This chapter shall be known as the Tulalip Tribes Fishing Code.
(Res. 2020-452)
The purpose of this chapter is to assure the continued opportunity for the Tribes and its members to harvest fish, shellfish, and other fishery resources consistent with the conservation of the resource and legal obligations for the allocation of the harvest. Nothing herein shall be construed as a relinquishment, abrogation, or abridgment of any right of the Tulalip Tribes.
(Res. 2020-452)
As used in this chapter:
(1) “Beach seine net”
is a hand- or power-manipulated seine net operated from the shore not customarily used for the gill capture of fish.
(2) “Biological personnel”
means trained biologists and technicians who are employed by the Tribes and whose duties include advising on the management and/or enhancement of the Tribal fishery.
(3) “Biological personnel card”
is an identification card issued by the Fish and Wildlife Director to those biological personnel who are authorized to take and possess fish under the authority of this chapter. Said identification card shall bear the photograph and job title of the person so authorized.
(4) “Ceremonial fishing”
means the taking of, or attempt to take, fish, shellfish, or other fishery resources for use in traditional Tribal ceremonies and/or for religious purposes, and is exclusive of fishing for subsistence and commercial purposes.
(5) “Commercial fish seller” or “seller”
is a person who, for commercial purposes, sells at retail or wholesale fish he has caught himself (including “over the bank”), whether such fish are processed or not, including but not limited to smoking.
(6) “Commercial fishing”
is the taking of fish, shellfish or other fishery resources with the intent to sell them or profit economically from them. The term “profit economically” does not include barter among Tulalip Tribes Tribal members.
(7) “Depth of net”
means the total distance between cork and lead line in meshes measured perpendicular from the cork to the lead line.
(8) “Enrolled person/Tribal member”
means any person who is an enrolled member of the Tulalip Tribes.
(9) “Fish,”
unless a provision is expressly referring to a specific species or category of fish or shellfish, is intended to be interpreted broadly to mean all species of fish and shellfish, including all marine invertebrates, and the harvesting thereof.
(10) “Fish buyer” or “buyer”
means a person, firm, or entity that purchases fish from the fisherman who caught the fish for commercial purposes and/or resale.
(11) “Fisheries Patrol Officer(s)”
means the person or persons charged with the responsibility of enforcing this chapter, the regulations promulgated hereunder, and fishing ordinances and regulations properly adopted.
(12) “Fishing gear” or “gear”
means all types and sizes of hooks, nets, spears, gaffs, lines, traps, appliances, and other apparatus used to take fish.
(13) “Forfeit fish,”
as this term is used in the penalty schedule, means forfeiture of all fish seized or forfeiture of all proceeds from the sale of fish and forfeiture of all property, including fishing gear, seized pursuant to lawful arrest or issuance of a citation. This includes proceeds from the sale of the fish by the fisherman if the fish were not seized by the Fisheries Patrol.
(14) “Gaff and snag line”
are hand-operated gears which are used to impale fish by pursuing and striking the individual fish with the gear.
(15) “Gillnet”
is a net of single-web construction attached at the top to a float line and the bottom to a weight line as customarily used for the gill capture of fish.
(16) “Habitual offender”
is a person who has committed or been convicted of three or more violations of this chapter in a three-year period. The violations may be all civil, all criminal or a combination of both.
(17) “Hand dip net”
is defined as a section of netting distended by a rigid frame, operated by a process commonly recognized as dipping. Such nets may be of any size.
(18) “Hook and line”
refers to a single line, with one or more hooks as per annual general regulations.
(19) “Management period”
means a time interval during which the majority of individuals of a fish species are accessible to capture. A management period is specific to a species and a single species may have more than one management period during the course of a year, depending upon the life cycle of that species.
(20) “Nonenrolled person/nonmember”
means any person who is not an enrolled member of the Tulalip Tribes.
(21) “Purse seine”
is a net having a mesh size of at least four inches on the lead and wings, and three and one-half inches on the bunt not exceeding 1,800 feet on the cork line, nor 2,200 feet on the lead line, and purse seine line combined.
(22) “Round haul net”
is a hand- or power-manipulated seine net which is operated from a boat having no purse seine rings.
(23) “Salmon” or “salmonid”
means the following species of anadromous fish: Chinook, sockeye, coho, chum, pink and steelhead.
(24) “Sent to the dock”
means engagement in any fishing activity stops and the boat immediately returns to dock until the violation is remedied. A Fisheries Patrol Officer must verify the violation has been remedied before the boat re-engages in the fishery.
(25) “Shellfish”
means marine invertebrates including mollusks (clams, geoducks and oysters), crustaceans (crab and shrimp) and echinoderms (sea urchin and sea cucumber).
(26) “Stretched measure”
means the distance between the inside of one knot to the outside of the opposite (diagonal) knot on one mesh. Measurement shall be taken when the mesh is stretched diagonally while wet, by using a tension of 10 pounds on any three consecutive meshes, then measuring the middle mesh of the three meshes while under tension.
