Enacted by Resolution No. 12-5-2018-03; (2024)

Ordinance No. 10.01

Enacted by Resolution No. 12-5-2018-03;

Reaffirmed by Resolution No. 11-02-2022-03;

Amended by Resolution No. 08-07-2024-03

Hoh Tribal Code Title 10

Natural and Cultural Resources

Chapter 10.01 Fishing Ordinance

GENERAL PROVISIONS

§ 10.01.010 Title

This Chapter shall be known as the Hoh Fishing Ordinance. It supersedes all previous ordinances

regarding fishing (as defined below) for the Hoh Tribe.

§ 10.01.020 Policies

It is the policy of the Hoh Tribe to preserve, protect and perpetuate the fish resources within its

jurisdiction. To the extent that such resources are to be taken, such harvest shall be primarily for

providing food and income for Hoh Indian families and only secondarily for sport or recreation

purposes. Nothing herein shall be construed as a relinquishment, abrogation, or abridgement of

any Hoh treaty right.

§ 10.01.030 Jurisdiction

The Hoh Tribal Court shall have jurisdiction over all actions arising under this Chapter pursuant

to the Hoh Tribal Code and regulations promulgated pursuant to this Chapter.

(1)

This ordinance, and the rules and regulations adopted pursuant to this ordinance, and the

jurisdiction of the Tribal Court shall apply to all authorized fisherman or fish product

dealers, all members, at all usual and accustomed fish grounds, and stations of the Tribe,

including both on and off reservation fishing, and including commercial, subsistence and

ceremonial, sport fishing, and commerce. It shall apply to all persons wherever found

within the boundaries of the reservation.

(2)

Entry onto the reservation is deemed consent to the jurisdiction of the tribal court and to

the application of this ordinance, and pursuant regulations.

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(3)

Nothing herein shall constitute a waiver of the Hoh Tribal Treaty rights nor recognition of

state power to close or otherwise regulate usual and accustomed fishing places or activities.

§ 10.01.040 Definitions

Unless another meaning is specified or required by context, the following terms when used in this

Chapter shall have the meaning indicated below. When words are specially capitalized, that means

they take the defined meaning of this section and not another more general meaning. Words used

in the plural will not have a different definition unless the specific provision so indicates in that

paragraph.

(1)

"Abandoned gear" shall mean any fishing gear which has been discarded or left unattended

for greater than 8 (eight) hours on any property or in any waters in which no arrangement

for the storage of fishing gear exists.

(2)

“Anadromous fish” shall mean any fish which spawns or is artificially produced in

freshwater, reaches mature size while rearing in saltwater and returns to freshwater to

reproduce, and which spends any portion of its life cycle in the waters within the Western

District of Washington.

(3)

"Assisting" shall mean any act that helps another to fish, as defined in subsection (20) of

this section.

(4)

"Bag limit" shall mean the maximum number of fish which may be taken or possessed by

any person, specified and fixed by this Chapter or regulations promulgated pursuant to this

Chapter for any period, or so specified and fixed as to size, sex or species.

(5)

"Banks" shall mean with reference to any body of water, the land lying at elevations

between the bed of such water and the upper vegetation line of marine waters or mean high

water of other waters.

(6)

"Beach seine (drag seine)" shall mean fishing gear consisting of a lead line, cork line,

auxiliary lines, and a mesh net webbing fashioned in such a manner that it can be used to

encircle fish in waters adjacent to any beach, with the catch landed directly on the beach.

(7)

"Biological personnel" shall mean professionally trained biological and/or fisheries

technicians who are employed by or are working with the Tribe and whose duties include

advising on the management and/or enhancement of the tribal fishery.

(8)

"Buyer" shall mean a person who purchases fish for resale or other commercial purpose,

including barter for monetary gain on a professional basis.

(9)

“Boldt” shall mean the U.S. District Court decision of 1974 in United States, et al v. State

of Washington, et al, 384 F. Supp. 312 (W. Dist. Wash. 1974)

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(10)

"Ceremonial and Subsistence Fishing" shall mean the taking of fish only for personal use

or for use in traditional tribal ceremonies and/or for religious purposes. Only enrolled

members of the Hoh Indian Tribe shall exercise ceremonial fishing rights. No ceremonial

or subsistence fish shall be sold. Subsistence fishing can be used to support Hoh families

that include non-members.

(11)

"Closed areas" shall mean any lake, river, stream, or body of water; the beds, banks, and

tidelands of any body of water; or any part thereof on or off the reservation described or

designated by this Chapter or regulations promulgated pursuant to this Chapter wherein it

shall be unlawful to fish.

(12)

"Closed season" shall mean all the time during the entire calendar year excepting the "open

season" as specified by this Chapter or regulations promulgated pursuant to this Chapter.

(13)

"Commercial fishing" shall mean the harvesting of fish with the intent to sell them. Only

fish caught in accordance with commercial fishing regulations promulgated pursuant to

this Chapter may be sold.

(14)

“Conservation” shall mean those measures which are reasonable and necessary to the

perpetuation of a particular run or species of Fish (defined term herein). “Reasonable”

means that a specifically identified conservation measure is appropriate to its purpose; and

“necessary” means that such purpose, in addition to being reasonable, must be essential to

conservation.’

(15)

“Court” shall mean the United States District Court of the Western District of Washington

or any higher federal court that may rule on Indian treaty fishing rights, unless others

specified.

(16)

"Depth of net" shall mean the total distance between cork and lead lines measured

perpendicular to either cork or lead line.

(17)

"Designated Fishing Location" shall mean any site designated by the Hoh Tribe within their

Usual and Accustomed Fishing Grounds and Stations and includes those areas on the South

side of the Hoh River historically designated and defined by family relationships and

traditional river fishing ground maps. Other Designated Fishing Locations may be

identified and a list of additional Designated Fishing Locations shall be developed. All

fishing sites outside of the Hoh Reservation are considered first-come first-serve locations,

open to any Tribal fisher.

(18)

"Drift Net (pole net)" gear shall mean a gill net which is not staked, anchored or weighted

so that it may drift free.

(19)

"Fin Fish" shall include but not be limited to the genera Salmon and Oncorhynchus of the

family Salmonidae and the genera Clupea of the family Clupeidae, specifically including

the following:

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(a)

Pacific herring;

(b)

Chinook, also called spring, king, tyee, or black mouth;

(c)

Coho (also called silver salmon);

(d)

Pink (also called humpback);

(e)

Chum (also called dog or fall salmon);

(f)

Sockeye (also called red or blue back);

(g)

Steelhead;

(h)

Cutthroat trout;

(i)

Smelt;

(j)

Atlantic salmon;

(k)

Sardines;

(l)

Whiting; and

(m)

Others that may be added.

(20)

"Fish" used as an adjective or verb and its derivatives, "fishing, fished," etc. shall mean

any effort made to kill, disturb, harvest, capture, catch or gather fish at any usual and

accustomed fishing grounds or stations of the Hoh Tribe on or off the Hoh Reservation.

(21)

"Fish," when used as a noun herein, shall mean any marine or freshwater seafood animal

harvested for food, whether anadromous or not, whether finned or shellfish, including

edible invertebrates and marine mammals; and including either the whole part of the animal

or any fish products there from.

(22)

"Fish Ticket" or "Treaty Indian fish receiving ticket" shall mean a multi-copy accounting

form required to be filled out upon the treaty commercial harvest of fish. Fish Tickets are

available at the Hoh Fisheries Department and are required to be completed by all state or

tribally licensed wholesale dealer/buyers.

(23)

"Fisheries Manager" shall mean the Tribal employee who is responsible for administering

the Hoh Tribal Fisheries program. The Fisheries Manager shall be a qualified expert in

fishery science and management.

(24)

"Fishing gear" shall mean all types and sizes of apparatus used to take fish as defined in

this Chapter or by regulations promulgated pursuant to this Chapter, including but not

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limited to hooks, nets, spears, gaffs, lines, traps, and shovels. The functional definition of

any type of gear may be modified by tribal regulation not withstanding any definition

contained herein.

(25)

"Fish and Wildlife Enforcement Officer(s)" shall mean the person or persons charged with

the responsibility of enforcing this Chapter, and enforcing any regulations promulgated

pursuant to this Chapter, and may include federal, state and other tribal fish and wildlife

enforcement officers.

(26)

“Fisher” shall mean enrolled members of the Hoh Indian Tribe.

(27)

"Gaff or snag line" shall mean hand-operated gear which is used to impale fish by pursuing

and striking the individual fish with the gear.

(28)

“Gear” shall mean all instruments and/or equipment used in Fishing, or for boating safety

when one is engaged in such activities, including, but not limited to boat plaques,

identification cards, life vests, radios, radar, motors, lines, nets, traps, pots, lures, hooks, or

any other equipment or tools used in such activities, but not Vessels.”

