Skip to content Skip to navigation

In the Pacific Northwest, Native Fishing Rights Take on a Role as Environmental Protector

Dec 7 2016

Salmon jumping waterfall (Northwest Indian Fisheries Commission)

Coho salmon jumping a waterfall in Washington state.    Northwest Indian Fisheries Commission

Update, January 2018

The United States Supreme Court agreed on Friday, January 12 to hear the state of Washington’s appeal of the 9th Circuit Court’s 2016 ruling requiring the state to spend hundreds of millions of dollars fixing highway culverts that block salmon passage. The original ruling by a three-judge panel held that 19th century treaties with Puget Sound tribes required that tribes have access both to traditional fishing locations and to actual salmon. Washington’s request for the full Ninth Circuit to rehear the case was rejected last Spring, over a vigorous dissent by nine of the circuit’s 25 active judges.

By Felicity Barringer

The fishing rights promised to the Pacific Northwest’s Native Americans 160 years ago are proving the sharpest knife the region’s environmentalists possess. So far in 2016, these rights have undergirded decisions to block two planned terminals to ship coal to Asia. Another decision could cost Washington state a billion dollars in highway repairs aimed at protecting salmon.

A few words from a June federal appeals ruling explains the conviction at the core of the three decisions: “…The Tribes’ right of access to their usual and accustomed fishing places would be worthless without harvestable fish.”

  • In May, the Army Corps of Engineers blocked a huge coal export terminal on the shores of Puget Sound, to protect Lummi fishing rights.

  • In June, when treaty rights were asserted in federal court, the state of Washington was ordered to retrofit more than 100 under-road culverts that in total blocked 1,000 square miles of salmon habitat. The order by a panel of federal judges from the Ninth Circuit Court of Appeals – the quote above is from the opinion written by Judge William A. Fletcher — is being appealed to the full court.

    Illustration of culverts acting as barriers to fish passage, left, and a stream after culvert removal, right.
    Fish passage barriers, such as inadequate culverts beneath road crossings and deteriorated fish ladders at dams, prevent salmon from reaching spawning habitat. Above, photos illustrating the effect of removing or remodeling problematic culverts.  
    Chris Fisher, Brian Miller, Confederated Tribes of the Colville Reservation
     
  • In August, an administrative law judge supported Oregon’s 2014 decision to reject another coal export terminal on the Columbia River at the port of Morrow. Protection of state waters and water users was the reason for the state decision. Treaty rights were not specifically cited, although tribes like the Yakama Nation, the Nez Perce and the Umatilla took part in the case.

Native fishing rights are deeply connected to the founding of Pacific Northwestern states. As an Evergreen College case study describes in detail, more than 20 tribes – like the Nisqually, Lummi, Swinomish, Puyallup and Muckleshoot — gave up 64 million acres to the United States in mid-19th century treaties. The price of much of what is now Idaho, Montana, Oregon and Washington was a promise: tribes could forever catch fish in their historic fishing grounds.

These fishing rights have been affirmed by federal courts, up to the Supreme Court, since 1905. In 1974, a court established that the tribes had rights to half of the harvestable fish in Washington state. Subsequent rulings established that rights could be used to ensure protection of fish, but only on a case-by-case basis.

Old Hope: Export Terminals Seen as Lifeline for Coal Marketers

The export terminals were to be a lifeline for a battered swath of the coal industry based around the Powder River Basin in Wyoming and Montana. Asian markets would pay good money for the coal that was getting harder to sell at home. But coal economics undermined that vision. As Clark Williams-Derry of the nonprofit Sightline Institute explained, the original plans were born amid 2011’s high coal prices. Then prices collapsed. Exports of Powder River Basin coal through British Columbia’s Westshore terminal have fallen sharply.

The culverts decision sends a clear message: fishing rights cannot be ignored. But how broadly should they be interpreted? As Washington state said in its petition for a rehearing of the case, the ruling creates “a never-before-recognized right to control state actions that impact fish habitat.”

Given the long arc of salmonid journeys from the time smolts hatch in freshwater streams and swim to the ocean to their trip back to spawn, many things have hurt the species’ viability: salmon canneries and their providers scooping up tons of fish; dams; culverts; diversion of water for agricultural drainage and irrigation or for industry.

The Future Extent of Fishing Rights Claims is Unclear

How many future decisions may be modified by treaty rights? Guaranteeing a sustainable harvest may affect plans across the Northwest. Washington’s rehearing petition argues that the last ruling ignores the larger landscape, requiring expenditures of “over a billion dollars replacing culverts even though many of those culverts have no impact on salmon because other barriers … completely block salmon.”

