Chapter 10.20 SHELLFISH

This chapter shall be a sub-part of the Chehalis Tribal Fishing Ordinance. All provisions of the Chehalis Tribal Fishing Ordinance not inconsistent with the provisions of this chapter are incorporated herein by reference. This chapter is intended to control shellfishing with respect to all matters covered by both the Fishing Ordinance and the Shellfish Ordinance. The Court may look to the Fishing Ordinance for guidance whenever an issue is not specifically addressed in the body of this chapter. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.020.]

10.20.030 Effective date.

Business Committee Resolution 2003-24 adopted the ordinance codified in this chapter on April 7, 2003. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.030.]

10.20.040 Declaration of policy.

Through a settlement in Chehalis v. State of Washington, the Confederated Tribes of the Chehalis Reservation (“Chehalis Tribe”) obtained the right to harvest shellfish on certain lands within the usual and accustomed areas of the Chehalis Tribe. It is the purpose of adopting this chapter to manage and regulate shellfishing in order to use and conserve the resource. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.040.]

10.20.050 Tribal Court – Judicial power.

The judicial power of the Chehalis Tribe is vested in the Tribal Court. When jurisdiction is vested in that Court, all the means necessary to exercise the jurisdiction is also delegated. In the exercise of that jurisdiction, if the course of the proceeding is not specified in this chapter, any suitable process may be adopted which appears most in keeping with the spirit of Chehalis Tribal Law. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.050.]

10.20.060 Jurisdiction.

It is the intent of the Chehalis Tribe to assert its jurisdiction to the full extent permitted by law over all activities related to the management of the shellfish harvesting hereunder or other arrangements designed to provide Tribal access to available shellfish resources. The jurisdiction shall pertain to all territory in which the Chehalis Tribe has a beneficial interest, including, but not limited to, the Chehalis Reservation, all usual and accustomed fishing grounds and stations, and any other lands or areas which may be acquired for or by and held in the name of the Chehalis Tribe.

Persons harvesting shellfish by invitation or by similar arrangements shall be deemed to have impliedly consented to the jurisdiction of the Chehalis Tribe and shall have impliedly consented to subject themselves to the operation of this chapter and applicable regulations.

Persons who obtain Tribal permission to exercise Tribal rights under this chapter consent, by doing so, to the jurisdiction of the Chehalis Tribe over shellfishing and related conduct, regardless of the location or legality of the fishing or other conduct. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.060.]

10.20.070 Jurisdiction over nonmembers.

Anyone who violates this chapter who is not a member of the Tribal community, or who is otherwise not subject to criminal prosecution in Tribal Court, shall not be sentenced to jail time, but shall be assessed a civil fine equivalent to that provided for the same violation when committed by Tribal fishers. Failure to pay the civil fine in accordance with the Court’s order may result in civil contempt of Court penalties and may also result in the violator’s exclusion from the Tribe’s jurisdiction and suspension, forfeiture, or revocation of any present or future Tribal rights or privileges, as determined in the Court’s discretion. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.070.]

10.20.080 Definitions.

The following words have the meanings set forth below when they appear in this chapter and in shellfish regulations promulgated by the Chehalis Tribe:

“Assistant” means any person who aids a Tribal shellfisher in the exercise of any Tribal shellfishing by assisting in the performance of shellfish harvesting.

“Boat registration” means the registration of a boat with the Chehalis Tribe and all requirements of registration including, but not limited to, the affixing of a valid registration decal to the boat for which registration was recorded.

“Ceremonial shellfishing” means shellfish harvesting for functions sponsored by the Chehalis Tribe, individual Tribal members or groups including, but not limited to, the elders lunch program, traditional Tribal ceremonies, religious gatherings, and funerals. Ceremonial shellfishing is exclusive of shellfishing for subsistence and commercial shellfishing.

“Certified beach/certified area” means a specific beach and water body that has been approved for shellfish harvest certified by the Washington State Department of Health and designated by the shellfish growers.

“Clamming” means to attempt to locate and remove shellfish from their beds by use of hand operated tools.

“Clams” means, by species:

Butter (Saxidomus giganteus).

Horse (Tresus nuttallii, Tresus capax).

Manila (Venerupis japonica).

Native Littleneck (Protothaca staminea).

Softshell (Mya arenaria).

“Commercial harvesting” includes all shellfishing other than shellfishing for ceremonial purposes and for subsistence purposes, such as the taking of shellfish for resale, exchange for something of value, debt reduction, profit sharing, or other economic gain.

“Conservation offense” means offenses prohibited by this chapter, which pose a serious threat to the preservation and protection of the shellfish resource.