(29)

"Gill net" gear shall mean net of a single-web construction bound at the top by a cork line

and at the bottom by a lead line.

(30)

"Hand dip net (dip bag net)" shall mean a section of netting distended by a rigid frame,

operated by a process commonly recognized as dipping. Such nets may be of a size as

determined by regulations promulgated pursuant to this Chapter.

(31)

“Hoh Indian People” shall mean enrolled members of the Hoh Indian Tribe.

(32)

"Hook and line" shall mean a single hook, line and sinker.

(33)

"Management area" shall mean an area designated as a management and catch reporting

area by the Hoh Tribal Fisheries Department. Specific areas may be subdivided by tribal

fisheries personnel where more detailed information on a particular fish species or fishery

is desired.

(34)

"Management period" shall mean a time interval during which the majority of individuals

of a fish species is accessible to capture. A management period may be specific to a species,

and a single species may have more than one management period during the course of a

year depending upon the cycle of that species.

(35)

“Marine Mammal” shall mean any animal covered by the Marine Mammal Protection Act

of 1972, as amended in 1974 (16 U.S.C. 1361 et seq.) or federal regulations promulgated

thereunder, including but not limited to whales, porpoises, seals, sea lions, and marine

otters that the Hoh Tribe may have traditionally fished for in the Pacific Ocean.

(36)

"Member" shall mean any person who is enrolled in the Hoh Indian Tribe.

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(37)

"Minor" shall mean any person under the age of 18 (eighteen).

(38)

"Native Fish Stock" shall mean any anadromous or non-anadromous fish born within the

usual and accustomed fishing places of the Hoh Tribe that are not hatchery produced.

(39)

"Net length measure" shall mean the length of any net measured along the cork or top line.

(40)

“Non-anadromous fish” shall mean any bony or cartilaginous finned fish other than

Anadromous Fish, as defined hereinabove, and includes any separate parts of such fish.

(41)

"Non-member" shall mean any person who is not enrolled in the Hoh Indian Tribe.

(42)

"Off reservation" shall mean all lands, waters, beds, streams and tidelands located outside

the boundaries of the Hoh Indian Reservation.

(43)

"On reservation" shall mean all areas within the exterior boundaries of the Hoh Indian

Reservation, including all lands, waters, beds, and tidelands thereof, as reserved in the

Treaty of Olympia of 1855 and subsequent Executive Orders.

(44)

"Open season" shall mean the time specified by regulation when it is lawful to fish.

(45)

“Other Invertebrate” shall mean any invertebrate other than Shellfish

(46)

“Person” shall mean any individual, receiver, assignee, trustee in bankruptcy, trust, estate,

firm, partnership, joint venture, club, company, business trust, municipal corporation,

corporation, association, society, political entity, or any group of individuals acting as a

unit, whether mutual, cooperative, fraternal, for profit, for nonprofit purposes, or

otherwise.”

(47)

“Purse seining” shall mean the use of gear for Fishing that consists of a lead line, cork

line, auxiliary lines, line and purse rings and mesh net webbing, fashioned to encircle fish

and prevent their escape under the bottom or lead line of the net by drawing in the bottom

of the net with the purse line so that it forms a closed bag – a “bund” located at the end of

the net forms the bag holding the catch after the net is pursed; this is the last portion of the

net to be pulled aboard the catching Vessel.

(48)

"Regulation" shall mean any rule, regulation, resolution or ordinance promulgated pursuant

to this Chapter or promulgated pursuant to any other laws or codes of the Hoh Tribe.

(49)

"Reservation" shall mean all lands, waters, river beds and tidelands lying within the

exterior boundaries of the Hoh Indian Reservation, Washington.

(50)

"Resource Committees" shall mean a number of members occasionally appointed by the

Tribal Business Committee formed to provide the Fisheries Director and Tribal Business

Committee with input regarding particular resource issues. Examples include but are not

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limited to the Fish and Wildlife Committee advising on finfish and hunting issues, and the

Shellfish Committee advising on invertebrate issues.

(51)

“Round-hauling” shall mean any fishing method utilizing gear to encircle the fish.

(52)

“Run” shall mean a fishery management unit of Anadromous Fish returning to the same

river at the same time. Hatchery and wild Runs returning to the same river that are managed

separately and can be harvested on a separate basis in the Hoh River System or other lakes

and streams within the Hoh Usual and Accustomed Fishing Area shall be considered

separate runs, unless otherwise agreed by the Tribe or ordered by the federal court.

(53)

“Set Net” shall mean any gill net that is attached to a stationary object or objects and which

remains in a fixed location when fishing.

(54)

"Shellfish" shall mean aquatic invertebrate animals or any separate parts of such animals

that are harvested or caught for consumption in the Usual and Accustomed Fishing Grounds

and Stations of the Hoh Tribe, including but not limited to mollusks and crustaceans, and

specifically including the following:

(a)

Native littlenecks or steamers;

(b)

Butter clams;

(c)

Cockles;

(d)

Horse clams;

(e)

Manila clams;

(f)

Rock Oysters;

(g)

Mussels;

(h)

Barnacles;

(i)

Limpets;

(j)

Crab;

(k)

Razor clams;

(l)

Sea cucumbers;

(m)

Sea Urchins (Strongylocentrotus);

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(n)

Shrimp;

(o)

Octopus;

(p)

Moon snail;

(q)

Scallops; and

(r)

Chitin.

(55)

"Spouse" shall mean a non-enrolled wife or husband, recognized under tribal law or custom

or under State Law.

(56)

"Stretched mesh measure" shall mean the distance between the inside of one knot to the

outside (vertical) knot of one mesh when wet, by using a tension of ten pounds of any three

consecutive meshes, then measuring the middle mesh of the three while under tension.

(57)

"Sport Fishing" shall mean the taking of fish for recreational benefits and by which the fish

are not sold.

(58)

“Subsistence Fishing” shall mean fishing for personal consumption by a Member of the

Hoh Tribe and his/her respective Family.”

(59)

"Test fishery" shall mean a fishery allowed on a limited basis for the purpose of acquiring

technical or management information including run strength, time, composition, gear

selectivity, exploitation rate and enhancement possibilities.

(60)

"Tidelands" shall mean that area from the vegetation line to the line of extreme lower low

tide.

(61)

"Treaty fishing rights" shall mean those rights reserved by the Treaty of Olympia of 1855

between the Hoh Indian Tribe and the United States Government.

(62)

“Treaty of Olympia” shall mean the treaty between the United States of America and

ancestors of the Quileute, Quinault, and Hoh Tribes, codified as 12 Stat. 97, II Kappler

719; initially signed as Treaty of Quinault River on July 1,1855 and reauthorized in

Olympia, January 25, 1856; ratified March 8, 1859, and proclaimed April 11, 1859, and

which provides, among other things for the treaty right to fish for tribal descendants of the

treaty signatories.

(63)

“Treaty Resources or Treaty Natural Resources” shall mean those natural resources used

by the Hoh Tribe for subsistence, ceremony or commerce both at or before treaty times and

in the present, both on and off the Reservation and in the lands and waters and other areas

used by the Hoh Tribe prior to the Treaty of Olympia which may be obtained by fishing,

gathering or hunting.

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(64)

“Treaty Right Fisherman” shall mean one who is an enrolled member of a Tribe having a

federally recognized treaty with the United States of America, either as described in the

Boldt decision, subsequent sub-proceedings thereof, or any other applicable federal

decision or regulation of the Hoh Indian Tribe’s treaty rights for Fishing.

(65)

"Tribal Business Committee" shall mean the elected governing body of the Hoh Indian

Tribe as prescribed in Article III of the Hoh Constitution.

(66)

"Tribal Fishers" shall mean any Hoh Tribal Member, or the spouse of a Hoh Tribal Member

when accompanied by their Hoh Tribal Member Spouse, who is exercising any tribal

fishing right or who is assisting in the exercise of treaty fishing rights pursuant to tribal

authorization.

(67)

"Tribe" shall mean the Hoh Indian Tribe of the Hoh Indian Reservation.

(68)

“Tribal Court” shall mean the Court system established by the Hoh Tribe for the purpose

of administering any ordinances, and other laws, codes and regulations of the Hoh Tribe.

(69)

"Troll line" shall mean a fishing line used to drag lures or fresh bait behind a moving vessel.

(70)

“Usual and accustomed” or “U&A” shall mean the Usual and Accustomed Fishing ground,

stations and areas beyond the external boundaries of the Hoh Reservation that were

reserved by the ancestors of the Hoh Tribe under the Treaty of Olympia, as subsequently

interpreted by the Courts in the Boldt decision and its sub-proceedings, other federal court

proceedings, and federal regulations regarding the tribal fishery in the freshwater and

Pacific Ocean off Washington State (often referred to as the Usual and Accustomed Area).”

