This Code shall be known as the Port Gamble S’Klallam Fishing Code.
(Res. 94 A 109, 7/12/1994; Res. 15-A-167, 12/9/2015)
[1]
Note: Resolution No. 94 A 109, passed 7/12/1994, adopted a completely revised and codified Fishing Code and repealed all prior Fishing Ordinances. Resolution No. 15-A-167, passed 12/9/2015, adopted numerous revisions to Title 17 the Fishing Code.
Fishing has always been central to the cultural and economic existence of the Port Gamble S’Klallam Tribe and its members. By this Code and the regulations adopted under it, the Port Gamble S’Klallam Tribe intends to exercise control over fishing, shellfishing and related activities to the fullest extent of tribal jurisdiction in order to properly regulate, manage and protect all of the fisheries resources available to the Tribe and to insure their continued availability to the Tribe and its members. Nothing in this Code shall be construed as a relinquishment, abrogation or abridgment of any treaty right of the Port Gamble S’Klallam Tribe.
(Res. 94 A 109, 7/12/1994)
(a) "Accompanied"
is in the immediate physical presence of another person.
(b) "Beach Identification Number" or “BIN”
is the six-digit number or other number agreed to by the State of Washington and the Tribe to identify a beach managed for shellfish harvest by the Port Gamble S'Klallam Tribe.
(c) "Beach Seine"
is a type of net used to capture finfish in near-shore areas by encircling them using a process commonly known as seining.
(d) "Biological Personnel"
are trained biologists and technicians who are employed by the Tribe and/or the Point No Point Treaty Council and whose duties include advising on the management and/or enhancement of the tribal fishery or the Treaty Council fishery.
(e) "Buyer"
is a person who purchases fish or shellfish from the fishers who caught the fish or shellfish or who, for commercial purposes, smokes or otherwise processes and sells fish or shellfish that the fishers have caught themselves.
(f) "Ceremonial Fishing"
is the taking of fish, shellfish, or other fishery resources for use in traditional tribal ceremonies and/or for religious purposes, and is exclusive of fishing or shellfishing for subsistence and commercial purposes.
(g) "Commercial Fishing"
is the taking of fish, shellfish or other fishery resource with the intent to sell it or profit economically from it. The term “profit economically” does not include barter among Port Gamble S’Klallam tribal members.
(h) "Crab Pot"
is an enclosed trap with at least two escape rings or ports located in the upper half of the trap.
(i) "Depth of Net"
is the total number of meshes measured perpendicular between cork and lead line.
(j) "Dive, Dives, Diving"
is the use of SCUBA, surface-supplied air or mixed-gas diving methods.
(k) "Drift Net" (pole net) gear
is a gillnet which is not staked, anchored or weighted but drifts free.
(l) "Enrolled Person or Enrolled Member"
is any person who is an enrolled member of the Port Gamble S'Klallam Tribe.
(m) "Exercise Treaty Fishing Rights" and "Exercise Tribal Fishing Rights"
include, but are not limited to, harvesting, transporting, processing, offering for sale or barter, any fish or shellfish; and traveling to and from such activities–purportedly pursuant to treaty fish and shellfish rights.
(n) "Finfish"
is a fish with a backbone that has gills throughout its life and has limbs, if any, in the shape of fins.
(o) "Finfishing"
is attempting to catch, trap, net or otherwise take any finfish from its natural habitat; and/or having caught, or to possess, any finfish on a fish site previously described in this definition.
(p) "Fisheries Manager"
is the person(s) charged with oversight on operations and policy issues for the finfish and shellfish programs. The actual title may change (i.e. Director) however the responsibilities under this Code remain the same.
(q) "Fisheries Enforcement Officer(s)"
is the person or persons charged with the responsibility of enforcing this Code and the regulations promulgated under it.
(r) "Fishing"
is the act of harvesting shellfish or finfish during but not limited to a commercial, subsistence, or ceremonial fishery.
