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Federal Judge To Hear Arguments On Shoshone Bannock Tribes’ Request To Fish Northeast Oregon Rivers
Posted on Friday, October 01, 2010 (PST)

U.S. District Court Judge Garr M. King will hear oral arguments in Portland Nov. 8 over whether the federal government can properly consider a request from Idaho’s Shoshone Bannock Tribes for permission to go fishing in northeast Oregon’s Grand Ronde and Imnaha rivers.


A Joint Motion for Enforcement filed Aug. 27 by the Nez Perce and Umatilla tribes, with support from the Yakama and Warm Springs tribes, says NOAA Fisheries’ consideration of the Shoshone Bannock “Tribal Resources Management Plan” violates the terms of the 2008-2017 U.S. v. Oregon Management Agreement, which was adopted in May 2008 as a federal court order. The agreement outlines tribal and non-tribal salmon and steelhead harvest strategies and allocation schemes.


The joint motion says the agreement covers harvest not only in the mainstem Columbia River but also in the basin’s tributaries.


The Shoshone Bannocks on April 22 sent the final version of a tribal fishing plan to NOAA Fisheries, seeking the federal agency’s review under section 4(d) of the Endangered Species Act. The TRMP invokes NOAA regulations known as the Tribal 4(d) rule, whereby any Indian tribe can submit a plan to fish for ESA-listed threatened salmon or steelhead and receive NOAA’s determination as to whether that plan would appreciably reduce the likelihood of survival and recovery of the threatened species.


In June NOAA Fisheries’ Peter Dygert declared that the plan was ready for NOAA’s consideration, which would include a public comment period and, ultimately, a formal determination to be published in the Federal Register.


The joint motion, however, was filed before that ESA process could begin.


The Nez Perce and Umatilla in briefs filed Aug. 27 seek relief “only after first engaging in dispute resolution … because the actions of NOAA Fisheries in accepting for evaluation and determination a tributary harvest plan from the Shoshone-Bannock Tribes for fisheries in the Grande Ronde River and Imnaha River subbasins in northeast Oregon violate the Management Agreement in letter, in spirit and in purpose, and have resulted in a state of harvest planning uncertainty that undermines a core reason the parties carefully negotiated the 10-year Agreement.” The Sho-Bans are not party to the harvest management agreement.


A response filed Monday by the U.S. Department of Justice for NOAA Fisheries says the joint motion has no merit because “NOAA Fisheries’ acceptance of the plan for review is only an initial step in the formal administrative process under the ESA set out by the regulations, and no decisions have been made.”


The federal brief, in asking the court to deny the Nez Perce-Umatilla motion, says the Shoshone Bannock plan “is not prohibited by the management agreement, explicitly or implicitly, because (1) the Shoshone Bannocks did not agree to the Part of the Management Agreement setting forth procedures for Harvest Planning and did not submit their Plan pursuant to that Agreement; (2) the Management Agreement does not purport to address or limit NOAA Fisheries’ duties under its own regulations, a reading which would be contrary to NOAA Fisheries’ statutory duties to protect ESA-listed species; and (3) the record demonstrates, contrary to the Nez Perce’s claims, that this is in fact an ESA review and not a proceeding under the Management Agreement’s auspices.”


Unlike the “federally secured rights” of those tribes, the Shoshone-Bannocks’ fishing rights are “undetermined and subject to no admission or concession by any other party,” the Nez Perce-Umatilla brief says.


The management agreement identifies the co-managers for the different tributaries. For the northeast Oregon subbasins at issue, the agreement lists the Nez Perce and Umatilla Tribes, and Oregon and Washington departments of fish and wildlife, but does not list the Shoshone-Bannocks as a co-manager. The Sho-Bans are only identified as a co-manager for certain portions of the Salmon River in Idaho.


The agreement also provides a process for modification of its terms, which requires written consent of all parties, but that process was not followed for the Shoshone-Bannock harvest plan, the Nez Perce-Umatilla motion says.


“NOAA jumped the modification process and inserted the Sho-Bans as co-managers for northeast Oregon tributaries,” said Brent Hall, an attorney for the Umatilla Tribes.


An affidavit from Nathan Small also filed with the court Monday says the 1968 treaty signed by the Shoshone Bannocks and the federal government gives the tribes rights to fish in various places, including the Grande Ronde and Imnaha rivers. The Shoshone Bannocks’ Fort Hall Reservation is located southeast Idaho. Small is chairman of the Fort Hall Business Council, the tribes governing body.


