STATEMENT OF JOHN J. HAUGH

My name is John Haugh and I represent the Klamath River Basin Task Force. The Klamath River Basin Task Force is a not for profit corporation composed of owners of recreational, tourist-related businesses and other individuals concerned with the quality of the salmon and steelhead fishery in the Klamath River. Many of the group's members are long-time residents of Del Norte County. Most are avid sportsmen themselves and regularly take advantage of the recreational benefits the Klamath River confers on the region. The group's interest in the current salmon fishing controversy, therefore, is not confined to economics. The groups concern is in preserving the quality of the Klamath River environment for all its inhabitants and visitors.

The Klamath River is renowned nationally and internationally among sports fishing enthusiasts for its salmon and steelhead fishing. The region's climate and largely undeveloped character make it an ideal vacation spot for thousands of tourists every year. A major segment of Del Norte County's economy is dependent on tourism. Some of the group's members own businesses which cater directly to tourists, such as recreational vehicle parks, boat rentals and tours and tackle shops. Others own businesses such as markets, restaurants and real estate businesses. Prior to 1976, all of these businesses were going concerns with excellent prospects for growth.

With the advent in 1975 of commercial fishing on the Klamath River, which culminated in the "moratorium" and armed violence in August, 1978, this outlook has suffered a 180 degree reversal. The number of tourists dwindled. Reservations were cancelled. Vacationers, who visit the Klamath River basin yearly, have refused to return until the situation is cleared up. Our files contain petitions and statements signed by hundreds of patrons criticizing the appalling state of affairs, and expressing an intent to vacation elsewhere so long as the situation continues. As a direct result of the commercial fishing controversy, my clients have suffered hundreds of thousands of dollars in lost business. Market values have declined sharply, in many cases rendering the businesses altogether unsalable as going concerns. The total impact on Del Norte County is so severe that federal disaster assistance is currently being made available to residents of the area.

In addition to the purely economic hardships, the situation has engendered a serious concern on the part of my clients for the safety and well-being of their patrons. Numerous reports have been made of incidents in which sports fishermen have been verbally abused, threatened, shot at and otherwise intimidated. It is simply fortuitous that no one has been killed or seriously wounded. Under these circumstances, the reluctance of tourists to visit the region is understandable. The spector of further violence has generated much fear and mental anguish and, in sum, a complete disruption of my client's way of life.

Of course, the crux of the problem is the serious threat of commercial fishing to the anadromous fish in the Klamath River system. Nearly every resident of Del Norte County, Indian and non-Indian alike, depends directly or indirectly on the perpetuation of the salmon and steelhead fishery for their livelihood and lifestyle. Moreover, the fishery is, of itself, an important natural resource to the State of California and its ocean-going commercial fishing industry. The Bureau of Indian Affairs' encouragement and authorization of commercial fishing has created a serious threat to the continued viability of this resource. It is hardly surprising that the vast majority of agencies, government officials and private individuals, including the Indians of the Klamath River region, have criticized the BIA's action as unwarranted and totally irresponsible.

The history of the situation is largely a matter of public record, but bears some comment here. During the third quarter of the 19th Century, when the present Klamath River Reservation was established and consolidated, very little fishing occurred on the river, other than Indian fishing for subsistence and ceremonial purposes. During the last decade of the 19th Century, several canneries sprung up along the river and a commercial fishery operated until 1933. In that year, the State of California determined the anadromous fish runs on the Klamath River were not sufficient to support a commercial fishery and shut the canneries down. Since that date California law has continuously banned the commercial sale of salmon taken from the Klamath River. It is noteworthy that since 1933 the State of California, which keeps yearly records of the fish runs in the Klamath-Trinity River basin, has not seen fit to lift this ban. The depressed levels of anadromous fish populations in the Klamath River has been attributed to many factors: ocean fishing, logging and water control projects, to name a few. Undoubtedly, these contentions have some merit, but these factors are irrelevant because they were affecting the fish runs before the Bureau first authorized Indian commercial fishing. If anything, the

presence and unquantified nature of these other factors makes the BIA's policies even more irresponsible.

