I dissent. The majority embrace the opinion of Chief Justice Bird for a unanimous court in People v. McCovey (1984) 36 Cal.3d 517 [205 Cal.Rptr. 643, 685 P.2d 687]. I agreed with that opinion and signed it.
However, I do not concede that the State of California is necessarily and for all time barred from conserving a natural resource within its borders. As was pointed out in Donahue v. Justice Court (1971) 15 Cal.App.3d 557, 564 [93 Cal.Rptr. 310]: “Congress may, of course, enact legislation limiting the right ... to fish on the reservation. . . . Likewise the state is not precluded from exercising its general police power under factual situations reasonably requiring the exercise of such power.” I believe the State of California has now demonstrated a factual situation justifying the use of its police power.
It is not necessary to recite the entire opinion of the Court of Appeal in this case, but I do adopt as my own the conclusion of Justice Haning, for himself and Presiding Justice Low and Justice King: We conclude that the state’s concurrent jurisdiction over tribal salmon fishing in the Klamath River is not preempted by the federal regulations. We are of the view that McCovey does not directly apply to the case before us, for two reasons.
First, in the context of the conservation of a finite, threatened natural resource the state’s regulatory ability is not static. The conservation of such a natural resource is sufficiently compelling to enable the state to assert a *379more powerful need for conservation. The People have presented clear indications that after McCovey was decided the Klamath River population continued to decline. The Bureau of Indian Affairs found that the salmon population was in greater jeopardy in 1985 than in 1979 when the moratorium was first imposed. In fact, the bureau concluded—after McCovey was decided—that the spawning run was “in danger of being eliminated.” McCovey, as well controlling precedent of the United States Supreme Court, does not preclude concurrent state jurisdiction over a precarious state resource. As the Ninth Circuit has recently ruled, a state may regulate Indian fishing if its regulation is reasonable and necessary for conservation. “Unlike Congress, states may not qualify Indian fishing rights. Puyallup Tribe v. Department of Game (Puyallup I), 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1968); [United States v.] Sohappy, 770 F.2d [816,] 823; [United States v.] Fryberg, 622 F.2d [1010], 1014-15. However, states may regulate Indian rights in the interest of conservation by an appropriate exercise of their police power. State regulation for conservation purposes is based on the state’s interest in protecting fish and wildlife resources for the benefit of its citizens. See Puyallup Tribe v. Department of Game (Puyallup III), 433 U.S. 165, 175-76, 97 S.Ct. 2616, 2622-23, 53 L.Ed.2d 667 (1977); see also United States v. Michigan, 653 F.2d 277, 279 (6th Cir.), cert, denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981). The violation of state conservation laws is a federal offense. 16 U.S.C. § 3372(a)(2) (1982); see Sohappy, 770 F.2d at 834-24. [H] A state must show that any regulation of Indian fishing rights is both reasonable and necessary for conservation purposes. Antoine v. Washington, 420 U.S. 194, 207, 95 S.Ct. 944, 951, 43 L.Ed.2d 129 (1975); Sohappy, 770 F.2d at 823. State regulations meeting these standards may extend to the manner of fishing, the size of the take, and the restriction of commercial fishing. Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728. In the context of state regulation of Indian fishing rights, we have rejected the endangered species approach to conservation, finding that fishing limitations may be proper even though extinction is not imminent. United States v. Oregon, 718 F.2d 299, 305 (9th Cir. 1983).” (United States v. Eberhardt (9th Cir. 1986) 789 F.2d 1354, 1361-1362.) In light of the post -McCovey diminution of the salmon run to the point of imminent demise, we can easily distinguish the situation which now faces us from that [in McCovey in 1984],
Second, and perhaps of greater significance, McCovey, as well as Arnett [Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454 (121 Cal.Rptr. 906)] assumed the Klamath River salmon at issue therein were exclusively a reservation resource. One may read its holding as limited solely to those fish resources which spawn in reservation waters or which were stocked by Interior fisheries. In fact, however, the majority of Klamath River salmon runs are a state resource, which has been substantially enhanced over the *380years by stocking efforts of the State Resources Agency at the Iron Gate Salmon and Steelhead Hatchery, located outside the Reservation boundary upstream from the reservation. (See, e.g., State of Cal. Resources Agency, Dept. of Fish & Game, Ann. Rep. Iron Gate Salmon & Steelhead Hatchery 1983-1984, Admin. Rep. No. 85-01 (1985), of which we take judicial notice.)
McCovey did not hold that California’s salmon and steelhead stock, added to the upstream Klamath waters through state fish hatcheries or other nonreservation spawning grounds, is to be governed by the same considerations as an exclusive reservation resource such as the deer resource discussed in Mescalero [New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324 (76 L.Ed.2d 611, 103 S.Ct. 2378)]. Neither McCovey nor Arnett held that the state could not protect its own fish from extinction. We therefore conclude that the anadromous fish traversing the Klamath River passage are not under the total dominion of the Yurok Tribe, and petitioners’ gill netting may be regulated by the State of California in the interests of conservation, and the protection of its own fish.
Accordingly, the petition for writ of prohibition [should be] denied. [End of Court of Appeal opinion, parallel citations omitted, fn. omitted.]
The petition for a rehearing was denied October 13, 1988. Mosk, J., and Kaufman, J., were of the opinion that the petition should be granted.