Category Archives: Tribes

U.S. Supreme Court justices raise questions about culvert damage

As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.

A coho salmon tries to leap into a culvert on Gorst Creek where water discharges from fish-rearing ponds. // Photo: Meegan M. Reid, Kitsap Sun

The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.

The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.

From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.

Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.

In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.

Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.

Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”

The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.

Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.

“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”

Asked Justice Elena Kagan, “I mean, do you have a number in your head?”

Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”

Purcell said he thought that half would obviously quality but not 5 percent.

“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”

“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”

Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.

“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.

Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.

“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”

Alito asked federal prosecutors in the case whether federal dams also violate the treaties.

Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.

Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.

Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.

Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.

“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.

Later, Justice Alito turned to Attorney William Jay, representing the tribes.

“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”

“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”

Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.

“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”

Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.

“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”

For further reading:

Can carefully planned fishing seasons help the endangered orcas?

Salmon harvests in Puget Sound have been shared between Indian and non-Indian fishermen since the 1970s, when the courts ruled that treaties guarantee tribal members half the total catch.

Now a third party — Puget Sound’s endangered orcas — could take a seat at the negotiations table, at least in a figurative sense, as their shortage of food becomes a critical issue.

It isn’t at all clear how fishing seasons could be structured to help the Southern Resident killer whales, but the issue was discussed seriously at some length yesterday, when the 2018 salmon forecasts were presented to sport and commercial fishers. Thus began the annual negotiations between state and tribal salmon managers to set up this year’s fishing seasons.

General areas, in blue, where fishing closures in British Columbia are planned to provide extra salmon for Southern Resident killer whales.
Map: Department of Fisheries and Oceans

Penny Becker, a wildlife manager with the Washington Department of Fish and Wildlife, said a steady decline in the body mass of the Southern Residents has been observed, as the population fell to a 30-year low of 76 animals. People are calling for emergency measures, she said, noting that both Gov. Jay Inslee and the Legislature are working on ideas to protect the whales. See Water Ways Feb. 23 and Water Ways Feb. 17 and the Encyclopedia of Puget Sound, Nov. 2, 2017.

Concerns are running equally high in British Columbia, where the orcas spend much of their time in the Strait of Georgia. The Canadian Department of Fisheries and Oceans has proposed an experiment with fishing closures this year in four areas frequented by the orcas:

  • Mouth of the Fraser River
  • West side of Pender Island
  • South side of Saturna Island, and
  • Strait of Juan de Fuca

“The primary objective of the proposed measures is to improve chinook salmon availability for SRKW by decreasing potential fishery competition, as well as minimizing physical and acoustic disturbance in key foraging areas to the extent possible,” states a “discussion paper” (PDF 1.9 mb) released Feb. 15.

The closures would be in place from May through September this year, with increased monitoring to measure potential benefits to the whales. Comments on the proposal are being taken until March 15.

Canadians also are working with ship owners to see if noise can be reduced significantly by slowing down large vessels moving through the Salish Sea. Previous studies have shown that noise reduces the ability of whales to communicate and to find food through echolocation. Experts are compiling the results of the “Haro Strait Vessel Slowdown Trial” conducted last year.

One bill in the Washington Legislature would require boaters to slow down to 7 knots when in the vicinity of killer whales.

Limiting fishing in specific areas of Puget Sound, such as the west side of San Juan Island, could be implemented through state-tribal negotiations, Penny said. The closures would occur during summer when chinook salmon — the orcas’ primary prey — are in the area. One option would be to implement the closures on certain days of the week.

Some people have talked about giving the orcas a clean break from whale watchers, and that could involve excluding whale-watch boats from salmon-rich areas at the same time as the fishing closures.

“We’re looking for creative solutions to make this work within our constraints,” Penny told the group.

One fisherman at the meeting said every person on the water should automatically turn off his motor and sit still when whales are approaching. It’s a courtesy to help the killer whales find fish, he said, and anyway the fish are not going to bite on one’s line while whales are around. Generally, they don’t stay long in one place.

One bill in the Legislature would help the Southern Residents by increasing hatchery production of chinook salmon in Puget Sound. Reaction to the idea has been mixed, because hatchery salmon have been known to affect the fitness and genetic makeup of wild salmon. If approved, the boost in hatchery production would likely be a temporary solution.

Sport fishermen generally like the idea of increased hatchery production, because they would be encouraged to catch all the hatchery fish not eaten by killer whales.