(71)

“Vessel” shall mean any type of boat of any material and any size, used for Fishing,

including not only the Vessel used for harvest and transport of the Fishermen, but also any

appurtenant life rafts or small boats used with it.

(72)

"Wastage" or "waste" shall mean the failure to care for fish that are taken so as to preserve

their desirability for human, consumption, excepting bait and/or seed harvests authorized

by the Fisheries Manager.

FISHERIES MANAGEMENT

§ 10.01.050 Fisheries Manager

The Natural Resources Director shall be responsible for hiring a Fisheries Manager who shall be

responsible for:

(1)

Managing the Hoh tribal fisheries program which includes but is not limited to harvest

sampling, abundance forecasting, spawning escapement estimation, harvest model

updating and maintenance, genetic stalk identification, and representing the Hoh Tribe in

local and national resources preservation associations, etc.;

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(2)

Drafting and recommending fishing regulations for adoption by the Tribal Business

Committee;

(3)

Issuance of tribal ceremonial and subsistence fishing permits;

(4)

Fisheries enhancement efforts of the Hoh Indian Tribe; and

(5)

Carrying out any other duties delegated under this Chapter or by the Natural Resources

Director and/or the Tribal Business Committee.

§ 10.01.060 In-Season Regulations

(1)

The Fisheries Manager shall have the authority to recommend to the Tribal Business

Committee in-season regulations relating to all aspects of the fishery. The Fisheries

Manager shall provide seven (7) days’ notice of all proposed regulations and the date that

the regulation will be considered by the Tribal Business Committee. The Tribal Business

Committee shall utilize any appropriate method to provide actual or constructive notice to

fishers when a new regulation is adopted.

(2)

All in-season regulations shall be consistent with this Chapter and any applicable federal

laws or agreements to which the Tribe is a party.

(3)

The Natural Resources Director (and/or the Fisheries Manager) may close any shellfish

harvest area or part thereof to the harvest of shellfish whenever a potential concern for

public health has been identified. Minimally, the Natural Resources Director (and/or the

Fisheries Manager) shall post a notice whenever such a concern is identified.

(4)

In-season regulations shall be effective upon their adoption by the Tribal Business

Committee or as provided in the in-season regulations and shall be enforced upon actual or

constructive notice to a Tribal Fisher.

(5)

Seventy-five percent (75%) of all Hoh Tribal Fishers authorized to harvest during the

respective season may petition the Tribal Business Committee to review any in-season or

other regulation promulgated pursuant to this Chapter. The Tribal Business Committee

shall at an open Tribal Business Committee meeting determine whether the challenged

regulation shall remain in effect, be rescinded, or be modified.

(6)

All regulations enacted by the Tribal Business Committee shall remain in full force and

effect until modified.

§ 10.01.070 Regulations

(1)

Fishing and fish commerce will be regulated in accordance with the general provisions and

annually promulgated regulations as to gear, locations, season, and other matters deemed

advisable by the Fish and Game Resource Committee to conserve the Tribal fish and

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shellfish resources and provide for the orderly exploitation thereof and continuation of the

traditional aspects of Indian fishery culture.

(2)

No person shall enact Annual Fishing Regulations except the Hoh Tribe Fish and Game

Resources Committee under authority of this Ordinance and the Constitution and By-Laws

of the Hoh Tribe Fish and Game Resources Committee.

(3)

The Tribal Business Committee and Fish and Game Resources Committee are prohibited

from enacting laws affecting the fishing and commerce opportunity of any person, except

in specific cases where the following provisions have been met:

(a)

A complete and accurate report of the total fish harvested by affected Treaty parties

by individual fishery name has been verbally presented at a hearing by technical

fisheries experts and has been read into the record.

(b)

A biological impact statement specifically related to the regulatory proposal has

been presented at a hearing by one or more parties and read into the record.

(c)

An Indian cultural impact statement describing accurately the effects of the

regulatory proposal on traditional Tribal fishing and commerce practices has been

read into the record at a hearing.

(4)

The Hoh Tribal Technical Fisheries Management Program Management shall submit

recommended annual commercial fishing regulations to the Tribal Fish and Game

Resource Committee, including technical justifications for the regulatory proposal. The

technical justifications shall be in the form of a written report. The fish and Game

Resources Committee shall, after consultation with the fisheries program manager and the

appointed Tribal Fisheries attorney, convene a Tribal hearing for the purpose of obtaining

recommendations, criticism, objection on the regulatory proposal(s). All hearing records

shall be maintained by the secretary of the Fish and Game Resources Committee as

provided in the Committee constitution and by-laws, Article VI section 2. The records shall

be maintained on an on-going basis.

(5)

The annual fishing regulations shall be effective when enacted by the Fish and Game

Resources Committee and shall remain in effect until rescinded by the Committee.

(6)

Nothing in this ordinance shall be construed in a manner that will diminish the right of the

people to vote directly any laws by referendum.

(7)

Complete and accurate copies of proposed regulations and enacted regulations shall be

made available for any person to reference and/or inspect at the Tribal office, fisheries,

office, and Fish and Wildlife Officer.

(8)

Emergency and Special Regulations

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(a)

The Tribal Business Committee is empowered by its constitution and by-laws to

change the annually promulgated fishing regulations on a special or emergency

basis in the interest of conservation or orderly exploitation of the fish and/or

shellfish resources. Such changes shall be made public by posting notice of such

changes at the Tribal office, and the fisheries office and at the fishing location that

is affected.

(b)

Notice of special or emergency closures and permitted periods of fishing shall be

posted 12 hours prior to their effective time at the Tribal office, fisheries office, and

fishing locations that are effected, in a conspicuous manner.

§ 10.01.080 Resource Committees: Fish & Wildlife Committee and Shellfish

Committee

(1)

The Tribal Business Committee may, at its discretion, create Resource Committees,

including a Fish & Wildlife Committee and a Shellfish Committee.

(2)

Responsibilities. In regards to their respective issues, the general responsibilities of the

Fish & Wildlife Committee and Shellfish Committee may include:

(a)

Representing the various groups of fishers and/or hunters in an advisory capacity;

and

(b)

Attending meetings and advising the Natural Resources Director concerning:

(c)

(i)

Fishery/hunting management strategies (enhancement, enforcement, etc.);

(ii)

Fisheries/hunting regulations (in-season, emergency and annual); and

(iii)

Fisheries/hunting codes.

Being involved in the presentation and organization of meetings which inform the

general body of fishers/hunters regarding management and policy issues.

(3)

Eligibility. Any Hoh tribal member is eligible for appointment to the Fish & Wildlife or

Shellfish Committees, provided they are not in violation of this Chapter or regulations

promulgated pursuant to this Chapter.

(4)

Composition. The Fish & Wildlife Committee may be comprised of five members

appointed by the Tribal Business Committee for two-year terms which may be staggered.

A quorum of five (5) members is recommended when issues are brought to a vote. The

Tribal Business Committee shall attempt, but is not bound, to appoint persons from the

following categories:

(a)

Three Hoh Tribal Member Tribal fishers and,

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(b)

(5)

Two (2) hunters.

Removal. The Tribal Business Committee may remove any Committee Member upon good

cause.

§ 10.01.090 Intergovernmental Agreements

The Natural Resources Director or his designee is authorized to assist the Tribal Business

Committee in negotiating intergovernmental agreements relating to treaty fishery management,

allocation, cooperative enforcement, or treaty protection with any other treaty tribe, any tribal

group, any state or local government, or the federal government. No such agreement shall be

binding unless approved by the Tribal Business Committee.

§ 10.01.100 General Closure

Fishing within the Hoh Indian Reservation and all areas off-reservation fished by the Hoh Indian

Tribe is closed to tribal fishing unless specifically opened by properly adopted annual or in-season

regulations promulgated pursuant to this Chapter.

§ 10.01.110 State Law Not Applicable

No act prohibited by this Chapter or by regulations promulgated pursuant to this Chapter or by any

other applicable tribal ordinance or regulation may be permitted by tribal fishers even though such

act would be lawful under the laws of the State of Washington.

§ 10.01.120 Monitoring by Federal and State Agencies

Authorized federal and state officials are permitted to board tribal vessels and monitor tribal fishing

activities outside the Hoh Indian Reservation

but only to the extent that the monitoring is:

(1)

Authorized by Congress; or

(2)

Expressly authorized by the Hoh Tribal Business Committee pursuant to this section or

applicable law.

§ 10.01.130 Shellfish Sanitation

(1)

The Tribe will regulate the harvest of shellfish for health purposes as specified in the

Consent Decree re: Shellfish Sanitation Issues, U.S. v. Washington Sub-proceeding 89-3

(W.D. Wash., May 1994). Due to the human health concerns associated with bivalve

molluscan shellfish which are frequently transported and often consumed uncooked, the

commerce of such species will be regulated by the current National Shellfish Sanitation

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Program (NSSP) or an equivalent sanitation program implemented by the Tribe. The NSSP

manual, available at the Fisheries Department, regulates the handling, transport and storage

of bivalves between harvest and sale.