(s) "Fishing Boat/Vessel"
is any motorized vessel used to deploy, retrieve or transfer fishing or shellfishing gear or fisheries products
(t) "Fishing Gear"
is all types and sizes of hooks, nets, spears, gaffs, lines, traps, rakes, shovels and appliances and other apparatus used to take fish or shellfish.
(u) "Fish Ticket"
is the form provided by the State of Washington to licensed fish buyers for recording the sale of all commercial fisheries products. This form is also known as “Treaty Indian Fish Receiving Ticket”.
(v) "Gaff" (hand operated gear)
is a large iron hook attached to a pole or handle and used to hook or land a fish u)
(w) "Gillnet"
is a net of single-web construction bound at the top by a float line and at the bottom by a weight line.
(x) "Hand-Dip Net"
is defined as a section of netting distended by a rigid frame, operated by a process commonly recognized as dipping.
(y) "Hook-and-Line" (hand-line)
refers to a single line, attached to which are single-point hooks or treble-point hooks.
(z) "Management Period"
is the time interval during which the majority of the individuals of a fish or shellfish species are accessible to capture. A management period is specific to a species and location.
(bb) "Non-Enrolled Person" or "Non-Member"
is any person who is not an enrolled member of the Port Gamble S'Klallam Tribe.
(cc) "Point No Point Treaty Council (Treaty Council)"
is the confederacy of Indian Tribes in the Point No Point Treaty area established for the purpose of unifying management of the Indian fisheries resource in the Point No Point area.
(dd) "Polluted Beach or Area"
is any area closed to shellfish harvest by the Port Gamble S’Klallam Tribe because pollution has caused shellfish in the area to become a hazard to human health.
(ee) "Port Gamble S’Klallam Tribe (Tribe)"
is the present-day sovereign tribal entity which is the political successor in interest to certain tribes, bands or groups of Indians who were parties to the Treaty of Point No Point.
(ff) "Purse Seiner"
is a fishing vessel that carries machinery for the power retrieval of seine nets, and seine nets include all types of fishing gear consisting of a lead line, cork line, auxiliary lines, purse line and purse rings and mesh net webbing fashioned in such a manner that it is used to encircle finfish, and in addition prevents their escape under the bottom or lead line of the net by drawing in the bottom of the net by means of the purse line so that it forms a closed bag.
(gg) "Ring Net"
is a type of dip net which may be lowered from a vessel by a rope.
(hh) "Seller"
means a person who, for commercial purposes, sells, or smokes or otherwise processes and sells fish those fishers have caught themselves.
(ii) "Set Net"
is a gillnet which is anchored, tied, stationed, laid in part on shore or whose lead line is so heavily weighted that it cannot drift.
(jj) "Shellfishing"
is attempting to catch, trap, net or otherwise take any shellfish from its natural habitat by any means whatsoever; and/or having caught, or to possess, any shellfish on a shellfish site by any means previously described in this definition.
(kk) "Shellfish"
are all marine invertebrates including, but not limited to, littleneck, manila, horse, butter, and geoduck clams; cockles; scallops; squid, octopi, mussels, sea cucumbers, sea urchins, oysters; shrimp; and crab.
(ll) "Shrimp Pot"
is an enclosed trap made of netting stretched over a rigid frame that incorporates entry tunnels.
(mm) "Snag Line" (hand operated gear)
is a line with one or more unbaited hooks attached there to used to the purpose of snagging any species of food fish.
(nn) "Stretched Measure"
is the distance between the inside of one knot to the outside of the opposite knot on one mesh of netting material. This measurement shall be taken when the mesh is stretched vertically while wet, by using a tension of ten (10) pounds on any three (3) consecutive meshes, then measuring the middle mesh of the three (3) while under tension.
(oo) "Subsistence Fishing"
is the taking of fish, shellfish, or other fishery resources for personal consumption by tribal members and their families. Subsistence fishing is exclusive of fishing or shellfishing for commercial or ceremonial purposes.
