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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