The hatchery bill, HB 2417, was approved unanimously by the House Agriculture and Natural Resources Committee. No further action has been taken so far, but its provisions could be attached to the supplementary budget with funds specified for hatchery production.

Tuesday’s meeting in Lacey launched the beginning of the negotiations between state and tribal salmon managers, a process known as North of Falcon. The name comes the fishery management area from Cape Falcon in Oregon north to the Canadian border. The full schedule of meetings and related documents can be found on the WDFW website.

Forecasts approved by WDFW and the tribes predict poor returns of several salmon stocks this year in Puget Sound, the Pacific Ocean and the Columbia River, resulting in limited fishing opportunities.

“We will definitely have to be creative in developing salmon fisheries this year,” Kyle Adicks, salmon policy lead for WDFW, said in a news release. “I encourage people to get involved and provide input on what they see as the priorities for this season’s fisheries.”

Warm ocean conditions and low streamflows in recent years affected several salmon stocks returning this year. As ocean conditions return to normal, experts hope for improved salmon runs in years to come.

A total of about 557,000 coho returning to Puget Sound is about 6 percent below the average over the past 10 years. Extremely low numbers predicted for the Strait of Juan de Fuca and the Snohomish River are expected to force managers to limit fishing in those areas.

While hatchery chinook returning to Puget Sound are expected to be 38 percent higher than last year, the need to protect “threatened” wild chinook could mean ongoing fishing restrictions in many areas.

Next month, NOAA, which oversees threatened and endangered species, is expected to provide guidance for managing this year’s fisheries, including possible discussions about protecting Southern Resident killer whales.

A 10-year “Comprehensive Management Plan for Puget Sound Chinook” is scheduled to be resubmitted this summer in response to comments received from NOAA on the first draft.

Plans for protecting Puget Sound chinook and Southern Resident killer whales have begun to overlap in major ways, as saving one involves saving the other.

Washington officials build state’s case against offshore oil drilling

If oil companies were secretly interested in drilling off the Washington coast — which is doubtful — then I suspect that state and tribal officials scared them off yesterday.

It’s one thing for an oil company to sign a lease with the federal government. It’s quite another thing to go up against other sovereign governments determined to use every means to make the venture unprofitable.

Participants in press conference, left to right: Attorney General Bob Ferguson; Gus Gates, Surfrider Foundation; Gina James, Quinault Nation; Larry Thevik, Dungeness Crab Fisherman’s Association; Gov. Jay Inslee; Commissioner of Public Lands Hilary Franz; Ocean Shores Mayor Crystal Dingler; and Chad Bowechop, Makah Tribe. (Click to enlarge)
Photo: Governor’s Office

In a press conference yesterday, Gov. Jay Inslee said the Legislature could pass laws that establish new taxes or limit the use of port facilities needed to service oil rigs.

“We could set up our own safety standards, for instance, that frankly the industry may not be able to meet,” Inslee said. “So, yes, we have multiple ways. Counties and cities would also have jurisdiction.

“What I’m saying is that when you have a policy from a president that is uniformly reviled in the state of Washington both by Republicans and Democrats, there are so many ways that we have to stop this — and we’re going to use all of them.”

The entire press conference is shown in the first video below.

In a two-page letter to Secretary of Interior Ryan Zinke, Inslee wrote, “I urge you in no uncertain terms to respect our local voices, our state’s laws, and our hard-working families by removing Washington’s coasts from any subsequent plan your department may propose to expand oil and gas leasing in this country.”

As Inslee prepared to take another question at the press conference, Public Lands Commissioner Hillary Franz, who oversees the state’s forests and aquatic lands, quickly wedged up to the microphone. She pointed out that Washington state has the authority to lease — or not — much of the deep-water areas in Puget Sound and along the coast, including areas used by local ports. The state would have a say over almost any infrastructure the industry might need to develop along the shore, she said.

In addition, the state has ownership over vast shellfish resources, Franz noted, and so state officials would have a clear interest to protect against any damage that might result.

Attorney General Bob Ferguson said if the leasing plan goes through, it would be challenged in court on many grounds. Just one example of a legal violation, he said, is the off-handed way that the Trump administration exempted the state of Florida from the leasing plan.

“It was completely arbitrary,” Ferguson said at the press conference. “It’s a classic example of how this administration rolls something out; they haven’t thought it through; and they take an action that we think will help make our case against it.”

