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Tribes Reignite Legal Battle Over State's Fish Catch by Robert McClure Seattle Post-Intelligencer, January 17, 2001

Suit could give Indians control over wide range of activities

In a move that could give American Indian tribes significant control over a range of activities that include water use and development, 11 Western Washington tribes are seeking to reopen a landmark lawsuit that awards them half of the region's fish catch.

To reinvigorate the case, the tribes focused narrowly on the state's admittedly faulty construction and maintenance of culverts, pipes that carry water under streets and railroad tracks and through embankments. Improperly built or maintained culverts block salmon from reaching more than 3,000 miles of streams valuable for salmon reproduction, according to state estimates.

The filing by the tribes comes in a long-running case and ostensibly deals only with culverts, but the document carries much broader implications. It seeks to establish that the state has an obligation, based on treaties dating to the 1800s, to practice environmental protection sufficient to allow the tribes "to earn a moderate living from the fishery."

While refraining from predicting success in this new filing, an attorney for the tribes acknowledged that it could boost the Indians' ability to affect public policy.

"If the tribes are successful, they will try to use this in other arenas to protect habitat," said Seattle lawyer Phil Katzen. "What the impact will be down the road is impossible to say."

Scientists say manifold efforts are required to restore the plummeting salmon runs. Environmentalists are pushing for more water to be left in streams by farmers, local governments and others. They also have pursued lawsuits aimed at stopping timber cuts, which can allow unshaded streams to grow too warm for salmon to thrive. Also at issue is construction of buildings, seawalls and docks alongside streams, bays and other waters.

"We've got work to do on all areas of the landscape," said Terry Williams, commissioner of fisheries and natural resources for the Tulalip tribe. "What we need to see is the ability (for tribes) to affect the decision-making."

Although the state is enjoying record prosperity, many Indians are out of work because salmon runs have plunged. Much of the decline is traceable to degradation of spawning streams, they said.

"The tribes have cut their harvest by approximately 90 percent since the mid-'80s in an effort to restore the salmon, and obviously that is not what happened," Katzen said.

The tribes want to launch a new chapter in a long-running legal battle that began in the 1970s, when the federal government sued on behalf of Indian tribes to establish the Indians' right to fish under treaties signed in 1854 and 1855.

U.S. District Judge George Boldt declared in 1974 that Indians are entitled to half the catch, but left hanging an important issue: Does the state have a duty to protect fish stocks from environmental degradation?

After Boldt retired, Judge William Orrick Jr., declared in 1984 that the state was in fact on the hook to protect the fish. The next year, however, a higher court said Orrick had gone too far. Until a specific example of how the state was falling down on the job could be examined, the question could not be settled, the appellate judges said.

And there the question sat for 15 years. On Friday, the tribes returned to court, focusing on culverts to jump-start the legal battle.

"We are disappointed that the tribes feel litigation is necessary to bring about the improvements that we all strive for," Gov. Gary Locke and Attorney General Christine Gregoire said in a joint press release yesterday. "Litigation will serve to siphon valuable time, money and energy away from the vital task of saving salmon."

Curt Smitch, Locke's adviser on the salmon issue, said the state is willing to fix the culverts. He said that in negotiations with the tribes, he and others offered to round up more money and take other steps to keep the Indians happy.

"If this was simply about culverts, no one's arguing about that," Smitch said. But he said the tribes want something the state can't give: joint control of important decisions about development, water withdrawals from streams and other "habitat modifications."

Locke has included tribal representatives in his salmon-recovery team and in a group that guides natural resources policy, he said. Yet, tribes complain that state officials listen, but then do what they want.

"The state has basically said, 'no, we're the boss,' " said John Hallowed, director of habitat services for the Northwest Indian Fisheries Commission, which manages fisheries for the tribes.

Bolstering the tribes' case against the culverts are two state reports issued in 1997 and 1999 that detail damage faulty culverts do to salmon runs. By the state's own estimate, the economic return in fisheries from fixing the culverts would far outpace the cost of the work.

An estimated 200,000 additional adult salmon would return each year if the work were done, the state estimates. And no one wants the culverts to stay in bad shape.

"This is not a situation where there are any tradeoffs with industry or homeowners," said Katzen, the tribes' lawyer. "The state's own reports indicate that the benefits of (fixing culverts) far outweigh the costs."

Although the state told the tribes it could get the culvert work done in 20 or 30 years -- assuming the Legislature fully funds the work that is needed in budget sessions every two years -- officials also held out the possibility the work could take a century, tribal representatives said.

