12-17-090

WSR 12-17-090

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 12-181 -- Filed August 15, 2012, 4:52 p.m. , effective August 21, 2012, 6:00 a.m. ]

     Effective Date of Rule: August 21, 2012, 6:00 a.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 220-32-05100W; 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: Sets the first three weeks of the treaty commercial fisheries for the 2012 fall season. Platform hook and line as well as tributary fisheries remain in place. Fisheries are expected to remain within the impact limits set for ESA-listed salmonids. Harvest is expected to remain within the allocation and guidelines of the 2008-2017 management agreement. Rule is consistent with action of the Columbia River compact on July 26 and August 14, 2012. 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: August 15, 2012.

Lori Preuss

for Philip Anderson

Director

NEW SECTION
WAC 220-32-05100X   Columbia River salmon seasons above Bonneville Dam.   Notwithstanding the provisions of WAC 220-32-050, WAC 220-32-051, WAC 220-32-052, WAC 220-32-055 and WAC 220-32-058, effective immediately until further notice, it is unlawful for a person to take or possess salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, or yellow perch taken for commercial purposes in Columbia River Salmon Management and Catch Reporting Areas (SMCRA) 1E, 1F, 1G, and 1H, and in the Wind River, White Salmon River, Klickitat River, and Drano Lake and Icicle Creek, except as provided in the following subsections. However, those individuals possessing treaty fishing rights under the Yakama, Warm Springs, Umatilla, and Nez Perce treaties may fish for salmon, steelhead, sturgeon, shad, carp, catfish, walleye, bass, or yellow perch under the following provisions:

     1. Mainstem Columbia River Commercial Gillnet

     a. Open Area: SMCRA 1F, 1G, 1H (Zone 6)

     b. Season:

     6:00 AM Tuesday August 21 through 6:00 PM Thursday August 23, 2012

     6:00 AM Monday August 27 through 6:00 PM Thursday August 30, 2012

     6:00 AM Tuesday September 4 through 6:00 PM Saturday September 8, 2012

     c. Gear: Gillnets only. 8-inch minimum mesh size.

     d. Allowable sale: Chinook, coho, steelhead, shad, carp, catfish, walleye, bass, or yellow perch. Sturgeon between 38-54 inches in fork length in the Bonneville Pool, and between 43-54 inches in fork length in The Dalles and John Day pools may be retained for subsistence purposes. Sturgeon retention is not allowed on the Oregon shore between Covington Point and The Dalles Dam. Sales of fish landed during the open period are allowed after the period concludes. No sockeye retention.

     e. Standard river mouth sanctuaries in effect for this gear type.

     2. Mainstem Columbia River Platform and Hook and Line upstream of Bonneville Dam

     a. Open Area: SMCRA 1F, 1G, 1H (Zone 6)

     b. Season: Immediately until further notice.

     c. Gear: Hoop nets and dip bag nets with a 5-inch minimum mesh, and rod and reel with hook and line.

     d. Allowable sale: Chinook, coho, steelhead, shad, carp, catfish, walleye, bass, or yellow perch. Sturgeon between 38-54 inches in fork length in the Bonneville Pool, and between 43-54 inches in fork length in The Dalles and John Day pools may be retained for subsistence purposes. Sturgeon retention is not allowed on the Oregon shore between Covington Point and The Dalles Dam. Sales of fish landed during the open period are allowed after the period concludes. No sockeye retention.

     e. Standard sanctuaries in effect for this gear type.

     3. Mainstem Columbia River Platform and Hook and Line downstream of Bonneville Dam

     a. Open Area: SMCRA 1E. Each of the four Columbia River treaty tribes has an MOA or MOU with the Washington Department of Fish and Wildlife regarding tribal fisheries in the area just downstream of Bonneville Dam. Tribal fisheries in this area may only occur in accordance with the appropriate MOA or MOU specific to each tribe.

     b. Participants: Tribal members may participate under the conditions described in the 2007 Memorandum of Agreement (MOA) with the Yakama Nation (YN), in the 2010 Memorandum of Understanding (MOU) with the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), in the 2010 MOU with the Confederated Tribes of the Warm Spring Reservation (CTWS), and in the 2011 MOU with the Nez Perce Tribe. Tribal members fishing below Bonneville Dam must carry an official tribal enrollment card.

     c. Season: immediately until further notice.

     d. Gear: Hoop nets and dip bag nets with a 5-inch minimum mesh, and rod and reel with hook and line, or as defined by each tribe's MOU or MOA.

     e. Allowable Sales: Chinook, coho, steelhead, shad, carp, catfish, walleye, bass, or yellow perch. No sockeye retention. Sturgeon retention is prohibited; sturgeon may not be sold or retained for ceremonial or subsistence purposes. Sale of platform or hook-and-line-caught fish is allowed. Sales may not occur on USACE property.

     4. Yakama Nation Tributary Fisheries

     a. Open Area: Columbia River Tributaries above Bonneville Dam.

     b. Season: Immediately until further notice, and 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.

     c. Area: Drano Lake, and the Wind, White Salmon, and Klickitat rivers and Icicle Creek.

     d. Gear: Hoop nets, dip bag nets, and rod and reel with hook and line. Gillnets may only be used in Drano Lake.

     e. Allowable Sales: Chinook, coho, steelhead, shad, carp, catfish, walleye, bass, or yellow perch. No sockeye retention, except that Icicle creek allows sales/retention.

     5. 24-hour quick reporting required for Washington wholesale dealers, WAC 220-69-240, for all areas.

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     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER

     The following section of the Washington Administrative Code is repealed effective 6:00 a.m. August 21, 2012:

WAC 220-32-05100W

Columbia River salmon seasons above Bonneville Dam. (12-153)