1. The Polycentric Governance System of the Pacific Salmon Regime
As Elinor Ostrom and her coauthors illustrated, common-pool resource management faces at least two broad types of collective action problems: “appropriation” problems and “provision” problems.1Elinor Ostrom, Roy Gardner, and James Walker, Rules, Games, and Common Pool Resources (Ann Arbor: University of Michigan Press, 1994). One of the things that makes the salmon SES so complex is that the various governance functions addressing these types of problems are disaggregated across a wide range of institutions at multiple levels. Many actors within the salmon SES “wear multiple hats” insofar as they are formal members of more than one of the constituent institutions in the overall SES, and thereby constitute policy actors who connect the various other actors within the SES and may thus bring a greater degree of coherence to the overall system. Therefore it is necessary to map the institutional relationships that exist and to locate where various governance functions reside within those relationships. Mapping those relationships requires distinguishing among at least four levels of institutional rulemaking government organizations: international, transnational, regional, and local.
1.1 International and Transnational Governance
At the international level, the North Pacific Anadromous Fish Commission is an organization created to implement the various provisions of the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, which was negotiated by the United States, Canada, Japan, and Russia, and which came into force in 1993 (South Korea also joined the convention in 2003).2North Pacific Anadromous Fish Commission. “Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean”. https://npafc.org/convention/. Essentially, the focus of this convention is to prohibit the targeted fishing of salmon on the high seas (i.e., in the areas beyond each nation’s exclusive economic zone, or EEZ, which extends out to 200 nautical miles from shore) in order to maximize the numbers of fish returning to each country’s waters, and to collaborate in minimizing the bycatch of salmon in all other fisheries within each nation’s EEZ.3North Pacific Anadromous Fish Commission. “Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean”. https://npafc.org/convention/; Edward L. Miles, “The Management of High Seas Salmon in the North Pacific, 1952–1992,” in Environmental Regime Effectiveness: Confronting Theory with Evidence, ed. Edward L. Miles et al. (Cambridge, MA: MIT Press, 2002). Each party to the convention can nominate up to three representatives to the commission. Commission decisions must be made by consensus, with each party receiving one vote.4Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean art. 8, § 7 and 10, February 11, 1992, T.I.A.S. No. 11465, https://npafc.org/wp-content/uploads/2017/06/ Handbook-3rd-E-Convention-Only-English.pdf.
A more significant management role is played at the transnational level in the Eastern Pacific by the Pacific Salmon Commission (PSC). The PSC is a bilateral organization created by the United States and Canada to address the issue of interceptions and overharvesting of fisheries that range across the borders of these two countries. The PSC was created to address the macroscale (transnational) appropriation problems relating to salmon, although the institution has evolved beyond its original exclusive focus on appropriation issues to include a variety of provision activities. The commission itself does not have regulatory authority over the salmon fisheries but provides regulatory advice and recommendations to the two countries. A key exception to this is that the PSC does exercise regulatory authority over Fraser River sockeye and pink salmon stocks through the Fraser River Panel, a regulatory authority that is a vestige of bilateral salmon management agreements that were administered through the International Pacific Salmon Fisheries Commission, the organizational precursor to the PSC.5Thomas C. Jensen, “The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview,” Environmental Law 16 (1986): 363–422; Joy A. Yanagida, “The Pacific Salmon Treaty,” American Journal of International Law 81 (1987): 577–92; John F. Roos, Restoring Fraser River Salmon: A History of the International Pacific Salmon Fisheries Commission (Vancouver, BC: Pacific Salmon Commission, 1991). PSC staff promulgate and enforce fishing regulations in both American and Canadian territorial waters known as the Fraser River Panel Area, which encompasses the areas around southern Vancouver Island, the Washington coast, the Strait of Juan de Fuca, Puget Sound, and the Strait of Georgia. Instream enforcement of fishing regulations on the Fraser is the responsibility of the Department of Fisheries and Oceans (DFO), also known as Fisheries and Oceans Canada, and must comply with the overall target harvest allocations set by the PSC.6“Fisheries and Oceans Canada’s Update on the Implementation of the Cohen Commission’s Recommendations”, Fisheries and Oceans Canada, accessed January 16, 2020, https://www.dfo-mpo.gc.ca/ cohen/report-rapport-eng.htm.
Beyond this, the PSC has responsibility for “all salmon originating in the waters of one country which are subject to interception by the other, affect the management of the other country’s salmon or affect biologically the stocks of the other country.”7“About Us: The Pacific Salmon Commission,” Pacific Salmon Commission, accessed January 1, 2020, http://www.psc.org/about_role. htm. Under the terms of the Pacific Salmon Treaty (PST) and subsequent agreements the PSC consists of a sixteen-member body, with four commissioners and four alternates from each side. The commission’s primary role is to hash out agreements regarding the targeted escapement goals for each species of fish that is known to migrate across national boundaries and thus become susceptible to interception, and then to set specific American and Canadian harvest allocations for particular stocks. Each country is responsible for making regulatory decisions to implement the suggestions of the PSC; thus in effect the PSC gives both countries a forum through which to resolve their differences and collaboratively determine acceptable harvest levels and decisions regarding targeted habitat improvements. According to the PST, “Each section shall have one vote in the Commission. A decision or recommendation of the Commission shall be made only with the approval of both sections.”8Treaty Concerning Pacific Salmon art. 2, § 6, U.S.-Can., January 28, 1985, T.I.A.S. No. 11091, https://treaties.un.org/doc/Publication/ UNTS/Volume%201469/volume-1469-I-24913-English.pdf. This effectively gives each country veto power over any activity of the commission.