Ferguson laid out his legal, moral and practical arguments against offshore drilling in a long five-page letter, which included this comment: “The proposal to open the Pacific Region Outer Continental Shelf to oil and gas leasing is unlawful, unsafe and harmful to the economy and natural beauty of Washington’s coastline. As Attorney General, my job is to enforce the law and protect the people, natural resources and environment of my state, and I will use every tool at my disposal to do so.”

Chad Bowechop, policy adviser and member of the Makah Tribe, explained that tribes have legal rights under the treaties to protect the environment in their native lands. He noted that the press conference was being held in the very room where legislation was signed to dispatch a rescue tug at Neah Bay. The bill was the result of oil spills that had damaged the natural and cultural resources of the area.

“We’re very proud of our working relationship with the state of Washington Department of Ecology Spills Program and with the United States Coast Guard,” he said. “Our basis of objection to this issue is based on our cultural and spiritual values. Our spiritual values hold the environment and the ocean resources in spiritual reverence.”

Drilling, he continued, would be in conflict with the tribe’s cultural and spiritual values. As a legal trustee of the ocean’s natural resources, the tribe “will pledge to work closely with the other resource trustees,” meaning the state and federal governments to prevent offshore oil drilling.

Early today, Washington Sen. Maria Cantwell appeared on the Senate floor to protest the oil-drilling proposal. She talked about the natural resource jobs that would be threatened by drilling activities. Check out the second video.

Now that Alaska Gov. Bill Walker has asked the Trump administration to dial back the offshore drilling proposal in his state, all the West Coast governors stand in opposition to the drilling plan. In a press release, Walker said he supports offshore drilling, but he wants Zinke to focus on the Chukchi and Beaufort seas along with Cook Inlet.

“I support removal of potential sales in all other Alaska waters for the 2019 to 2024 program,” he said, “and I will encourage the Interior Department to include the longstanding exclusions for the Kaktovik Whaling Area, Barrow Whaling Area, and the 25-mile coastal buffer in upcoming official state comments on the program.”

Alaska’s congressional delegation, all Republicans, previously made the same request in a letter to Zinke. The members are Sens. Lisa Murkowski and Dan Sullivan and Rep. Don Young.

Except for three U.S. representatives, Washington’s and Oregon’s entire congressional delegations — four senators and 12 representatives — signed a joint letter to Zinke asking that both states be excluded from further leasing plans.

“The states of Washington and Oregon have made clear through local, state, and federal action, as well as extensive public comment, that oil and gas lease sales off the Pacific Coast are not in the best interest of our economies or environment,” the letter says. “The Department of the Interior’s proposal to consider drilling off the states we represent, absent stakeholder support and directly contradicting economic and environmental factors of the region, is a waste of time, government resources, and taxpayer dollars.”

The only Washington-Oregon lawmakers not signing the letter are Reps. Dan Newhouse and Cathy McMorris Rodgers, both Republicans representing nearly all of Eastern Washington, and Rep. Greg Walden, a Republican representing Eastern Oregon.

What would it take to restore the legendary Chinook salmon?

Giant Chinook salmon of 50 pounds or more have not yet faded into legend, as operators of a salmon hatchery in Central British Columbia, Canada, can tell you.

Ted Walkus, a hereditary chief of the Wuikinuxv First Nation, holds a Chinook salmon caught this year for the Percy Walkus Hatchery on the Wannock River in Central British Columbia.
Photo: Percy Walkus Hatchery

The annual spawning effort at the Percy Walkus Hatchery on the Wannock River involves catching Chinook as they move upstream rather than waiting for them to arrive at the hatchery. This year, fishing crews brought home a remarkably large fish that has lived long and prospered. The progeny of this fish will be returned to the river from the hatchery to continue the succession of large Chinook.

These big fish compare to the massive Chinook that once made their way up the Elwha River and other major salmon streams of Puget Sound. Knowing that these big fish still exist provides hope that we might someday see such large salmon on the Elwha, following the recent removal of two dams and ongoing habitat restoration.

Large, powerful Chinook are suited to large, powerful streams. Big chinook can fight their way through swifter currents, jump up larger waterfalls and protect their eggs by laying deeper redds. Experts aren’t sure that the conditions are right for large Chinook to return to the Elwha, but many are hopeful. I explored this idea in a story I wrote for the Kitsap Sun in 2010.

As for the two-year-old Percy Walkus Hatchery, big fish are not uncommon in the Wannock River, as you can see in the hatchery’s Facebook photo gallery. By spawning both large and smaller salmon, the hatchery hopes to rebuild the once-plentiful numbers of Chinook in the system. Involved in the project are the Wuikinuxv First Nation along with Canada’s Department of Fisheries and Oceans and others.

