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, June 11, 2018

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.

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.

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Felicity Barringer, Sierra Garcia and Danielle Nguyen

Articles Worth Reading: September 9, 2019

The Destructive ‘Blob’ of Warm Pacific Water May Be Coming Back if warming surface waters are not scattered by winds over the next few months, federal scientists say. The National Oceanic and Atmospheric Administration reports the current Alaska-to-California swath of strikingly warm water closely resembles its predecessor. The ‘Blob’ led to the deaths of millions of sea lions and sea birds five years ago, and was associated with the sharp decline in salmon runs. Seattle Times

Administration Targets California’s Authority to Set Standards for Auto Emissions, while the Justice Department opens an antitrust investigation into four automakers who had made a pact with the state about the pollution limits that they would meet in years to come. The four automakers, Ford, Honda, Volkswagen and BMW, earlier this summer said they would follow stricter emission standards than those set by the Trump administration. The administration is opening the antitrust investigation while the Transportation Department and the Environmental Protection Agency both are telling California it lacks authority to regulate greenhouse-gas emissions. The state has had independent authority to regulate auto emissions for more than four decades. Politico

Utah Trees On the Chopping Block The Bureau of Land Management is working with heavy earth-moving equipment to wrest knots of juniper and tall pinyon pines from the landsape around the Grand Staircase-Escalante National Monument. The stated purpose is to improve habitat for sage grouse and allow the growth of fodder for cattle and deer – prized targets for hunters. But the area of slightly more than 1,000 square miles where the activity is set to place has been the site of significant archaeological and cultural finds. Less than 10 percent of the ground has been surveyed, and undiscovered artifacts could be endangered by the activity. Also, the use of heavy equipment in these delicate landscapes can lead to the incursion of invasive species. National Geographic

Changing Wyoming’s Economics As Its Superpower, Coal, Crumbles A decade ago, the state of Wyoming collected $500 million more from tax and related revenues on coal extraction than it does today. Mines are shutting, wrenching the economies of counties that depended on them. Two reporters worked to get under the skin of what these developments – and the way coal is losing out to competitors like natural gas and renewables – mean for the Jim Bridger mine in southwestern Wyoming. A seven-part package called “Powering Down” looks at coal as both a cultural touchstone and an economic driver, and contemplates a future when the mineral superpower has no more strength. Wyofile

Could a New ‘Grand Bargain’ on the Colorado River Gain Traction? The law of the river has tended to give the lower basin states of the Colorado River watershed – like California and Arizona – the right to call on the upper basin states, like Colorado, Utah to ensure they get their share of water, as allocated in a 1922 compact. But that compact was based on overgenerous assumptions about the river’s total flow. And the severe drought of recent years has reduced the river’s flows – never as big as once believed – by about six percent. There is talk, but not yet action, on creating a “grand bargain” that would take away states’ rights to demand their 1922 share, while ensuring that they would maintain access to water for crucial needs. The idea, which makes clear that the river’s flow is 2.5 million acre-feet below the 15 million acre-feet calculated in 1922, is enshrined in a paper circulated at a University of Colorado forum this summer. The question now is whether it will gain traction. Denver Post

What’s In A Name? The landscapes of the West have been called by many names, as different civilizations passed through. Now the names given in the last 200 years by western Europeans are getting another look. Davis Mountain in Nevada’s Great Basin National Park is getting a new name – it was named for Jefferson Davis in 1855, before the southern states seceded and he became the president of a rebellious slave-owning confederation. As of last month, it is called Doso Doyabi, or “white mountain” in Shoshoni. A series of similar naming questions are popping up from Washington – should Mt. Rainier bear the name of a British officer? – to Wyoming to Alaska. A look at how the people of the 21st century are reconsidering the names of the 19th. National Parks Magazine