An institutional analysis of the PSC reveals a much more nuanced picture than the simple one-country, one-vote dynamic, however. The IAD framework identifies seven broad types of rules, four of which I argue particularly shape the level of participatory authority of each of the interests that fill positions of power within any institution. Position rules specify the specific positions of authority in any decision process, connecting particular actors to authorized actions.9Elinor Ostrom and Sue Crawford, “Classifying Rules,” in Understanding Institutional Diversity, by Elinor Ostrom (Princeton, NJ: Princeton University Press, 2005), 193. Boundary rules specify the process of choosing who fills particular positions, by defining “1) who is eligible to enter a position, 2) the process that determines which eligible participants may enter (or must enter) positions, and 3) how an individual may leave (or must leave) a position.”10Ostrom and Crawford, “Classifying Rules,” 194. Choice rules, meanwhile, specify the range of actions that a “participant occupying a position must, must not, or may do at a particular point in a decision process.”11Ostrom and Crawford, 200. Thus, choice rules fundamentally outline the conditions under which authoritative decisions may be made by particular actors in a decision-making process. Finally, aggregation rules specify whether an authoritative decision may be made by a single participant, or whether multiple participants are required to collaboratively make a decision.12Ostrom and Crawford, 202. In other words, aggregation rules capture the voting rules and processes behind the making of authoritative institutional decisions.
Position rules are important in the sense that having multiple representatives for a particular national delegation increases the likelihood that indigenous groups (and other groups that are usually characterized as nonstate actors) obtain some measure of formal representation, in contrast with the one-member, one-vote form of representation that characterizes many international organizations. Boundary rules specifying the processes by which indigenous representatives are selected are more important for indigenous participatory authority to the extent that they allow relatively unchecked authority of indigenous groups to select whomever they want to fill these positions. Choice rules meanwhile are important in that they fundamentally outline the conditions under which authoritative decisions may be made by particular actors filling particular positions in a decision-making process. In a general sense, choice rules impacting participatory authority in international institutions would entail the degree to which such groups have a formal vote on all, some, few, or none of the decisions taken by the organization. Aggregation rules are very important in that they are related to conditions under which an authoritative decision can be made. Whether the aggregation rules in effect are nonsymmetric or symmetric will significantly influence the level of authority of any actor in an institutional setting.13Ostrom and Crawford, 202-203. For instance, if an authoritative decision can be made unilaterally by a specific actor within an institutional setting (a nonsymmetric rule), then aggregation rules favor the decision-making power of that particular actor. However, if all actors must agree on any decision taken by the group—a symmetric aggregation rule that effectively grants each actor veto power—then all actors could be termed relative coequals in terms of power within the institution, a situation that would likely be significant in determining bargaining relationships and coalition-forming within groups.
Position rules pertaining to commissioners for both delegations are spelled out at the constitutional level in article 2 of the PST: “The Commission shall consist of not more than eight Commissioners, of whom not more than four shall be appointed by each Party. Each Party may also appoint not more than four alternate Commissioners, to serve in the absence of any Commissioner appointed by that Party.”14Treaty Concerning Pacific Salmon art. 2, § 3. In addition, each delegation must choose an individual to serve as the delegation’s primary representative, with these two individuals serving as commission chairman and commission vice-chairman (these positions alternate between the two countries on an annual basis).15Treaty Concerning Pacific Salmon art. 2, § 4. It is worthwhile to note here that informal norms at the operational level have evolved such that there is virtually no differentiation between the “formal” and “alternate” commissioner positions, such that all eight members are essentially coequal.16PSC commissioner, interview by the author, December 16, 2009. Because each delegation has established its own aggregation rules for determining what the position of the national delegation will be in any particular instance, as will be demonstrated shortly, the active differentiation between commissioners and alternates essentially becomes moot. Boundary rules specify that both commissioners and alternates “shall hold office at the pleasure of the Party by which they were appointed,”17Treaty Concerning Pacific Salmon art. 2, § 4. essentially deferring decisions on who is eligible to serve at the Commissioner level, the process by which potential individuals may enter these positions, and processes by which individuals may leave these positions to a collective-choice process governed independently by each delegation.
The commission represents the most authoritative level of decision making within the PSC, given the broad authority granted to it by choice rules articulated at the constitutional level in the PST: “Subject to the approval of the Parties, the Commission shall make such by-laws and procedural rules for itself, for the Panels . . . , and for the committees . . . as may be necessary for the exercise of their functions and the conduct of their meetings.”18Treaty Concerning Pacific Salmon art. 2, § 7. Thus, all determination of constitutional-level rules governing collective-choice processes at the panel and committee levels rests with the commissioners. Furthermore, “The Commission may make recommendations to or advise the Parties on any matter relating to the Treaty.”19Treaty Concerning Pacific Salmon art. 2, § 8. Other choice rules granting sole authority over budgeting,20Treaty Concerning Pacific Salmon art. 2, § 12. disbursement of funds,21Treaty Concerning Pacific Salmon art. 2, § 13. appointment and oversight of the Secretariat staff,22Treaty Concerning Pacific Salmon art. 2, §§ 15–16. and creation and elimination of panels and committees23Treaty Concerning Pacific Salmon art. 2, §§ 17–18. grant the commission broad latitude to determine the entire range of decision functions undertaken by the organization.
Because of the broad deference granted to each delegation to determine additional rules at the collective-choice level for its own delegation, divergent patterns of decision making exist that impact the relative participatory authority of American versus Canadian indigenous groups in the PSC, with the treaty tribes of the United States holding relatively greater participatory authority than their Canadian counterparts. Two distinct groupings of participating treaty tribes from the United States can be identified based on the specific areas in which they are located and the different collective fishing regimes that each group employs. The first group consists of twenty treaty tribes from Washington State that hold special treaty rights “to fish in usual and accustomed places” and “in common with the citizens of the territory.”24Sara Singleton, Constructing Cooperation: The Evolution of Institutions of Comanagement (Ann Arbor: University of Michigan Press, 1998). These treaty rights have been interpreted by the courts in United States v. Washington and various ancillary cases to allocate roughly 50 percent of the annual salmon harvest to the tribes, to allow tribal fishing beyond reservation borders, and to grant the tribes “co-management authority” with the state. These tribes fish independently of one another but are collectively assisted by the Northwest Indian Fisheries Commission (NWIFC), which acts as a support agency that attempts to resolve intertribal collective action problems and to provide political and technical assistance to each of the member tribes25“About Us”, Northwest Indian Fisheries Commission, accessed January 16, 2020, https://nwifc.org/about-us/.. The second group consists of four tribes in the Columbia River basin of Washington, Oregon, and Idaho—the Umatilla, Nez Perce, Yakama, and Warm Springs—that have similar treaty provisions to fish. These tribes collectively regulate, through the Columbia River Inter-Tribal Fish Commission (CRITFC), a commercial fishery over a group of shared common fishing areas on the Columbia River26“CRITFC Mission & Vision”, Columbia River Inter-Tribal Fish Commission, accessed January 16, 2020, https://www.critfc.org/ about-us/mission-vision/.. Owing to dam construction on the Columbia, which flooded multiple traditional platform fishing areas, in 1988 Congress established several “treaty fishing access sites” in several locations along the reshaped river basin as a remediation effort to replace these usual and accustomed fishing areas.27Pub. L. No. 100-581, 102 Stat. 2938 (1988).
