A federal judge in a March 11 order ruled that the federal government can and must legally consider a request from Idaho’s Shoshone-Bannock Tribes for permission to go fishing in northeast Oregon’s Grand Ronde and Imnaha rivers.
In the opinion and order, he denied a motion from the Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation that alleges NOAA Fisheries violated the U.S. v Oregon 2008-2017 Management Agreement by considering the Shoshone-Bannock request.
That said, U.S. District Court Judge Garr left the question of treaty fishing rights up in the air.
“I do comment that engaging in the consultation process on a harvest plan to determine whether a planned fishery harvest will ‘not appreciably reduce the likelihood of survival and recovery of the listed salmonids,’ without first determining whether a fishery harvest may legally occur in the first place seems to put the cart before the horse,” the Portland-based judge’s opinion says.
“I also underscore, as have the parties, that NOAA’s review of the Shoshone-Bannock Tribes’ TRMP has absolutely no bearing on the existence or scope of the Shoshone-Bannock Tribes’ fishing rights.”
The Nez Perce Tribe said it views the court's decision as a positive clarification of several key issues with respect to tributary fishery planning in Northeast Oregon.
"The entire Imnaha and the lower Grande Ronde are in the heart of Nez Perce Country described in our Treaty of 1855 with the United States, and historic Nez Perce 'exclusive use and occupancy' as determined by the United States Indian Claims Commission," McCoy Oatman, chairman of the Nez Perce Tribe, said, referring to King's cart before the horse comment. “We are pleased the court recognized how inflammatory it was for NOAA to refer to the Shoshone-Bannock Tribes as a co-manager in this area when they have no such status."
N. Kathryn Brigham, chair of the Umatilla’s Fish and Wildlife Commission and secretary of its Board of Trustees, said that the order sets a firm foundation for fishery planning in the tributaries of the Columbia River.
Brigham said that the Umatillas and Nez Perce are co-managers of the Imnaha and Grande Ronde subbasins and that the co-manager structure “acknowledges that the CTUIR has fished in these tributaries since time immemorial.”
The management agreement describes specific provisions for managing Columbia-Snake River mainstem fisheries and certain tributary fisheries as well as artificial production. The court has been involved in overseeing management decision-making since the lawsuit was launched in 1968.
Parties to the agreement are the United States through its agencies -- NOAA Fisheries, the Bureau of Indian Affairs, and the Fish and Wildlife Service; the states of Oregon, Washington and Idaho; the Yakama Nation; the Warm Springs Tribes; the Nez Perce Tribe; the Umatilla Tribes; and the Shoshone-Bannock Tribes.
The Aug. 27 tribal motion, which was supported by the Yakama and Warm Springs tribes, said that NOAA Fisheries violated the terms of the management agreement by entering into official Endangered Species Act consultation with the Shoshone Bannock Tribes regarding their proposed fisheries in the Imnaha and Grande rivers. The Imnaha flows out of Oregon and into the Snake; the Grande Ronde originates in Oregon and flows across the southeast corner of Washington into the Snake.
They said that the management plan stipulates that tributary harvests should be planned by identified lead “management entities.” For the Imnaha River subbasin the agreement identifies the Oregon Department of Fish and Wildlife and the Nez Perce and Umatilla tribes as leads. The Umatilla tribes, ODFW, the NPT and the Washington Department of Fish and Wildlife are lead management entities for the Grande Ronde River.
The Shoshone-Bannock Tribes are only a lead management entity for parts of Idaho’s Salmon River subbasin.
Treaty fishing rights are also disputed amongst the tribes, though they are not directly at issue in the current proceedings. The Shoshone-Bannock Tribes say they have the right to fish in the Imnaha and Grande Ronde under the terms of the Fort Bridger Treaty of July 3, 1868. The other four tribes say they do not.
The management agreement itself says Shoshone-Bannocks’ fishing rights are “undetermined and subject to no admission or concession by any other party.” According to the motion for enforcement filed in August by the tribes, the Shoshone-Bannocks intervened in the U.S. v. Oregon proceeding in 1986, but have never taken action to prove the treaty fishing rights alleged in their complaint.
The Shoshone-Bannocks on April 22, 2010, sent the final version of a tribal fishing plan to NOAA Fisheries seeking federal agency’s review under section 4(d) of the Endangered Species Act. The Tribal Resource Management Plan 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 a June 14 letter 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 that would be published in the Federal Register.
In the letter to the Shoshone-Bannock Tribes, Dygert, chief, Salmon Harvest Branch, Sustainable Fisheries Division for NOAA Fisheries Northwest Region, said the TRMP, for spring/summer chinook harvest 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.”
“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,” Dygert’s letter says.
A Nez Perce-Umatilla brief filed Aug. 27 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 Nez Perce-Umatilla 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 the Imnaha River “until their interests relative to the river are resolved.”
The judge in his March 11 order said he agreed that the NOAA Fisheries letter confused things to some degree, but that is not the legal question at hand.
“I do note, however, that the United States’ communications with the Shoshone-Bannock Tribes unnecessarily inflamed the situation,” King’s opinion says. “In the Dygert Letter, NOAA accepted the TRMP from the Shoshone-Bannock Tribes as a ‘co-manager,’ borrowing the lingo from the Management Agreement, rather than explicitly recognizing that the Shoshone-Bannock Tribes hold no such position.
“Nevertheless, contrary to the Tribes’ wishful thinking, the Management Agreement simply does not preclude NOAA from accepting a harvest management plan from a non-signatory sovereign. Accordingly, NOAA has not breached the Management Agreement,” King wrote.
The judge noted that the ESA mandates that government-to-government consultation be conducted with “any tribe that so requests[.]”
“If NOAA had agreed to a scheme under which only ‘management entities’ could submit harvest plans for the covered sub-basins, to the exclusion of other sovereigns not party to the Management Agreement, it would conflict with its obligations under the Tribal 4(d) Rule.”
“According to the Tribes, the Shoshone-Bannock Tribes have no ‘management responsibilities’ because they have no fishing rights. Additionally, the Tribes argue the Tribal 4(d) Rule can only permit assessment of a TRMP in a way that is ‘consistent with legally enforceable tribal rights,’ which the Tribes argue are absent here.
“However, any dispute the Tribes have with NOAA as to the correct implementation of the Tribal 4(d) Rule is not the proper subject of the current litigation,” King said. “NOAA has yet to issue a final decision on the Shoshone-Bannock Tribes’ harvest plan and, consequently, any judicial review of the agency’s interpretation and application of its rule must wait.”
“Neither the express purpose of the Agreement nor the explicit statement regarding the Shoshone-Bannock Tribes’ status in this litigation relieves NOAA of its obligation to exercise its regulatory responsibilities under the ESA.”
In comments made this week Oatman said that the federal government has never acknowledged the Shoshone-Bannock Tribes' assertions of fishing rights within Nez Perce aboriginal territory.
"We trust that as NOAA considers any tributary harvest plan it will heed the court's guidance by first determining whether a fishery may legally occur before determining the impact of that fishery on listed fish," Oatman said.