Articles Worth Reading: August 26, 2019

Many of The West's Estuaries Have Vanished, replaced with farmland and cities, leaving only 15 percent of the original wetlands intact. Although wetland destruction has been rampant across the United States for centuries, the recent study is the first to estimate the full scope of the lost wetlands that once existed where much of Los Angeles county, the Puget Sound’s northern embankment, and the area near Tillamook Bay where dairy cows stand today. Wetlands shield coastal communities from sea-level rise and extreme storms; researchers emphasize that intact wetlands will be the best protectors for coastal communities, making them the least likely to vanish under rising seas. Oregon Public Broadcasting

‘Snow Droughts’ Are Coming For The American West more often because of climate change. The new research estimates that the likelihood of an intense four-year drought like the one California faced from 2012 to 2016 will increase a hundredfold by the second half of this century. The forecast is disastrous for the region’s multi-billion dollar ski resort industry, which will also face peak snowpack shifting to before the spring break height of the season. National Geographic

Federal Scientists Produced A Report Showing Water Diversions Would be a Critical Blow to endangered winter-run Chinook salmon in California and could cost struggling orca whales offshore their food supply. Immediately, other federal officials were dispatched to vet, and possibly revise, it. Just two days passed before fisheries and water officials got an e-mail telling them “fresh eyes” would examine the data for the next two months. Environmental groups have called foul. Sacramento Bee

What Happens When Public Lands Become Tribal Lands Again? A reporter investigates after a multi-decadal legal battle, only in this case, within months of the transfer, a fire burned a large chunk of the land. The Cow Creek Band of Umpqua Tribe of Indians had some of their traditional lands in southwest Oregon restored in 2018, after 165 years of illegal federal use in violation of a treaty signed with the tribe. The issue of land ownership pitted some environmentalists against tribal leaders, who proposed controlled burns and limited lumber extraction on their land. The recent wildfire ravaged more than a fifth of the land recently transferred back to the tribe. High Country News

A French Saddlemaker Embraces the American West by learning, perfecting, and now teaching the art of traditional western leathercraft. Pedro Pedrini’s passion for the American West and classic western saddles drove him from the Alps in his native France to Oregon, California, and Canada. After four decades of practicing his chosen craft in the United States, he is seen as a consummate artisan. In addition to crafting saddles, he now teaches classes in northern California on leather tooling and saddle creation, hoping to ensure that the knowledge and techniques of western saddle-craft will live on. East Oregonian

The World’s Largest Wildlife Bridge Will Allow Mountain Lions – and other species – to regain most of their old range in the Santa Monica Mountains northwest of Los Angeles. The Guardian

Articles Worth Reading: August 12, 2019

The Desert Gets A Biocrust Skin Graft in an attempt to reverse the severe erosion, amounting to up to 8,900 pounds of annual soil loss per acre in the Southwest. The thin but hardy film of microbes helps maintain desert ecosystems, ensures healthier air and water, and protects archeological resources. But it can take anywhere from 20 to 2,000 years to regrow once destroyed by oil and gas development or recreational land use. Ecologists who have grown successful artificial biocrusts in labs and greenhouses are now struggling to transplant the homegrown biocrusts onto the desert. These efforts have sparked internal disagreement between land managers and scientists about whether to continue to replace biocrust, or focus time and money on preserving still-intact desert areas instead. High Country News

A Clean Energy Breakthrough Could Be Buried Deep Beneath Rural Utah in a subterranean salt dome, part of which is across the street from an existing transmission line to Los Angeles County. The vast network of salt caverns could act as an enormous battery, using a decades-old technique to store large amounts of energy — in this case,renewable energy. With the neighboring coal plant scheduled to close in 2025, the salt dome is in a perfect position to become a major component of Los Angeles County’s commitment to be 100 percent renewable by 2045. Los Angeles Times