Ted Walkus, a hereditary chief of the Wuikinuxv and the man featured in the photo on this page, said the largest fish need to remain part of the gene pool for the hatchery and the river. That’s why volunteers go out into the river to take the brood stock. This year, 47 males and 47 females were spawned to produce more than 300,000 fertilized eggs.

“If you catch a 60-pound salmon and you keep it without breeding, that part of the gene pool eventually gets wiped out,” Walkus was quoted as saying in a CBC News report.

For similar reasons, some anglers choose to release their catch alive, if possible, after getting a photo of their big fish. The hope, of course, is that the fish will continue on and spawn naturally. In the hatchery, the genes will be passed on to more salmon when the progeny are released. Unfortunately, I was unable to quickly locate a facility management plan for the Percy Walkus Hatchery to see if anyone has projected the long-term effects of the hatchery.

Chet Gausta, middle, shows off the big fish he caught off Sekiu in 1964. Chet's younger brother Lloyd, left, and his uncle Carl Knutson were with him on the boat.
Photo courtesy of Poulsbo Historical Society/Nesby

Big fish are genetically inclined to stay at sea five, six or seven years rather than returning after four years. They must avoid being caught in fishing nets and on fishing lines during their migration of up to 1,000 miles or more before making it back home to spawn.

Perhaps you’ve seen historical black-and-white photos of giant Chinook salmon taken near the mouth of the Elwha River. Like the giant Chinook of the Wannock River, some of these fish are nearly as long as a grown man is tall. Catching them with rod and reel must be a thrill of a lifetime.

Some of those giants — or at least their genes — may still be around. The largest Chinook caught and officially weighed in Washington state dates back to 1964. The 70-pound monster was caught off Sekiu by Chester “Chet” Gausta of Poulsbo, who I wrote about upon his death in 2012. See Water Ways, Feb. 3, 2012. His photo is the second on this page.

There’s something to be said for releasing salmon over a certain size, and that goes for commercial fishing as well as sport fishing. Gillnets, for example, target larger fish by using mesh of a certain size, say 5 inches. Smaller fish can get through the nets, spawn in streams and produce the next generation — of smaller fish.

The genetic effects of removing the larger fish along with the effects of taking fish during established fishing seasons artificially “selects” (as Darwin would say) for fish that are smaller and sometimes less fit. Some researchers are using the term “unnatural selection” to describe the long-term effects of fishing pressure. I intend to write more about this soon and also discuss some ideas for better managing the harvest to save the best fish for the future.

Rains bring chum salmon back to their home streams

Salmon appear to be on the move in several local streams, thanks to the recent rains and increased streamflows. Wetter conditions no doubt triggered some of the migratory fish to head back to their spawning grounds.

A pair of chum salmon make it up Dickerson Creek, a tributary of Chico Creek. // Video: Jack Stanfill

It is still a little early in the season for coho and chum salmon to be fully involved in spawning activity, and there is plenty of time for people to get out and observe their amazing migration.

Salmon-watching is often a hit-or-miss situation, although Chico Creek is usually the best bet. After hearing several reports of chum moving upstream, I went out this afternoon to look in several local streams. Unfortunately, I did not get there before the rains stopped. What I saw in Chico Creek and other streams was fish milling about in deep pools, seemingly in no hurry to move upstream. Additional rains and streamflows are likely to get the fish fired up to move in and upstream more quickly.

Jack Stanfill, who lives on Dickerson Creek, a tributary of Chico Creek, said at least two adult chum reached his property today. Several restoration projects along Dickerson Creek probably helped the fish get upstream earlier than we have seen in previous years.

Jon Oleyar, who monitors the salmon migration for the Suquamish Tribe, told me that chum don’t normally get into Dickerson Creek until two weeks after they get into the upper reaches of Chico Creek. “This might be one of the earliest times ever,” Jon said.

As for other streams, the tribal biologist said he has seen early chum in Curley and Blackjack creeks in South Kitsap.