(27) “Subsistence fishing”
is the taking of fish, shellfish or other fishery resources for personal subsistence consumption by Tribal members and their families. Subsistence fishing is exclusive of fishing for commercial or ceremonial purposes.
(28) “Suspension of fishing privileges”
means that, during the period of suspension, the suspended fisherman shall not participate in any Tulalip fishery and shall not transfer fishing gear or boat(s) registered to him to any other person participating in a Tulalip fishery. The suspension of fishing privileges shall be counted beginning on the next calendar day after a conviction, failure to appear at a hearing to contest a civil infraction or a finding of/or equivalent to “committed” as the final disposition for any infraction under this chapter. The suspension shall run for consecutive days. The Court shall provide notice of the suspension to the Tulalip Police Department – Fish and Wildlife Division and to the Natural Resources Director.
(29) “Test fishery”
means a fishery allowed on a limited basis for the purpose of acquiring technical or management information, including, but not limited to, run strength, timing, composition, gear selectivity, exploitation rate, and enhancement possibilities.
(30) “Traffic”
means offering, attempting to engage, or engaging in sale, barter, or purchase of fish.
(31) “Tribal Court”
means the Court of the Tulalip Tribes, or any other court established and authorized to hear violations of this chapter, regulations promulgated hereunder, and fishing ordinances and regulations properly adopted by the Fish and Wildlife Director.
(32) “Tribal fisherman” or “fishermen”
means any person, whether or not a member of the Tribes, who is exercising any Tribal fishing right or who is assisting in the exercise of such rights pursuant to Tribal authorization.
(33) “Tribal identification card”
is an identification card issued by a tribal government identifying the holder as an enrolled member of that tribe along with an enrollment number, his or her photograph and any other information which the tribe may require.
(34) “Troll gear”
is a type of fixed hook and line gear.
(35) “Tulalip Board of Directors”
is the governing body of the Tulalip Tribes and is authorized to conduct and regulate the business affairs of and to act on behalf of the Tulalip Tribes.
(36) “Tulalip Fish and Wildlife Director” or “Fish and Wildlife Director”
is the Tulalip Tribes Fish and Wildlife Director as appointed by the Tulalip Board of Directors.
(37) “Tulalip Tribes Fish Commission” or “Commission”
is composed of Tulalip Tribal members elected by the Tulalip membership to carry out certain responsibilities regarding the fisheries policy of the Tulalip Tribes.
(38) “Tulalip Tribes” or “Tribes”
means the entity comprised of the enrolled members of the Tulalip Tribes acting as a governing body through the Tulalip Board of Directors.
(Res. 2020-452)
(1)
Area. The provisions of this chapter and all rules and regulations promulgated under it shall apply to the full extent of the exterior boundaries of the Tulalip Indian Reservation, and at the usual and accustomed grounds and stations, whether on or off the Reservation of the Tulalip Tribes; and shall apply in conformity with all agreements or other cooperative arrangements entered into by the Tulalip Tribes which are designed to provide Tribal access to available fisheries and/or to provide effective fisheries management.
(2)
Persons. The provisions of this chapter and all rules and regulations promulgated under it shall apply to all persons eligible to fish under this chapter wheresoever situated, all persons purporting to exercise fishing rights secured to the Tulalip Tribes by the Treaty of Point Elliott, or other applicable treaties or agreements, to all persons fishing within the Tulalip Indian Reservation, and/or usual and accustomed grounds and stations of the Tulalip Tribes, and to all persons entering beaches, tide-lands, or other submerged lands owned by, or held in trust for, the Tulalip Tribes.
(Res. 2020-452)
(1)
Enrolled Members. Only enrolled members of the Tulalip Tribes may exercise treaty fishing rights under the authority of this chapter, except as otherwise provided in this section. An enrolled person who allows a nonenrolled person to assist in a Tribal fishery contrary to the provisions of this chapter shall be subject to the penalties set out in this chapter for this violation. A nonenrolled person found on a boat operated by an enrolled person exercising treaty fishing rights of the Tulalip Tribes shall be presumed to be engaged in illegal fishing.
(2)
Minors. No person under the age of 15 years who is otherwise eligible to fish under this chapter shall exercise treaty fishing rights for commercial purposes, unless he or she is accompanied by an adult member of the Tulalip Tribes, or unless he or she is the head of the household, or unless there is a showing of extreme hardship. The determination of whether a person is a head of a household and whether there is a showing of extreme hardship sufficient to allow a minor to exercise treaty fishing rights shall be made at the discretion of the Fish and Wildlife Director.
(a)
Minors eligible to fish under this subsection (2) may fish only during the hours of 3:00 p.m. to 10:00 p.m. on school days, and no later than 10:00 p.m. on a day immediately preceding a school day. On a case-by-case basis, the Fisheries Director or designee may grant a pass to a minor to fish outside of these hours.