The larger context of the argument is the decades-long decline in salmon runs in Washington and Oregon. Of the fish runs supporting the Puget Sound tribes, more than 20 are federally listed as threatened or endangered and state figures show their recovery is sputtering.

Collectives representing fishing rights tribes, like the Columbia River Inter-Tribal Fish Commission, work with federal and state agencies to maintain the health of the remaining fish runs. Federal court rulings ensure that the Northwest Indian Fisheries Commission co-manages Washington state fisheries with the state Department of Fish and Wildlife.

The legal leverage provided by historic fishing rights are “a powerful tool,” said John Sledd, the lawyer arguing the culverts case for the tribes. But they have strengths and weaknesses, he added. “A nice clean statute with an administrative structure and regulations is easier to work with. The thing is we don’t have a lot of those.”

Still, decades of court cases where treaty rights have been asserted and upheld have changed public attitudes. The will of the people to accept the bargain made in 1855 is more palpable, Mr. Sledd said. “The threats are greater, but the interest in making the treaty promise strong and making it a living one has become much greater in the last 30 years.”

Chinook Numbers Draw a Troubling Picture for Puget Sound Salmonids

As Puget Sound salmon populations dwindled throughout the 20th century, Washington state fish experts began keeping track of how many fish were returning to the rivers where they were spawned. During the first decade of the 21st century, across the rivers that drain into Puget Sound there was little measurable change in abundance for the 22 different populations of Puget Sound Chinook salmon.

chinook salmon illustration

Chinook salmon are the largest species of salmonids; since 2005, the Puget Sound Chinook have been listed as a threatened species. They have a high profile: millions of American diners who relish salmon choose this variety, which is often marketed as King Salmon. Using statistics compiled by the state of Washingon, used as proxy estimates of the number of adult fish returning to spawn in the rivers, here are most recent indications of the status and change in abundance of adult Chinook returns to their home rivers to spawn, relative to federal recovery targets. The returns are measured against two yardsticks of sustainability: one, the “high productivity scenario,” which assumes that the returning fish are healthy and can spawn, or reproduce, at high levels. The other assumes a lower degree of success of returning fish for rearing new fish — the “low productivity scenario,” in which many more spawners would be needed to maintain a healthy population. Here, averages of salmon counts from 2013 to 2015 are compared with population recovery targets set by the National Marine Fisheries Service in 2006.

  • Low Productivity Scenario
  • High Productivity Scenario
Map: populations of Chinook spawners in Puget Sound rivers

Sources: Washington Department of Fish and Wildlife SaSi Database, Puget Sound Partnership, Washington State Department of Transportation, Natural Earth Data
 

A Sputtering Recovery for 22 Puget Sound Chinook Populations

According to the National Marine Fisheries Service's 2006 assessment, “the existing 22 independent Puget Sound Chinook salmon populations are currently at a high risk of extinction to varying degrees.” That year, the service developed recovery targets for many of the Puget Sound populations; as in the map above, these targets specified a varying goal of spawner abundance based on their fertility. A look at the 22 populations below shows that, with few exceptions, Chinook spawners are present in numbers well below even the more generous target ranges. Counts shown below are geometric means for the year ranges indicated.

Sources: Washington Department of Fish and Wildlife SaSi Database, Puget Sound Partnership
 

 

Read Next in ...& the West

To Manage Groundwater, California Must First Get Basin Boundaries Right

For decades, landowners were free to pump water from under their land at will. Now a landmark 2014 law sets up new bosses to call the shots on who gets groundwater, when and how much. And it is maps that will influence how the competition for control evolves.

 

 

Submit a Comment

We'd like to know what you think. We will not share your email address or add you to any lists. If you'd like to be notified about new blog posts and news from the Center, you can join our mailing list.

You will receive emails no more than once a week. We will not share your information.
By submitting this form, you accept the Mollom privacy policy.