(2)

Those bivalve shellfish being purchased or harvested for resale by Hoh Tribal Members

need to first acquire a Shell Stock Shipper Certification as described in § 10.01.300 (5)(b).

Dealer/Buyer Licensing

ELIGIBLE FISHERS

§ 10.01.140 Identification Required

(1)

(2)

(3)

All Hoh Tribal Members eligible to fish or observe under this Chapter must obtain a valid

Hoh Tribal identification card or permit where applicable prior to fishing. A valid

identification card or permit must be in the physical possession of the person at all times

when:

(a)

Fishing or observing;

(b)

Traveling to or from fishing activity; and

(c)

Engaged in the sale of fish or fish products.

The following persons must have a valid identification card or permit in their physical

possession when fishing:

(a)

Non-member assistant spouse of member;

(b)

Fisheries Biology Personnel. See § 10.01.180 below.

The card shall contain the following information:

(a)

Name, photograph and physical description of the cardholder;

(b)

Enrollment number (if applicable); and

(c)

Tribal affiliation (if applicable).

(4)

Observers/technical advisors must have a valid identification card or permit in their

physical possession when fishing.

(5)

A non-member spouse who wishes to assist his or her member spouse in the exercise of

his/her treaty fishing rights shall be issued a special permit which shall contain the

information deemed necessary by the Fisheries Manager. The non-member spouse must

supply a tribal or State Certified Marriage license to the Fisheries Department. The Tribal

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Business Committee may from time to time establish, by regulation, a fee for the issuance

of said permit. All spousal permits are non-transferable and valid until the event of a legal

separation or divorce from the Tribal member spouse or the death of the Tribal member

spouse.

(6)

All identification cards or permits issued pursuant to this Chapter shall remain the property

of the Hoh Indian Tribe and shall be returned to the Tribal Fisheries Department upon

request of the Fisheries Manager or pursuant to forfeiture by tribal court order. All permits

shall be issued on an annual basis.

(7)

The Natural Resources Director may require each person exercising fishing rights under

this Chapter to also secure any other identification that may be required through any

intertribal or other intergovernmental agreement that the Hoh Tribe is or may become or a

party to.

§ 10.01.150 Eligible Fishers: Enrolled Members

Only those persons enrolled in the Hoh Indian Tribe are eligible to exercise treaty fishing rights

under this Chapter, unless otherwise provided in this Chapter.

§ 10.01.160 Eligible Fishers: Spouses

(1)

The non-member legal, state certified spouse of a Hoh tribal member may assist the

member spouse in fishing; provided, that:

(a)

The enrolled member is present during fishing; and

(b)

The non-member spouse does not exercise treaty fishing rights of another tribe, if

any; and

(c)

(i)

If the non-member spouse has treaty fishing rights in another tribe, the nonmember spouse must waive exercise of these rights during the scheduled

fishing season each year in writing and addressed to the Tribal Business

Committee.

(ii)

The non-member spouse, by engaging in the Hoh Tribal fishery, agrees to

be bound by all provisions of this Chapter and any regulations promulgated

pursuant to this Chapter, and expressly consents to the jurisdiction of the

Hoh Tribe for all matters arising out of such exercise.

The non-member spouse agrees to submit to the jurisdiction of the Hoh Tribal

Court.

§ 10.01.170 Eligible Fishers: Minors

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(1)

No person under the age of eighteen (18) who is otherwise eligible to fish under this

Chapter shall exercise treaty fishing rights unless:

(a)

He/she is accompanied by an adult relative who is an enrolled member of the Tribe;

or

(b)

He/she is solely or substantially responsible for providing his/her own care and

maintenance or that of his/her family; or

(c)

There is a showing of extreme hardship.

(2)

The determination of whether there is a showing of extreme hardship sufficient to allow a

minor to exercise treaty fishing rights shall be made by the Fish & Wildlife Committee, the

Shellfish Committee or by the Tribal Business Committee, at the discretion of the Tribal

Business Committee according to procedures established in regulations promulgated

pursuant to this Chapter.

(3)

Minors otherwise eligible to fish pursuant to (a) and (b) of this section, and who have not

graduated from high school shall not be permitted to fish on school days, but shall be

permitted to fish:

(a)

Between the hours of 5:00 p.m. and 10:00 p.m. on any day immediately preceding

a school day;

(b)

At all hours permitted by regulation on days not immediately preceding a school

day; and

(c)

At all hours permitted by regulation during authorized school vacations.

(4)

No minor shall be issued a tribal identification card without the signed consent of his/her

parent or guardian.

(5)

It is the duty of the parent or guardian of any minor who is to exercise treaty fishing rights

pursuant to this section to ensure compliance with this section.

(6)

A parent or guardian who knowingly permits his/her minor child or ward to violate any

provisions of this Chapter or regulations promulgated pursuant to this Chapter shall be

subject to the same penalties as the minor child.

(7)

A minor who violates the provisions of this section, in addition to the penalties prescribed

by this Chapter, may have his/her right to exercise treaty fishing rights suspended by order

of the Tribal Court.

§ 10.01.180 Fisheries Biology Personnel

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(1)

(2)

Fisheries Biology Personnel of the Hoh Indian Tribe may take or possess fish of all species

for scientific, management and/or enhancement purposes, provided that:

(a)

He/she is issued an identification card by the Natural Resources Director;

(b)

He/she keeps a cumulative record of all fish so taken, which shall be produced for

inspection upon request by the Natural Resources Director or the Tribal Business

Committee; and

(c)

Fish taken under the authority of this subsection are not to be sold or used by

Fisheries Biology Personnel for personal gain but are to be disposed of only as

directed by the Natural Resources Director or the Tribal Business Committee.

Any attempt by Fisheries Biology Personnel to circumvent this subsection or to abuse the

privilege granted herein shall be grounds for disciplinary action under the Hoh Tribe’s

personnel policy up to and including immediate dismissal from employment with the Tribe.

§ 10.01.190 Observers/Technical Advisors

(1)

(2)

The Tribal Business Committee may authorize, by regulation, the use by Tribal Fishers of

observers/technical advisors to observe/advise a Hoh Member if properly authorized by

permit issued by the Tribe. However, the following conditions apply:

(a)

The observer/technical advisor shall not assist the Member in any way; and

(b)

A Hoh Member shall be present at all times and responsible for ensuring that the

observer/technical advisor has complied with this Chapter and any regulations

promulgated pursuant to this Chapter.

The following information shall be provided to the Fisheries Department by the treaty

fisher who will be observed/technically advised:

(a)

The name of the observer/technical advisor;

(b)

Vessel identification, if any; and

(c)

Type and location of fishery.

(3)

All fishers must provide to the Fisheries Manager a copy of any agreement between an

observer/technical advisor and the fisher. The observer/technical advisor shall not be paid

on a percentage of the harvest basis.

(4)

Observers/technical advisors may instruct and observe only and are prohibited from

assisting in any other manner in any harvest pursuant to this Chapter. Any violation of this

section shall result in the revocation of the observer/technical advisor's permit.

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§ 10.01.200 Test Fishing

(1)

The Fisheries Manager may recommend to the Tribal Business Committee, a test fishery

for the purpose of collecting management information regarding a particular species or

stock regulated under this Chapter. The Fisheries Manager shall determine the specifics of

any test fishery using in-season regulations. Such regulations would include, but not be

limited to: target species, gear type, quantity, opening schedule, and area restrictions.

Permanent records of all data collected by test fishers will be maintained by the Fisheries

Manager. There shall be no test fishery other than as directed by the Fisheries Manager.

(2)

Eligibility to participate in a test fishery will be limited to those fishers who meet the

following requirements:

(a)

Only enrolled members, spouses, and biological personnel as defined in this

Chapter who have obtained the identification as required by this Chapter;

(b)

Fishers must be familiar with and have access to the appropriate gear as specified

by the Fisheries Manager;

(c)

Fishers must be familiar with the fishing area specified in the test fishery; and

(d)

Fishers must agree to record and provide all information regarding the test fishery

in a timely manner as requested by the Fisheries Manager.

(3)

Should more than the necessary number of eligible fishers sign up for a particular test

fishery, the participants shall be chosen by a drawing conducted by the Fisheries Manager

or his or her designee.

(4)

Fish taken in test fisheries shall not be sold for personal profit. Participating fishers shall

be compensated for their effort at a rate set by the Tribal Business Committee.

§ 10.01.210 Payment of All Taxes and Fees Required

The Tribal Business Committee may promulgate rules and regulations related to the payment of

all taxes and fees authorized by this Chapter.

§ 10.01.220 Reporting of Catch – Fish Tickets

(1)

Any authorized fisher fishing for any purpose shall report their fish catch pursuant to

regulations promulgated pursuant to this Chapter.

