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United States v. State

United States District Court, W.D. Washington

October 17, 1985

UNITED STATES OF AMERICA, et al., Plaintiffs,
STATE OF WASHINGTON, et al., Defendants

Decided October 15, 1985.

Reported at: 626 F.Supp. 1405 at 1527.

Page 1083


Walter E. Craig, United States District Judge.

On August 31, 1977, this court approved a Puget Sound Salmon Management Plan that had been jointly developed by the affected parties. 459 F.Supp. at 1107, subsequently modified October 11, 1978. The plan was to be periodically reviewed by the parties, and commencing in May, 1982, the parties or any of them could propose modifications to the court. On June 1, 1982, the court granted a motion continuing the plan until further order of the court so as to give the parties more time to develop a replacement plan.

The Puget Sound Tribes and the Washington Department of Fisheries have reached agreement on a new plan for managing the Puget Sound salmon runs. The new plan is based upon the experience the parties have had in managing Puget Sound Fisheries since the 1977 plan was enacted. The new plan includes provisions for continued annual review and possible modifications as well as provisions for the development of more detailed regional plans by agreement of the affected parties.

The State of Washington, the Puget Sound Area tribes and the United States have asked this court to approve the new plan and incorporate its provisions as an order of the court.

The court has received and reviewed the proposed new plan. After a review of the plan, the court has amended paragraph 11.1.4 at page 29 by adding the following sentence:

" However, nothing herein is to be construed as relieving any party of any obligation under any law or any administrative or judicial order to timely furnish any information or data to any state, federal, or international governmental body or officer."

The court adopts the attached May 15, 1985 Puget Sound Salmon Management Plan, as amended by the court, as an order of this court to replace the Memorandum Adopting Salmon Management Plan, as modified and set out at 459 F.Supp. 1107-1113. The parties are directed to implement the plan consistent with the Pacific Salmon Treaty and its implementing legislation (P.L. 99-5) and the Salmon and Steelhead Conservation and Enactment Act, 16 U.S.C. 3301 et seq. Other previous orders of this court are changed only to the extent they are explicitly modified by the terms of the attached Plan and then only with respect to their application to runs covered by this Plan.



Page 1084

















1.1 The purpose of this plan is to establish guidelines for management of salmonid resources originating in or passing through Washington waters from the mouth of the Strait of Juan de Fuca eastward (Puget Sound) only. The parties hereto, all Puget Sound treaty tribes and the Washington Department of Fisheries, shall manage from the premise that steelhead and salmon fisheries are intimately related, although it is recognized that the Washington Department of Fisheries does not have jurisdiction over steelhead fisheries. The parties agree to a philosophy of cooperation in implementing management programs to maintain, perpetuate and enhance the salmonid resources.

1.2 This plan is intended to ensure that treaty fishermen and non-treaty fishermen, subject to their respective regulatory authorities, shall be afforded the opportunities to harvest their shares as determined in United States v. Washington, 384 F.Supp. 312, aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086, 47 L.Ed.2d 97, 96 S.Ct. 877, aff'd sub nom Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 61 L.Ed.2d 823, 99 S.Ct. 3055 (1979) and other orders under the court's continuing jurisdiction.

1.2.1 The parties have developed this plan with the objectives of promoting the stability and vitality of the treaty and non-treaty fisheries of Puget Sound and of steadily improving the practical and technical basis for management of each of the Puget Sound fisheries.

1.3 The parties agree to enact and recommend for enactment by the Pacific Fishery Management Council, appropriate regulations for the ocean salmon fishery that will provide for adequate escapement of salmon into Puget Sound waters to achieve the goals and purposes of this plan.

1.4 The parties shall advocate and recommend to the appropriate

Page 1085

governmental and regulatory entities, international agreements to reduce foreign interceptions of salmonids originating from Puget Sound.

1.5 This plan shall remain in effect from the date of the order approving it until modified by agreement of the parties or order of the court.

In order to implement changes for the following year, modifications to this plan must be proposed in writing to other parties by October 1 and either be agreed to by a signed stipulation of all parties filed with the court by December 31 or be entered as an order of the court by December 31. Unless both the October 1st and December 31st deadlines are met, this plan shall continue in effect for the following year. Disputes regarding modifications of the plan must go through the Dispute Resolution process before being filed with the court.

1.6 Where action of the parties is required in this plan, failure to act or to reach agreement shall be resolved as provided in Section 14.