Viewing suggestions for this weekend:

  • Chico Creek: Chico Salmon Park (Facebook) along with a location just above the culvert under Golf Club Hill Road off Chico Way. Also check out the bridge near the 19th Hole Tavern on Erland Point Road and the access at the end of Kittyhawk Drive.
  • Dickerson Creek: Salmon Haven overlook on Taylor Road, off Northlake Way.
  • Curley Creek: Bridge on Southworth Drive near the intersection with Banner Road.
  • Blackjack Creek: A new bridge at Etta Turner Park between Port Orchard Ford and Westbay Center on Bay Street.
  • Gorst Creek: Otto Jarstad Park on Belfair Valley Road, where a new beaver dam has created a sizable pool of water, The dam may be limiting the migration of coho and perhaps blocking most of the chum.

Note for salmon-watchers: This year’s Kitsap Salmon Tours will be held in two weeks, on Saturday, Nov. 4. This year, the popular event has been expanded to seven locations. For details, go to the Kitsap WSU Extension website.

It appears that the chum coming into streams on the Kitsap Peninsula this year are noticeably larger in size than normal, perhaps in the 10- to 10.5-pound range, Jon Oleyar told me. That exceeds the normal 8- to 10-pound size for chum, he said.

Orca Network reported today that some of our Southern Resident killer whales have been foraging this week off the Kitsap Peninsula as well as in other areas not easily identified because of the dark, stormy weather we have had. Let’s hope the orcas can find enough food to stick around awhile.

On Sunday, a small group of whales from L pod showed up in the San Juan Islands for the first time this year. Normally, these whales — L-54 and her offspring along with males L-84 and L-88 — would be seen numerous times during the summer, but this was a highly unusually year. They were seen this week with J pod, which hasn’t been around much either.

On Monday, reports of orcas near Kingston and Edmonds suggested that the whales had moved south. They were later spotted near Seattle and then again near Kingston on Tuesday, when they headed out of Puget Sound by evening.

It is often said that the orcas will go where the salmon are. They are known to prefer chinook when their favorite fish are available, but they will switch to chum after the chinook run is over. It will be interesting to how much time the whales spend in Central and South Puget Sound, where chum are more plentiful.

The total number of chum salmon predicted this year — including those harvested along the way — is expected to be lower than last year. Still, there is hope that the preseason forecast will be exceeded by the actual return. The total predicted for Central and South Puget Sound is 433,000 chum, with 85 percent returning to streams and 15 percent coming back to hatcheries.

Last year, the total predicted run was 526,000 chum, about 21 percent higher than this year. Typically, the number of chum returning in odd-numbered years is lower than in even-numbered years, other things being equal. That’s because odd-numbered years is when the vast majority of pink salmon spawn, resulting in increased competition and lower survival for the young chum. Smaller numbers of juveniles mean fewer adult chum that return four years later during another odd-numbered year, continuing the cycle.

Most of the difference between last year’s and this year’s chum run can be accounted for in the odd- versus even-numbered years, said Aaron Default of the Washington Department of Fish and Wildlife.

It is too early in the season to update the preseason forecast based on commercial and tribal fishing that has taken place so far, Aaron said. As usual, fishing seasons are likely to be adjusted up or down when more information becomes available. The main goal is to make sure that enough fish make it back to sustain and potentially increase the salmon population.

Puget Sound Partnership may confront net pen controversy

Puget Sound Partnership may take a stand on whether fish farms should be allowed to remain in Puget Sound waters.

The partnership is charged by the Legislature to oversee the restoration of the Puget Sound ecosystem. On Wednesday, the partnership’s governing body, the Puget Sound Leadership Council, received an update on last month’s collapse of a net pen containing 305,000 Atlantic salmon near Cypress Island in northern Puget Sound.

About two-thirds of the escaped fish have been accounted for so far, with about 146,000 found dead or alive in the damaged net pen and about 55,000 caught by fishermen. (All but about 5,000 of those were caught by tribal fishers in Puget Sound.)

This video, taken by a private party and released by state agencies, shows the collapse of the Cypress Island net pens on Aug. 19

About 100,000 Atlantic salmon apparently escaped and have not been caught by people, although most of those probably were eaten by predators, experts say. Officials continue their efforts to figure out where any remaining fish have gone, specifically any that swam up into the streams, according to Amy Windrope of the Washington Department of Fish and Wildlife.

The Atlantic salmon, an exotic species in Puget Sound, don’t appear to be eating anything, let alone young native salmon, Windrope said, and there is not much concern that they will breed with native fish. The greatest concern is that they might somehow disrupt the spawning behavior of native salmon, whose populations are already stressed by adverse conditions in both marine and fresh water.

The Atlantic salmon appeared to be healthy and free of parasites at the time of the release, she said, but they became less and less healthy as starvation set in.

