Northwest Indian Fisheries Commission
In a 4-4 deadlocked vote that was a victory for supporters of tribal treaty rights, the Supreme Court let stand the Ninth Circuit Court of Appeals’ two-year-old opinion requiring Washington State to repair hundreds of culverts to improve salmon passage. The state argued that they might have to spend $1 billion making the repairs. The deadlock was possible because Justice Anthony Kennedy had recused himself in March. The per curium opinion, unsigned by any particular judge, cannot be used as precedent outside the states of the Ninth Circuit: Alaska, Arizona and California.
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.
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.
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.”
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 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.
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.
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