“Crab” means, by species:

Dungeness (Cancer magister).

Red Rock (Cancer productus).

“Crabbing” means to attempt to locate, capture and remove crabs from the waters of Washington State by legal gear stated in Tribal regulations.

“Designated shellfish harvester” means a Tribal member and/or members assigned to harvest shellfish for a Tribal member who is not capable of harvesting shellfish due to, but not limited to, a physical or medical condition.

“Elder” means a Tribal Member 55 years of age or older.

“Fish tickets” means the forms upon which the commercial transactions of fish and shellfish are recorded.

“Gear” means any and all types of devices, traps, appliances, and other apparatus used to harvest shellfish.

“Gross misdemeanors” means serious offenses prohibited by this chapter, which directly impair the Tribe’s ability to control and manage the Tribal shellfishery in an efficient, peaceful and orderly manner.

“Limit” means the maximum amount of shellfish that may be taken or possessed by any person for any particular period of time and may also include limitations as to the size, sex, and species of shellfish that may be taken or possessed.

“Misdemeanors” means offenses prohibited by this chapter, that, while not serious enough to be conservation offenses or gross misdemeanors, nevertheless interfere with the efficient management of shellfishing and related activities.

“Mussels” means Mytilus edulis.

“Octopus” means Enteroctopus dofleini.

“Oysters” means Crassostrea gigas.

“Permit” means any currently valid permit issued by the Chehalis Tribe used to regulate a specific act of shellfishing.

“Private shellfish grower beach” means a beach that is not government or public property but is real property owned or controlled by a commercial shellfish grower subject to the settlement in Chehalis v. State.

“Regulation” means any rule or regulation promulgated by the Business Committee, Fish Committee or Natural Resources Manager.

“Scallops” means pink, spiny, weathervane, and rock.

“Sea cucumber” means Parastichopus californicus.

“Sea urchin” means, by species:

Green (Strongylocentrotus droebachiensis).

Red (Strongylocentrotus franciscanus).

Purple (Strongylocentrotus purpuratus).

“Shellfish” includes all species of mollusks and crustaceans.

“Shellfish grower” means an individual, group or entity that is a commercial shellfish grower subject to the settlement in Chehalis v. State.

“Shellfishing” means the pursuit or collection of shellfish resources. The word “fishing” shall mean the same.

“Shrimp” means, by species:

Coonstripe (Pandalus danae).

Humpback (Pandalus hypsinotus).

Pink (Pandalus borealis).

Spot prawn (Pandalus Platyceros).

“Species” means a small unit of classification generally referred to by common name.

“Squid” means, by species:

Logigo opalescens.

Gonatus fabricii.

“Subsistence” means noncommercial shellfishing for the purpose of providing shellfish for use by members of the Chehalis Tribe and their households.

“Tribal identification card” means any currently valid card issued or approved by an authorized official of the Tribe for the purposes of identifying the holder as a person eligible for Tribal benefits, including the right to harvest shellfish.

“Usual and accustomed areas” means all those areas where the Chehalis Tribe and its predecessor Tribes or bands and their members customarily fished/shellfished before, at the time of, and subsequent to the executive order establishing the Chehalis Reservation. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.1.080.]

10.20.090 Regulation.

A. All open and unclaimed waters, beaches, private shellfish growers’ beaches and other areas used by the Chehalis Tribe for shellfish harvesting that are not opened by appropriate regulation(s) are closed to shellfish until such time as they are opened by regulation.

B. Regulations shall specify:

1. Times and places that the taking of various classes of shellfish shall be lawful or prohibited or otherwise limited;

2. What gear shall be allowed and the circumstances under which it shall be lawful to use or possess such gear;

3. Harvest quotas and related limitations and may include other conditions or limitations as may be appropriate to the specified shellfishery.

C. Areas opened by regulation are only opened in accordance with this chapter and all applicable regulations. The Shellfish Manager, in conjunction with the Fish Committee, shall, when appropriate, promulgate such regulations as are necessary to implement this chapter. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.2.010.]

10.20.100 Shellfish Manager.

The Business Committee shall designate a Shellfish Manager suitably skilled and capable of working with the Business Committee, the Fish Committee, any shellfish biologist and others. The Shellfish Manager shall provide information to the Tribal Prosecutor and law enforcement personnel, as needed, to enforce the ordinance and regulations adopted hereunder, and shall act as the Tribe’s witness, when needed, in prosecuting shellfish violations. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.2.020.]

10.20.110 Fish Committee.

The Chehalis Shellfish Ordinance shall govern the Fish Committee in matters related to shellfishing. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.2.030.]