In addition to Windrope, the presentation to the Leadership Council included reports from representatives of the state Department of Natural Resources, which leases the seabed where the pens are located, and the Department of Ecology, which issues permits under water-quality laws.

Puget Sound tribes are about to release a position statement opposing salmon farms in Puget Sound, said Russell Hepfer, a member of the Leadership Council and vice chairman of the Lower Elwha Klallam Tribal Council. He did not elaborate, except to say that the non-native fish don’t belong here.

According to Windrope, the tribes see Atlantic salmon as weeds in the garden of Puget Sound. Such cultural viewpoints should be taken into account in the overall discussion, she added.

Soon after the Cypress Island net pen collapse, Washington Gov. Jay Inslee and Public Lands Commissioner Hilary Franz issued a moratorium blocking further net pen approvals until an investigation is complete.

Maradel Gale, a resident of Bainbridge Island, addressed the Leadership Council at Wednesday’s meeting near Port Gamble, saying the Bainbridge Island City Council has effectively limited the expansion of net pens at the south end of the island and would like to get rid of net pens altogether.

She said Cooke Aquaculture, which owns all the net pens at four locations in Puget Sound, receives the benefits of using the public waterways and placing the ecosystem in peril while taking very little risk upon itself.

Dennis McLerran, a member of the Leadership Council who has worked for various environmental agencies, said Washington state law has long provided a preference for aquaculture over many other shoreline uses. Like it or not, he said, those preference are “baked into state policies” that direct state agencies to support aquaculture, including salmon farms.

“That is where the Leadership Council should have some discussion,” McLerran said. “Are those preferences in state law appropriate?”

The state of Alaska prohibits salmon farms, while California’s complex regulations allow them only under specific conditions related to water supplies, said Kessina Lee of Ecology.

Jay Manning, chairman of the Leadership Council and former director of the Washington Department of Ecology, said the Legislature will no doubt want to hear a complete report on the Cypress Island net-pen collapse, and he urged the agency officials to be fully prepared to answer questions from lawmakers.

“You will be asked, when the Legislature comes back, ‘How big a deal is this?’” Manning said, noting that he has heard from some people that it is a very big deal, while others say it is nothing at all.

Windrope noted that native salmon populations are already struggling, “and this is one more injury to the salmon.” But since the escaped Atlantic salmon don’t appear to be competing for food, the question comes down to whether they are affecting native fish in other ways. That question is not fully answered, she said.

“For DNR, this is a very big concern,” said Dennis Clark, who helps manage aquatic leases for the agency. “We have a contract with a multinational company, and they failed to adhere to it.”

DNR serves as the landlord for the Puget Sound net pen operations, he said. The aquatic leases run out at various times, from 2022 to 2025, and the agency is taking a closer look at the net pen structures to see what should be done from both a scientific and landlord perspective. Commissioner Franz is taking a special interest, he added.

“We are trying very hard to learn from this (incident),” Clark said, “and we understand that we may need to devote more resources.”

Rich Doenges of Ecology said the Atlantic salmon that got away are considered a “pollutant” under Washington state law. While no long-term effects have been seen following previous escapes of Atlantic salmon, there is some risk to native salmon. The key is to quantify that risk and determine if it is low enough to make the operations worthwhile. If necessary, he said, compliance orders can be issued and state water-quality permits can be amended to require additional safety measures.

Seattle attorney Doug Steding, representing Cooke Aquaculture, said he wanted to convey “sorrow and regret” from the company over the potential impacts of the escape.

“We want to make right with respect to this terrible accident,” he said, adding that the company is committed to working with investigators into the cause of the escape and finding ways to make sure that it never happens again.

Steding noted that Cooke recently acquired the Puget Sound facilities and did not own the Cypress Island net pens when the fish were placed in them. The company should have shared more information with the public about plans to upgrade the facilities, he said.

“You have an important task sorting through the difficult science and integrating with the values of the people of Washington,” Steding told the Leadership Council, adding that Cooke hopes to remain a part of the discussion.

Recalling the voice and wisdom of Billy Frank Jr. in a new animated video

It is very nice to hear once again the distinctive voice of the late Billy Frank Jr. in a new animated video called simply “sčədadxʷ” — or “Salmon.”

Billy was the voice for the Nisqually Tribe, for the Northwest Indian Fisheries Commission, for native people everywhere and for the human race, which he believed holds a special relationship with salmon and all of nature’s creatures.