In 1975, apparently in reliance on Judge Boldt's decision, the Bureau of Indian Affairs began to encourage Indians to fish commercially on the reservation. Prior to 1977, this "encouragement" did not rise to the level of an official Bureau policy, but it was noted and criticized by a number of individuals, most notably Representative Paul McClosky.

Commercial fishing in 1975 was substantial, but proved to be modest by comparison to 1976 levels. By 1977, commercial fishing had increased to such an intensity that the Bureau of Indian Affairs felt it necessary to promulgate "emergency regulations." These regulations authorized commercial gill netting up to a level of 20,000 fish. While no accurate records of the number of gill netted salmon sold legally and illegally are available, the take almost certainly exceeded this level. The regulations on the whole proved impossible to enforce.

In 1978, over the outcries of almost everyone other than the handful of Indians who stood to profit by them, the Bureau again authorized commercial fishing at the mouth of the Klamath River. Once again, the regulations were completely ineffective in controlling the magnitude of commercial fishing so that in August, 1978, a moratorium on all commercial and sports fishing was imposed. Despite efforts by the Bureau of Indian Affairs and the Fish and Wildlife Service to enforce the regulation, vast quantities of salmon continued to be taken and illegally sold. Attempts at enforcement led to violent confrontations and exacerbated the already strained relationships between the various groups.

The 1979 regulations continue the moratorium on commercial_fishing, but would allow such commercial fishing, by in-season adjustment. The Bureau's prefatory remarks to these regulations make its position clear that commercial fishing is a "federally-reserved right" which should be reinstituted as soon as possible.

The Bureau of Indian Affairs' conduct in this situation is a sterling example of cavalier and irresponsible bureaucratic action. Most recently, on national television, Secretary of Interior Cecil Andrus termed the authorization of commercial fishing a "mistake" and expressed his hope that commercially gill nets would never again be dropped in the Klamath River.

The Bureau's actions were not only irresponsible, but illegal. The Bureau has sought to justify its authorization of Indian commercial fishing by referring to the general statutes granting the Bureau trust authority over Indian affairs coupled with the vague notion of "federally-reserved fishing rights," the basis of which the Bureau has consistently refused to articulate. The Environmental Assessment Report, prepared June 14, 1978, and intended as justification for the regulations, states only that such a conclusion is "based on a review of Indian fishing on the Klamath River and case law interpreting federal fishing rights." An examination of these two sources indicate that no such conclusion is justified.

The Puyallup cases decided by the Supreme Court relied heavily on the treaties in force with the Payallup Tribe as the basis of decision. The tribes of the Klamath River basin are not covered by treaty. Furthermore, those decisions expressly recognize the state's right to regulate commercial fishing in the interest of conservation. The Boldt decision was also based on treaty interpretation and the magnitude of the commercial fishing rights awarded is largely attributable to the State of Washington's unreasonable and upcompromising position that no commercial fishing rights existed whatsoever, at least in the face of state regulation.

The Bureau occasionally makes reference to the case of Arnett v. Five Gill Nets, a California decision which affirmed Indian right to subsistence fishing subject to the state's right to cut off such fishing as an ultimate conservation measure. To my knowledge, no one has seriously contended the Indians have no right to subsistence fish in the Klamath River. The most serious threat to those subsistence fishing rights is the Indian commercial fishing at the mouth of the Klamath.

The reading of these cases discloses no apparent basis for justifying the BIA's blanket conclusion that Indians everywhere are entitled to commercially fish on reservations.

The Bureau of Indian Affairs has been equally vague as to the standards by which a "federally-reserved fishing right" may be determined. Apparently, under this theory, a tribe is entitled to fish in the same manner and for the same purposes as existed when the reservation was formed. In California v. Eberhardt, the historical evidence to support Indian commercial fishing on the Klamath at the date the reservation was established was thoroughly developed. The court held it did not justify a finding that such a right existed. The defendants in that case appealed their conviction, but the appeal was abandoned, at the request of the Bureau of Indian Affairs.