Sandi Snell, a Locke spokeswoman, said $40 million of the governor's proposed $212 million salmon-recovery budget for the next two years is targeted at culvert upgrades. But it's difficult to get the work done, she said. Work must stop during spawning season, and there is a limited number of people with expertise to do the projects, she said. The Legislature can be another big impediment. In the last two-year budget, lawmakers approved only half the governor's salmon-recovery request, she said.

Everyone acknowledges that a lot of work beyond the culverts will be required for the salmon to return.

The tribes went from catching one-50th of the salmon before Boldt's 1974 decision to being entitled to half the catch. Now, though, because the number of salmon has dropped precipitously, Indians are again catching roughly what they did in the early '70s, tribal representatives said.

In the past, other court decisions have favored tribes and said, for example, that governments should not take so much water out of streams that it harms salmon. Those decisions, though, were not based on the Western Washington treaties that produced Boldt's decision.

Ron Whitener, director of the Indian Law Clinic at the University of Washington School of Law, said the current filing will sketch out the degree to which the right of the tribes to have a fish-friendly environment is safeguarded by those treaties.

"The tribes had been waiting to have a case they could use to figure out the legal scope of that legal right . . .," Whitener said. "The culvert issue is the tool to get to the scope of the right and force the state to bring the tribes into environmental planning for salmon."

Whitener, a former Squaxin Island tribal lawyer, recalls seeking meetings with state officials for six months. They wouldn't agree on an agenda or meeting date, he said.

He predicted that if the tribes succeed, it will lead only to incremental changes, not a situation in which Indians can dictate public policy. They would have to prove that environmental degradation is leading directly to declines in salmon, probably on a stream-by-stream or watershed-by-watershed basis, he said.

"In those instances when the state does something stupid, which they sometimes do, it would give the tribes some way to head it off before it ever occurred," Whitener said.

Battle over fishing rights

1854-1855: Six federal treaties concluded by Washington Territorial Gov. Isaac Stevens take away much of the Indian lands, but assures them they can fish in their "usual and accustomed grounds and stations."

1889: In one of its first acts, the new Washington Legislature closes six rivers to salmon fishing, all on Indian fishing grounds. The move is said to be a conservation effort. In subsequent decades, the non-Indian commercial fishing industry mushrooms, regarding tribes as competitors. Indians are blamed for declining fish runs by failing to heed regulations. Later research shows dam building, logging and commercial fishing are to blame for declines, and tribes are only getting what is left over.

1954: Bob Satiacum, a Puyallup, begins the "fish wars" when he is arrested for fishing, a precursor to the "fish-in" demonstrations of civil disobedience of the 1960s.

1962-1964: Fish-ins led by Satiacum and Billy Frank Jr., a Nisqually, grow in popularity, drawing national attention as well as Marlon Brando, Jane Fonda and other celebrities. State authorities crack down, complete with surveillance planes and speed boats.

1970: U.S. vs. Washington is filed on behalf of tribes and integrity of federal treaties by U.S. Attorney for Western Washington Stan Pitkin, a Nixon administration appointee. Then-state Attorney General Slade Gorton defends the state, which is supported by commercial and sport fishing interests. Confrontations at fish-ins grow heated; 60 people are arrested in Tacoma.

Aug. 27, 1973: Trial in U.S. vs. Washington begins before U.S. District Court Judge George Boldt in Tacoma. Boldt divides the case into two phases, the second one later to decide whether the state has a duty to disallow the destruction of salmon habitats.

Feb. 12, 1974: Boldt decision rules that tribes are entitled to half the region's salmon harvest. Boldt says the right to fish was extended by non-Indian settlers, and that the federal government must live up up to its promises to maintain the integrity of the treaty process.

1979: U.S. Supreme Court upholds the Boldt decision.

1985: Tribes and state seek an 18-month stay of the second phase of the Boldt decision to negotiate agreements regarding timber and water resources and effects on salmon, seeking more cooperative ways to manage fish than through litigation.

1993: Based on recommendations from all parties, U.S. District Court Judge Barbara Rothstein dismisses without prejudice phase II.

1994: U.S. District Court for Western Washington extends the 50-50 formula to harvesting shellfish on private lands.

1997: Tribes and the state differ on strategies to protect and recover salmon, which continues to present day.

1998: Private-property owners appeal the 1994 shellfish ruling to the U.S. Supreme Court. The case is pending.