(b)
It is the duty of the parent or guardian of any minor who is to exercise treaty fishing rights to ensure compliance with this chapter and any regulations adopted hereunder. Both the parent or guardian who permits a minor to violate this section and the minor violating this section shall be subject to the penalties provided under this chapter.
(c)
Anything in this chapter to the contrary notwithstanding, no person under the age of 18 years who is otherwise eligible to fish under this chapter shall be eligible nor entitled to engage in hazardous or potentially hazardous fishing activities, defined as:
(i)
Geoduck diving and participation in geoduck diving training programs; and
(ii)
Any other hazardous or potentially hazardous activity as may be determined by the Fish and Wildlife Director and promulgated in Tribal regulations; provided, however, that where a person is a head of household or where there is showing of extreme hardship, the Fish and Wildlife Director may, in his or her discretion, waive the provisions of this section and allow a person under the age of 18 to engage in hazardous or potentially hazardous fishing activity pursuant to such appropriate conditions as the Director may set.
(Res. 2020-452)
(1)
Biological Personnel of the Tulalip Tribes. Biological personnel of the Tulalip Tribes may take and possess fish of all species for scientific, management, and/or enhancement purposes by any means or gear suitable for the purpose of the biological program, but only if in possession of a currently valid scientific collection permit issued by the Fish and Wildlife Director and in compliance with all applicable terms of such permit.
(a)
Each person taking fish under the authority of this subsection shall keep a cumulative record of all fish so taken by him or her and shall produce it for inspection upon request by the Fish and Wildlife Director or Fisheries Patrol Officer. Fish taken under the authority of this subsection shall not be sold or used by biological personnel for personal gain, but shall be disposed of as directed by the Fish and Wildlife Director.
(b)
Any attempt by biological personnel to circumvent this subsection or to abuse the privilege granted herein shall be grounds for immediate dismissal from employment with the Tribes.
(Res. 2020-452)
(1)
Members of Other Point Elliott Treaty Tribes. In catch reporting areas 7, 7A, 9 and 10, an enrolled member of any other Point Elliott Treaty tribe may assist a Tulalip fisherman in a Tulalip treaty fishery (provided the person has established usual and accustomed fishing rights in the fishing areas in which he or she will be assisting the Tulalip Tribal member fisherman). The treaty fisherman providing assistance shall possess and be required to present upon demand by Tulalip enforcement a tribal identification card verifying their enrollment in a Point Elliot Treaty tribe and a permit issued by Tulalip fisheries. Fees and permit requirements for fishing assistance may be set by regulation.
(Res. 2020-452)
The Fish and Wildlife Director may authorize otherwise ineligible persons to be aboard fishing vessels for no more than 24 hours for special purposes as stipulated on permit. Valid reasons for an observer’s permit include gathering of information for news media reports, scientific research, and firsthand observation of fishing activities by public officials. An observer’s permit shall not be authorized for the purpose of fishing assistance.
(Res. 2020-452)
(1)
Required Identification Cards, Permits, and Licenses. Every person exercising or otherwise participating in Tribal treaty rights fishing under this chapter shall have in their possession:
(2)
Fishing Permits.
(a)
Subsistence/Ceremonial Permit. A subsistence/ceremonial permit shall allow fishing when regulations and open seasons allow, for subsistence, religious, or ceremonial purposes only.
(b)
Scientific Collection Permit. A permit authorizing Tulalip biological personnel to take fish or shellfish for biological, management, or enhancement purposes.
(3)
Boat/Gear Licenses. Commercial boat/gear licenses are issued in the name of the owner of the gear and must be in the physical possession of the operator of the gear and/or boat while fishing. These licenses shall be of the following types:
(a)
Boat Owner’s License. An original permit issued for a boat belonging to an eligible fisherman upon payment of a fee as set by regulation, evidence of Coast Guard (or, where applicable, State) numerals, and registration and/or documentation, safety equipment clearance, and proof of ownership acceptable to the Fish and Wildlife Director. The annual general regulation shall list required safety equipment and standards and shall require that a boat pass a safety inspection before a permit is issued. The Fish and Wildlife Director may also require that a photograph of the boat be taken or other identifying information be provided. If the boat or a portion thereof is owned by a corporation, the shares or other indicia of ownership of said corporation must be exclusively held by eligible Tribal member fishermen as well as the composition of the corporation’s officers, management and Board of Directors. If the boat is being purchased on a conditional sales-type contract or the like, the contract is subject to approval by the Fish and Wildlife Director as bona fide.
(b)
Dive Gear License. A license issued to eligible fishermen who are certified divers upon payment of a fee and upon conditions, if any, as set by regulation. This license authorizes the operation of a specific type of gear or harvest method without reference to a particular vessel.
(4)
Other Permits. The Board of Directors may set from time to time by appropriate resolution such other qualifications and restrictions on the issuance of permits and restrictions of gear types.
(5)
Physical Possession of Identification and Permits Required. Fishermen must have their identification card and all other required permits and licenses in their physical possession while engaged in the sale of fish, fishing, or traveling to or from fishing activity. Biological personnel must have the required identification card and scientific collection permit.