(2)

Each Fisher shall be responsible for including the following information on a fish ticket:

(a)

Date of harvest;

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(3)

(b)

Date of sale;

(c)

Economic value;

(d)

Gear type used;

(e)

Number and/or total weight of each species or products (e.g., roe) thereof;

(f)

The appropriate Management/Catch Reporting area within which the fish was

caught, and in the case of intertidal shellfish, the appropriate six-digit beach

identification number (BIDN);

(g)

If sold, the buyer to whom the catch was sold;

(h)

Tribal identification number; and

(i)

Another other information required by applicable law or as requested by the

Fisheries Manager, Natural Resources Director, Fish and Wildlife Committee or

Tribal Business Committee.

All Tribal fishers shall provide copies of any or all fish tickets to the Fisheries Manager or

biological personnel upon request by the Fisheries Department.

FISHING BOATS AND GEAR

§ 10.01.230 Regulation of Fishing Fleet – Policy Considerations

(1)

The Tribal Business Committee recognizes that appropriate management and conservation

of the fishery resource may require the limiting of the tribal fleet, the type and numbers of

gear authorized, the location where certain gear can be authorized, as well as other policy

considerations.

(2)

The Fisheries Manager shall be responsible for the development and presentation of

regulations limiting the size of the tribal fishing fleet. All fleet restrictions proposed under

this section shall be presented to the Tribal Membership for comment. Proposed

regulations, along with any recommendation or comments from the general membership,

shall then be presented to the Tribal Business Committee for approval. No fleet restriction

authorized under this section shall be implemented until approved by the Tribal Business

Committee.

(3)

In considering the need for any limitation on the growth of the tribal fleet or direction of

that growth, the Tribal Business Committee shall consider the number of harvestable fish

available, where those fish are best harvested, potential gear conflicts, intertribal

relationships, and the need to maximize the income for the tribal fishers.

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(4)

Affected fishers may appeal the Tribal Business Committee's decision to the Hoh Tribal

Court; provided, that the burden of proof shall be on the fisher. Review shall be limited to

whether the decision was arbitrary, capricious, or having no basis in fact. The standard of

proof shall be clear and convincing evidence.

§ 10.01.240 Boating Safety – Legal Firearms

(1)

All ocean going vessels used in exercising tribal fishing rights shall conform to the current

United States Coast Guard regulations applicable to similar craft in similar waters.

(2)

It shall be unlawful for any member or spouse to discharge any firearm from any fishing

vessel or watercraft except as provided for in this section.

(3)

Individuals without any felony, domestic violence, or assault convictions or pending

charges and with proper permits issued pursuant to this Chapter, or individuals while in the

act of protecting catch, gear, or personal safety, are authorized to utilize a shotgun with

double 00 buckshot as ammunition.

§ 10.01.250 Manner of Fishing – Legal Gear

The Fisheries Manager shall recommend to the Tribal Business Committee, consistent with this

Chapter, what gear is authorized in a particular season at a particular place and for a particular

species.

§ 10.01.260 Tribal Owners and Operators of Fishing Boats

(1)

A Member shall secure through the Hoh Tribal Fisheries Department a vessel identification

card. The identification card shall be either an owner's card or an operator's card.

(2)

An owner's card shall be available only to those tribal members who either own a boat or

possess a boat pursuant to an approved boat purchase contract as provided in § 10.01.280.

Persons applying for an owner's card shall submit to the Tribe a photograph of the boat and

a copy of his or her title to the boat or a copy of a contract to purchase the boat approved

as provided in § 10.01.280. An owner's card shall contain the information specified in §

10.01.140.

(3)

An operator's card shall be available to any tribal member who does not possess a boat but

wishes to assist a member possessing an owner's card in any fishing activity. Operator's

cards shall contain the information specified in § 10.01.140.

§ 10.01.270 Registration/Identification of Fishing Boats/Gear

(1)

All vessels used in the exercise of treaty fishing pursuant to this Chapter shall be:

(a)

Owned and registered in the name of a Member; or

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(b)

In the possession of a Member under a bona fide purchase agreement which has

been approved by and filed with the Tribe as provided in § 10.01.280; or

(c)

In the possession of a Member under a lease or lease/option to purchase from

another member of the Tribe; and

(d)

In compliance with those adopted regulations governing comprehensive

identification of boats, including but not limited to boat type, length, name and gear.

(2)

Unless otherwise provided in this Chapter or regulations adopted hereunder, each fisher

shall only operate the gear specified by the applicable Hoh Tribal fishery regulation. No

gear shall be operated unless specifically authorized as provided in this section.

(3)

All gear shall be identified as follows:

(4)

(a)

All vessels shall have a permanent boat identification sticker and annual validation

sticker displayed in a manner consistent with U.S. Coast Guard regulations (Boat

Tax Consent Decree of 1994, U.S. v Washington Sub-proceeding 88-1, (W.D.

Wash., 1994))

(b)

All nets of whatever type, all shellfish/fish pots and traps, and all containers used

for the storage or transport of seafood (e.g., buckets, clam/oyster sacks, fish totes),

shall be clearly identified and marked with the owner's tribal identification number.

The identification shall be at both ends of a net that is not attached to a vessel or on

the outboard end of a net attached to a vessel. All identification shall be easily

visible without having to remove the gear from the water. It shall be unlawful to

operate any gear without having all identification required by this section properly

attached.

All unmarked gear and boats which are unattended and any fish found therein may be

removed by a tribal patrol officer.

§ 10.01.280 Boat Purchase Contract

(1)

A member who intends to exercise treaty fishing rights with gear or boat the legal title of

which is not in the tribal member's name, or who is purchasing a boat or gear on

installments paid to the seller, shall first present to the Fisheries Manager for approval:

(a)

A purchase agreement evidencing that the member is purchasing the boat or gear;

and

(b)

A boat/gear survey provided by a professional marine surveyor.

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(2)

The Fish & Wildlife Committee shall review all purchase agreements and shall provide a

recommendation to the Tribal Business Committee regarding the likelihood of success of

the contract. The Fish & Wildlife Committee shall consider the following factors in

formulating their recommendation:

(a)

Legal summary of contract as reviewed by tribal legal department;

(b)

Specifics of the contract (i.e., financial institution or firm holding the lien, payment

schedule or associated business plan, down payment quantity, term of contract);

(c)

Fisher's experience operating this type of vessel/gear; and

(d)

Circumstances which affect the availability of fish or fish value during the term of

the contract.

(3)

The recommendations of the Fish & Wildlife Committee shall be reviewed by the Tribal

Business Committee, which shall either approve or disapprove the contract. In addition to

considering those factors set out in subsection (2) of this section, the Tribal Business

Committee shall also consider the recommendation of the Fisheries Manager and shall

specifically determine whether the approval of the purchase contract would result in an

increase in the tribal fishing fleet or in tribal fishing power in violation of policy set

pursuant to § 10.01.230 of this Chapter.

(4)

All boat contracts approved under this section shall be subject to annual review. The

purpose of such annual review will be to determine whether the conditions of the contract

are being met. The Fisheries Manager is authorized to request from the member purchasing

the boat an annual financial statement which specifies the amount of money paid on both

the principal and interest, and the amount of the principal remaining. Said statement must

be signed, dated and notarized by both the member and the mortgagor. In the event the

contract conditions are not being met, the Fisheries Manager shall request a statement from

the member regarding the likelihood of both contract failure and future contract

compliance. The Fisheries Manager will then report to the Tribal Business Committee on

the condition of the contract. If the Tribal Business Committee believes the risk of contract

failure is significant, the Tribal Business Committee may revoke the member's

authorization to use the described vessel under this Chapter.

(5)

Disapproval of a boat contract may be appealed to the Hoh Tribal Court; provided, that the

burden of proof shall be on the member. Review shall be limited to whether the decision

was arbitrary, capricious, or having no basis in fact. The standard of proof shall be clear

and convincing evidence.

(6)

The review and approval under this section is for the Tribe's benefit only. Such review and

approval shall not and does not guarantee or warrant to the member that the contract is

legal, binding, enforceable, or that it will be successful.

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SELLING AND BUYING OF FISH

§ 10.01.290 Sale of Fish

(1)

It is the responsibility of each fisher at the time of each fish sale to accurately and

completely fill out the fish ticket in accordance with this Chapter. Improperly filled out fish

tickets are in violation of this Chapter.

(2)

It shall be unlawful to sell any fish caught as subsistence or ceremonial harvest.

(3)

A tribal fisher who sells fish to a person, organization, or other entity other than fish buyers

licensed by the tribe, the state, or other treaty tribes shall contact the tribal Fisheries

Department to report the sale within twenty-four (24) hours.

§ 10.01.300 Dealer/Buyer Licensing

(1)

Hoh Fish Dealer License. Every Hoh tribal member who receives for resale fish harvested

in the exercise of Washington treaty Indian fishing rights shall be required to first obtain a

Hoh Fish Dealers license.