Graphics & the West

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Felicity Barringer, Josh Lappen, and Alessandro Hall

Feb. 15, 2018

Biologists Sequence California Redwood Genome to Aid Preservation Efforts. As climate change threatens the vitality of coastal redwood stands, scientists are mining genetic data for clues about how to cultivate more diverse and resilient forests. Sequencing the tree’s 38 billion base pairs will help forest managers make future conservation decisions. Washington Post

New Map Visualizes Fragmentation of Western Rivers. Although the American West is known for free and flowing rivers, more than 49 percent of its river miles have been modified from their natural state by dams, diversion, or development. A new interactive map showcases the regions disappearing waterways. Center for American Progress

Across the West, Engineers, Energy Companies Target Untapped Geothermal Resources. A new technology called enhanced geothermal systems could unlock up to 500,000 megawatts of energy across the region. In the heart of the Mojave Desert, one company is already planning a power plant to harness the abundant renewable resource. NPR

Battling Water Scarcity, Imperial Valley Farmers Switch to Lettuce. Since 2001, lettuce acres are up 79 percent, while alfalfa, which consumes much more water, is down 21 percent. The shifting agricultural landscape has raised water levels at Lake Mead, which stores and distributes the water of the Colorado River. Bloomberg

Wyoming Legislators Advocate for Yellowstone Conservation Fee. Seeking to capitalize on Yellowstone National Park’s four million annual visitors, lawmakers in Wyoming have proposed that the National Park Service implement a conservation fee. The revenue generated would help protect wildlife outside the park in the greater Yellowstone ecosystem, including parts of Wyoming, Montana, and Idaho. Casper Star-Tribune

Feb. 2, 2018

Montana Property Owners Block Access to Public Lands as Class Tensions Simmer. An estimated 4 million acres of public lands are landlocked by private, government, or tribal lands. From Wyoming to Idaho to Utah, public access through private land is a hot-button issue in the West. In an effort to broker agreements and settle disputes, Montana has hired the first public lands access specialist in the country. The Guardian

California Water Diversions Power Wine Industry at the Expense of Migratory Fish. For decades, hydroelectric dams and underground pipes have channeled the Eel River’s flow to the nearby Russian River. Now conservation groups are pushing to restore the river’s natural path, to help the struggling salmon population. Local farmers and wineries are pushing back. Water Deeply

New App Allows Users to Report Damage to Utah Public Lands. Conservation groups have developed TerraTRUTH, an application that uses crowdsourced data to report vandalism and illegal ATV use. The developers hope that the new technology will help guard areas that lost federal protections in the recent cutbacks to the Bear Ears National Monument. Salt Lake Tribune

Oil Industry Shows Signs of Recovery in Wyoming, but Jobs Return More Slowly. In 2014, the plummeting cost of oil caused layoffs across the state. During the years of economic downtown, companies learned how to operate more efficiently. Now the industry’s resurgence is outpacing its labor market. Casper Star-Tribune

Soil-Fumigant Ban Promises to Transform California’s Strawberry Industry. For years, hiring companies to fumigate soil was standard practice, but new regulations to protect consumer health and surrounding ecosystems will have wide-ranging effects for the industry’s producers and consumers. Treehugger

Jan. 22, 2018

Uranium Mining Industry Seeks Resurgence in Navajo Nation Borderlands. Mining companies aggressively lobbied Secretary Zinke to shrink Bears Ears National Monument and lawmakers to ease mining restrictions, creating new opportunities for America’s nuclear industry. But members of the neighboring Navajo Nation, still recovering from the consequences of mining decades ago, worry about the health effects. The NEW YORK TIMES

Rock Art Experts Spar with BLM, Energy Companies Over Fate of Utah Petroglyphs. The Bureau of Land Management has begun leasing parts of Emery County for oil and gas drilling. As the energy industry and preservationists argue over potential adverse effects, one photographer is determined to discover and map the region’s rock art sites. SALT LAKE TRIBUNE

More Than 50 Yellowstone Bison Headed for Fort Peck Tribes Escape. Biologists had held the group of bison in captivity for almost two years to ensure they were free of brucellosis. The National Park Service launched a criminal investigation this week after discovering evidence that bolt cutters were used to free the bison. BILLINGS GAZETTE

Tribal Members, Conservationists Collect Lichen Trying to Rescue Last Caribou Herd in the contiguous United States. A coalition of environmentalists created an 18-acre maternity pen in British Columbia last year to protect birthing caribous from predators. Now they are collecting hundreds of pounds of lichen to sustain the population. OREGON PUBLIC BROADCASTING

Rodenticide on California Marijuana Farms Poisons Endangered Owl Species, a new study indicates. Northern spotted owls primarily eat rats, exposing them to the dangerous poison. Despite efforts from government regulators and environmentalists to phase out the products, rodenticides are widely available in stores. Scientists worry legalization of recreational marijuana will lead to more rat poison in the ecosystem. SAN FRANCISCO CHRONICLE

