Tribal Incidental Take of Pinnipeds
External Talking Points and Q&A1
BACKGROUND
When Western Washington tribes exercise their treaty right to fish, this includes
the practice of deterring California and Steller sea lions and harbor seals from
interfering with treaty fishing, gear, and catch. In 2013, the Northwest Indian
Fisheries Commission (Commission) and several of its member tribes completed
development of a model regulation addressing the interaction of treaty fishing
operations with marine mammals in the Salish Sea and along the Washington
Coast. The regulation allows non-lethal deterrence of California and Steller sea
lions and harbor seals and, in some instances, lethal take. Numerous tribes have
adopted versions of the model regulation. The Commission and several tribes
communicated with NOAA Fisheries during development of the model regulation,
and included provisions for government-to-government information sharing and
coordination between tribal and NOAA Fisheries officials. NOAA Fisheries
appreciates their coordination and is currently working with the tribes and
Commission on annual reporting for interactions between tribal fishers and
marine mammals, as the model regulation calls for.
TALKING POINTS/KEY MESSAGES
● Fish are a main part of Western Washington tribal culture and diet. Since
time immemorial, tribal fishers have harvested salmon in the waters of
western Washington and protected their catch and gear from seals and sea
lions.

1

For internal use by NOAA Fisheries West Coast Region, Office of Law Enforcement, and General Counsel staff in
responding to external inquiries regarding tribal lethal take of pinnipeds in fisheries. This document was
developed in cooperation with the Puget Sound, Strait of Juan de Fuca, and Washington Coast Treaty Tribes and
the Northwest Indian Fisheries Commission on July 24, 2018.

 ● As sovereign governments and responsible natural resource co-managers,
the treaty tribes are working with NOAA Fisheries to effectively manage
interactions of their tribal fishers with marine mammals.
● Between 1854 and 1856, 21 Indian Tribes in western Washington signed
treaties with the U.S. government to reserve their right to fish in traditional
areas.
○ In the landmark ruling under U.S. v. Washington, Judge George Boldt
re-affirmed the tribes’ right to take half of the harvestable salmon
returning to western Washington waters
● Western Washington tribes interpret their treaty right to fish to protect
traditional fisheries, including the practice of deterring marine mammals
from interfering with treaty fishing, gear, and catch.
○ Historical tribal fishing activities likely included deterring marine
mammals interfering with fishing and gear
○ This includes using lethal force, if non-lethal deterrence is not
effective, to protect themselves, their catch, and their gear from
California and Steller sea lions and harbor seals
○ In case of an imminent necessity in self-defense or a life-threatening
situation , tribal fishers (like non-tribal members) can defend
themselves, including through the use of lethal force
● When Congress adopted the 1994 Amendments to the Marine Mammal
Protection Act (MMPA), which included the current provisions governing
take of marine mammals in commercial fisheries, it expressly included a
tribal treaty savings clause.
○ The MMPA’s protections have contributed to the recovery of sea
lion and harbor seal populations in the Salish Sea and Washington
coast, which are at or approaching carrying capacity
○ NMFS published a final rule to delist the eastern population of Steller
sea lion under the Endangered Species Act in November 2013. The

 western population (west of 144°W longitude in the Aleutian Islands,
Alaska) is still listed as endangered
○ California and the eastern Steller sea lion and harbor seal
populations are healthy and flourishing on the West Coast
● The model regulation authorizes, while seeking to minimize, the lethal
incidental take of three marine mammal stocks not listed under the
Endangered Species Act or determined to be depleted under the MMPA –
California and eastern Steller sea lions and harbor seals.
○ The regulation calls for non-lethal deterrence before lethal action is
taken
○ Only California sea lions, Steller sea lions (eastern stock), and harbor
seals are subject to lethal take
○ The tribes report through the Northwest Indian Fisheries Commission
to NOAA Fisheries on incidental takes of marine mammals resulting
in mortality or serious injury, which is intended to provide us with a
more accurate understanding of impacts on marine mammal stocks
● NOAA Fisheries will prioritize its limited enforcement resources and our
response to incidents involving marine mammal interactions accordingly
and will continue to work with state enforcement officers to respond to
these incidents.
● NOAA Fisheries Office of Law Enforcement (OLE) has a longstanding policy
in the Pacific Northwest of referring enforcement matters involving tribal
members back to their respective tribes for disposition, provided the tribe
has applicable law in place, and provided the tribe pursues enforcement
action in a diligent manner.
○ NOAA Fisheries appreciates the coordination and cooperation with
our partner tribal enforcement agencies
○ In some cases a cooperative investigation between NOAA Fisheries
OLE and a tribe may be pursued