(2)

Hoh Fish Buyer License. Every Hoh tribal member who receives such fish on behalf of a

fish dealer licensed by any state or tribe shall be required to first possess a Hoh Fish Buyer's

license, which shall be obtained by the dealer on whose behalf the buyer receives fish. No

person may be licensed to buy fish on behalf of more than one Dealer.

(3)

Issuance, Validity, and Duration. Hoh Fish Dealer and Hoh Fish Buyer licenses shall be

issued by the Fisheries Manager and shall be valid when signed by both the Fisheries

Manager and the applicant. Each such license shall be valid from the date of issuance

through the end of the season.

(4)

Persons Eligible for Licensing. Only enrolled Hoh tribal members are eligible to obtain a

Hoh Fish Dealer or Hoh Fish Buyer license. Spouses may not be issued buyer or dealer

licenses, nor may they sign fish tickets on behalf of a dealer or buyer.

(5)

License Application.

(a)

Procedure. An applicant for a Buyer or Dealer license may apply in person at the

Hoh Fisheries Department or by mail addressed to the Fisheries Manager. Mail

applicants shall be sent an unsigned copy of the appropriate license application and

instructed to return it signed by the applicant, together with a check or money order

for the license fee. If approved by the Fisheries Manager, the license shall be signed

by the Fisheries Manager and returned to the licensee. In-person applicants shall

deliver the appropriate license fee to the tribal comptroller or receptionist at the

Hoh Tribal Center and shall present a receipt of payment to the Fisheries

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Department together with the license application. If the license is not approved, the

license fee shall be returned to the applicant.

(b)

Shellfish Certification. Dealers wishing to purchase molluscan bivalve shellfish

(such as clams, oysters, geoduck and mussels) shall first obtain a

Shellstock/Shipper certification from the State of Washington Department of

Health, or an equivalent certification from the Hoh Tribe. Applications for such

certification may be obtained from the tribal Fisheries Department. Upon proof of

such certification the Dealer license will be imprinted with an "S" by the tribal

Fisheries Department. No buyer shall receive molluscan bivalve shellfish on behalf

of a dealer who has not obtained such certification.

(6)

License Fees. In order to obtain or retain a Hoh Fish Dealer or Fish Buyer license, the

applicant or licensee must pay an annual license fee of one hundred dollars ($ 100) for a

Dealer license, and twenty dollars ($ 20) for a Buyer license.

(7)

Fisheries Department Staff Entry. All licensed Dealers and Buyers shall allow Tribal

Fisheries Department staff to enter upon any premises where fish are received under such

license or where records required by this Chapter are kept, and allow such staff to sample,

segregate and gather data for fisheries management purposes. Failure to comply with the

provisions of this subsection shall be grounds for an Emergency Revocation of the license

of the Buyer and Dealer.

(8)

Daily Reporting. Tribal members who receive for resale fish harvested in the exercise of

Washington treaty Indian fishing rights shall prepare and distribute copies of fish tickets in

a manner that complies with § 10.01.290. All fish ticket information must be made

available to tribal Fisheries Department staff and Tribal Fish and Wildlife Officers upon

demand. The tribal copy of each completed Fish Receiving Ticket must be mailed or

delivered in person to the tribal Fisheries Department within one (1) working day of the

landing date shown on the fish ticket. Licensed dealers and buyers shall maintain copies of

all fish tickets they prepare for at least one (1) year.

(9)

Personal Purchases. Dealers or Buyers who receive for resale fish taken in their own

exercise of treaty fishing rights must report such receipts on the appropriate fish tickets, at

the market price on the fishing grounds at the time of the catch.

(10)

Health Inspections. Dealers and Buyers shall permit reasonable inspection of their facilities

and operations by federal and Hoh tribal health authorities, and by the State of Washington

Department of Health, upon the concurrence of the Tribe.

(11)

License Suspension or Revocation.

(a)

If the Fisheries Manager has reason to believe that any person has failed to comply

with the requirements of § 10.01.300, the Fisheries Manager may issue a written

Notice of Violation. The Notice of Violation shall state the date of the alleged

violation and the ordinance provision(s) alleged to have been violated. The Notice

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of Violation shall be delivered in person or by first class mail, and shall be presumed

received within three (3) days of mailing to the alleged violator's address as last

given to the Fisheries Department.

(12)

(b)

The Notice of Violation may be accompanied by a Notice of Proposed License

Suspension or Revocation. The Notice of Proposed License Revocation or

Suspension shall state that it will become final and effective ten (10) days after

receipt of notice, unless appealed as provided for in this Chapter. The Fisheries

Manager may, for compelling reasons of public health or fisheries management,

issue an Emergency Notice of License Suspension or Revocation which shall be

effective upon receipt.

(c)

Within ten (10) days of receipt of a Notice of Proposed License Suspension or

Revocation, the recipient may file a civil action for judicial review with the Hoh

Tribal Court. The Court in such action may award only declaratory and related

injunctive relief, including preliminary injunctive relief. The suspension or

revocation of a license shall be automatically stayed during the pendency of such

action; provided that an Emergency Suspension or Revocation shall not be stayed

except upon order of the Court pending a preliminary injunction hearing.

(d)

The Court shall uphold the action of the Fisheries Manager unless it was arbitrary,

capricious, an abuse of discretion, or otherwise contrary to law.

(e)

The sovereign immunity of the Tribe is hereby waived only for the purpose of

actions by Hoh tribal members brought in the Hoh Tribal Court under and in

accordance with the terms of this section.

Additional Penalties. The penalties, remedies and enforcement mechanism set forth in this

section shall be in addition to any other penalties or remedies available for a violation of

this section under applicable laws of the Tribe.

§ 10.01.310 Authorization of Buyers

(1)

All Fish Buyers licensed by the State of Washington shall be authorized to purchase both

fin fish and shellfish from tribal members fishing commercially pursuant to this Chapter,

unless a Buyer is declared unauthorized pursuant to this section.

(2)

The Fisheries Manager, the Tribal Business Committee, or the Tribal Court may declare a

Fish Buyer unauthorized to purchase fish from tribal fishers upon a showing that the buyer

has disregarded the provisions of this or other applicable tribal law, defrauded a tribal

fisher, or engaged in unfair or deceptive trade practices. The Buyer shall be provided with

reasonable notice of the allegations against him and an opportunity to respond in writing

or in person before a decision is made to remove him from the list of authorized Buyers.

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(3)

Tribal fishers shall be provided reasonable notice that a Buyer has been declared

unauthorized to purchase fish from tribal fishers. A tribal commercial fisher who

knowingly sells fish to an unauthorized Buyer shall be guilty of a violation of this Chapter.

(4)

No person who purchases fin fish or shellfish from Hoh tribal fishers is authorized to collect

any tax.

ENFORCEMENT

§ 10.01.320 Fish & Wildlife Officers

(1)

The Hoh Tribal Business Committee is responsible for hiring one or more persons to serve

as Fish and Wildlife Officers.

(2)

The Tribal Business Committee shall have the power to enter into an agreement with

another tribe or other law enforcement agency whereby the Fish and Wildlife Officer of

the other tribe may act as a Fish & Wildlife Officer for the Hoh Indian Tribe.

(3)

The Fish and Wildlife Officers shall:

(a)

Have the authority to enforce the provisions of this Chapter and all emergency and

standard regulations promulgated pursuant to this Chapter; and

(b)

Regularly patrol the land and waters of the reservation and the usual and

accustomed fishing areas where tribal fishers are engaged in fishing.

(4)

The Tribal Business Committee may, upon request from a Fish and Wildlife Officer,

appoint and deputize additional persons to assist the Fish and Wildlife Officer in the

performance of his/her duties.

(5)

Fish and Wildlife Officers shall have the authority to arrest any tribal member/Indian

person or detain any non-member spousal person fishing in violation of this Chapter when:

(a)

There exists a valid warrant of arrest for the defendant known to the Officer; or

(b)

A criminal offense occurs in the presence of the Officer; or

(c)

The Officer shall otherwise have probable cause to believe that the defendant has

committed a criminal offense.

(6)

Hoh tribal law enforcement officers shall have the authority to enforce the

provisions of this Chapter and all regulations promulgated pursuant to this Chapter.

§ 10.01.330 Nature of Violations

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Violations under this ordinance shall be designated as either:

(1)

A criminal violation; or,

(2)

A civil violation requiring the alleged violator to appear before the Court for a preliminary

hearing (mandatory appearance); or

(3)

A civil violation which can be resolved without the alleged violator appearing before the

Court.

Any violation for which a penalty is not explicitly set out in this Chapter shall be deemed a civil

offense not requiring an appearance before the Court.