10.20.120 Conviction as a bar to Fish Committee membership or fisheries employment.

No person having been convicted of a conservation offense or a gross misdemeanor under this chapter shall be allowed to serve on the Fish Committee for a period of two years after his/her conviction. The Business Committee shall, upon conviction, remove any person convicted during his/her term in office with the Fish Committee for a period of two years. No person who has been convicted of a conservation offense or a gross misdemeanor under this chapter shall be employed by the Fisheries Division for a period of two years after his/her conviction, unless such person is convicted during the course of his/her employment with the Fisheries Division, in which case he/she will be disciplined in a manner consistent with Tribal personnel policies. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.2.040.]

10.20.130 Enforcement.

This section through CTC 10.20.250 shall govern enforcement of this chapter. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.010.]

10.20.140 Permits.

Permits will be made out to one individual shellfisher but may include more than one legal shellfisher in the party. Permits shall be for a specified period of time and restricted area of harvest (beach or area number(s) when applicable). Permits may be limited to a single species or group of shellfish. Permits shall be issued upon the condition that the permit holder consents to reasonable search and seizure whenever a law enforcement officer or fisheries enforcement officer of the Chehalis Tribe, or State or Federal official authorized by the Tribe, has probable cause to believe that a violation of this chapter, or any rule or regulation promulgated pursuant to this chapter, has occurred. Permit holders shall comply with any and all terms, limitations and conditions set forth on each permit. The permit holder shall carry his/her permit, as well as Tribal identification, whenever harvesting or transporting shellfish. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.020.]

10.20.150 Permit and identification required.

A. Tribal members wishing to harvest shellfish for subsistence, commercial or ceremonial purposes must first obtain a permit from the Chehalis Tribe.

B. No person shall participate in any manner in Tribal shellfishing rights, or be on board a boat engaged in Tribal shellfishing, whether as a Tribal fisher, as an assistant, or as an observer, unless he or she is in possession of valid and current identification and permit(s), or satisfies subsection (D)(4) of this section, as provided for in this section or in applicable regulations.

C. No person shall exercise or otherwise participate in Tribal shellfishing rights unless he or she is in possession of, and in immediate control of, a Tribal identification card.

D. Every person seeking to exercise or otherwise participate in Tribal shellfishing rights must have in his/her possession a valid Tribal permit applicable to the activity being engaged in as follows:

1. Persons shellfishing for commercial purposes must have a valid and current permit authorizing such commercial shellfishing.

2. Persons shellfishing for ceremonial or subsistence purposes must have a permit for such shellfishing.

3. Persons, other than holders of commercial shellfishing permits, qualified to assist Tribal fishers, must obtain special Tribal shellfishing permits identifying them as qualified assistants.

4. A Tribal shellfisher who wishes to invite a person who does not otherwise hold a valid shellfishing permit onto his/her boat, for the purpose of observing shellfish harvesting, shall first obtain a 24-hour observer’s permit for that person. The Tribal shellfisher must be present on the boat at all times when the observer is on the boat during fishing. Provided however, that no observer permit shall be required for an enrolled Tribal Member under 14 years of age to observe on a boat engaged in shellfishing, so long as he/she wears a Coast Guard approved life vest and is supervised by a Tribal shellfisher or assistant who is on the boat and who is at least 21 years of age.

5. Persons participating in a test shellfishery must have such permits as may be required by the Fish Committee or the Shellfish Manager.

E. All Tribal shellfishing permits shall remain the property of the Tribe and are subject to surrender by the holder under appropriate circumstances.

F. Any person engaging in shellfish harvesting shall produce for examination his Tribal shellfish permit and Tribal identification card or other appropriate identification upon the demand of a Fisheries Officer, and State and Federal officials who are authorized to monitor Tribal shellfishing activity. Failure to produce both a permit and required identification shall be prima facie evidence that such person has no right to exercise Tribal shellfishing rights.

G. No permits shall be issued for any shellfishing activities unless all outstanding fines, costs, damages, assessments, community service hours, jail time and other sanctions or orders of the Tribal Court for fish/shellfish related offenses have been paid or performed to the Court’s satisfaction. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.030.]

10.20.160 Permit fee.

The Fish Committee shall set an annual fee and deposit for subsistence harvesting of all shellfish for the period January 1st to December 31st each calendar year; provided, no fees shall be set for permits for shellfishing for ceremonial purposes. The deposit shall be refunded in January of each year if a proper harvest report is completed. The deposit shall be forfeited to the Tribe if the harvest report is not returned in time. Tribal elders are exempt from the fee. The Fish Committee shall set all applicable fees and conditions for commercial permits. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.040.]

