Final Joint WDFW/Tribal Wild Salmonid Policy

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Performance Standard:

The Department and Tribal parties will review implementation of this Policy each year to assess progress in rebuilding wild stock populations to levels that permit commercial and recreational fishing opportunities. Such review may be in coordination with other management actions and reports. Such review will periodically assess the scientific basis for policy statements, performance standards, and action strategies and propose appropriate amendments to this Policy to further achieve the mutual purposes of the Department and Tribal parties. The Department and the Northwest Indian Fisheries Commission will facilitate such review.

1. This Policy shall guide and direct the Washington Department of Fish and Wildlife (the Department) and the signatory Western Washington Treaty Tribes (Tribal Parties) on matters of salmonid population, including harvest management and hatchery operation, and matters affecting salmonid habitat. It is issued by the Commission pursuant to authority under Titles 75 and 77 RCW, chapter 43.300 RCW, the State Environmental Policy Act (SEPA), and the Administrative Procedures Act (APA) and adopted by Tribal Parties consistent with tribal law.

2. Tribal Parties to this Policy are those Tribes with treaty reserved fishing rights whose representatives have signed this Policy and whose governments have ratified this Policy pursuant to their sovereign processes and passed an appropriate tribal resolution confirming that ratification.

3. No Tribal Party waives its immunity from suit in any Court by becoming a signatory to this Policy, save as that immunity may already have been waived within United States v. Washington.

4. This Policy is intended to be used consistent with existing law. This Policy shall guide the Department and Tribal Party actions and programs implementing existing statutes, regulations, and other legal responsibilities. If amendment of statute, regulation, court order, or applicable law is needed to implement this Policy, then this Policy is intended to be a framework for agreed Tribal Party and Department development of appropriate programs, projects, or rule changes that will implement this Policy.

5. While acting consistent with statutory authorization and applicable law, the Department shall condition or deny permits or approvals within its jurisdiction by applying its legal authority to implement the policies herein. This includes the habitat action strategies and performance measures that indicate the habitat needs of salmonids. Habitat needs are often a material fact for application of statutory power to deny or condition permits and approvals. Where Department actions or programs require amendment or adoption of rules to implement this Policy, the Department will undertake rulemaking processes to consider new rules or changes.

6. This Policy does not direct the actions of other state agencies, federal agencies, tribal governments, or local governments not party to this policy. However, it is the goal of this Policy that the measures and standards contained herein be considered and used by other public and private entities where appropriate.

7. This Policy shall not be construed to grant, expand, create, or diminish any legally enforceable rights, substantive or procedural, not otherwise granted, created, or affected under existing law. Nothing in this Policy is intended to preempt or avoid SEPA, or the State Regulatory Fairness Act, or laws that may apply to Department projects, programs, or rules implementing this Policy. The Commission intends that the Department use these processes whenever they are applicable.

8. This Policy is not intended to alter, amend, or modify any Indian treaty rights reserved by federal authority or any court order that implements treaty rights to take fish and should not be interpreted as a definition of the scope or limits of Tribal Party powers or state powers. It is intended to be a framework for rebuilding wild salmonid stocks and sustaining fisheries by cooperative agreement whenever possible. The Department and Tribal Parties agree to comply with applicable court orders, processes, or other agreements, including but not limited to the 1989 Centennial Accord between Washington and Washington Indian Tribes, so that management decisions will be made by planning and agreement or be subject to applicable dispute resolution provisions..

9. This Policy does not itself amend or alter any Orders of the United States District Courts for the Western District of Washington or the District of Oregon relating to fisheries secured by Indian Treaties or any management plan, framework plan, or agreement developed under any such Orders. The governments signatory to this Policy, however, shall use it within their respective authorities to review and modify management and regulatory actions and shall in good faith consider the amendment or alteration of relevant Orders, plans, or agreements, recognizing that there may be the need for additional agreement or processes to achieve such amendment or alteration.

10. Regulation and Limitation of Treaty Harvests: Individual Tribes each have authority to regulate their fishers. Annual catch limits and seasons are developed through co-management with the Department and other agencies in international, interstate, and regional fora. By entering this Policy, Tribal parties do not agree that any particular Treaty harvests of any wild or hatchery fish shall be restricted as to time, manner or place, or reduced in amount, except as consistent with applicable court orders and the treaty rights of the Tribes and the rights of the state.

11. Failure of Agreement Does Not Waive Rights. Where this Policy contemplates agreement by the Department and affected Tribal Parties but no agreement is forthcoming despite good faith efforts and compliance with appropriate procedures, the Department and Tribal Parties retain all prior rights to seek judicial relief whatsoever, not withstanding this Policy. This Policy shall not be construed to deny a court of any jurisdiction to hear and resolve disputes between the Department and Tribal parties. The Department and Tribal parties waive no claims, defenses, or arguments they might make regarding tribal or state powers under applicable law, whatsoever.

12. Where resources and funding affects full implementation of this Policy, the Commission and Tribal Parties will provide additional direction or policy to prioritize use of limited resources.

13. This Policy shall not be construed to supersede, amend, or otherwise modify or affect the implementation of existing agreements, contracts, or consent decrees. Where appropriate, the Department and Tribal Parties shall use this policy as a good faith guide for agreements to modification of agreements, contracts, orders, or plans to allow Department and Tribal Parties to comply with this policy.

14. The Tribal Parties recognize that Departments other than the Washington Department of Fish and Wildlife have regulatory authority over many of the, performance standards, issues, and matters set out in this Policy. The Tribal Parties also recognize that these Departments have in many instances issued regulations which are binding on those Departments and which include numerical performance standards. By adopting this Policy, the Tribal Parties do not agree that any particular regulations, including the numerical performance standards, fully address Tribal interests or their rights. However, the Tribal parties recognize that performance standards and regulations should be strictly enforced until such measures and regulations can be made to address all tribal interests.

15. No Waiver of Tribal Environmental or Water Rights Claims. Nothing in this Wild Salmonid Policy shall limit, estop, or otherwise affect the rights of any Tribal Party to advocate actions, policies, procedures, rules of decision, or other habitat protection greater than that set out in this Policy, including any rights any Tribe may have under "Phase II" or environmental protection aspects of treaty fishing rights or other rights. Nor do Tribal Parties imply or admit that tribal water rights are limited to fisheries needs addressed in this Policy. Tribal adoption of interim performance measures under this Policy will include consideration of non-fisheries water uses as well as the water needs of fisheries.

16. Termination. The Department and Tribal Parties enter into this Policy to further a mutual interest that their actions and programs affecting wild salmonids should contribute towards rebuilding wild stocks in the manner described by this Policy. As mutual policy direction by state and tribal governmental agencies, the parties do not intend to capriciously divert from this Policy. However, the Department and signatory Tribes may, consistent with their respective governmental authorities, terminate their agreement to this Policy, or part thereof, by providing written notice to all signatory parties. However, the parties to this Policy will consider appropriate dispute resolution or mediation prior to termination. A notice shall describe the reason for termination and a statement of authorization from the appropriate governing body that adopted the Policy. Termination would not affect any Court orders, ongoing plans, agreements, actions, or programs unless such actions or programs are changed using appropriate processes and standards.