§ 10.01.340 Criminal Citation

Fish and Wildlife Officers have the discretion to issue a citation on a form approved by the Tribal

Business Committee in lieu of making an arrest for a criminal violation, provided that:

(1)

The defendant has satisfactorily been identified;

(2)

The defendant has signed the citation;

(3)

The defendant ceases the activity which violated this Chapter;

(4)

The defendant has no history of previous failure to respond to lawful process of the Hoh

Tribe; or

(5)

There is no substantial likelihood the defendant will refuse to respond to the citation.

§ 10.01.350 Civil Citation

A Fish and Wildlife Officer may issue a civil citation for a civil violation of this Chapter or any

regulations promulgated pursuant to this Chapter when the offense is committed in the Officer's

presence or when the Officer otherwise has probable cause to believe that an offense has been

committed. The citation shall be on a form approved by the Tribal Business Committee and shall

include the following:

(1)

The name of the defendant;

(2)

The date, time and location of the incident;

(2)

The section of this Chapter which has been violated;

(3)

Whether or not a court appearance is mandatory;

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(4)

The monetary penalty for the offense (unless the defendant is required to appear in court);

(5)

A space for the defendant to sign, promising to appear for the court date (if required). If

the defendant refuses to sign the citation, the Officer shall write "refused" in the space

provided. A person who refuses to sign a citation is presumed to have notice of its contents,

including the time and date given for hearing;

(6)

Instructions to the defendant (when an appearance is not required) that he or she can either

pay the penalty, request a hearing to explain the circumstances surrounding the violation,

or request a hearing to contest the charge; and

(7)

Notice to the defendant (when an appearance is not required) that the fine must be paid or

a hearing requested within seven (7) days of receiving the citation.

Nothing in this section shall preclude the Tribe from instituting proceedings by filing a civil

complaint.

§ 10.01.360 Mandatory Court Appearance

(1)

When a defendant is required to appear for a preliminary hearing, he/she shall appear at

the time and date stated on the notice of infraction or summons, unless a continuance is

granted.

(2)

At the preliminary hearing, the defendant shall either:

(a)

Admit liability and pay the fine; or

(b)

Admit liability but request a mitigation hearing; or

(c)

Deny liability and request a hearing to contest the charge.

§ 10.01.370 Resolution Without Court Appearance

(1)

When a civil violation has occurred and the defendant is not required to appear in Court

for a preliminary hearing, he/she shall, within seven (7) days of receiving a notice of

violation, either:

(a)

Admit liability and pay the fine;

(b)

Admit liability and request a mitigation hearing to explain the circumstances

surrounding the violation; or

(c)

Deny liability and request a hearing to contest the violation.

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(2)

No further proceedings shall be initiated against any defendant who pays the fine pursuant

to subsection (1)(a) above.

§ 10.01.380 Mitigation Hearing – Civil Offenses Only

(1)

At the mitigation hearing, the defendant shall have the burden of proving mitigating

circumstances.

(2)

At the mitigation hearing, the defendant may present evidence of mitigating circumstances

and ask the Court to reduce the monetary penalty.

§ 10.01.390 Hearing to Contest the Violation

(1)

At a hearing to contest a civil violation, the Tribe shall have the burden of proving by a

preponderance of the evidence that the defendant committed the violation.

(2)

If the Tribe does not meet its burden, the case shall be dismissed with prejudice.

(3)

If the Tribe does meet its burden, the defendant may present evidence of mitigating

circumstances.

§ 10.01.400 Failure to Appear for Hearing or Pay Fine

(1)

(2)

Any person who does not appear for a hearing, or who fails to pay a fine within seven (7)

days of receiving a citation under this Chapter, shall be deemed to have admitted

committing the charged offense. The Court shall enter a default judgment against the

defendant if it finds that:

(a)

The notice of infraction was issued;

(b)

The defendant was informed of the date and time of the hearing, or of his/her duty

to pay the fine or request a hearing; and

(c)

The defendant did not appear at the appointed time and place, or did not pay the

fine or request a hearing within seven (7) days of receiving the citation.

The Tribe may institute a civil proceeding to collect the fine and up to an additional onehundred-and-fifty-dollar ($ 150.00) penalty.

§ 10.01.410 No Right to Appointed Counsel

No person shall be entitled to appointed counsel when the charged offense is a civil infraction.

§ 10.01.420 No Right to Jury Trial for Civil Offense

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No person shall be entitled to a jury trial when the charged offense is a civil infraction.

§ 10.01.430 Seizure

(1)

A Fish and Wildlife Officer may seize any fish or fishing gear used in taking the fish if he

or she has probable cause to believe a violation of this Chapter has occurred.

(2)

When seizing fish or equipment, the Fish and Wildlife Officer shall follow the procedures

below:

(a)

The Fish and Wildlife Officer shall prepare a written inventory of each item seized

and, if possible, make a photographic record. The Fish and Wildlife Officer shall

make a reasonable attempt to identify the owner of the equipment. The

owner/defendant, if present, shall receive a copy of the inventory; otherwise, the

Fish and Wildlife Officer shall make a reasonable attempt to mail a copy to the

owner/defendant.

(b)

The Fish and Wildlife Officer shall, as soon as practicable, turn all seized fish over

to the Community Fish Bank for distribution to Tribal members.

(c)

All other equipment seized pursuant to this Chapter shall, as soon as practicable, be

placed in the custody of the Tribal Enforcement Officer. Recovery of seized

equipment shall be governed by § 10.01.430 of this Chapter.

§ 10.01.440 Returns of Property

Any person who has had equipment seized pursuant to § 10.01.430 may petition the Court to issue

an order of release of the fish and gear seized. The Court shall make a determination based on the

reports and testimony presented to it that serve the interests of justice and the fishery resource. The

Court shall expedite, to the extent practicable, all hearings requested under this section.

§ 10.01.450 Forfeiture Procedure

(1)

(2)

Upon the finding of a violation of this Chapter;

(a)

the Court shall order the forfeiture of all fish proceeds derived in violation of this

Chapter; and

(b)

after notice and an opportunity for hearing, the Court may enter an order of

forfeiture of any and all equipment seized pursuant to § 10.01.430.

All unclaimed equipment seized for violation of this chapter for which the owner cannot

be identified shall be forfeited. The Court shall order posting of a notice of confiscation at

all normal places used for posting of regulations. The notice shall describe the equipment

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seized and shall set a firm date, not less than fifteen (15) days after first posting of a notice

of confiscation of unclaimed equipment, for a hearing on whether the equipment should be

forfeited. Upon or after the date previously established for the hearing in the notice, the

Court may enter an order forfeiting the equipment.

§ 10.01.460 Disposition of Property Forfeited

(1)

All equipment or proceeds forfeited by order of the Court shall be turned over to the Tribal

Business Committee or its designee for the use and benefit of the Tribe or to be disposed

of as appropriate.

(2)

Any equipment or proceeds not forfeited by order of the Court shall be returned to the

owner/defendant after the completion of the case and after the fines, if any, have been paid.

§ 10.01.470 Loss of Treaty Fishing Right

(1)

A Member who has been convicted of or has pleaded guilty to three offenses pursuant to §

10.01.350 may have his/her privilege of exercising treaty fishing rights revoked for a period

not to exceed twenty-four (24) months.

(2)

The Tribal Business Committee shall have the exclusive right to revoke a member's

privilege to exercise treaty fishing rights pursuant to subsection (a) of this section. The

Fisheries Manager may make recommendations on whether to take action under this

section.

(3)

The Tribal Business Committee shall cause notice to be delivered by personal service to a

Member who is subject to losing the privilege of exercising treaty fishing rights. The notice

shall be delivered at least fifteen (15) days prior to a Tribal Business Committee meeting

called to decide the case. Hoh Law Enforcement officers may be used to serve the notice.

(4)

The notice required by subsection (3) of this section shall contain the following:

(a)

A clear statement that the Tribal Business Committee will consider whether to

revoke his/her privilege of exercising treaty fishing rights and that the privilege

could be revoked for up to twenty-four (24) months;

(b)

A statement of the basis for the proposed action including a list of the convictions

involved;

(c)

The date that a hearing before the Tribal Business Committee will be held to

consider the case;

(d)

A statement that the Member has the right to appear before the Tribal Business

Committee, to present evidence, to call witnesses, and to be represented by a

spokesperson.

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(5)

The Tribal Business Committee shall set a date certain to consider whether to revoke a

Member's privilege of exercising treaty fishing rights. In making its determination, the

Tribal Business Committee shall consider the nature and seriousness of the convictions

involved and the impact of the violations on the conservation of the resource, allocation,

or intergovernmental relations. If the Tribal Business Committee finds that the violations

were serious, significantly affected the conservation of the resource, allocation, or

intergovernmental relations, the Tribal Business Committee may revoke the Member's

privilege of exercising treaty fishing rights as provided in subsection (1) of this section. In

lieu of revoking a Member's privilege, the Tribal Business Committee may impose a plan

on the Member designed to ensure that there are no further violations. A Member who fails

to comply with a plan established under this section shall be subject to having his/her

privilege revoked as if the plan had not been implemented.

