert said. "Our hope and goal is to work with the parties and develop long-term plans."

"We are aware of the Nez Perce Tribe's long term interest in this and other fisheries in the Snake Basin, and the importance of such fisheries to the tribe's treaty rights," Bob Lohn, NOAA Fisheries' regional administrator, said in a Sept. 30 letter to Samuel N. Penney, chairman Nez Perce Tribal Executive Committee. "We look forward to working with you and the other interested parties, and providing the sort of thorough review in the future that will be required."

The tribe's Dave Johnson said Tuesday that so far only one commercial fishing permit had been issued by the tribe and that he was not aware of any actual fish harvest so far.

The tribe is developing a response to Lohn's letter, he said.

"I can't comment on it" until the letter is completed, possibly next week, said Johnson, manager of the NPT's Department of Fisheries Resources Management Administration Division.

The ESA requires that such fisheries be in accordance with 4(d) provisions that prescribe development of Tribal Resource Management Plans. Such plans are not subject to take prohibitions under Section 9 of the ESA, provided that the Secretary of Commerce has determined that implementing that tribal plan will not appreciably reduce the likelihood of survival and recovery for the listed species. Commerce's NOAA Fisheries makes that technical determination.

The process would begin with submittal of a plan by the tribe. Next would be a public comment period and the development of an environmental assessment of the plan by NOAA. The federal agency would ultimately develop a biological opinion of whether planned fishing would jeopardize listed species.

Any plan must also mesh with the newly developed U.S. v Oregon 10-year management plan for mainstem fisheries from Lower Granite down to the mouth of the Columbia.

The primary goal of that agreement is to "rebuild weak runs to full productivity and fairly share the harvest of upper river runs between treaty Indian and non-treaty fisheries in the ocean and Columbia River Basin."

Parties to the agreement include the federal government, the states of Idaho, Oregon and Washington, the Shoshone Bannock Tribes, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation, the Nez Perce Tribe, and the Confederated Tribes and Bands of the Yakama Nation.

"… this proposal and other actions not explicitly considered previously will need to be reviewed in context of the recently completed biological opinions," Lohn's letter says. "The tribe's proposal will affect Snake River fall chinook and Snake River steelhead."

A May 5 NOAA BiOp for the U.S. v Oregon agreement includes a take permit that allows certain levels of mainstem tribal harvest.

"If there are unharvested fish, i.e., potentially available take, they might be reallocated by the U.S. v. Oregon parties to the tribe's proposed fishery," Lohn said. "The prospect for the reallocation of unused harvest from the lower river to terminal fisheries was discussed among the parties, but was not incorporated into the final agreement.

"To be clear, fishing above Lower Granite Dam was not part of the U.S. v. Oregon action considered in the biological opinion.

"However, from a biological perspective the impact levels from lower river fisheries were reviewed and approved through our prior consultations, meaning that if there were "unharvested" fish in that fishery the remaining balance (remaining fish available for take) could conceivably be applied to a terminal fishery," Lohn said. "This latter circumstance would require formal consultation and involvement of other US v Oregon parties."

The Snake River fall chinook "evolutionarily significant unit" was listed as threatened in 1992 and that status reaffirmed by NOAA in 2005. Snake River steelhead were listed in 1997 and threatened status reaffirmed in 2005. The ESUs now includes both hatchery and naturally produced stocks but the "take" of marked hatchery stocks is allowed without an ESA permit.

Typically most of the available hatchery steelhead are now harvested through permits to states for sport fishing. The tribe's fishing rights apply to on-reservation and off-reservation usual and accustomed fishing areas, and the right allows for shared harvest, or a 50-50 split with the non-tribal fishermen.

A bountiful, relatively, fall chinook return to the Snake River this year allowed the states of Idaho and Washington to open late season sport fisheries for the first time in decades.