Boundary rules regarding who may serve as PSC commissioners actively distinguish between the NWIFC and CRITFC tribes. In the case of the American delegation to the PSC, the Pacific Salmon Treaty Act of 1985 serves as the implementing legislation of the PST, and outlines most of the rules at the collective-choice level that impact the commissioner roles. Section 3(a) of this act mandates that one shall be an official of the United States Government who shall be a nonvoting member of the United States Section; one shall be a resident of the State of Alaska and shall be appointed from a list of at least six qualified individuals nominated by the Governor of that State; one shall be a resident of the States of Oregon or Washington and shall be appointed from a list of at least six qualified individuals nominated by the Governors of those States; and one shall be appointed from a list of at least six qualified individuals nominated by the treaty Indian tribes of the States of Idaho, Oregon, or Washington.28Pacific Salmon Treaty Act of 1985, 16 U.S.C. § 3632(a) (2012).
Although these positions are subject to Senate confirmation, owing to significant backlogs in the confirmation processes for presidential appointees across all departments and agencies of the federal government, each federal, state, and tribal party essentially has de facto authority over choosing the particular individual who fills these positions, and individuals often serve without formal confirmation.29PSC commissioner, interview by the author, December 16, 2009. Because of the evolution in norms in the PSC’s rules of procedure, which effectively no longer distinguish between the roles of commissioners and alternates, the structure of the American delegation now consists of two federal representatives, two Alaska representatives, one representative from Washington State, one from Oregon, and two from the treaty Indian tribes.
In terms of the tribal representatives, a significant operational-level norm has been to have both the NWIFC and the CRITFC submit a list of three nominees, and to select one individual from each list.30NWIFC staff, interview by the author, February 18, 2010. Historically, additional boundary rules determined at the operational level and negotiated between representatives of the NWIFC and the CRITFC rotated the positions of full and alternate tribal commissioners between the NWIFC representative and the CRITFC representative on an annual basis. In light of the fact that full and alternate commissioners are no longer effectively distinguished from one another, which of the two groups has full or alternate representation is now merely a nominal matter.31PSC commissioner, interview by the author, December 16, 2009. Combined with the fact that none of the PSC commissioners in recent years has been selected according to the confirmation process outlined in section 3(a) of the Pacific Salmon Treaty Act the treaty tribes hold de facto authority to fill their allocated commissioner positions with virtually anybody they wish.32NWIFC staff, interview by the author, February 18, 2010. Thus the nomination and selection processes for filling the commissioner positions are essentially internal processes of the NWIFC and the CRITFC, despite the boundary rules set forth in the act.
In terms of choice rules directly pertaining to the tribes, any tribal representative can initiate any item both within the American delegation and at all joint international sessions at the commission, panel, and technical committee levels.33PSC commissioner, interview by the author, December 16, 2009. This gives tribal representatives an enhanced agenda-setting role that the tribes have often used to push particular issues. Because all decisions made by the PSC must be approved at the commissioner level, the tribes through their commissioner positions have a formal vote on all items of business.34PSC commissioner, interview by the author, December 16, 2009.
Aggregation rules pertaining to decision making of the commissioners from the American delegation are somewhat complex. The Pacific Salmon Treaty Act specifies that “the United States Section shall operate with the objective of attaining consensus decisions in the development and exercise of its single vote within the Commission. A decision of the United States Section shall be taken when there is no dissenting vote.”3516 U.S.C. § 3632(h)(1). Unwritten operational-level rules in recent years have required that all eight full and alternate commissioners collectively determine the position of the American delegation.36PSC commissioner, interview by the author, December 16, 2009.
The Pacific Salmon Treaty Act declares the federal representatives of the PSC to be nonvoting members,3716 U.S.C. § 3632(a). which would appear to effectively grant individual veto power to each of the two commissioners representing Alaska, to the commissioner from Oregon, to the commissioner from Washington State, to the commissioner representing the NWIFC tribes, and to the commissioner representing the CRITFC tribes. Veto authority is limited, however, by a preemption clause contained in the act which states that the federal government may preempt inaction owing to gridlock between the various commissioners, in order to avoid the violation of international treaty obligations. This preemption clause has served to temper enthusiasm for the veto authority held by the tribes in particular, who believe that preemption effectively gives the federal government veto authority over their veto in any case where there has been an inability to reach consensus.38PSC commissioner, interview by the author, February 8, 2010; NWIFC staff, interview by the author, February 18, 2010. The general perspective held by all participants—federal, state, and tribal—however, is that the mere threat of veto authority by the states and tribes, and the power of preemption by the federal government, effectively force negotiation among the parties, as evidenced by the fact that neither an official veto nor an act of preemption has taken place.39PSC commissioner, interview by the author, February 8, 2010. Not all participants in the PSC hold this rather positive perspective of the American voting structure. Fears of gridlock, concerns that several veto points complicate intra-delegation and bilateral negotiation patterns, and unease that the level of authority held by the American tribes could set a precedent for increased demands a higher level of participation by First Nations representatives are widespread in the literature and were mentioned several times during my fieldwork.40Kathleen A. Miller et al., “The 1999 Pacific Salmon Agreement: A Sustainable Solution?,” Canadian-American Public Policy 47 (2001): 1–57; Ted L. McDorman, “The 1999 Canada-United States Pacific Salmon Agreement: Resolved and Unresolved Issues,” Journal of Environmental Law and Litigation 15 (2000): 1–20; Robert J. Schmidt, “International Negotiations Paralyzed by Domestic Politics: Two-Level Game Theory and the Problem of the Pacific Salmon Commission,” Environmental Law 26 (1996): 95–139; PSC commissioner, interview by the author, January 11, 2010; PSC commissioner, interview by the author, March 8, 2010.