The Bureau of Indian Affairs has pointed to no source of authority for its authorization of commercial fishing, or, indeed, for taking jurisdiction of the question in the first place. This action is particularly outrageous in view of the fact that California has outlawed such fishing since 1933.

Despite a lack of authority for its action, the Bureau of Indian Affairs proceeded to issue regulations and, in the process, refused absolutely to comply with the requirements of the National Environmental Policy Act by preparing an Environmental Impact Statement. The Bureau's position seems to be basically that, since the level of fish runs in the Klamath River are substantially effected by unquantified sources (ocean salmon fishing, logging, etc.), the authorization of an Indian commercial fishery on top of everything is not major federal action with a significant environmental effect. The Bureau admits in its environmental assessment report that substantial uncertainty exists as to the factors affecting the fish run. The express purpose of NEPA is to provide a process quantifying otherwise indeterminate environmental factors which an agency must complete before it acts. It is incomprehensible that the BIA could reach the conclusion it did despite repeated demands by agencies, government officials and individuals to prepare an impact

statement.

In addition to being unauthorized and illegal, the regulations also proved unenforceable during 1977 and 1978. Despite a complex system of licensing, inspections, civil and criminal penalties, and armed attempts to force compliance with the moratorium, substantial quantitites of fish continue to be harvested and illegally sold. Reports have multiplied of instances where agents have failed or refused to pursue violations of which they were aware. The net result of this fiasco is the climate of high tension and ill will previously described from which every inhabitant of the Klamath River region must suffer.

In response to these unlawful and unwise regulations and enforcement attempts, we have taken the following steps. First, in late March of this year, we filed a complaint in the District Court for the Northern District of California challenging the Bureau of Indian Affairs' failure to comply with the requirements of NEPA. We have requested that the Bureau be restrained from issuing or enforcing any further regulations until an Environmental Impact Statement has been prepared. Second, we have submitted to the Bureau of Indian Affairs claims for tortious interference with the personal and property rights of our clients resulting from its reprehensible and irresponsible actions. Damages to property alone through 1978 totalled nearly $400,000. The total claim is in the neighborhood of $1,250,000. If these claims are denied, which we anticipate, we will then file a second suit in District Court under the Federal Tort Claims Act seeking recovery for these damages.

My clients and the Klamath River Basin Task Force stand willing to support any reasonable proposal which would lead to an amicable solution to this entire controversy. We do not contest Indians right to fish for subsistence and ceremonial purposes.

Respectfully submitted,

JOHN J. HAUGH.

Hon. JOHN B. BREAUX,

Portland, Oreg., June 14, 1979.

Chairman, Subcommittee on Fisheries and Wildlife Conservation and the Environment, Washington, D.C.

DEAR CONGRESSMAN BREAUX: I represent the Klamath River Basin Task Force. When I prepared my comments for the Committee hearings in Klamath, held on May 26, 1979, I refrained from including any recommendations as to specific actions the Committee might take to resolve the Klamath River controversy. At the time I prepared my earlier comments, I anticipated being able to personally testify before you. Since I was not able to do so, I wish to now supplement my previous comments. The Klamath River Basin Task Force has developed no comprehensive recommendation to deal with the complexity of interests and equities involved in the Klamath River situation. The group, however, stands willing to support any solution which will assure preservation and replenishment of the Klamath River salmon and steelhead fisheries and which provides for an equitable apportionment of the resources among all Klamath River residents.