Small said he has led an effort to talk to the Nez Perce and Umatillas about their opposition to Shoshone Bannock fisheries in the Grande Ronde and Imnaha. That effort included letters, phone calls and personal contacts.


“The response of the Nez Perce has been to ignore all my requests,” Small said in his declaration.


The TRMP was sent to NOAA, in part, to get the other tribes’ attention, Small said.


“Another reason we sent our TRMP for the Grande Ronde and Imnaha fisheries to NOAA Fisheries is we believe it would be beneficial to hear from NOAA about whether the abundance-based harvest framework plan that most of the parties to U.S. v. Oregon had agreed to meets the requirements of the Endangered Species Act,” Small wrote. “We submitted the plan pursuant to NOAA’s regulations…, as the plan says, because we are not parties to Part II of the Management Agreement and because the Section 4(d) rule gives us a right to submit a plan for a determination of ESA effects.”


“We do not believe that NOAA Fisheries’ review of our plan, if it is approved, creates an off reservation right to go fishing,” Small said. “Our rights to take fish come from our treaty, and if the plan is approved, we will continue to try to coordinate with the other tribes in the relevant basin(s) in exercise of our treaty rights.”


In his June 14 letter to the Shoshone-Bannock Tribes, Dygert, chief, Salmon Harvest Branch, Sustainable Fisheries Division for NOAA Fisheries Northwest Region, said the TRMP, filed in April for spring/summer chinook in the Grande Ronde and Imnaha River subbasins, “meets all criteria identified by NMFS as required for proceeding with its ESA consultation on the fishery plan.”


The letter goes on to say that “Although we have not completed our evaluation of the proposed TRMPs, NMFS generally agrees with the concepts adopted by the Shoshone-Bannock Tribes for conducting fisheries in the Snake River Basin.… The need for coordination with other co-managers has been the last substantive hurdle, and we are encouraged by recent progress.”


The Aug. 27 Nez Perce-Umatilla brief says that, armed with the letter, the Shoshone-Bannock Tribes on July 12 sent a team of fishers and biologists into Imnaha and “speared fish, and then apparently sold fish on the streets of Joseph, Oregon.”


According to the court filing, “NOAA’s June 14 letter, despite its legal disclaimers, plainly offered encouragement to Shoshone-Bannock Tribal fishermen who would otherwise have expected citation and prosecution by Oregon game wardens in northeast Oregon.”


The Nez Perce-Umatilla document says that Oregon’s “considerations of enforcement” was “affected by the confusion generated by NOAA’s (either intentional or mistaken) recognition and processing of a Shoshone-Bannock harvest plan for the Imnaha River.”


Soon after the Shoshone-Bannock fishing team went to the Imnaha, Oregon officials convened a conference call with Shoshone-Bannock leaders who agreed to cease fishing in the Imnaha River “until their interests relative to the river are resolved.”


Small, in his Sept. 27 declaration, said the fishing venture, again, was an attempt “to get the attention of the Nez Perce and Umatilla to our concerns, to fish in areas the tribes traditionally go fishing in, and to fish in unoccupied land of the Unites States as provided in our treaty.


“The Nez Perce have blamed NOAA Fisheries and its letter to us in response to our plan for causing our tribal members to go fishing, but NOAA Fisheries’ letter had absolutely nothing to do with it,” Small said. “This action was provoked by the Nez Perce ignoring our calls and letters.”


Hall said that the Nez Perce, Umatilla, Warm Springs and Yakamas “went to great lengths in U.S. v Oregon to prove up claims” to fishing in usual and accustomed places in tributaries.


“The Sho-Bans have never done that. They jumped into U.S. v Oregon 20 years after it started,” Hall said of the long-running litigation related to tribal fishing rights. “They were allowed in but never proved up their vague assertion of a treaty right to fish” in Oregon or Washington.


In 2002, the Shoshone-Bannocks tried to make a similar claim to a treaty right to fish the Snake River in Washington. The state’s Attorney General told the Shoshone-Bannocks they did not have a treaty right, but that they were welcome to fish under Washington state regulations as resident Washingtonians do.


Hall said it is important that NOAA Fisheries follows the co-management rules and regulations established in U.S. v. Oregon.


“Otherwise, what’s to stop any other tribe, no matter how far away, from claiming a right to fish here? What’s to stop us from going to the southern Oregon Coast and claiming it as a treaty right?” he asked.


The federal brief filed Monday a NOAA determination “would take no position on whether or not the Shoshone Bannocks possessed the right to implement the plan, or otherwise alter the fishing rights of any party.


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