The relative participatory authority of the Canadian delegation’s First Nations groups offers a stark contrast to that of the US delegation’s tribal representatives. A very broad distinction between Canada and the United States is the nature of each country’s federal system. Canada represents a sort of “double federation” that is based on both territory and special recognition of the rights and political status of particular peoples, rather than a federalism based primarily on territory, as in the United States.41David E. Smith, “Canada: A Double Federation,” in The Oxford Handbook of Canadian Politics, ed. John C. Courtney and David E. Smith (New York: Oxford University Press, 2010). A consequence of this federal structure is that the national government is pulled in different directions by various stakeholders and by the provinces themselves, with the federal and provincial governments asserting authority over their own spheres of influence and sometimes fighting for ascendancy vis-à-vis one another in particular policy domains, especially in situations where the special status of a particular protected class of people serves to pit the provincial and federal governments against each other.
Environmental policy in Canada is quite complex and creates a major fault line between the provinces and the federal government. In contrast to “cooperative federalism,” which characterizes the modern application of federalism in the United States, environmental policy in Canada conforms more to a “dual federalism” model of shared authority in which the different orders of government have sole spheres of influence. This frequently results in coordination problems and “jurisdictional confusion about which problems can or should be attacked by which level of government.”42Michael Howlett and Sima Joshi-Koop, “Canadian Environmental Politics and Policy,” in Oxford Handbook of Canadian Politics, 471. The general federal relationship is that the provinces retain control over natural resource development and exploration while the federal government has sole jurisdiction over designated federal lands, international trade, shipping and navigation, and fisheries.43Howlett and Joshi-Koop, “Canadian Environmental Politics and Policy.” Therefore, primary authority over fisheries policy, other than that in some limited inland jurisdictions that have been granted to the provinces, is vested in the federal government through the Fisheries Act, which designates DFO as the sole regulatory agency.
The broad discretion of the Minister of Fisheries, Oceans, and the Canadian Coast Guard and his or her delegates (such as the Regional Directors General), provides a stark contrast to the pattern of fisheries comanagement in the United States. The Fisheries Act has historically contained a multitude of provisions that grant the Minister broad discretion in setting a wide range of regulatory policies pertaining to fisheries. Formerly, the Minister had full discretion to allow fishing without limitations, broad latitude to allocate fish among different stakeholders, and generally broad bureaucratic discretion in promulgating rules, without any formal provisions to prohibit overfishing or mandate action on particular depleted fish stocks, a level of authority that was a “unique power in fisheries management and conservation” compared to other nations.44Holly Lake, “Canada Has a New Fisheries Act. How Does It Stack Up?”, Hakai Magazine, June 28, 2019. Recent Changes to the Fisheries Act made in 2019 maintain significant levels of authority on the part of the Minister, but now require a balancing approach from among multiple criteria, including the application of precautionary and ecosystem approaches; consideration of scientific evidence; incorporation of indigenous and community knowledge; and various social, economic, and cultural factors in fisheries management.45Fisheries Act, part 1, § 2
An additional notable example of a constraint on ministry authority is the international treaty agreement for joint US-Canadian regulatory power over Fraser River salmon stocks under the auspices of the PSC. As a consequence of DFO having broad authority, the boundary, choice, and aggregation rules employed by the Canadian delegation are often developed and exercised at the operational level, and specific rules are often not formally articulated or written down as official policy. The general implication of the Fisheries Act is that DFO calls all the shots when it comes to passing and enforcing regulations pertaining to fisheries. In the context of the PSC, this is most notably manifested by the informal aggregation rule that the official stance of the Canadian delegation is solely determined by the Regional Director General for the Pacific region, who always sits as the commission chairman of the Canadian delegation.46PSC Enhancement Fund committee member, interview by the author, March 2, 2010; PSC commissioner, interview by the author, March 8, 2010. An outgrowth of this unilateral decision-making authority on the part of DFO within the PSC is that there is a strong informal rule mandating a unified Canadian position in the context of bilateral negotiations within the PSC.47PSC commissioner, interview by the author, January 11, 2010; DFO staff, interview by the author, March 9, 2010. Disagreements between commissioners are expected to be articulated only within the confines of the domestic caucus that precedes bilateral negotiation,48PSC commissioner, interview by the author, January 11, 2010; former PSC commissioner, interview by the author, March 8, 2010. and there is an informal norm that generally the majority opinion will prevail and DFO will vote accordingly. The DFO vote, however, fundamentally determines the Canadian position and could feasibly contradict a majority opinion within the commission.49PSC commissioner, interview by the author, February 9, 2010. The implication is that the asymmetric aggregation rule implies a general informal choice rule that gives the Regional Director General the sole discretion to make decisions for the entire Canadian delegation. The other commissioners’ ability to initiate action items is thus restricted to within the confines of the domestic caucus, before PSC meetings.