The new video was produced by Salmon Defense, a nonprofit organization created by the 20 Western Washington treaty tribes to foster the welfare of salmon. The short animation was distributed by Northwest Treaty Tribes, the communications arm of the NWIFC.

In the video, the animated Billy is seen floating down a river in an Indian canoe. While passing historical landscapes, Billy talks about Indian culture, the coming of settlers and the relationship between the two societies.

“We don’t walk on this Earth very long,” Billy says in the video. “We got a lot of changes here that is happening in this century, and we have to work together and remind each other about what was the past and our history and be able to live together and survive together.”

Billy’s words are still inspirational, and his passion still comes through. His voice causes me to recall the many talks and speeches I heard him give through the years. His words would flow at a different pace than other speakers who appeared on stage before him. To hear Billy, you would need to slow down and listen, not necessarily to the precise words but rather to the broader, heartfelt meaning behind his words.

His grammar wasn’t perfect. He would sometimes pepper his speech with swear words, especially when expressing frustration in his fairly reserved way. And then he would catch you off guard with a humorous phrase or story of human foibles. To me, Billy’s message was always clear: No matter what our differences, we can save the salmon and make a better life for all humans by working together.

Most remarkable to me — and recognized by many others — was Billy’s warm relationship with everyone who knew him. He treated everyone like a brother or sister, greeting them with a broad smile and a hug or pat on the back. He constantly opened doors to new relationships. It didn’t matter who you were — from the president of the United States down to everyday news reporters like me.

Billy rarely talked about his own personal sacrifices and struggles, but he would remember the specific efforts of others. For example, while I was covering the federal lawsuit dealing with salmon-blocking culverts, Billy thanked me for writing about the issue and for helping people understand the science behind the needs of salmon. See Kitsap Sun, March 21, 2009.

Billy died in May of 2014 at age 83. Read his obituary in Indian Country Today. Also review two pieces I wrote shortly after Billy’s death:

I thought this might be a good time to present two other videos featuring Billy Frank and his family history. If you’ve seen these videos, they might be worthy of another look. The second video on this page is “As Long as the Rivers Run,” a 1971 documentary that chronicles the conflict and civil disobedience leading up to the landmark George Boldt decision. The third video is a special edition of Northwest Indian News called “Remembering Billy Frank Jr.”

Facing challenges that could save chinook salmon from extinction

Nineteen years ago this month, then-Governor Gary Locke made a bold declaration about salmon that would echo through time: “Extinction is not an option.”

Juvenile chinook salmon depend on high-quality habitat for their survival.
Photo: U.S. Fish and Wildlife Service.

It was a call to action that would lead to major protection and restoration efforts throughout Puget Sound. Still, today, chinook salmon have not experienced a population rebound, as many people had hoped. The failure to thrive has been a disappointment to many, yet we are often reminded that it took 150 years to push salmon to the brink of extinction and it will not be easy to ensure their future.

Last week, concerns about the survival of chinook salmon prompted a coalition of Puget Sound tribes to propose a series of “bold actions,” as I reported in the Encyclopedia of Puget Sound, later reprinted in the Kitsap Sun.

“The way we are managing lands is not working,” stated salmon expert Dave Herrera, speaking for the tribes. “It may be working for people, but it is not working for fish.”

The bold actions, spelled out in a three-page proposal (PDF 380 kb), include greater controls on the use of land and water, among other things. I won’t describe the details, which you can read in the memo. The ideas were prompted by a new Chinook Salmon Implementation Strategy, designed to accelerate an increase in the Puget Sound chinook population.

The tribes complained that the proposed strategy, as drafted, mostly mimicked the 10-year-old Puget Sound Salmon Recovery Plan. That plan has made limited progress in restoring wild salmon runs, despite millions of dollars spent to protect and restore habitat while limiting fishing and controlling hatchery production.

In his speech of June 1998, Gov. Locke worried about the risk of extinction for these migratory fish, which are an economic asset as well as a celebrated symbol of the Northwest.

Former Gov. Gary Locke

“In several Puget Sound watersheds, our wild salmon have less than a decade to live, unless we act now,” Locke said in 1998. “And in many more rivers and streams, if the status quo continues, our wild salmon will be gone before my daughter Emily graduates from high school. So we just don’t have any time to waste. For better or for worse, we are about to make history.”

