RESUMPTION OF COMMERCIAL FISHING

Before any commercial fishing is resumed in the Klamath River, I suggest that the following conditions should be met:

1.

EIS

A proper environmental impact statement should be
prepared in compliance with NEPA. When I met with
you in Washington June 28th, I spent fifteen minutes
or so outlining a number of reasons which I felt
required an environmental impact statement. Although
you listened very politely, you apparently did not
believe that these reasons were sufficient. Since
that time, a number of additional considerations
have presented themselves. First, I have had an
opportunity to check with the authors of the envir-
onmental assessment, Mr. Don Knapp and Mr. Gary
Rankel, and both of those individuals tell me that
the environmental assessment was not, in fact, a
negative declaration and that it did not reach any
conclusion whatsoever that there would be no adverse
impact upon the environment if commercial fishing
were allowed. To the contrary, the environmental
assessment itself specifically states that there
will be adverse impacts upon the environment.
Secondly, it is clear that the predicitions of the
biologists studying the Klamath River were not
accurate, since the B.I.A. has now seen fit to
close the fishery to commercial fishing on the
ground that the salmon run is not at anticipated ́
levels. It is now clear that biological knowledge
of the Klamath River is not adequate to make firm
predictions, and further study is needed.

Enforcement remains a major consideration and one
which was not dealt with at all in the environmental
assessment. Allowing commercial fishing and then
attempting to stop it in mid-season at the height
of the salmon run is somewhat like letting the genie
out of the bottle and then attempting to get him back
in again. The commercial fishing regulations obvious-
ly could have a very harmful effect upon the environ-
Bent of the Klamath River, and a good analogy would
be the building of a nuclear power plant without a
shut-off switch. If the plant works property, nothing
will go wrong, but if it is necessary to shut the
plant down, as it was necessary to shut down the
commercial fishery, the lack of a workable shut-off

switch is a feature of the regulations which must
be addressed before any intelligent decision making
can be done. The authors of the regulations confi-
dently predicted that if insufficient salmon escape-
ment was occurring that the fishery could simply be
closed down. That glib assumption overlooks the
realities of the problem which law enforcement offi-
cials face on the Klamath River as you now know.
The seizure of three and-a-half tons of gill netted
fish in the hands of some commercial buyers two days
prior to your arrival in Klamath is only an example
of the difficulties which law enforcement officials
face. The fish were seized almost by accident in
connection with another investigation relating to
narcotics. There is, in fact, no reliable way for
either State or Federal law enforcement officials
to quickly stop commercial fishing once it gains
momentum. The 651 fish taken on September 5th had
been caught in the river at a time when the commer-
cial moratorium was in full force and effect, and
the river was being patrolled by dozens of Federal
and State agents.

In summary, if it was not clear to you on June 28th that the estab-
lishment of a commercial fishery could have an impact on the re-
sources of the Klamath River, it should be apparent to you now.
An environmental impact statement is required!

2.

DESIRES OF THE INDIAN PEOPLE

It still amazes me that the B.I.A. is so insistent
upon commercial fishing despite the large body of
evidence that the majority of Indian people are
opposed to commercial fishing at least at the pre-
zent time. As I pointed out to you at the June 28th
meeting in Washington, the B.I.A.'s own environmental
assessment states that it appears to the authors that
the majority of Indian people oppose commercial fish-
ing. The Tribal Ordinance of the Hoopa Tribe forbids
commercial fishing. The attorneys-in-fact represent-
ing the Yurok plaintiffs in the Jesse Short case take
the position that although the tribe might authorize
commercial fishing at some future time that at the
present time a commercial fishing ban should be im-
posed. And finally, the B.I.A. representatives I
have spoken to, including Sue Hvalsoe and Tom Fred-
ericks both stoutly insist that there should be no
election held among the Indian people of the Reserva-
tion to determine their wishes: Instead, the B.I.A.
seems intent upon staging public meetings which often-
times become shouting matches in which the strongest

lungs carry the day. An election is the only fair
way to determine the wishes of the Indian people, and
I suspect that the reason the B.I.A. has refused to
hold an election up to now is the fear that the Indian
people would reject commercial fishing.

The leading anthropological source on Yurok history
is A. L. Kroeber, author of Handbook of the Indians of
California. Kroeber's book has considerable authority
as source material, since it was cited as anthropolo-
gical authority by the Supreme Court of the United
States when it decided the case of Mattz v. Arnett.
Kroeber contends that the ancient Yuroks considered
it disgraceful to sell fish.

Thus, it can be seen that the B.I.A., rather than protecting and preserving the cultural values of the Yurok people is actually destroying those cultural values by imposing a commercial net fishery on an unwilling people for the benefit of a small handful.

JURISDICTIONAL QUESTIONS

3. Any decision to allow commercial fishing should be
withheld until after the jurisdictional questions
between the State and Federal Government are answered.
The actions of the B.I.A. in this regard have been
highly irresponsible and dangerous. Since the ques-
tion remains unanswered whether the State or the Fed-
eral Government have the authority to regulate commer-
cial fishing on the Reservation, allowing commercial
fishing before that question is resolved merely means
that in the event the State proves to be correct and
does have the authority to regulate commercial fishing
that a violent explosion is likely. The B.I.A. has
been confidently spreading the word to all who would
listen that in fact Indian people have the right to
fish commercially when actually that is a matter which
is still hotly disputed and unresolved by the courts..
In the event that the State does win the jurisdictional
dispute, the risk to human life is obvious considering
what the B.I.A. has been doing.

Commercial fishing should also await the outcome of
the Jesse Short litigation. It is likely that a great
many of the plaintiffs in the Jesse Short case may be
found not to be Indian people of the Reservation. Some
of the people whose claims are rather questionable in-
clude the most aggressive commercial netters. These

individuals, who may not prove to be Indians at all, are catching a sizeable portion of the salmon run. Their entitlement to Indian fishing rights should be shown before they are permitted to fish commercially.

The apportionment of the salmon run between the State and Federal Governments should be decided prior to any commercial fishing. The B.I.A. apparently intends to permit Indian people to harvest something like 6/7ths of the allowable harvest leaving approximately 1/7th for the people of the State of California. The unfairness of such an apportionment is obvious, and there appears to be no historical or legal precedent for it. This matter should be resolved by the courts prior to permitting commercial fishing.

Finally, a definition of subsistence fishing is desperately needed. In addition, limits on subsistence fishing should be set at reasonable levels. It is obvious that no one can eat a ton of fish in a year's time. Even a person with a large family would have a difficult time doing this. The current regulations, however, place no limit on the subsistence catch for any one individual, and virtually invite people to fish commercially under the guise of subsistence fishing.

Very truly yours,

Robert W. Wein

ROBERT W. WEIR
DISTRICT ATTORNEY

RWW:ds

Conservation Notebook! By Marty Seldon

APPENDIX "B"

Traditional fishing at the mouth of the Klamath has always brought fishermen from all parts of the state and from all walks of life.