 QUESTIONS AND ANSWERS
Does the MMPA prohibit lethal take of California and Steller sea lions and
harbor seals by tribal treaty fishers?
As reflected in the model regulation, Western Washington tribes take the position
that the MMPA does not prohibit tribal treaty fishers from defending their gear or
catch through lethal take of California and Steller sea lions and harbor seals.
NOAA Fisheries recognizes that in the same statute that Congress enacted to
regulate the take of marine mammals in commercial fisheries, Congress stated
that those statutory prohibitions did not alter any Indian treaties, including those
reserving treaty Indian fishing rights (Section 14 of the 1994 Amendments to the
MMPA; Public Law No. 103-238; see also Section 2(b)). NOAA Fisheries
acknowledges the Tribes’ interpretation of the MMPA’s provisions. NOAA also
values our partnerships with the Western Washington tribes. When an incident
involving a tribal treaty fisher is reported, NOAA Fisheries OLE evaluates each
incident based on the unique circumstances involved. In most instances, NOAA
Fisheries OLE anticipates referring such incidents to the relevant tribal authorities.
NOAA Fisheries appreciates the Tribes’ coordination with this approach as
reflected in the model regulation.
What is NOAA Fisheries’ role under the model regulation?
In prioritizing its enforcement efforts, NOAA Fisheries is unlikely to expend its
limited enforcement resources to investigate the potential take of marine
mammals in tribal treaty fisheries where the Tribe has adopted and is
implementing the model regulation. NOAA Fisheries evaluates each incident
based on the unique circumstances involved. If NOAA Fisheries OLE receives a
report of an incident falling within the model regulation, NOAA Fisheries generally
anticipates it would refer the matter to the appropriate tribal enforcement
officials.
What is the Western Washington Tribes’ role under the model regulation?

 Restrictions on the taking of marine mammals under the MMPA are primarily
enforced by NOAA Fisheries. Upon referring a matter involving the interaction of
tribal treaty fisheries and marine mammals to the appropriate tribal enforcement
officials, NOAA Fisheries anticipates the tribal enforcement officials will
investigate the report to determine whether the incident is lawful under tribal
regulations. NOAA Fisheries also anticipates continued cooperation with tribal
resource managers to maintain healthy marine mammal stocks and for the
exchange of important data and information, as contemplated in the model
regulation.

 Wouldn’t this action deplete important California and Steller sea lions and
harbor seal populations?
Sea lion and harbor seal populations have been healthy and flourishing on the
West Coast. While sea lion and seal populations have been increasing, salmon
populations have declined steadily because their habitat is being lost faster than it
can be restored since the 1980s. Treaty tribal and non-Indian salmon harvests
have been reduced by more than 80% over past few decades (NWIFC 2018).
From 1975 to 2015, recent research shows that three species of pinnipeds and
killer whales are currently eating more salmon than Indian and non-Indian harvest
combined (Chasco et al. 2017a; Chasco et al. 2017b). NOAA Fisheries has
determined that California sea lions and harbor seals in Washington are at
abundant population levels relative to the capacity of their habitat. Abundance of
other pinniped species, such as the eastern stock of Steller sea lions, has steadily
increased since the 1970s such that it was delisted under the Endangered Species
Act in 2013.
Is NOAA Fisheries authorizing or permitting the lethal take of marine mammals?
No, the model regulation developed by the Western Washington tribes will be
considered for adoption by tribal governments, not NOAA Fisheries. The model
regulation reflects the interest of tribal treaty fishers in defending their gear and
catch and responsibly managing and improving science-based management of
fisheries and marine mammals. The regulation also calls for Tribes, working
through the Northwest Indian Fisheries Commission, to share information with
NOAA Fisheries relevant to implementation, which will support our referral of
marine mammal incidents to tribal enforcement where appropriate, and will help
us understand impacts of the exercise of tribal treaty rights on marine mammal
stocks. This is a responsible approach that maintains tribal treaty rights, fulfills
our trust responsibility to the Tribes, and provides NOAA Fisheries with
information we need to implement the MMPA and fulfill our responsibility of
sound scientific management of West Coast marine mammal populations.

 If I see an incident, who should I call?
NOAA Enforcement may be reached during business hours at 206-526-6133 or
after hours at 1-800-853-1964.
If I have questions about an incident, who should I call?
Please contact Michael Milstein, NOAA Fisheries Communications and External
Affairs Branch, at 503-231-6268.

 REFERENCES
Chasco, Brandon E., Isaac C. Kaplan, Austen C. Thomas, Alejandro AcevedoGutiérrez, Dawn P. Noren, Michael J. Ford, M. Bradley Hanson, Jonathan J.
Scordino, Steven J. Jeffries, Kristin N. Marshall, Andrew O. Shelton, Craig
Matkin, Brian J. Burke, and Eric J. Ward. 2017a. Competing Tradeoffs
between Increasing Marine Mammal Predation and Fisheries Harvest of
Chinook Salmon. Scientific Reports. DOI: 10.1038/s41598-017-14984-8.
October 16, 2017.
Northwest Indian Fisheries Commission. 2018. Tribal Fishing Rights and
Interactions with Marine Mammals in Western Washington. Northwest
Indian Fisheries Commission. Unpublished document. Lacey, Washington.
March 2018.