(pp) "Test Fishery"
is a fishery allowed on a limited basis for the purpose of acquiring technical or management information including stock strength, timing, species or stock composition, gear selectivity, exploitation rate, and enhancement possibilities.
(qq) "Treaty Council Biologist"
is a member of the biological staff of the Point No Point Treaty Council.
(rr) "Tribal Council"
is the Port Gamble S’Klallam Community Council, and is the duly constituted governing body of the Port Gamble S'Klallam Tribe delegated by the Port Gamble Community Council to conduct and regulate the business of and act on behalf of the Port Gamble S’Klallam Tribe.
(ss) "Tribal Court"
is the Community Court of the Port Gamble S’Klallam Tribe or any court established by the Tribe to hear violations of this Code and regulations promulgated under it.
(tt) "Tribal Fisherman"
is any person, whether or not a member of the Tribe, who is exercising any tribal fishing or shellfishing rights or who is assisting in the exercise of such rights pursuant to tribal authorization.
(uu) "Troll Gear"
is a series of fishing lines with hooks attached, drawn through the water behind a moving fishing vessel which are retrievable either manually or hydraulically.
(vv) "United States v. State of Washington (U.S. v. Washington)"
is the decision of the U.S. District Court reported in 384 F. Supp. 312 (W.D. Wash 1974), aff’d 520 F.2d 676 (9th Cir. 1975) cert. denied 423 U.S. 108 and all applicable post-trial orders and proceedings.
(Res. 94 A 109, 7/12/1994; Res. 97 A 024, 3/21/1997; amended to add and update definitions, Res. 06 A 067, adopted 9/19/2006; Res. 15-A-167, 12/9/2015 changed or added the definition for the following: Beach Seine, Finfish, Finfishing, Fishing, and Purse Seiner.)
(a)
Territory. The provisions of this Code and all rules and regulations adopted under it shall apply to the full extent of the sovereign jurisdiction of the Port Gamble S’Klallam Tribe and shall apply in conformity with all agreements and other cooperative arrangements entered into by the Port Gamble S’Klallam Tribe which are designed to provide tribal access to available fisheries and to provide effective fisheries management in the Point No Point Treaty area.
(b)
Persons. The provisions of this Code and all rules and regulations adopted under it shall apply to all persons who are eligible to fish under this Code, all persons who claim to be exercising fishing rights secured to the Port Gamble S’Klallam Tribe by the Treaty of Point No Point or other applicable treaties or agreements, and to all persons fishing within the exterior boundaries of the Port Gamble S’Klallam Reservation.
(Res. 94 A 109, 7/12/1994)
The waters and beaches of the Port Gamble S'Klallam Reservation and all waters and beaches off-Reservation fished by the Port Gamble S'Klallam Tribe are closed to the taking of fish and shellfish unless specifically opened by this Code or by annual or emergency regulations.
(Res. 94 A 109, 7/12/1994)
The Tribal Council retains the power to establish a system of limited entry for commercial fishing and shellfishing.
(Res. 94 A 109, 7/12/1994)
This Code shall be liberally construed to give full effect to the objectives and purposes for which it was enacted.
(Res. 94 A 109, 7/12/1994)
Cross reference notations found within the body of the Code are designed to assist people using the Code and are informational only. Cross referencing a provision to an offense section or the failure to do so does not carry any legal meaning.
(Res. 94 A 109, 7/12/1994)
All fishing code violations are civil infractions. The civil infraction procedures contained herein shall be used to adjudicate all fishing infractions.
(Res. 18 A 148, 12/17/2018 clarified that there are both civil infractions and criminal violations in Title 17. Prior to 12/2017 there were only 2 criminal violations—Shellfishing from Polluted Beach and Assault; Res. 20 A 083, 9/28/2020, changed all fishing violations to civil violations.)
