Goskagit

While its standing in the federal District Court case involving the historic 1974 Boldt decision remains in question, Fish Northwest has filed another lawsuit.

The regional nonprofit, spearheaded by the owner of an Anacortes fishing charter company, filed a lawsuit in U.S. District Court for the Western District of Washington on April 28.

The lawsuit accuses various federal agencies and agency leaders, along with the state Department of Fish & Wildlife, of violating the Endangered Species Act through its fisheries management in the state.

The federal agencies named in the suit are the National Marine Fisheries Service, the U.S Department of Commerce, the Bureau of Indian Affairs, the U.S. Fish and Wildlife Service and the U.S. Department of the Interior.

While Puget Sound fisheries have been restricted in recent years for tribal and nontribal fishermen, the lawsuit alleges the fishing that has been allowed is to blame for the poor health of the region’s salmon populations.

The lawsuit accuses the agencies — each with a role in protecting threatened and endangered Puget Sound fish — of “procedural and substantive violations of the ESA.”

“The result is that the salmon stocks of Puget Sound continue a downward spiral towards extinction,” the lawsuit states.

The lawsuit follows a notice of intent to sue dated Jan. 29. Joe Frawley, a lawyer representing Fish Northwest in both active court cases, said no responses to that letter were received.

The main issue expressed in that letter is that since 2014 the National Marine Fisheries Service, in coordination with the Bureau of Indian Affairs, has granted year-by-year approval for tribal treaty fisheries for protected species in state waters, whether or not the state Department of Fish & Wildlife is able to reach an agreement with the tribes for recreational fisheries.

“It’s really just smoke and mirrors ... to force an agreement with the tribes and the state, or recreational fishermen don’t get to go fishing,” Frawley said. “That happened in 2016 when they refused to agree to the tribal conditions; The tribes went fishing and the state did not.”

According to the National Marine Fisheries Service, the bureau has authority under a subsection of the Endangered Species Act to allow small tribal fisheries if the review of the state and tribes’ fisheries proposal has not yet been completed. 

Fish Northwest contends that process removes any leverage for recreational fishermen — and the state agency that represents them — at the bargaining table with treaty tribes.

“The state is forced to agree to whatever the tribes demand during the season-setting process,” Frawley said.

The Northwest Indian Fisheries Commission that represents the co-managing treaty tribes declined to comment on the lawsuit.

The earlier court filing Fish Northwest made in October regarding the Boldt decision similarly asserts that through North of Falcon, treaty tribes hold power over the state and that in effect, the co-management and harvest-sharing mandated by the Boldt decision are not being adhered to.

Fish & Wildlife argued in response that Fish Northwest has no legal standing to join the decadeslong case.

“Washington State law makes clear that ‘Wildlife, fish, and shellfish are the property of the state.’ (under) RCW 77.04.012. Thus, salmon are the property of the State, and individual harvesters have no legally recognized personal interest in salmon,” the agency response states.

As of Thursday, the court had not issued a decision on Fish Northwest’s filing. In the meantime, the group decided to take action apart from the Boldt decision.

“It’s unclear what the result of that first filing is going to be, but the Endangered Species Act reserves the right of any citizen to challenge both the federal government and the state, and any individual in violation of the Endangered Species Act,” Frawley said.

— Reporter Kimberly Cauvel: 360-416-2199, kcauvel@skagitpublishing.com, Twitter: @Kimberly_SVH, Facebook.com/bykimberlycauvel

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