Jan. 11, 2018

Port Developer Launches Federal Lawsuit Against Oakland Coal Ban, saying he has the right to process any legal commodity without interference. The Oakland city council banned coal handling in 2016 after discovering Bowie Resource Partners, Utah’s largest coal producer, was funding the city’s new shipping terminal. Bowie Resource Partners hopes to use Oakland’s port as a gateway to energy markets in Asia, while city government officials in Oakland worry about public health effects. Arguments will begin January 16th. Salt Lake Tribune

Subsidies for Rainwater Harvesting Systems in Tucson Decrease Demand for potable water, a new study shows. Five years ago, Tucson’s public water utility began offering rebates to residents who installed systems to divert water onto landscaping or store it in cisterns. New research shows the subsidies have already changed water usage habits, decreasing demand for water during every month of the year. News Deeply

Bering Sea Elders Group Express Outrage at New Lease for Offshore Drilling in the Arctic. President Trump lifted restrictions on offshore drilling last week, causing a group of Alaskan tribal leaders to worry that increased ship traffic will impede their ability to conduct traditional hunts for walruses and other marine mammals. Alaska Public Media

Proposed Dam in Wyoming Would Generate 73 Million in Public Benefits, developers say. Lawmakers will meet Friday in Cheyenne to discuss funding for the West Fork Reservoir to be carved out of Carbon County’s Little Snake River. A new report from the Water Development Commission suggests the dam could provide 26.5 million in new economic activity, 26.8 million from instream flow, and 5.4 million in construction, and 9 million in new recreational activities. Many locals are skeptical. WYOFILE

Colorado Snowpack Levels Drop to 30-Year Low as officials brace for a potential drought. In Southwestern Colorado, the snowpack is at 22 percent of the normal level. Even with more than half the snowpack accumulation season remaining, it is unlikely that new snowfalls will make up the deficit before spring. Water suppliers are debating how to maximize reservoir storage while planning for heavy flows. Denver Post

Dec. 28, 2017

Utah’s San Juan County, Site of the Fierce Protests Against the Bears Ears Monument, has a new concern: a federal judge has upheld an expert’s creation of new voting districts giving more weight to the votes of Navajos. The Navajos sued the county in 2012, saying the existing districts for the three-person county commission and the five-member school board were racially biased. They claimed that nearly all the Navajo population was stacked into one county commission district, while whites held a comfortable majority in the other two districts. In 2016, U.S. District Judge Robert Shelby agreed the districts were unconstitutional. When the county and Navajos could not agree on new ones, an outside expert was called in to redraw the lines. Last week, Judge Shelby upheld the expert’s boundaries. KSJD

For Decades, Southwestern Cattle Trampled the Grass As They Moved, leading to a 75 percent decline in cattle in the early 1900s. Now responsible cattle grazing and handling practices have turned things around, and there are about 30 million beef cattle in the U.S. Using science and data is key to running more sustainable ranches. This is the story of Dean Fish, an Arizona rancher who produces beef cattle sustainably. He uses low-stress techniques to herd cattle and fine-tuned genetics to produce a herd that grows to market size with a minimal impact on the land. Cronkite News/Arizona Public Broadcasting

Worries About the Oregon Spotted Frog Prompt a Lawsuit as an environmental group claims the Bureau of Reclamation hurts its habitat. The Dec. 19 lawsuit by the Center for Biological Diversity claims that the operations of two Deschutes River dams, through which flows water from the Wickiup and Crane Reservoirs, coordinate flow levels with irrigation demand. The group argues that alternately flooding and de-watering of the frog habitat violates the Endangered Species Act. Oregon Public Broadcasting

New California Communities Seek to Hold Fossil Fuel Companies Responsible for climate change. Santa Cruz County and Santa Cruz City filed lawsuits against 29 fossil fuel companies in Superior Court on Dec. 20. In July, Marin County, San Mateo County, and the city of Imperial Beach sued 37 fossil fuel companies, seeking damages from the industry for its role in sea level rise. The cities of San Francisco and Oakland then filed their own suits in September against five major oil companies. The new suits focus not just on sea level rise but also seek restitution for damages to the hydrologic cycle and its resulting increase in severe weather, drought and wildfires. Yale Environment 360 Climate Liability News

Wyoming Leases to Oil and Gas Firms Rise 800 Percent in 2017. Even though Wyoming has had its boom years, this year’s lease sales stand out, officials say. During the downturn of 2016, revenue from the Bureau of Land Management lease sales and the Office of State Lands auctions combined added up to about $16 million. This year, Wyoming netted a combined $146 million, leasing about a half million acres of federal and state land. The reasons are still unclear; it could be the Trump Administration’s embrace of fossil fuels, or a new Wyoming online leasing system, or both. Casper Star-Tribune