Inventor of the "closed eye conjecture"
While the concept of "foregone opportunity" may not have been explicitly tested in court, you are going to have a major problem in making that argument in a court of law. Even if this concept appears today to allow a tribe with treaty rights to take more than their 50% of the catch above escapement, it was originally applied by the non-tribal fishers against the tribes. After the Boldt decision, the state argued that the tribal fishers lacked the infrastructure to harvest their share and that therefore the non-tribal fishers should harvest any portion of the tribal escapement that the tribal fishers could not harvest. Sadly, the tribes have improved their infrastructure and effort and the above escapement surplus has dwindled so radically.