10.20.170 Dual benefits prohibited.

Any person applying for a permit to exercise Chehalis Tribal shellfishing rights who holds, or in the preceding 12 months held, a permit or other authorization to exercise the fishing or shellfishing rights of another Federally recognized Indian Tribe must first provide proof acceptable to the Natural Resources Manager that he/she has relinquished those rights and is prohibited from exercising them for a period of at least the following 12 months. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.050.]

10.20.180 Revocations or suspension of permits.

The Chehalis Fishing Ordinance revocation or suspension of permits section shall govern the revocation or suspension of shellfishing permits, with the addition of the Shellfish Manager to the persons who may recommend to the Fish and Wildlife Committee that a revocation or suspension occur. [Res. 2018-36; Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.060.]

10.20.190 Harvest reporting.

Tribal members must accurately report all shellfish harvested within 48 hours of harvest. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.070.]

10.20.200 Shellfish buyers.

For the purpose of this chapter, shellfish buyers shall be synonymous with fish buyers and the Fishing Ordinance shall govern the activities thereof. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.080.]

10.20.210 Fish tax applies.

Tax on the sale of commercially harvested shellfish shall be considered a fish tax under the Chehalis Fishing Ordinance and shall be governed by the Chehalis Fishing Ordinance. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.090.]

10.20.220 Commercial harvesting only in open areas certified for commercial harvesting.

Commercial harvesting of shellfish shall occur only on beaches certified for commercial use and only by regulation to conform to strict guidelines. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.100.]

10.20.230 Boat registrations and tax.

A Tribal shellfisher who intends to use a boat in a Tribal shellfishery must first register his/her boat with the Chehalis Tribe on an application form provided by the Tribe and will be subject to any applicable tax for registration. A boat that is not owned or held in title by a Tribal member will not be registered for use in a Tribal shellfishery.

A boat registration number will be given to the shellfisher, which must be painted visibly (at least three-inch letters) on the outside of the registered boat at two locations, one on the port side and one on the starboard side, at least three-quarters to stern. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.110.]

10.20.240 Test shellfishery.

Any shellfish harvested pursuant to a Tribal test shellfishery may be sold or disposed of only by authorized test fishers, or designated Fisheries Department employees, using a shellfish permit. The Fish Committee shall select these shellfishers from a list of available applicants. If members of the Fish Committee are selected to participate in the test fishery, a Tribal shellfisher who is not a Fish Committee member and who does not live in the Committee member’s household shall assist that member. Shellfish harvested or any proceeds realized from the sale of test shellfishery harvested shall be dispersed in an appropriate manner as directed by the Chehalis Tribe. [Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.120.]

10.20.250 Classification of offense – Sentencing guideline – General information of violations – Each violation a separate offense.

Each violation of this chapter is a separate offense that carries its own penalty according to the applicable penalty schedule. The degree of punishment assigned to each offense is based on the seriousness of harm such offense represents to the accomplishments of the purposes of this chapter.

A. Misdemeanor.

1. For the first offense in a two-year period, a fine not less than $50.00 plus court costs may be imposed. The Court may, in addition, impose probation with reasonable conditions; provided, that no sentence including probation shall impose a direct economic burden in excess of $50.00 for each offense. No jail time or loss of shellfishing time shall be imposed.

2. For the second offense in a two-year period, a fine not less than $100.00 and no more than $500.00 plus court costs may be imposed. The Court may, in its own discretion, also impose a loss of no more than five of the next fishing days. The Court may, in addition, impose probation with reasonable conditions; provided, that no sentence including probation shall impose a direct economic burden in excess of $100.00 for each offense, exclusive of lost shellfishing time. Jail time of at least five days may be imposed for the second offense.

3. For a third offense in a two-year period, a fine of not less than $250.00 and not more than $1,000 plus court costs may be imposed. The Court may also impose a loss of at least five but no more than 10 of the next fishing days. Probation with reasonable conditions may be ordered; provided, that no sentence, including probation, shall impose a direct economic burden in excess of $250.00 for each offense, exclusive of lost shellfishing time. Jail time of at least five but no more than 10 days may be imposed for the third offense.

4. For the fourth (and subsequent) violations within a two-year period, a fine of not less than $500.00 and not more than $2,000 may be imposed. The Court may also impose a loss of 10 of the next shellfishing days, or suspension from shellfishing for 12 months from the date of conviction, whichever results in the greater loss of fish time. Probation with reasonable conditions may also be imposed. Jail time of at least 10 days but no more than 30 days may also be included in the sentence. [Res. 2016-17; Res. 2011-020; Res. 2003-24. Prior code § 9.3.3.130.]