Boundary rules specifying who fills the Canadian delegation’s commissioner positions are highly informal and fluid. A general pattern throughout most of the history of the PSC has been to have two commissioners who are DFO personnel, two commissioners who represent commercial fishery interests, two commissioners who represent recreational fisheries, and two commissioners who represent First Nations groups—although there is no official written policy that specifies this composition.50PSC commissioner, interview by the author, January 14, 2010; PSC commissioner, interview by the author, February 9, 2010. In recent years, there has been a slight shift such that the delegation now consists of two DFO officials, two First Nations representatives, and one representative each for the commercial fisheries sector, recreational fisheries, the province of British Columbia, and environmental groups.51PSC commissioner, interview by the author, January 14, 2010; former PSC commissioner, interview by the author, March 8, 2010. The ability to shuffle the specific sectors represented in the commission stems from DFO’s status as sole authority over fisheries policy and is due to the fact that there is no official policy delegating seats on the commission to particular interests.52Former PSC commissioner, interview by the author, March 8, 2010.
The process for appointing commissioners to the Canadian delegation is similarly informal. The regional director general solicits nominations for each position and then narrows each of these lists down to three finalists. These are reviewed by the Minister of Fisheries, Oceans, and the Canadian Coast Guard in Ottawa, who ultimately appoints the individual commissioners.53PSC commissioner, interview by the author, January 11, 2010; DFO staff, interview by the author, January 12, 2010. Thus the Regional Director General has significant input and serves as a sort of gatekeeper, in that he or she controls the recruitment process for candidates for commissioner positions and has the opportunity to identify his or her three preferred candidates. Various stakeholders have criticized the solicitation process, arguing that it is not comprehensive and targets individuals or groups sympathetic to the general DFO position on salmon fisheries.54PSC commissioner, interview by the author, January 14, 2010. Another criticism points to the fact that the relatively few positions available at the commission, panel, and committee levels mean that DFO cannot possibly accommodate within the PSC structure representatives from all interested indigenous groups, because there are more than 250 such bands in British Columbia.55PSC commissioner, interview by the author, January 14, 2010; PSC commissioner, interview by the author, March 8, 2010. A related problem is that there is no effective pan–First Nations representative body in Canada akin to that of the NWIFC and the CRITFC.56PSC commissioner, interview by the author, January 14, 2010.
Why then does DFO accommodate the particular interests that it does in the commission? The entrée of Canadian stakeholders into the PSC stems from a general culture of public-private consultation, which is fundamentally different from the American delegation’s recognition of state and tribal governments as comanagers of fishery resources. Consultation policy refers to a complex array of rules and norms derived from court mandates, general policy directed from the Privy Council of Canada, and, in the case of DFO, a general bureaucratic culture dating back to the 1970s.57DFO staff, interview by the author, January 12, 2010. DFO had been at the forefront of formalizing consultative policy before it was mandated to do so under the directive of the national government, using the PSC in particular as an experiment in involving multiple stakeholders in consultative processes in order to defuse conflict between the various Canadian stakeholders. This precedent has created an expectation on the part of various groups that they will be actively consulted by DFO during the regulatory process.58PSC commissioner, interview by the author, January 11, 2010; former PSC commissioner, interview by the author, March 8, 2010.
The participatory authority of First Nations groups in Canada relative to that of the treaty tribes of the United States is clearly much more constrained. Lacking any real decision-making authority (given the monopoly over decision making that the Regional Director General has in the Canadian delegation), the First Nations groups are essentially restricted to bringing agenda items to the attention of DFO within the confines of the domestic caucus, and mechanisms are in place allowing for the removal of individuals who do not toe the party line. Also, First Nations groups in Canada have much less power to choose their own representatives to the PSC than do the American treaty tribes. Owing to the recognized “duty to consult,” however, it may be infeasible for the government of Canada to totally do away with First Nations representation in the PSC, even if it wanted to do so. By virtue then of the relative entrenchment of these positions, the PSC at least represents a formal forum through which First Nations interests can bring to the attention of DFO issues of concern to them, and a number of individuals from each of the sectors represented in the Canadian delegation indicated that this has resulted in a marked increase in the “face time” experienced between First Nations representatives and DFO officials. Therefore it might be said that the relative influence of First Nations groups within the PSC is much more subtle than that of American treaty tribes, and that the PSC offers these groups an advantaged, behind-closed-doors lobbying position to advance their particular interests.
1.2 Regional Governance
Once allocations are agreed upon and set by the PSC, harvest management activities proceed to the regional level. Each country is distinct in the processes it uses to handle its own regional appropriation and provision policies. On the American side, the Magnuson-Stevens Act institutions, created by the Magnuson-Stevens Fishery Conservation and Management Act and its amending reauthorization act,59Fishery Conservation and Management Act of 1976, Pub. L. 94-265, 90 Stat. 331, amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. 109-479, 120 Stat. 3575. exercise regulatory authority over fisheries within both EEZ and territorial waters. However, there are two different patterns concerning which specific actors have regulatory authority over salmon: one for Alaska and one for the contiguous forty-eight states. In the contiguous forty-eight states, regulatory authority is exercised through the Pacific Fishery Management Council (PFMC), which covers the area extending from three nautical miles to the two hundred nautical-mile limit. The council consists of fourteen voting members, “including 8 appointed by the Secretary . . . at least one of whom shall be appointed from [California, Idaho, Oregon, and Washington], and including one appointed from an Indian tribe with Federally recognized fishing rights from California, Oregon, Washington, or Idaho.”60Pub. L. 109-479, § 302(a)(1)(F).