Mountain Goat Eradication Is A High-Flying Balancing Act In Olympic National Park. Helicopter teams are charged with capturing, hog tying, and safely relocating these tenacious invasive animals. The elaborate airborne relocation efforts aim to eradicate all mountain goats from the park, where they have wreaked havoc on the ecosystem. They are being moved to their natural habitat of the North Cascades Range, where the native mountain goat population is in decline. The project transported 115 goats last year alone, and so far, tracking devices show that the transported goats are surviving as well as their Cascadian-born kin. The goats that altogether evade their captors, or “muggers,” will eventually be killed to rid Olympic National Park of mountain goats for good. High Country News

This Remote Corner of Nevada Is One Of The Darkest Places in The World, and is now also the newest and largest Dark Sky Sanctuary in the United States. Like all Dark Sky Sanctuaries, the 100,000-acre sanctuary at Massacre Rim lacks legal protection. The International Dark Sky Association bestowed the title on Massacre Rim, recognizing it as one of the best spots in the world to view a night sky unobstructed by light pollution. The area is more than an hour’s drive from the nearest settlement and over four hours from the nearest city; its extreme isolation allows visitors to see the Milky Way shine so brightly that it casts shadows. The audio segment of this story is under four minutes and accompanied by a short written article. NPR

The Pacific Coast Salmon That Are Most Threatened by Climate Change travel furthest to spawn, new research shows. Dams for flood control and irrigation, water diversions and logging have pushed more than 50 runs of salmonids onto lists of endangered and threatened species; climate change may be the coup de grace for some. Inland waterways far from the coast, where some salmon spawn, are getting warmer, and may get too warm for young salmon to survive. Chinook salmon at the greatest risk in three places: California's Central Valley and the Columbia and Willamette River basins. Also at risk are coho salmon in Northern California and Oregon and sockeye salmon from Idaho’s Snake River basin. Inside Climate News

Articles Worth Reading: July 30, 2019

Megadroughts Could Return to Southwestern U.S. on a scale not seen for half a millennium thanks to climate change. A new study reveals that the region can expect atmospheric conditions similar to those that caused decades-long ‘megadroughts’ in the middle ages, which likely destroyed the thriving Chocan civilization. A slight global cooling around 1600 halted the megadroughts, but with current global climate change, experts fear a return of extreme dryness to the Southwest. National Geographic

The Ute Mountain Ute Tribe Goes Solar in a bid for energy independence, job creation, and environmental stewardship. With more than half a million acres of land and only 2,000 residents, the Ute Mountain Ute Tribe hopes to point the way for other tribes with vast tracts of flat, sunbaked land to develop and export solar energy. By some estimates, solar energy on tribal lands in the lower 48 states alone would exceed by fourfold the amount needed to power the entire country. High Country News

Coalition Urges Senators to Back Herd Fertility Curbs for Wild Horses to rein in their extreme overpopulation and resultant environmental damage from large herds trampling sensitive rangeland. The contentious issue has brought together unlikely allies, uniting the ASPCA, the National Cattlemen’s Beef Association, and the Public Land Trust. All are pushing for a plan that would reduce the wild horse population by more than 60 percent in a decade – without euthanasia. The visceral public opposition to killing the classic western icons makes a plan based on intensive fertility control alone likelier to succeed in Congress. E & E News

Feds Look Again at Reintroducing Grizzly Bears to the North Cascades, an ecological boon that would bolster the top predator’s current estimated population of 10 bears within the North Cascades. The National Park Service and Fish and U.S. Fish and Wildlife Service reopened the public comment period last week, a decision conservationists celebrate and ranchers bemoan. Former Secretary of the Interior Ryan Zinke surprised stakeholders last year by signaling the federal government’s support for moving forward a reintroduction scheme. The Seattle Times

A New Yorker Describes Moving to the San Luis Valley in Southern Colorado, where people live with pioneering self-sufficiency and isolation. The valley’s several hundred residents live on some of the cheapest and most punishing land in the country, with minus 40-degree temperatures in winter and and no trees for lumber or protection. The profile showcases a lifestyle remarkably similar to nineteenth century homesteaders, and examines what drives broadly diverse people to live on The Last Frontier. Harpers