1.7 When adopted by the Court, this plan supercedes and replaces the Memorandum Adopting Salmon Management Plan, 459 F.Supp. 1107 at 1107, as extended by the Order of June 1, 1982 (Docket Number 8421); it also supplements, and where inconsistent, modifies the Order on Certain Questions Re Salmon Fisheries Management, dated April 13, 1976, 459 F.Supp. 1069 at 1069, which is hereby extended and shall remain in effect until further order of the Court, provided, that nothing in this plan is intended to modify or supercede the answer to Question No. 2 as set forth in that Order. This plan also supplements and where inconsistent modifies the Order for Program to Implement Interim Plan, 459 F.Supp. 1035 at 1035, the Orders Establishing Fisheries Advisory Board and Prescribing Procedures for State Emergency Regulations, 459 F.Supp. 1061 at 1061, and Order Re Notification and Effective Date of Emergency Regulations dated August 29, 1980, Docket Number 7158. All orders not expressly modified remain in effect.

1.8 The parties agree that the permit processes of the parties will remain intact. For any project or activity which has been agreed upon by the parties, the issuance of a Washington Department of Fisheries permit will be automatic. Disputes which might arise over issuance of a permit will be submitted to the dispute resolution process described in Section 14.

1.9 All fisheries, both recreational and commercial, are covered by the provisions of this plan unless specifically indicated otherwise. It is the intent of the parties that recreational fisheries be managed consistent with the standards and principles set forth in this plan, and particularly that the recreational fishing regulations adopted by the Washington Department of Fisheries shall be made in accordance with the escapement and allocation provisions of this plan. However, it is recognized by the parties that because of the nature

Page 1086

of recreational fisheries, they cannot always be adjusted in mixed-stock marine management areas as readily in season or in the same time frame as commercial fisheries. Recreational fisheries generally rely on published annual regulations with few in-season adjustments, particularly in marine waters. Resolution of pre-season Puget Sound recreational marine and freshwater management conflicts and agreement on annual recreational fishing plans and objectives must be reached according to the schedules as outlined in Section 6, with consideration for maintaining stability.


Except where the context clearly requires otherwise, the following terms used in this plan have the following meanings:

Adult Fish

A mature salmonid returning to spawn.

Affected Party

A party whose fisheries will be affected by a proposed action under this plan.

Allocation Equivalent

The standard unit of measure used to determine the number of adult fish that would return to treaty fishing areas in the absence of non-treaty fishing. The allocation equivalent run size shall be the net result of accounting for natural mortalities, transfer of harvest to foreign fisheries, and direct fishery-related wastages which are not reflected in actual landings.

Allocation Unit

A management unit or group of management units with similar timing for which harvest shares are calculated.

Equilibrium Brood Program

The standard mode of operation for existing facilities/functions, associated with intervention in one or more of a salmon's life history stages.


That portion of a run that is not harvested and escapes to natural or artificial spawning areas.

Evaluation Fishery

A commercial fishery conducted for the purpose of acquiring technical or management Information.

Future Brood Planning Report

The annual expression of the equilibrium brood program as it pertains to the coming year's run of salmon.

Management Period

The time interval during which regulatory actions are taken to meet the escapement requirements for a management unit or allocation requirement for an allocation unit, taking into account catches (actual or expected) of the unit(s) made outside its management period. Management periods are specific to each management unit (or aggregate of units) and to each fishing area through which the unit(s) passes.

Management Unit

A stock or group of stocks which are aggregated for the purpose of achieving a desired spawning escapement objective.

Maximum Sustained Harvest (MSH)

The maximum number of fish of a management unit that can be harvested on a sustained basis, measured as the number of fish that would enter fresh water to spawn in the absence of fishing after accounting for natural

Page 1087

mortality. MSH is intended to mean maximum sustained harvest to Washington fisheries.

MSH Escapement

The specific escapement for a management unit necessary to provide MSH under average environmental conditions.

Natural Spawning Area

An area which is or may be utilized by spawning salmon and in which egg deposition and fertilization occur naturally.


The state and the 17 Puget Sound tribes together make up the parties to this plan.

Primary Management Unit

A stock or group of stocks for which a specific spawning escapement goal is established with the intention of managing all impacting fisheries to meet that goal.

Prior Interceptions

Harvest of a run by fisheries outside of its region of origin or immature fish within their region of origin computed separately for treaty and non-treaty fishermen.

Region of Origin

A geographic area from which an allocation unit originates. The following geographic areas are recognized regions of origin:

(1) Strait of Juan de Fuca (tributaries)

(2) Bellingham/Samish Bays - Nooksack - Samish Rivers

(3) Skagit

(4) Stillaguamish-Snohomish

(5) South Puget Sound, south of Snohomish System

(6) Hood Canal

(7) Canada


A stock or group of stocks identified for fishery management purposes.

Run Size

The number of fish in an allocation unit, management unit, stock or any aggregation thereof.


The following anadromous species of the family Salmonidae which are native to the United ...

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