(6)
Unpaid Tribal Debts. No permit or boat/gear license shall be issued to any person who owes any fine, fee, or tax imposed pursuant to this chapter or who has been certified to the Executive Director of the Natural Resources Department by the Port of Tulalip to be either three months past due in their boat moorage payments or other fees or charges or owes the Port more than $150.00 in moorage payments or other charges.
(7)
Commercial Dive Operations Drug Testing Requirements.
(a)
The Tribes finds that commercial diving operations are an inherently dangerous activity and strict safety standards are required to protect divers from serious injury or death. Because of the safety concerns related to diving, all commercial divers shall be required to comply with these commercial dive drug testing requirements as a condition to being granted or maintaining their license to partake in commercial dive operations. The Fish and Wildlife Director is hereby granted authority to deny, suspend or revoke treaty fishing licenses under the terms of this section.
(b)
In order to receive an annual dive gear license, an applicant must pass a drug test administered at an approved lab at the applicant’s expense. The drug test shall test for the same substances tested for by Tribal Employment and results must be forwarded by the lab or submitted with the license application. The drug test must be conducted within the 14-day period prior to submission of the license application and must show negative results for all tested substances. All drug test results shall be treated as confidential. Submission of false, tampered drug test results or tampered urine samples will result in immediate license denial/revocation and the individual shall be ineligible for a license for 12 months. Examples of a tampered urine sample may include a dilute sample, a sample reported by the lab to be invalid or not consistent with human urine, or one in which the results show specific gravity, pH level or creatinine level outside of the normal range.
(c)
The Tulalip Tribes may conduct random testing of licensed divers during the season. Any random testing conducted shall include all dive gear licensees in the pool, and names shall be selected from the pool through a process of random selection. Random testing shall be at the expense of the Tribes and shall be funded from fish tax revenues.
(d)
If Tribal law enforcement or Tribal Fisheries Enforcement personnel have a reasonable suspicion of alcohol or drug intoxication by divers or dive operators/crew during any commercial dive operation, they may suspend the dive operation immediately and may also require the boat to return to dock. Law enforcement personnel shall then administer, as appropriate, a field sobriety test for alcohol and/or drugs. A breathalyzer test may be administered for alcohol intoxication, and any alcohol concentration reading of 0.04 or higher shall be grounds to immediately suspend the individual’s license or permit. Field tests for drugs may involve taking saliva or urine samples for testing, or enforcement may require operators to proceed back to dock for testing at designated locations.
(e)
If an individual refuses to take the tests called for in this policy, or refuses to report for a drug and alcohol assessment in response to a positive test, the individual’s license or permit will be suspended for all treaty fishing activity for 12 months.
(f)
If a certified commercial diver or dive operator/crew licensee registers positive on any drug tests or registers a 0.04 alcohol concentration or above on any breathalyzer test given under this policy (except for post-accident testing involving injury) their license or permit will be immediately suspended for commercial dive operations and the individual will be required to, within seven days of receiving a positive test result, report to Tulalip Family Services or other certified agency for a drug and alcohol assessment. A counselor should develop a follow-up treatment and compliance plan (plan) with conditions which shall be based on the results of the assessment. Upon signing of the plan, the individual’s license or permit will be reinstated upon the condition that they comply with all terms of the plan and have submitted a negative UA. Refusal to agree to and comply with all the terms in the plan will result in continued suspension from participation in all treaty fishing activity until a plan has been agreed to and complied with. Individuals shall be required to sign a release for the counselor to share compliance information with designated fisheries staff. The plan may require the suspended individual to submit to unannounced, unscheduled follow-up testing for up to 12 months following the individual’s return to commercial harvesting.
(g)
Upon a second violation, or a first violation associated with a serious marine incident, a commercial diver, or dive boat operator or crew, immediately loses their license or permit to participate in any treaty fishery for 12 months. The individual shall not be permitted to be relicensed thereafter unless the individual submits a negative UA test and a signed statement from a medical professional indicating they are fit to dive.
(h)
Any individual whose licenses or permits to participate in a treaty fishery have been suspended or terminated pursuant to this section shall be informed of the reasons for suspension or termination and may appeal such suspension or termination through a written request for an appeal to the Fish Commission. As part of the process, the appellant’s complete diving record and overall dive safety compliance will be subject to review. The Fish Commission will provide notice to the individual of the date, time and location for the individual to have an opportunity to address the Commission with any relevant information or arguments they may have. Failure of the individual to appear for the scheduled meeting with the Fish Commission shall be cause for upholding the suspension or termination of their licenses or permits. The decision of the Tulalip Fish Commission shall be final.
(8)
Commercial Dive License Occupational Safety and Health Administration (“OSHA”) Requirements. All commercial divers shall be subject to, and at all times comply with, the OSHA requirements made applicable to commercial diving per Tulalip regulation. Violation of OSHA requirements applicable through Tribal regulation shall result in suspension of a commercial dive license until such time as compliance is demonstrated.
