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15 Ocean L. Memo 1 (1979)

handle is hein.journals/ocoaslme15 and id is 1 raw text is: Ocean Resources Iaw Program * School of Law * University of Oregan * Eugene * OR 97403 Oce an Law Mmo Issue 15 Au2ust 1979 SUPREME COURT RULING ON BOLDT DECISION USED TO CLOSE OCEAN TROLL FISHERY The continuing story of disputed Northwest Indian fishing rights added two new chapters dur- ing the month of July. On July 2 the Supreme Court upheld the major portions of the celebrated Boldt decision, and on July 24 the decision was applied in another case resulting in partial clos- ures of the ocean troll fishery. This Ocean Law Memo will discuss the closures and how the Supreme Courth ruling of July 2 was used in a separate case to effect them. Also included are a recap of the Boldt decision and some speculations about what the future may hold for the salmon aid those who seek them. On July 24 Judge Schwarzer, in the case of Confederated Tribes v. Kreps, signed an order clos- ing the commercial troll fishery north of Cape Falcon from July 25 through August 3 and ending the season in that area on September 1, seven days earlier than planned. A hearing was later sched- uled for August 13 in Portland to hear arguments on whether recreational fishing should be included in the early September closure, to consider pleas for and against additional closures this sumner, and to discuss procedures for setting ocean salmon regulations in 1980. The Confederated Tribes v. Kreps case involves the Yakima, Warm Springs, Umatilla, Nez Perce, Shoshone-Bannock, Quinault and Quileute Tribes, the Secretary of Commerce Juanita Kreps (through her attorneys), the All Coast Fishermens Market- ing Association and the Washington Trollers Asso- ciation. The basic issue is relatively simple: under the 1979 salmon regulations will enough treaty salmon escape the ocean harvest and thus be available to satisfy the Tribes' treaty allo- cation. The Tribes said no, that additional ocean closures were necessary; the Secretary of Commerce who authorized the 1979 salmon regulations argued otherwise, as did the trollers' associations. The legal arguments involved in the case are complex. For purposes of understanding the controversy from a practical standpoint, some background informa- tion is necessary. The Tribes are federally recognized Indian Tribes residing on reservations located within the states of Oregon, Washington and Idaho. All but the Quinault and Quileute hold treaty-secured fishing rights on the Columbia River and its tri- butaries, and utilize the anadromous fisheries resources for ceremonial, subsistence and commer- cial purposes. The specific run of Columbia River Salmon in which the tribes have treaty rights and which are at issue is the upriver adult fall chinook, a run that is in poor condition due mainly to environmental factors. The treaty rights in Columbia River fisheries were defined in the Columbia River Settlement Plan as a result of other litigation. The Settlement Plan calls for a sixty percent allocation of the in-river harvest to go to the treaty tribes and forty per- cent to non-treaty fishermen. It also sets goals of increasing the in-river numbers of harvestable upriver fall chinook to at least 200,000, up from the present 138,000. The Quinault and Quileute tribes have treaty fishing rights in other Washington streams. Their rights were established in the Boldt decision and recently affirmed by the Supreme Court in its review of that decision. The Secretary of Commerce, Juanita Kreps, is in court as defendant in her role as the author- izing agent for fishery management plans recom- mended by the Pacific Fishery Management Council (PFMC). The Fisheries Conservation and Manage- ment Act of 1976 (FCMA), also known as the 200- mile limit law, established a management scheme whereby management councils recommend management plans for certain fisheries to the Secretary of Commerce for approval. To be approved, the plans must be found by the Secretary to be consistent with all provisions of the FOMA including the national standards for fishery plans as well as consistent with all other applicable law. It is the treaty tribes position that the FCMA, through its other applicable law language, F6/ Distributed by: OSU Extension Service' Sea Grant Marine Advisory Program, Corvallis, OR 97331 _uut17 Issue 15 August 1979

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