Fish and Game Commission refuses to recognize tribal gathering rights

Fish and Game Commission refuses to recognize tribal gathering rights

by Dan Bacher

On June 29, the California Fish and Game Commission voted 4 to 1 at its meeting in Stockton to approve a "preferred alternative," an amended version of the "unified proposal" developed by fishing, environmental and tribal stakeholders to create a network of marine protected areas on the North Coast.

Commissioners Richard Rogers, Michael Sutton, Jack Baylis and Jim Kellogg voted for the alternative, while Commissioner Daniel Richards voted against it.

Natural Resources Agency Secretary John Laird, a strong supporter of Arnold Schwarzenegger's privately-funded Marine Life Protection Act (MLPA) Initiative, claimed that the Commission decision was "a major victory in the effort to establish Marine Protected Areas on the north coast of California." He applauded the Commission for voting for an exception for area tribes to "continue hundreds of years of subsistence fishing."

“As we promised earlier this year, we have devised a pathway to begin the process to allow tribes on the North Coast to continue ancestral fishing practices in many of the areas most important to them,” said Laird. “This is an extremely important decision to move the Marine Life Protection Act forward and to show respect for the sovereign tribal nations.”

Laird said the plan will allow tribal gathering to continue in State Marine Conservation Areas (but not State Marine Reserves) by tribal users. "The gathering can continue where a factual record can be established that shows ancestral take or tribal gathering practices by a federally-recognized tribe in that specific Marine Protected Area," he stated.

“We sincerely appreciate the opportunity to work closely with the sovereign tribes of the North Coast and hope this provides a framework for future efforts on important conservation and environmental issues,” said Laird.

Unfortunately, Laird failed to asked Tribal leaders about how they felt about this so-called "major victory."

Yurok Tribe: "an unjust and patronizing step"

In contrast with Laird's attempt to give a positive spin to the decision, the decision actually "failed to affirm traditional tribal gathering," according to a statement from the Yurok Tribe, the largest Indian Tribe in California with 5,500 members.

According to "Option 1" that the Commission adopted, tribal members sixteen or older would have to use a state recreational fishing license in addition to a Tribal ID and be limited by state regulations.

“I cannot accept the part about the fishing license," said Yurok Tribal Chairman Thomas O’Rourke Sr. "The Fish and Game has taken an unjust and patronizing step. No one can separate these resources from our culture.”

Option 1 states: “Tribal gathering to continue in SMCAs (not SMRs), by specific tribal users, where a factual record can be established that shows ancestral take or tribal gathering practices by a federally-recognized tribe in that specific MPA (marine protected area), and by allowing only those tribes to take specified species with specified gear types.”

The Northern California Tribal Chairmen’s Association and the Inter-Tribal Sinkyone Wilderness Council, representing all of the recognized tribes in the study region, proposed a motion that would have affirmed traditional tribal harvest managed by individual Tribal governments.

The motion states: “Consistent with the tribal gathering general concepts described in Option 1…Traditional, non-commercial tribal uses shall be allowed to continue unimpeded within the proposed SMCAs and SMRMs in the MLPA’s North Coast Study Region for all federally recognized tribes that can establish that they have practiced such uses within a specific SMCA or SMRMA.”

However, the Commission refused to approve that motion, instead adopting a version of "Option 1" with the controversial new language as the "preferred alternative."

“We’ve said from the beginning tribal rights are nonnegotiable,” Chairman O’Rourke Sr. affirmed. “We’ve said that because we are in charge of our destiny. We will never concede our rights or governing authority to the state over our waters.”

Tribal members will gather, regardless of Commission decision

Tribal members at the meeting indicated that they would continue to gather as indigenous people have done for thousands of years, regardless of the Commission's decision.

"Even if traditional gathering is banned, we will still continue to gather," said Georgiana Myers, Yurok Tribal member, during the public comment period prior to the Commission vote.

To protest proposed restrictions on coastal gathering proposed under the MLPA Initiative, members of the Yurok, Hoopa Valley, Karuk and other Tribes before the meeting on Saturday, June 18 gathered seaweed, mussels and clams at three beaches on the North Coast.

"Our message is 'Don't mussel us out,'" said Dania Rose Colegrove, Hoopa Tribal Citizen and organizer for the Coastal Justice Coalition. "We're here to stay - we've been gathering here for thousands of years."

She pointed out the hypocrisy of the MLPA's "marine protected areas" restricting tribal gathering and fishing, while doing nothing to stop ocean industrialists from destroying the marine ecosystem.

"How is it that the MLPA doesn't protect the ocean from big oil, wave energy projects, water pollution, military testing and all of the people who want to mess up the ocean, the people with big money," Colegrove emphasized. "Now the North Coast has been opened up to military testing by the Navy."

For more information about Tribal resistance to the MLPA Initiative, go to: http://www.klamathjustice.blogspot.com.

Commissioners voice concerns with MLPA Initiative

Two Fish and Game Commissioners expressed their concerns with the MLPA "preferred alternative" and the controversial process in general.