(Res. 2020-452)
(1)
Registration of Gear. All boats and gear used in exercising Tribal fishing rights shall be registered in the name of the Tribal member actually owning or having an interest in that boat or gear and marked in accordance with the procedures established by this chapter and Tribal fishing regulations promulgated hereunder. No gear shall be authorized under this chapter for use in exercising Tribal fishing rights unless it is so registered and marked.
(2)
Identification of Gear. All fishing gear shall be conspicuously marked in such a way that ties the gear to the Tribal member owned vessel so that the owner may be identified without the necessity of removing the gear from the water. All unmarked gear and unattended boats, and any fish or shellfish found therein, may be seized by the Fisheries Patrol Officers as provided herein.
(3)
Tulalip Authorized Fishing Vessels. The Fish and Wildlife Director shall maintain a list of Tulalip authorized fishing vessels. Vessels which meet all ownership requirements under this chapter and hold a currently valid Tulalip vessel permit will be eligible for this list, provided they are not disqualified by the provisions of subsection (3)(a) of this section. Only authorized vessels are allowed to be used in commercial fisheries opened by the Tulalip Tribes.
(a)
Authorized vessels are not allowed to be used in commercial fisheries within the State of Washington opened by the State of Washington, another tribe, or other non-Tulalip management entity. Use of a vessel in violation of this section shall result in removal of the vessel by the Fish and Wildlife Director from the list of Tulalip authorized vessels as of the date and time of such use. If an authorized vessel is removed from the list of authorized vessels by the Fish and Wildlife Director or at the request of the boat owner due to use of the vessel in a Washington State or non-Tulalip commercial fishery, it shall not be eligible to be reinstated as an authorized Tulalip vessel for the remainder of the current annual fishing season and the duration of the next subsequent annual fishing season. Subsequent reinstatement shall be allowed only upon approval of the Tulalip Board of Directors.
(Res. 2020-452)
(1)
The Tulalip Board of Directors shall appoint a Fish and Wildlife Director who shall be supervised by the Executive Director for Natural and Cultural Resources, and who shall be responsible for:
(a)
Managing the Tulalip Tribes fish and wildlife resources;
(b)
Coordinating the activities of the Tribal fishery with the Tulalip Board of Directors;
(c)
Promulgating fishing and hunting regulations subject to review by the Tulalip Board of Directors in their discretion;
(d)
Fisheries enhancement efforts of the Tulalip Tribes;
(e)
Carrying out any other duties delegated to the Fish and Wildlife Director under this chapter; Chapter 8.10 TTC, Hunting; or by the Tulalip Board of Directors;
(f)
Daily management of the fishery by the Fish and Wildlife Director, subject to the recommendations, direction and advice of the Fish Commission.
(Res. 2020-452)
The regulations promulgated by the Fish and Wildlife Director, subject first to the review of the Fish Commission then to the review of the Tulalip Board of Directors in their discretion, shall be consistent with this chapter and may include, without limitation, regulations covering the following:
(1)
Specifying the times and places when and where the taking of any or all of the various classes of fish and shellfish is lawful or is prohibited or otherwise limited.
(2)
Specifying and defining the types, sizes, and other characteristics of fishing gear not already herein defined; and the time, place, and manner in which it will be lawful to use any fishing gear.
(3)
Determining additional requirements and conditions for the issuance of Tribal fishing permits as well as any further restrictions on the use of such permits; and setting procedures for the application for and issuance of such permits. In making these determinations, the Fish and Wildlife Director shall give preference to the use of fish for subsistence, religious, and ceremonial purposes.
(4)
General fishing regulations covering all fisheries of the Tribes shall be presented to the Board of Directors by the Fish Commission during March of each year for their approval and adoption by resolution. These regulations shall cover the period May 1st through April 30th of the following year and shall contain the following sections:
(5)
Preseason regulations for commercial fisheries shall be issued by the Fish and Wildlife Director to the Fish Commission for review and final approval. Such regulations shall be issued for each species, or major species group, upon which fisheries are targeted. Preseason commercial fishing regulations shall contain at least the following information:
(a)
Management areas to which the regulation applies.
(b)
Management periods for the species or species group.
(c)
Legal gear.
(d)
Dates and times of fisheries openings and closures, or a statement of closure of all fisheries which can be modified by in-season emergency regulation.
(e)
An estimate of expected effort (this section to be included only if required by Court order to transmit this information to affected parties).
(6)
The Fish and Wildlife Director shall keep the Board of Directors and the Fish Commission informed as to all developments in the fishery, and may propose Board action when and where appropriate.
(7)
Violation of Fishing Regulations Prohibited. Fishermen are required to adhere to the requirements contained in all fishing regulations and permits issued by the Fish and Wildlife Department. Any violation of fishing regulations or permit requirements which is not otherwise prohibited by the specific offenses listed in this chapter shall be cited under this section as “violation of fishing regulations.”
