147 



Under the. standanls set in United States v. Oregon and related proceedings, the treaty 

 fishery can only be" restricted after ocrt^ conditions have been met. First, it must be 

 established that the proposed restrictions are both reasonable and necessary for preservation of 

 the species; the burden of establishing such fects is on the party proposing the restrictions. 

 Second, in order to be deemed necessary, the proposed restrictions must be the least restrictive 

 measures available to achieve the requited conservalioa pmposc. .Hiird, it most be dctcnnined 

 that the conservatioa ptnpose of fee proposed restrictions cannot be adiieved solely by n^nlation 

 of non-Ihdian activities. Fonrtfa, the proposed restrictions may not disc ri minate agaiiist Indians 

 exercising their treaty li^ts, other as stated or applied. And fifth, voluntary tribal actions are 

 not adequate to adiieve the conservation purpose. 



Tlie Team's proposal to modify the existing harvest managemeat r^ime creates two 

 major concerns: recommcadalions to tmilaterally modify the CSFMP ignore the adverse impacts 

 such actions would have on (he integrity of fee CRFMP and fee co-managemeat process; and 

 fee classification of proposed restrictions on treaty harvest as 'conservation" measures lafeer 

 tbaq as allocation issues would unfairly place addidonal burdens on fee tribes' treaty fidieries. 



Because fee Dqrartment of Commerce is a signatory party to fee CEEMP, it (and fee 

 agency which rq)reseats it in U.S. v. Oregon - NMFS) is subject to fee same rules for 

 modifying fee CEEMP as apply to all ofeer parties. Alfeough fee CRFMP contains provisions 

 for review and modification, none of feese provisions prowde that any party may u nilat e r ally 

 revise fee CRFMP over anofeer party's objections. Dqjarture firom fee provisions prescribed 

 by fee CRFMP may require fee Department of Commerce to wifedraw from fee Plan. Alfeough 

 fee CREMP does provide for any party to now wifedraw fiom fee Plan, if fee Dqarttnent 

 wifediew firom fee CRFMP, sndi an action could trigger fee wifedrawal of ofeer key parties. 

 TTus would destroy fee int^rity 'of fee CRFMP and, perhaps more importantly, fee co- 

 management process that has developed ferough fee CRFMP. In addition, such an action could 

 place fee Department of Commerce at odds wife fee Dqjartment of Interior, fee ofeer federal 

 signatory to fee CRFMP, and fee Department of Justice. 



In addition, fee Draft Plan's recommended actions to furfeer restrict treaty fisheries 

 would not meet fee l^al standards descdbed above, nor fee trust responsibility of fee federal 

 government to fee tribes. Lideed, many, of fee issues identified in fee draft plan as 

 "conservation' concerns are more accurately dasafied as allocation issues. For example, by 

 recommending that harvest mortalities on listed Snake River salmon be leduced.to zero, but not 

 recommending grmnar levels ofredTOtions for ofeer sonrces of salmon mortelity, the draft plan 

 continues fee 140 year effort to trnnitnTTft fee tribes' treaty-reserved allocation rights. 



For far too long, numerous actions undertaken or permitted by fee state and federal 

 agencies have ditectiy or cmradatively diminished, fee fishery resource and conseqoentiy 

 impacted fee tribes' abilities to exercise tbdr reserved fishing rights. In negotiating fee treaties, 

 fee tribes did not enviaon nor sanction fee U.S. government uang or allowing fee use of fee 

 resource common to cadi sovereign in a manner feat would d i mini s h its availability to feeotiier. 