Commissioner Richards, the one Commissioner who voted against the MLPA plan, responded to DFG Director John McCamman’s statement that the cost of enforcement of the MLPA coastwide would be a “a range from $9 million to $43 million.”

"I have one thing to interject here,” he stated. “If any organization I ever had anything to do with turned in a business plan, and said their budget was somewhere between $200,000, and $4.6 million, I would say, “YOU'RE FIRED!”

In spite of voting for the "preferred alternative," Kellogg declared, "I'm for Option Zero. Things are fine the way they are."

A broad coalition, ranging from fishing industry representatives to environmental groups, from county governments to Native American governments, supports the decriminalization of the traditional tribal harvest of coastal resources. Representatives of fishing groups, environmental organizations and Tribes from throughout Northern California spoke in support of protecting traditional tribal gathering and the proposal by the Northern California Tribal Chairmen’s Association during the meeting’s public comment period.

The "preferred alternative," along with two alternatives including "Option Zero, will now undergo review under the California Environmental Quality Act (CEQA). The Commission is planning to adopt the final plan for North Coast marine protected areas in early 2012.

This option, as approved by the Fish and Game Commission, will be reviewed during an environmental impact study over the next several months. If the commission approves the findings of the study, the newest Marine Protected Areas will be established on the North Coast.

Commission chooses October 1 as effective date for South Coast MPAs

The Commission, in another controversial 4 to 1 vote the same day, chose Oct. 1, 2011 as the "effective date" for implementation of the marine protected areas in Southern California under the MLPA Initiative.

On Dec. 15, 2010 the Commission adopted regulations to create a network of "marine protected areas" (MPAs) in the South Coast study region. This network of 49 MPAs and three special closures covers approximately 354 square miles of state waters and represents approximately 15 percent of the region.

"The regulatory package is being prepared for the Office of Administrative Law (OAL) and the date selected today allows time for OAL review and approval, finalizing the lawmaking process," stated Jordan Traverso, DFG spokesperson.

A coalition of fishing groups opposed the selection of the October 1 date, noting that "process of developing Marine Protected Areas in the South Coast study area was significantly flawed."

"The Commission acted without the required statutory authority to act," said George Osborn, spokesman for the Partnership for Sustainable Oceans (PSO). "It violated the Coastal Act and it violated the California Environmental Quality Act. The process mandated by the MLPA was subverted by the MLPA 'Initiative' and by the creation and actions of the BRTF."

Osborn emphasized that public records “clearly demonstrate that members of the the BRTF engaged in private meetings not open to the public or noticed to the public, in which policy matters were discussed and decided upon before the so-called ‘public’ meetings of the BRTF. We believe the process was illegal and violates California statutes. The MLPAI was anything but ‘open and transparent as is so often proclaimed.”

United Anglers of Southern California, the Coastside Fishing Club and Bob Fletcher are engaged in multi-tiered litigation in San Diego Superior Court challenging the legality of the MLPA Initiative. To date, they have won three court victories in a row.

MLPA Initiative Background:

The Marine Life Protection Act (MLPA) is a law, signed by Governor Gray Davis in 1999, designed to create a network of marine protected areas off the California Coast. However, Governor Arnold Schwarzenegger in 2004 created the privately-funded MLPA "Initiative" to "implement" the law, effectively eviscerating the MLPA.

The "marine protected areas" created under the MLPA Initiative fail to protect the ocean from oil spills and drilling, water pollution, military testing, wave and wind energy projects, corporate aquaculture and all other uses of the ocean other than fishing and gathering.

The MLPA Blue Ribbon Task Forces that oversaw the implementation of "marine protected areas" included a big oil lobbyist, marina developer, real estate executive and other individuals with numerous conflicts of interest. Catherine Reheis Boyd, the president of the Western States Petroleum Association who is pushing for new oil drilling off the California coast, served as the chair of the MLPA Blue Ribbon Task Force for the South Coast.

The MLPA Initiative operated through a controversial private/public "partnership funded by the shadowy Resources Legacy Fund Foundation. The Schwarzenegger administration, under intense criticism by grassroots environmentalists, fishermen and Tribal members, authorized the implementation of marine protected areas under the initiative through a Memorandum of Understanding (MOU) between the foundation and the California Department of Fish and Game (DFG).

Tribal members, fishermen, grassroots environmentalists, human rights advocates and civil liberties activists have slammed the MLPA Initiative for the violation of numerous state, federal and international laws. Critics charge that the initiative, privatized by Governor Arnold Schwarzenegger in 2004, has violated the Bagley-Keene Open Meetings Act, Brown Act, California Administrative Procedures Act, American Indian Religious Freedom Act and UN Declaration on the Rights of Indigenous Peoples.

MLPA and state officials refused to appoint any tribal scientists to the MLPA Science Advisory Team (SAT), in spite of the fact that the Yurok Tribe alone has a Fisheries Department with over 70 staff members during the peak fishing season, including many scientists. The MLPA Blue Ribbon Task Force also didn't include any tribal representatives until 2010 when one was finally appointed to the panel.