§ 10.01.480 Conviction as Bar

(1)

(2)

At the recommendation of the Natural Resources Director, any person who has been

convicted of a criminal offense under this Chapter may be prohibited for a period not to

exceed one (1) year:

(a)

From serving on the Fish and Wildlife Committee or Shellfish Committee; and/or

(b)

From being employed by the Fisheries Department.

A person who has been convicted of a criminal offense related to this Chapter during his/her

term of appointment or employment with the Fisheries Department may be removed from

said office or employment at the recommendation of the Natural Resources Director for a

period not to exceed one (1) year.

VIOLATION - PENALTIES

§ 10.01.490 Classification of Offenses

(1)

Class A Offense: A Class A offense is a criminal offense punishable by up to six (6) months

in jail and up to a fine of five hundred dollars ($500). The Court shall also order the

forfeiture of any fish or proceeds obtained as a result of the violation. The Court may order

forfeiture of any and all gear used in the commission of the offense. The commission of a

Class A offense may result in the suspension of the defendant's fishing privileges for a

period not to exceed twenty-four (24) months.

(2)

Class B Offense: A Class B offense is a criminal offense punishable by up to three (3)

months in jail and up to a fine of four hundred dollars ($400). The Court shall also order

the forfeiture of any fish or proceeds obtained as a result of the violation. The Court may

order forfeiture of any and all gear used in the commission of the offense. The commission

of a Class B offense may result in the suspension of the defendant's fishing privileges for

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a period not to exceed three (3) months. A third offense of Class B or greater committed

within one (1) year of the first Class B offense shall be a Class A offense.

(3)

Class C Offense: A Class C offense is a civil offense for which the defendant will be

required to appear in Court for a preliminary hearing (mandatory appearance). A penalty

of up to three hundred dollars ($300) shall be imposed for the commission of a Class C

offense, plus forfeiture of any fish or proceeds obtained as a result of the violation.

However, the Court may consider any mitigating circumstances and reduce the penalty

accordingly.

(4)

Class D Offense: A Class D offense is a civil offense, for which the defendant will be

required to appear in Court for a preliminary hearing (mandatory appearance). A penalty

of up to two hundred dollars ($200) shall be imposed for the commission of a Class D

offense, plus forfeiture of any fish or proceeds obtained as a result of the violation.

However, the Court may consider any mitigating circumstances and reduce the penalty

accordingly.

(5)

Class E Offense: A Class E offense is a civil offense, for which the defendant will not be

required to appear in court for a preliminary hearing. A penalty of up to one hundred dollars

($100) shall be imposed for the commission of a Class E offense, plus forfeiture of any fish

or proceeds obtained as a result of the violation. However, the Court may consider any

mitigating circumstances and reduce the penalty accordingly.

§ 10.01.500 Prohibited Acts – Manner of Fishing

(1)

Failure to Fill Out Fish Ticket: Failure to fill out Fish Tickets as required by this Chapter

is a Class C offense.

(2)

Fishing in Closed Waters: It shall be unlawful for any person to fish in any waters which

are closed to fishing by tribal law or regulation or to fish outside of the usual and

accustomed fishing places of the Tribe while exercising treaty fishing rights pursuant to

this Chapter. Violation of this subsection is a Class A offense.

(3)

Exceeding Bag Limit: It shall be unlawful for any person to kill, disturb, harvest, capture,

catch take or gather any species of fish in excess of the number fixed as the bag limit.

Violation of this subsection is a Class C offense.

(4)

Interference with Another's Gear: It shall be unlawful for any person to move, remove,

steal, handle or net pick any other person's gear or property without permission of that

person. Violation of this subsection is a Class B offense.

(5)

Using Illegal Gear: It shall be unlawful to use gear not authorized by tribal law or

regulation. Violation of this subsection is a Class B offense.

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(6)

Failure to Tend Gear: It shall be unlawful to actively tend fishing gear less than once every

twenty-four (24) hours. Violation of this subsection is a Class C offense.

(7)

Failure to Have Gear Properly Marked: It shall be unlawful to use gear that is not properly

marked pursuant to tribal law or regulation. Violation of this subsection is a Class D

offense.

(8)

Abandoned Gear/Illegal Dumping: It shall be unlawful for any person to abandon gear or

discard any object, debris or waste related to the act of fishing upon any property or in any

waters. Violation of this subsection is a Class D offense.

§ 10.01.510 Eligible Fishers

(1)

No Fishing Identification: It shall be unlawful for any person to exercise treaty fishing

rights without having first obtained proper tribal identification. Violation of this subsection

is a Class C offense.

(2)

Illegal Fishing by Minor: It shall be unlawful for a minor to fish in violation of this code.

Violation of this subsection is a Class D offense.

(3)

Failure to Have Current Validation On Fishing Identification: It shall be unlawful to use

an identification card without a current year validation stamp. Violation of this subsection

is a Class D offense. Physical Possession of Identification When Fishing: It shall be

unlawful to fish without physical possession of a proper identification card. Violation of

this subsection is a Class C offense. Exercising Treaty Fishing Rights When Penalties or

Taxes Are Owed: It shall be unlawful to exercise treaty fishing rights when penalties (i.e.

fines) imposed have not been paid. Violation of this subsection is a Class B offense.

§ 10.01.520 Prohibited Acts – Fish

(1)

Illegal Possession of Fish: It shall be unlawful for any person to possess or control fish

taken in violation of this chapter or tribal regulations. Violation of this subsection is a Class

D offense.

(2)

Wasting Fish: It shall be unlawful for any person to waste fish taken in any usual and

accustomed fishing area of the Tribe. Violation of this subsection is a Class B offense.

(3)

Illegal Sale of Fish: It shall be unlawful to sell fish in violation of this Chapter or

regulations promulgated pursuant to this Chapter. Violation of this subsection is a Class C

offense.

(4)

Sale of Fish Caught for Subsistence: It shall be unlawful to sell fish if they were caught

with a subsistence license or in a subsistence only fishery. Violation of this subsection is a

Class B offense.

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(5)

Shellfish Sanitation: It shall be unlawful for any Member to fail to follow the National

Shellfish Sanitation Program (NSSP) or equivalent sanitation program implemented by the

Tribe, as it relates to the handling, transport and storage of bivalve molluscan shellfish.

Violation of this subsection is a Class C offense.

§ 10.01.530 Miscellaneous Provisions

(1)

Fishing Under the Influence of Intoxicants: It shall be unlawful for any person to fish while

in possession of or under the influence of alcohol or intoxicants. Violation of this

subsection is a Class C offense.

(2)

Obstruction of Enforcement Officer: It shall be unlawful for any person to resist, obstruct

or interfere with any duly authorized Tribal Fisheries Patrol or Law Enforcement Officer

in the performance of official duties pursuant to this Chapter or any other tribal law and

regulations. Violation of this subsection is a Class A offense.

(3)

Destruction of Posted Official Regulations: It shall be unlawful for any person to destroy,

tear down, shoot at, deface, or erase any official printed matter or signs authorized by the

Tribal Business Committee or Fish & Wildlife Committee advising tribal members of tribal

fishing regulations. Violation of this subsection is a Class C offense.

(4)

Permitting Non-member to Assist: It shall be unlawful for any Member to permit any nonmember to fish in violation of this Chapter. The Member is solely responsible for verifying

whether the person assisting is authorized pursuant to this code. Violation of this subsection

is a Class B offense.

(5)

Adult Knowingly Permitting Minor to Violate Chapter: It shall be unlawful for an adult

person to knowingly allow, encourage or direct a minor person to violate this Chapter.

Violation of this subsection is a Class C offense.

(6)

Dealer/Buyer Violations: It shall be unlawful to violate the provisions of this Chapter.

Violations of this subsection is a Class C offense.

(7)

Health Violations: It shall be unlawful to violate any health regulations implemented

pursuant to this code. Violation of this subsection is a Class C offense.

(8)

Other Violations: In addition to the prohibited acts set out above, it shall be unlawful for

any member to violate any other provision of this Chapter, any regulation promulgated

pursuant to this Chapter by the Tribal Business Committee or the Fisheries Manager, any

emergency regulation, or any other requirement contained herein which is now in effect or

may hereafter be promulgated. Violation of this subsection is a Class C offense.

CONSTRUCTION OF ORDINANCE

§ 10.01.540 Construction

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This Chapter shall be liberally construed to give full effect to the objectives and purposes for which

it was enacted.

§ 10.01.550 Severability

If any provision of this Chapter is held invalid, the remainder of the Chapter shall not be affected.

§ 10.01.560 Effective Date

This ordinance as amended becomes effective upon approval by the Hoh Tribe Business

Committee by Council Resolution.

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