The predominant work of the PFMC, as with the other Magnuson-Stevens Act institutions, is to set appropriation and harvest regulations; however, the council also engages in some provision-type activities through its Habitat Committee, which…evaluates essential fish habitat . . . including adverse impacts on such habitat and the consideration of actions to ensure conservation and enhancement of such habitat [and] provides expert advice on the effects of proposed management measures on fish habitat and other habitat related matters brought before the Council for action. The Habitat Committee also reviews activities, or proposed activities, to be authorized, funded, or undertaken by any federal or state agency that may affect habitat of a fishery resource under the jurisdiction of the Council.61Pacific Fishery Management Council, “Statement of Organization, Practices, and Procedures”, http://www.pcouncil.org/wp-content/uploads/Nov_2010_SOPP_FINAL_Jan_2014.pdf
In Alaska, the North Pacific Fishery Management Council (NPFMC) exercises authority similar to that of the PFMC, except that it delegates its regulatory authority over salmon, crab, and herring fisheries to the state of Alaska, primarily because the vast majority of these fisheries lie within the three nautical mile zone.62North Pacific Fishery Management Council, “Statement of Organization, Practices, and Procedures”, https://www.npfmc.org/ wp-content/PDFdocuments/membership/Council/NPFMC_ SOPP_October2019.pdf This represents a significant devolution of regulatory control from the federal government to the state of Alaska, a situation which is unique among the eight regional Magnuson-Stevens Act institutions. According to the act, “The North Pacific Council shall have 11 voting members, including 7 appointed by the Secretary . . . (5 of whom shall be appointed from the State of Alaska and 2 of whom shall be appointed from the State of Washington).”63Pub. L. 109-479, § 302(a)(1)(G). Washington State is granted formal membership primarily in order to provide a forum for addressing Washington’s concerns over Alaskan interceptions of migratory groundfish that range into Washington waters.
In the contiguous forty-eight states, once allocations and other regulatory issues are determined by the PFMC for the ocean fisheries within the threeto two-hundred-nautical-mile range, regional regulatory oversight shifts to the states. For the states of Oregon and Washington, the “North of Falcon” planning process coincides with the March and April meetings of the PFMC.64Washington Department of Fish and Wildlife, accessed January 1, 2020, https://wdfw.wa.gov/fishing/management/north-falcon/ faq. (The term “North of Falcon” refers to Cape Falcon in northern Oregon, which marks the southern border of active management for Washington salmon stocks.) During this process, near-shore commercial troll and recreational fishing seasons and catch limits off the coasts of Washington, Oregon, and California are decided.65“North of Falcon Frequently Asked Questions.” Representatives from the state governments of Oregon and Washington and representatives from the treaty tribes within each of these states engage in a comanagement process, with input from federal representatives from the National Marine Fisheries Service. This planning process is an integral step in the hierarchical process of setting specific appropriation regulations. According to the Washington Department of Fish and Wildlife,
The North of Falcon process starts in late February when the run-size forecasts are first available. Wild and hatchery run sizes for all salmon species from various areas of the state are considered in planning fisheries for the upcoming season. Expected Alaskan and Canadian harvest levels are also considered, as fishery managers and the public consider the seasons that will meet conservation goals for all salmon stocks.66“North of Falcon Frequently Asked Questions.”
Therefore, two broad regional patterns in the United States can be discerned. In Alaska, all regulation of salmon, from the shoreline to the two-hundred-mile EEZ limit, is exercised by the state of Alaska, although the NPFMC nominally has this authority and delegates it to the state under special agreement. In the contiguous forty-eight states, the PFMC is responsible for the regulatory oversight of fisheries between the threeand two-hundred-nautical-mile range, while the state and tribal governments have collective management authority from the shore to the three-nautical-mile mark.
On the Canadian side, DFO holds sole regulatory authority over both EEZ and internal waters (with the exception of the Fraser River stocks, which are regulated by the PSC, as mentioned previously); thus in Canada, as in Alaska, regional and local appropriation policy is fused and under the domain of a single organization. After negotiating the shared allocation of salmon between the United States and Canada, DFO allocates ocean commercial harvests and then allocates recreational and First Nations instream harvests. First Nations have a wide range of specific allocation rights to salmon that vary considerably from group to group. This situation requires DFO to address individual tribes’ allocation to salmon on a case-by-case basis, which complicates planning and decision making. Formal recognition of a First Nations fishing right stems from section 35 of the Constitution Act, although rights specific to fishing were not formally affirmed until the Canadian Supreme Court decision in the case R. v. Sparrow, which recognized “food, ceremonial, and social” allocations to a wide number of First Nations bands. While these rights are supposed to take priority over all other considerations, except for conservation, the ill-defined nature of the rights and of how they should be used in setting allocations continues to render them a point of contention between DFO and many First Nations groups, who believe that commercial and recreational fishing interests continue to take priority.67“International Law, the Pacific Salmon Treaty, and Infringement of Aboriginal Rights” (Environmental Law Centre, University of Victoria, Victoria, BC, 2009), http://www.elc.uvic.ca/associates/ documents/Pacific-Salmon-Treaty-Feb9.09.pdf; PSC commissioner, interview by the author, January 14, 2010. Furthermore, some tribes have specific rights that go beyond these basic food, ceremonial, and social rights—one example is the recently court-recognized right of the Nuu-Chah-Nulth to conduct commercial fisheries.68John R. Rich and F. Matthew Kirchner of Ratcliff & Company, memorandum titled “Judgment in Nuu-Chah-Nulth Fisheries Litigation,” 2009. There is also a specific allocation to the Nisga’a First Nation of each year’s adjusted total allowable catch for Nass River salmon under the Nisga’a Final Agreement, which amounts to 13 percent of the sockeye harvest and 15 percent of the pink harvest.69Nisga’a Nation Harvest Agreement, Can.-B.C.-Nisga’a Nation, May 11, 2000, https://www.rcaanc-cirnac.gc.ca/DAM/DAM-CIRNAC-RCAANC/DAM-TAG/STAGING/texte-text/har_1100100031748_ eng.pdf.
In Canada, the distribution of indigenous property rights to fish is thus very heterogeneous, but in no case approximates the position enjoyed by the American treaty tribes, as detailed below. DFO is 100 percent responsible for determining not only the total allowable catch, in accordance with guidelines handed down from the PSC, but also the specific numbers of fish allocated to First Nations, commercial, and recreational fisheries, as well as for all determinations regarding the processes by which allocation decisions are made.70DFO representative, interview by the author, January 12, 2010. Furthermore, allocations must be done in accordance with federal “consultation policy” guidelines, which require that regulatory agencies consult with recognized stakeholders regarding any proposed regulatory action.71DFO representative, interview by the author, January 12, 2010. As a consequence, any group identified as a relevant stakeholder must be consulted during policy development decisions. Recognized stakeholders now include certain nongovernmental groups (various First Nations, the Pacific Salmon Foundation, the Sport Fishing Institute of British Columbia, and various interest groups representing commercial fisheries) that participate in formal consultations at multiple levels.72PSC commissioner, interview by the author, January 11, 2010.