A Fisheries Enforcement Officer shall issue an infraction citation when the violation occurs in the officer’s presence. The citation shall include a court date and time to appear at the Community Court. If the alleged civil infraction does not occur in the presence of an officer and is a result of documentation or an investigation that indicates the probability of a violation, the citation shall be issued in accordance with Code Section 3.02.04, Service of Notice. Once a citation is served on the alleged violator, he/she has fifteen (15) days to inform the court of his/her intent to accept the penalty, to explain the circumstances, or to contest the facts.
(Res. 20 A 141, 12/14/2020, amended this section.)
The citation will state that it is for a civil infraction and that the alleged violator will be given the option of (1) accepting the facts as stated in the Officer’s report and accepting the court’s imposed penalty; (2) accepting the facts as stated in the Officer’s report but providing the court with an explanation of the circumstances surrounding the violation which arguably might lessen the penalty; or (3) asking for a fact-finding hearing to contest the facts in the Officer’s report and that a violation occurred. At the court date provided in the citation, the alleged offender shall inform the court of which option he/she wishes to use. For a first-time citation, the alleged violator may pay the fine instead of appearing in court.
All civil infraction hearings shall be before the court without a jury.
(Res. 18 A 148, 12/17/2018 repealed this section. As of 12/2017 Title 17 has both civil and criminal offenses and this section specified rights in court hearings that would only apply for civil infractions; Res. 20 A 141, 12/14/2020, restored this section. Revision, repeal, and restoration of this section corresponds with the changes in criminal vs. civil violations in this code.)
The tribal court may hold a hearing for the purpose of allowing a person to explain the circumstances surrounding the violation which might arguably lessen the penalty within the allowed range. The hearing shall be an informal proceeding to which the following rules apply:
(a)
The person requesting a mitigation hearing may not contest the determination that a fishing violation occurred;
(b)
The Tribe may be represented by the Tribal prosecutor and person requesting the hearing may be represented by counsel at their own expense;
(c)
The Tribe and the person requesting the hearing may call witnesses to testify;
(d)
After the Court has heard the explanation of the circumstances surrounding the commission of the fishing violation, the Court shall determine whether the explanation of events justifies reducing the penalty within the allowed range and enter an order accordingly; and
(e)
There shall be no appeal from the Court’s order.
(Res. 18 A 148, 12/17/2018 repealed this section; Res. 20 A 141, 12/14/2020, restored this section. Repeal and restoration of this section corresponds with the changes in criminal vs. civil violations in this code.)
The following rules apply to hearings held to contest the determination that a fishing violation has occurred:
(a)
The Court shall set a hearing date no sooner than fifteen (15) days nor more than sixty (60) days after the date of the initial hearing, unless the parties agree otherwise;
(b)
The Tribe may be represented by the Tribal prosecutor and the person requesting the hearing may be represented by a spokesperson or counsel at their own expense;
(c)
The Tribe and the person requesting the hearing may call witnesses to testify;
(d)
The burden of proof is on the Tribe to establish the commission of the violation by a preponderance of the evidence;
(e)
The Tribe and the person requesting the hearing has the right to present evidence and examine witnesses;
(f)
After consideration of the evidence and arguments, the Tribal Court shall determine whether the violation was committed. Where it has not been established by a preponderance of the evidence that a violation has been committed, the court shall enter an order dismissing the action. Where it has been established that a violation has been committed, the Court shall enter an order accordingly;
(g)
There shall be no appeal from the Court’s order.
(Res. 13-A-098, 7/9/2013, added Sections 17.01.10 – 17.01.14 to clarify all, except two, violations of the fishing ordinance will be treated as civil offenses; Res. 18 A 148, 12/17/2018 repealed this section; Res. 20 A 141, 12/14/2020, restored this section. Repeal and restoration of this section corresponds with the changes in criminal vs. civil violations in this code.)
If any provision of this Code, or its application to any person or legal entity or circumstance, is held invalid, the remainder of the Code, or the application of the provision to other persons or legal entities or circumstances, shall not be affected.
(Res. 94 A 109, 7/12/1994)