(8)
All fishermen have an obligation to be aware of fishing regulations applicable to their fishing activities. Fishermen may check current regulations at the Fisheries offices or marina, and emergency regulations will also be available on the Fisheries Nixle Text Message. Lack of notice shall not be a defense to any charge of violating fishing regulations if the regulation at issue was available at the Fisheries Department, marina or on the Fisheries Nixle Text Message.
(Res. 2020-452)
(1)
In adopting regulations, the Fish and Wild-life Director shall consider any recommendations provided by the Fish Commission.
(2)
The regulations regarding specific anadromous salmonid species shall be adopted in accordance with the approved procedures in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974); provided, however, that formal adoption of regulations for any particular run of fish may be deferred until such times as the Fish and Wildlife Director has adequate run strength information.
(a)
The Fish and Wildlife Director and Fish Commission are hereby authorized and directed to adopt such regulatory measures necessary for the Tulalip Tribes to establish and maintain eligibility for self-regulation under U.S. v. Washington.
(3)
All regulations by the Fish and Wildlife Director shall be effective on promulgation by the Fish and Wildlife Director until either altered by the Tulalip Board of Directors or otherwise revoked, expired by its own terms, or otherwise superseded.
(4)
Fishing regulations shall be communicated to other affected management entities as required by applicable orders of the U.S. v. Washington court or any other court of competent jurisdiction.
(Res. 2020-452)
(1)
The Fish and Wildlife Director shall have the authority to make emergency changes in the annual promulgated regulations when deemed necessary to ensure proper management of the fisheries resource. This includes the power to close a Tribal fishery when, in the Fish and Wildlife Director’s judgment, said closure is necessary to meet conservation needs, safety concerns or allocation obligations.
(2)
Emergency regulations shall be effective upon their issuance or according to their terms and shall remain effective until modified, expired, or rescinded by the Fish and Wildlife Director or the Tulalip Board of Directors. All actions of the Fish and Wildlife Director shall remain in effect and shall be enforceable unless specifically modified or rescinded by the Tulalip Board of Directors. No penalty shall be imposed for violations of an emergency regulation unless 24 hours have passed since the issuance of the emergency regulation, or unless the fisherman has been given personal notification of the regulation, whichever occurs first.
(3)
All emergency regulations shall be posted at the Fisheries Department office, and the Tulalip marina, and announced on the Fisheries Department telephone hotline and Fisheries Nixle Text Message. Fisheries Patrol may also communicate emergency regulations directly to fishermen.
(Res. 2020-452)
(1)
Specific Closure. The Tulalip Indian Reservation and all waters off the Reservation fished by the Tulalip Tribes, and all types and methods of fisheries therein, are closed to the taking of all species of fish and shellfish unless and until specifically opened by regulations promulgated hereunder. In the event a boat is engaged in a violation of any of the following prohibited activities, all persons on the boat shall be deemed to be in violation:
(a)
Fishing during a conservation closure, management closure, or allocation closure.
(b)
Deploying fishing gear during a lawful opening that extends beyond the open area boundary, or failure to completely retrieve gear prior to an area closing time.
(c)
Overfishing a subsistence or ceremonial permit.
(2)
Usual and Accustomed. Fisheries activities under this chapter and Tribal fishing regulations promulgated hereunder are geographically limited to the Tribal usual and accustomed grounds and stations and as allowed and/or recognized by United States v. Washington, supra. Additional fishing regulations may be promulgated for those fishing areas/catch reporting districts into which the Tulalip Tribes has been invited in accordance with the established procedures in United States v. Washington, supra.
(3)
Prohibitions – Fishing Under Non-Tulalip Licenses. No person otherwise authorized to fish under this chapter shall fish for commercial purposes anywhere within the Treaty of Point Elliott usual and accustomed fishing areas if such fishing is carried out under the authority of any jurisdiction other than the Tulalip Tribes, or pursuant to a State or non-Tulalip commercial fishing or harvest license.
(a)
Notwithstanding this subsection (3), Tulalip Tribal members shall be authorized to assist on boats validly licensed by other Point Elliott Tribes in places and times when that other tribe has opened fishing. Such assistance must be in conformance with the regulations of the other Point Elliott tribe and with the knowledge of the appropriate fisheries management officials of that other tribe.
(4)
Prohibitions – Fishing with Nonauthorized Fishing Vessel. Only Tulalip authorized fishing vessels, as defined above, may be used in commercial fisheries opened under the jurisdiction of the Tulalip Tribes. Fishing with a nonauthorized fishing vessel shall be a violation of this chapter equivalent to fishing in closed waters.
(a)
Skiffs and other small boats used in conjunction with set net fishing are required to be licensed by the Tulalip Tribes and on the list of Tulalip authorized fishing vessels.
(Res. 2020-452)
Fishing areas/catch reporting districts shall be defined for reference in annual and emergency regulations by the Fish and Wildlife Director subject to the review of the Tulalip Board of Directors and the Fish Commission.