In order to assure the preservation and enhancement of the fishery, the Committee should take any available steps to assure that an Environmental Impact Statement is prepared to quantify the various factors (offshore fishing, commercial Indian fishing, water diversion) which currently impact the salmon and steelhead runs. The Environmental Assessment Report, issued by the Bureau of Indian Affairs

last year, admits that the impact for many of these factors is unknown. This is precisely the type of situation in which the National Environmental Policy Act mandates preparation of an Environmental Impact Statement. We are aware of several recent studies of Klamath River fisheries, including the latest one by the U.S. Fish and Wildlife Service. While these studies are necessary and laudable, they are no substitute for a full-scale Environmental Impact Statement.

Second, Congress should take steps to articulate and clarify the commercial fishing rights of non-treaty Indians and, perhaps more importantly, to define the Bureau of Indian Affairs' authority to delimit and pursue those rights for the benefit of the Klamath River Basin Indian tribes. The Bureau of Indian Affairs has consistently relied for its authority on a vague concept of "federally-reserved fishing rights." Not only is this standard of dubious legal validity, but it is a poor basis on which to apportion the rights of many to finite resource. Any Congressional action seeking to delineate the extent of Indian commercial fishing rights should also deal with the interrelationship between state, federal and tribal rights with respect to regulation of the fishery for conservation purposes.

Third, some sort of resolution to the Jessie Short case is desirable. The Klamath River Basin Task Force, while reiterating that the rights of all citizens of the Klamath River area need to be accounted for, favors tribal regulation of the fishery, subject, of course, to state and federal environmental protection laws. There appears to be a great deal of disagreement as to the most desirable way to establish requirements for membership in the Yurok tribe. Whether that determination is finally made by court decree, agency rule or Congressional action, it is plain to our group that no real headway towards a permanent solution to the Klamath controversy can be made until the question of entitlement is settled. From the standpoint of the fishery, however, continued, indefinite delay in reaching this decision poses a significant threat. Therefore, whether Congress chooses to resolve this question itself or leave it to some other body, it should take steps to assure that this determination is made promptly.

Until these three steps-preparation of an Environmental Impact Statement, clarification of Indian commercial fishing rights and states' rights to regulate in the interest of conservation, and qualifications for Yurok tribal membership—have been taken, a moratorium on commercial fishing in the Klamath River should continue. A contrary program jeopardizes the fishery and the rights of thousands of Klamath River Basin residents for the benefit of a few. This moratorium should be strictly enforced, unlike past years, and, to the greatest extent possible, Indian enforcement agents should be employed to minimize the political frictions likely to result from such enforcement.

Sincerely yours,

JOHN J. HAUGH.

STATEMENT OF Dennis Shapiro, Vice President, Klamath RIVER SPORTSMAN'S ASSOCIATION

This shall serve as formal testimony by myself and the Klamath River Sportsmans Association regarding the destruction of the fishery on the Klamath and its tributaties.

As you are aware, a new set of regulations for gillnet fishing on the Klamath went into force on April 1, 1979. Supposedly only Indian subsistence fishing will be permitted, with 100 foot long gillnets having no minimum mesh size requirements. Nets are permitted 24 hours per day, 7 days a week (except from noon to 4:00 p.m. on Fridays). Indians must mark all fish taken off the reservation and cannot sell them. Purchasers and sellers will be prosecuted. This temporary "solution" will only last until the Hoopa and Yurok form a joint tribal government and regulate their own fishing.

I have checked with my sources on the river as to how these regulations are being presently enforced. There are only two Indian agents attempting to enforce these regulations and they have a boat at their disposal. The indelible dye that is supposed to be used to mark fish taken off the reservation for purposes of consumption has not yet been made available. More and more nets are being placed in the river every day as we near the major summer spawning run. Many of the spring fish have already been netted out. Over 3,000 pounds of sturgeon, according to one source, have been caught and are being smoked and shipped out for sale along with the roe. Besides the approximately thirty nets that are set at the mouth of the river, many other nets are being placed up river in inaccessible areas. Because gillnetters who are operating illegally can hear the patrol boat coming, they are able to pull their nets out before the patrol boat arrives. In short, the regulations are totally useless and unenforceable, and this fourth year of heavy commercial netting, along