In terms of regional provision activities, under the Oceans Act of 1997, DFO is the lead agency for developing and implementing a national strategy for the management of Canada’s estuarine, coastal, and marine ecosystems.73Fisheries and Oceans Canada (DFO), “2005–2010 Strategic Plan: Our Waters, Our Future,” 2008, https://waves-vagues.dfo-mpo. gc.ca/Library/285991_e.pdf. DFO’s Oceans Action Plan is a set of principles and strategic initiatives, including ecosystem monitoring activities and the development of Marine Protected Areas, meant to coordinate the activities of twenty federal government organizations over a wide variety of habitat-improvement and other programs in saltwater environments.74DFO, “2005–2010 Strategic Plan.” Provisioning activities related to freshwater habitat are overwhelmingly addressed by the provincial government of British Columbia, owing to its central role in natural resource management related to issues such as mining and forestry, and to their potential impacts on salmon.
1.3 Local Governance
On the US side, there is again a distinction between the local management regimes of Alaska and the states in the contiguous forty-eight, owing to the fact that the state of Alaska has integrated regulatory authority over the entire fishery, from stream to the two hundred mile limit of the EEZ. In the states of the Pacific Northwest, regulatory authority over internal waters falls under the jurisdiction of state-tribal comanagement, which is performed on a watershed-by-watershed basis. There are two distinct governance systems at this local level. In Washington State, the Washington Department of Fish and Wildlife coordinates with the twenty treaty tribes, each of which holds special treaty rights “to fish in usual and accustomed places” and “in common with the citizens of the territory”, which as a result of United States v. Washington and various ancillary cases, have been interpreted to guarantee to the tribes roughly 50 percent of the annual salmon harvest, allow for tribal fishing rights that extend beyond reservation borders, and grant “co-management authority” with the state.75Singleton, 1998). The tribes are collectively assisted by the NWIFC, which acts as a support agency that attempts to resolve intertribal collective action problems and to provide political and technical assistance. Along the Columbia River, United States v. Oregon similarly established fishing rights and a comanagement regime involving four tribes—the Umatilla, Nez Perce, Yakama, and Warm Springs—that collectively regulate a commercial fishery over shared common fishing areas, with the CRITFC serving as the sole regulatory authority within these treaty fishing access sites, as mentioned previously.
It is useful to differentiate between these two tribal comanagement roles. In the case of the Washington coastal and Puget Sound tribes, each individual tribe coordinates technical and regulatory activity with the Washington Department of Fish and Wildlife, assisted by the NWIFC. In Oregon’s comanagement regime, the Umatilla, Nez Perce, Yakama, and Warm Springs tribes, working collectively through the CRITFC, predominately deal with the federal government in the establishment of sites to mitigate loss of usual and accustomed fishing grounds. They then negotiate with the states of Oregon (primarily, because most treaty fishing access sites are located on the Oregon side of the Columbia River) and Washington to ensure target escapement totals of returning salmon, after which tribal, commercial, and recreational inland allocations are negotiated according to the fifty-fifty share provisions outlined in United States v. Washington and its sister case, United States v. Oregon.
Owing to the vast array of land-use practices that have potential impacts on salmon productivity, a wide range of provisioning-type activities are conducted by a host of state and local governments in conjunction with particular private organizations. Various rules pertaining to logging practices on private lands, for instance, have been promulgated in Washington State under the Forests and Fish Plan, with the treaty tribes playing significant monitoring and enforcement roles.76“The Historic Forests & Fish Law Explained,” Forests & Fish website (Washington Forest Protection Association), accessed January 1, 2020, http://www.forestsandfish.com/about. Because there are such a wide variety of these types of provision arrangements, entailing everything from agricultural practices to mining practices and beyond, no effort will be spent here to catalog them all. A host of provision-related activities are carried out in a very disaggregated and rather ad-hoc manner when it comes to activities that impact salmon’s freshwater habitats, and typically entail a high degree of collaboration involving multiple stakeholders, with the state and treaty tribes consistently present as comanagers.
2. Contrast between American and Canadian Indigenous Participatory Authority
Several contrasts between Canadian First Nations and American treaty tribes are worthy of note. On the American side, comanagement between federal, state, and tribal interests is conducted at virtually all levels of the salmon regime, for both appropriation and provision functions. (Notable exceptions to this rule are the North Pacific Anadromous Fish Commission at the international level and the NPFMC governing Alaskan waters, in which tribes do not have any formal representation.) Because of this situation, each actor—federal, state, and tribal—can be characterized as having a high level of network centrality within this multiscale regime. Owing to their complex matrix of interactions, all three actors have direct contact with one another, resulting in little network segmentation. On the Canadian side, one actor, DFO, has a high degree of centrality and serves to coordinate the exchanges between actors across all action situations within all scales of the overall regime, while other actors have a more constrained set of decision responsibilities than their American counterparts.
Because of the conventional wisdom that indigenous peoples and nonstate actors do not commonly hold significant authority within international institutions, perhaps the most interesting aspect of the overall regime is indigenous activity within the PSC. Because of the specific constellation of choice and aggregation rules, all the actors on the American side maintain direct connections to the federal representative on the Canadian side, and in some instances maintain direct links with the other commissioners of the Canadian delegation, despite DFO’s desire to control decision making within the auspices of the domestic caucus.