(Res. 2020-452)
The Tulalip Board of Directors shall have the power to delegate, by resolution, the power to manage fishing areas the Tulalip Tribes has in common with other Tribes to treaty councils and other intertribal organizations when it deems such delegation in the best interests of the Tulalip Tribes and the power to negotiate in-common regulations with other Tribes in areas they share in common.
(Res. 2020-452)
(1)
Tax on Fish Sold Commercially. There shall be a Tribal fish tax imposed on each sale of fish and/or shellfish by anyone exercising commercial fishing rights under the authority of this chapter. The tax shall be measured by the gross sales price of each sale of fish and/or shellfish. The amount of tax shall be as set by the Fish Commission on the gross amount of each sale as established annually or at the previous year’s rate if no new rate is set. The funds raised by the Tribal fish tax shall be used in the Tribal Fisheries Program, and for such other Tribal purposes deemed necessary and appropriate by the Tulalip Fish Commission in their discretion.
(a)
The Fish and Wildlife Director may authorize a fish buyer to withhold the Tribal fish tax at the time of each sale of fish and/or shellfish. A list of buyers so authorized shall be kept available in the Tribal office. The Fish and Wildlife Director may also develop permit and contract procedures to regulate fish buyers, subject to review by the Tulalip Fish Commission. Any fish buyer withholding the Tribal fish tax shall remit the amount withheld to the Tulalip Tribes on a regular basis as prearranged with the Fish and Wildlife Director, but not later than 30 days after the sale. Each payment shall be verified against the fish tickets for the sales involved. The fish buyer shall be issued a receipt for the amount of tax remitted. Authorized fish buyers who fail to remit Tribal taxes as required shall be removed from the list of authorized buyers. Fishermen shall be promptly notified of any change in the list of authorized buyers.
(b)
If an authorized fish buyer does not withhold the Tribal fish tax at the time of sale, the Tribal fisherman remains liable for payment of the tax to the Tribes. The Fish and Wildlife Director, or his delegate, shall monthly compute the amount of tax owed by each Tribal fisherman and shall notify each fisherman in writing of the amount of tax due from him or her. Failure to make full payment of the amount due within 30 days from the receipt of the written notice of taxes due shall result in the matter being referred to Tulalip law enforcement as an offense subject to applicable monetary penalties for failing to pay fish tax.
(2)
Tulalip Fish Dealers and Buyers. The Fish and Wildlife Director may license any person or entity wishing to purchase fish for resale from a Tulalip fisherman fishing pursuant to the treaty right upon application containing information required by the Fish and Wildlife Director. Individuals will be identified as either a dealer, who may resell fish purchased from fishermen, or a buyer, who may purchase fish from fishermen on behalf of a dealer. Persons so licensed by the Tulalip Tribes will be collectively known as Tulalip licensed fish buyers.
(3)
Obligations of Tulalip Licensed Fish Dealers and Buyers. Tulalip licensed fish dealers and/or buyers are required to:
(a)
Dealer/Buyer Permits. Tulalip licensed fish buyers must possess a current permit, issued by the Tulalip Fisheries Department, which will be valid from the date of issuance through the next March 31st. A fee for this permit may be established by the Fish Commission. Reissuance of a Tulalip fish buyer permit may be conditioned upon prompt filing of reports as may be required by the Director and the faithful observance of all applicable provisions of this chapter.
(b)
Fish Buyer Bond Requirements. A bond may be required to be posted by fish buyers as a condition to being licensed under this chapter. If the buyer or buyer’s current or prior company has no history of tax delinquencies or NSF checks issued to fisherman sellers, then the amount of the bond shall be a maximum of $5,000. If the buyer has been in good standing without delinquent payments for two or more years, a bond may not be required in order to obtain a buyers license. In cases in which there has been a history of multi-month or repeated delinquent payment of taxes or issuance of NSF checks, the buyer shall be required to post a bond in an amount up to $20,000 in order to obtain a license. The amount of the bond may be raised by the Fisheries Director if past delinquencies exceeded $20,000. Failure to pay taxes and surcharges when due, or the issuance of NSF checks to Tulalip fisherman, shall be grounds for revocation or suspension of a buyer’s license. No buyer shall be issued a license until the balance owing from the previous year is cleared or an agreement on clearing up the balance owing from the previous year has been reached between the buyer and the Fisheries Director, and the required bond is posted. On a case-by-case basis, the Fisheries Director may approve alternative forms of security to satisfy the bonding requirement, such as posting other forms of collateral. Proceeds from bonds posted under this section shall first be available to the Tulalip Tribes to satisfy delinquent taxes, then to cover any amounts owed fisherman due to NSF checks.
(c)
Buyers must (i) withhold the appropriate Tulalip fish tax imposed on fish sellers from gross receipts and remit to the Tulalip Fisheries Department within 30 days of withholding, and (ii) remit returns and payment of all fish buyers tax due within 30 days of the taxable landing. Any tax not paid when due will be subject to additional penalties equal to 10 percent of the amount delinquent compounded monthly for each month or portion thereof for which the buyer is delinquent.