Articles Worth Reading: July 15, 2019

Phoenix Tries To Reverse Its 'Silent Storm' Of Heat Deaths, which rose to 155 people last year and will only continue to climb with global climate change. The city, which now experiences at least 100 days over 100 degrees each year, plans to redesign its layout to increase shade and create more aggressive outreach programs to prevent heat-related deaths. It hopes to become a leader and a model for other cities struggling with rising average temperatures and health challenges. NPR

California Lawmakers Approve Legislation For $21 Billion Wildfire Fund to help public utilities pay out homeowners in wildfires connected to the power providers. The new legislation aims to stabilize fears that wildfire damage claims could permanently cripple California utilities, making them a risky investment vehicle. Pacific Gas & Electric, northern California’s major utility, filed for bankruptcy after its equipment was blamed for igniting some of the worst wildfires ever recorded in California last year. Reuters

Renegotiating The Columbia River Treaty Six Decades Later will be a very different process from the original negotiations between Canada and the United States. The treaty governs management of the Columbia River watershed, a region about the size of France; parts of it are set to expire in 2024. The renegotiations will retain the original treaty’s focus on coordinated flood control and energy security across the vast region, but will add environmental concerns as a third pillar of managing the river. The new negotiations will also include First Nations and other native representatives who were entirely excluded from the original treaty negotiations. High Country News

A 700-Mile Solo Float On The Green River Led to a Comprehensive New Book on western water distribution and policy analysis, as described in an interview with the author Heather Hansman. The environmental journalist and rafter intersperses her policy research and stakeholder interviews with her personal experience navigating the major river through Wyoming, Colorado, and Utah. This podcast episode of the “Go West, Young Podcast” is 25 minutes long; this interview begins at 4:44. Center for Western Priorities

‘Goats Are the Best Tool’ for Cheap, Chemical-Free Fire Prevention – and demand for herds-for-hire is exploding in the western US as wildfire season looms. Prolific vegetation growth from heavy winter rains combined with extreme wildfires in recent years have towns, cities, and private owners across the west eager to clear out potential wildfire fodder. Goats are a cheap, efficient, and hungry solution, and herds are hard at work across the western states. The Guardian

Graphics & the West

Where California Grows Its Food

See the most detailed survey ever done of crops and land use in California. It covers nine million acres of land devoted to grapes, alfalfa, cotton, plums, you name it – food for people and animals all over the world. View map »

California's Changing Energy Mix

A look at the energy sources California utilities have used gives us insights into the state’s progress in decarbonizing its electricity supply. In 2015, 35% of total electricity generation (in-state generation plus imported electricity) came from zero-greenhouse-gas sources, which include solar, wind, hydropower, and nuclear. View Graphic »

U.S. Conservation Easements

Conservation easements of various kinds cover more than 22 million acres of land in the United States, according to the National Conservation Easement Database, a public-private partnership. Take a look at our interactive map of nearly every conservation easement, with details on over 130,000 sites. View map »

 

Recent Center News

Sep 18 2019 | ... & the West Blog
Updated | As was true a half century ago, forces in Washington, D.C. want to loosen emission requirements and strip California of its ability to impose tough standards for vehicle emissions, and once again, California officials are fighting back.
Sep 11 2019 | ... & the West Blog
As field hands rethink traveling to the U.S., some farmers have been forced to watch their produce rot in the fields. Many others are cutting back acreage.
Sep 9 2019 | ... & the West Blog, ... & the Best | Stories Recommended by the ‘... & the West’ Blog
Pacific water temperatures indicate that fish-killing warm water nicknamed ‘The Blob’ may soon be back; Utah trees going under the axe to improve sage-grouse habitat and cattle ranching; a deep look at the economic future of eastern Wyoming from the fading Jim Bridger mine; renaming mountains in Nevada and Washington; and more recent environmental news from around the West.