The available access points of American indigenous participation in salmon management at all scales are considerable. The PSC has multiple natural resource management responsibilities and has disaggregated specific functions to several panels and committees that have primary responsibility in certain areas. Beyond the commissioner level, the organization consists of four panels—the Fraser River, Southern River, Northern River, and Transboundary River panels—which serve as the venues for setting targeted escapement levels and harvesting levels for stocks subject to international interceptions. There are also nine “technical committees” (the Chinook, Coho, Chum, Data Sharing, Fraser River, Northern Boundary, Selective Fishery Evaluation, Transboundary, and Habitat and Restoration Technical Committees), which serve as the primary monitoring and information-sharing venues of the institution and address a variety of technical issues relevant to management of salmon in general. Two additional special Restoration and Enhancement Fund Committees, one for the north and one for the south, exist to provide funding for a variety of habitat restoration efforts and improvements in technical data gathering and sharing. These were created by the 1999 renegotiation of the PST and can best be construed as bodies involved in “investment activities” related to “provision problems” rather than the typical “appropriation problems” that have traditionally been the focus of the PSC’s work. Therefore, these committees represent significant institutional drift in the responsibilities of the PSC, into non-harvest-related activities.
A few instances of “self-organizing activities” are of particular interest to this study. Starting around 2003, several Canadian First Nations representatives, including the two First Nations commissioners in the PSC, pushed for the creation of a First Nations Caucus to serve as a direct consultative body between Canadian First Nations representatives and DFO within the PSC.77PSC commissioner, interview by the author, January 14, 2010. The caucus was seen as a necessary tool for promoting First Nations interests in light of the fact that no organization collectively speaks for Canadian First Nations interests in the way that the NWIFC and the CRITFC speak for the American treaty tribes.78PSC commissioner, interview by the author, January 14, 2010. First Nations representatives in the PSC successfully obtained limited funding to support an intertribal caucus process, through the Aboriginal Aquatic Resource and Oceans Management program, which was designed to improve the consultative capacity of DFO vis-à-vis indigenous groups. The caucus seems to have been fairly successful at mitigating the intertribal disputes that have frequently come up during PSC negotiations. However, there have been concerns voiced from the Canadian PSC commissioners representing the commercial and recreational fishery sectors that the closed-door nature of the First Nations caucus potentially complicates the ability to present a unified front in opposition to the US delegation, which they believe should be the primary goal of the Canadian delegation.79PSC commissioner, interview by the author, January 14, 2010; PSC commissioner, interview by the author, January 11, 2010.
Building on the precedent set by the First Nations Caucus, since 2008 there has been a “joint tribal caucus” within the PSC, where all tribal and First Nations representatives at the commissioner, panel, and technical committee levels meet to try to work out differences between American and Canadian indigenous groups before official negotiations take place at the annual meetings.80PSC commissioner, interview by the author, February 8, 2010. The ability to work out differences before negotiations begin is particularly relevant for the deliberations of the Fraser River Panel, because almost all of the American allocation of Fraser River sockeye accrue to particular American treaty tribes in Northern Puget Sound, and this pits these groups against the various Fraser River First Nations groups that themselves face major intertribal conflicts based on their respective geographic locations on the river.81PSC commissioner, interview by the author, February 8, 2010. Transnational intertribal negotiation prior to the meetings is a new development and it is unclear how effective it will be in facilitating compromise between the American tribes and the Canadian First Nations groups, but it does represent an interesting new dimension of cross-border interaction that the indigenous group representatives themselves believe to be useful and of high value.82PSC commissioner, interview by the author, February 8, 2010. It is not without controversy, however, because DFO and other Canadian stakeholders have expressed reservations about the legal authority of First Nations groups to engage in “foreign” negotiations. In order to alleviate these concerns, indigenous actors have been careful to characterize the forum as merely another example of the many “hallway conversations” that occur during PSC meetings.83PSC commissioner, interview by the author, February 8, 2010.
Indigenous peoples hold unique and significant levels of authority at multiple scales of the regime governing Pacific salmon. This regime is necessarily complex owing to the sheer ecological complexity of salmon as a resource and the range of societal interests with a stake in salmon use and preservation. The regime is interesting in that indigenous groups, particularly on the American side, hold significant positions of authority and serve as coordinating actors across the multiple centers of power that operate at the international, national, regional, and local levels. An examination of the ways in which position, boundary, choice, and aggregation rules combine better illustrates the channels through which indigenous groups employ influence within institutions than do other policy frameworks, that might characterize indigenous group activity as merely reflecting the roles usually attributed to outside interest groups or coalition partners.
During field research for this project, key informants frequently asserted that the American tribes in particular, which occupy significant and protected positions of authority in virtually every institution in the polycentric structure of salmon governance, serve as a necessary coordinating mechanism both horizontally and vertically within the regime. Furthermore, the salmon-allocation regime represents an interesting test bed in evaluating the ways in which institutional rules configure in such a way as to grant relative power and authority to indigenous peoples within international institutions, groups which might otherwise erroneously be considered “non-governmental”, falling outside the scope of authoritative decision-making or otherwise merely behaving as special-interest lobbying groups.
Applying the logic of institutional analysis to other international institutions that have mechanisms for indigenous inclusion or that make room for the accommodation of indigenous rights and interests, such as the Arctic Council and the International Whaling Commission, would help elucidate models and processes for greater inclusion of indigenous peoples as truly sovereign actors, particularly within international institutions. Analyses regarding whether such participation promotes the stability of such regimes and enhances the sustainable management of the resources in question should also be improved by the more nuanced picture of the power and influence of indigenous groups that comes from such an approach to institutional analysis.
Table of Contents
- Chapter 1: Resource Governance in the American West: Institutions, Information, and Incentives
- Chapter 2: Self-Governance, Polycentricity, and Environmental Policy
- Chapter 3: Pacific Salmon Fisheries Management: An (Unusual) Example of Polycentric Governance Involving Indigenous Participation at Multiple Scales
- Chapter 4: Population Growth and the Governance of Complex Institutions: People Are More Than Mouths to Feed
- Chapter 5: Contracting and the Commons: Linking the Insights of Gary Libecap and Elinor Ostrom
- Chapter 6: The Environmental Benefits of Long-Distance Trade: Insights from the History of By-Product Development