(d)
Buyers must completely and accurately fill out a treaty Indian fish receiving ticket for each purchase of fish and shellfish. All carbons of the fish ticket, except the dealer’s copy, must be received in the Tulalip Fisheries office within one day of fish purchase, or all carbons, except the dealer’s copy, may be mailed to the Northwest Indian Fisheries Commission, within one day of fish purchase.
(e)
Dealers and buyers will agree to be subject to the jurisdiction of the Tulalip Tribal Court system in any action arising from or concerning the regulations pertaining to Tulalip fish buyers.
(f)
Dealers and buyers will prominently display any emblem, decal, or other identifier that may be issued by the Tulalip Fish Department.
(g)
Dealers and buyers will be subject to an administrative fee of $50.00 for each of the incorrectly filled-in treaty Indian fish receiving tickets, or tickets not presented in a timely manner as required, each year. Failure to record fish bought on fish tickets or knowing falsification of fish ticket catch amounts is prohibited and may subject the person falsifying such records to criminal penalties under this code.
(h)
Issuance of a Tulalip dealer’s or buyer’s license in any year will be conditioned upon payment of all withheld fish taxes, payment of fish buyers taxes, license fees, interest, and administrative fees imposed pursuant to this chapter from a previous year.
(i)
Tulalip licensed buyers are not authorized to engage in retail sales of fish purchased under their Tulalip buyer’s license to the public within the boundaries of the Tulalip Indian Reservation.
(j)
The Fish and Wildlife Director may revoke a Tulalip dealer’s or buyer’s license for cause. Any revocation must be preceded by a written warning, delivered to the licensed dealer or buyer. The warning must state the violation of rules or procedures which has occurred and the means by which the problem can be corrected. The buyer will be given at least 10 days to correct the problem. If appropriate corrective action is not taken, or if a similar violation occurs again, the dealer’s or buyer’s license may be revoked upon written notice by the Fisheries Department.
(4)
Tax on Fish Buyers.
(a)
In addition to the fish tax imposed pursuant to this section, there is hereby imposed a tax on all fish buyers transacting business on lands and waters of the Tulalip Reservation at the following rates:
(i)
Chinook, coho and chum salmon, and steelhead, or eggs of any of these species: 5.62 percent.
(ii)
Pink and sockeye salmon, or eggs of any of these species: 3.37 percent.
(iii)
Other food fish and shellfish, except sea urchins and sea cucumbers: 2.25 percent.
(iv)
Sea urchins and sea cucumbers: 4.92 percent.
(b)
The fish buyers tax shall be equal to the gross purchase price of the fish at time of landing multiplied by the tax percentage rate. The gross purchase price for purpose of calculating the fish buyers tax shall not be adjusted based on any withholding of the fish tax from the seller under subsection (1) of this section.
(c)
The tax shall be levied and collected from the first owner possessing the food fish after landing of the food fish on any lands or waters of the Tulalip Reservation. “Possession” means the control of food fish by the owner and includes actual or constructive possession. “Constructive possession” occurs when a person has legal ownership but not actual possession of the food fish. “Landing” is the act of physically transferring food fish to a fish buyer, or other person or entity acting on behalf of the fish buyer who takes possession of the fish on the Tulalip Reservation.
(d)
The funds raised by the fish buyers tax shall be used in the Tribal Fisheries Program for fisheries management, regulation, enhancement, or such other fishery or treaty rights related purposes as determined by the Board of Directors in their discretion.
(e)
Payment of Tax Remittance Returns. The taxes levied by this section shall be due for payment monthly and remittance thereof shall be made within 30 days following the taxable landing of fish. The taxpayer may remit returns and payment within the remittance of the fish tax withheld from fish sellers under subsection (1) of this section. On or before the due date, the taxpayer shall make out a signed return setting out information required by the Fish and Wildlife Director, including the gross measure of the tax and the amount due. The fish buyer shall be prohibited from passing the fish buyers tax to the treaty fish seller by adjusting the price or deducting the amount of the fish buyers tax from the price paid to the treaty fish seller.
(5)
Violations for Unlicensed Purchasing or Selling.
(a)
It shall be unlawful for any person or entity not licensed as a fish buyer by the Tulalip Tribes to purchase fish from Tulalip fishermen fishing pursuant to a treaty right.
(b)
It shall be unlawful for any Tulalip fisherman to sell fish to any fish buyer who is not licensed by the Tulalip Tribes.
(c)
Exception. Limited personal sales are allowed. A tribal fisher may engage in limited personal sales, as defined by regulation, of fish and crab to persons other than licensed fish buyers so long as the fish and crab were lawfully obtained and the fisher properly completes a fish ticket and reports the sale. This limited exception for small sales of fish and crab does not apply to molluscan bivalve shellfish (such as clams, oysters, geoduck and mussels). No personal sales to unlicensed buyers or entities of these shellfish are allowed.
(Res. 2020-452)