Locke’s speech was indeed historic, as he launched an unprecedented endeavor to rebuild salmon runs at great financial cost. The governor seemed to understand the challenge, as I noted at the time in my coverage of the speech before more than 100 county officials in Tacoma:

“Locke appears to be glancing over his shoulder, ready to duck for cover, as he talks about the financial and political commitments required to keep salmon from disappearing in various parts of the state,” I wrote.

“We need to wake up every morning ready to challenge the status quo,” Locke said, adding that basic changes are needed in the way businesses and average citizens use their land and water resources.

“There is a risk,” Locke said, “in just delivering that message, let alone acting on it.”

The following year, the Washington Legislature created the Salmon Recovery Funding Board to prioritize state and federal funding for salmon recovery. And the next governor, Chris Gregoire, ushered in an even greater ecosystem-recovery effort under guidance of the Puget Sound Partnership.

Wetlands are critical habitat for salmon.
Photo: Eric Grossman, U.S. Geological Survey

Today, I can’t help but wonder what would have happened without these salmon- and ecosystem-recovery efforts. Would the salmon be gone, as Locke predicted? It’s hard to say, but researchers have learned a great deal about what salmon need to survive, and the money is being better targeted toward those needs. As a result, it is understandable why some people are both disappointed with the past and hopeful for the future.

One of the great challenges facing public officials today is to find ways for local governments to truly live up to the standard of “no net loss” of ecological function — a standard required by the state’s Growth Management Act. When new developments affect “critical areas” — such as fish and wildlife habitat — they must include vegetated buffers and stormwater controls to minimize the damage. Then they must enhance degraded habitat — either on-site or off-site — to make up for losses that cannot be avoided.

I used to believe that this goal was unachievable, and I have questioned many state experts about it. How can any developer construct a commercial or residential development and walk away with no net loss of habitat function? The answer is to include a serious restoration component.

One example is the Hood Canal Coordinating Council’s In-Lieu Fee Program, which I wrote about last month in Water Ways (May 19). This program was started on a large scale to mitigate for construction at the Navy’s submarine base at Bangor, but it also works on a small scale, as I mentioned in that blog post.

When an older site is redeveloped, there may be no ecological loss, since the damage was done in the past. But when a developer builds in a new location, the local government is charged with measuring the loss, coming to terms for mitigation and making sure the mitigation is carried out. The concept of “no net loss” works only if the mitigation is permanent — another major challenge in many areas.

If no net loss can be achieved while major restoration efforts continue, we will see a net increase in salmon habitat in the Puget Sound region, and that will be a cause of celebration. One success has been in the program Floodplains by Design, which improves critical off-channel habitat for salmon while reducing flooding problems for nearby residents. Checkout the story I wrote for the Encyclopedia of Puget Sound and the blog post in Water Ways, April 15.

Washington State Department of Commerce, which oversees the Growth Management Act, is in the process of updating its Critical Areas Assistance Handbook (PDF 6 mb), which serves as guidance for local regulations. New information about how to protect habitat for all life stages of salmon will be a key addition to a revised version, soon to be released for public review. See the CAO page on the Department of Commerce website.

Local governments in every part of the state must become part of the discussion if we expect them to carry out the mandate of protecting habitat for salmon. Money for planning and regulatory enforcement must be worked out. One idea I’ve heard is a regional approach that involves a group of compliance officials working to enforce the rules for multiple counties and cities.

No doubt the salmon-recovery effort must be improved. Challenges remain for issues including fishing, predation by marine mammals and climate change. But if the protection and restoration of salmon habitat can outpace unmitigated damage from development, we may be justified in believing that extinction is not an option.

Hood Canal nominated as Sentinel Landscape with ties to military

Hood Canal and its surrounding watershed have been nominated as a Sentinel Landscape, an exclusive designation that recognizes both the natural resource values and the national defense mission of special areas across the country.

USS Henry M. Jackson, a Trident submarine, moves through Hood Canal in February on a return trip to Naval Base Kitsap – Bangor.
U.S. Navy photo by Lt. Cmdr. Michael Smith

If the designation is approved, it will bolster applications for federal funding to protect and restore important habitats and to maintain working forests in and around Hood Canal. Given the uncertain budget for environmental programs under the Trump administration, it wouldn’t hurt to have the Department of Defense supporting the protection of Hood Canal.

The Sentinel Landscapes Partnership involves the U.S. departments of Agriculture, Defense and Interior. The idea is to coordinate the efforts of all three agencies in locations where their priorities overlap, according to the 2016 Report on Sentinel Landscapes (PDF 5.6 mb).

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New videos talk about protecting the ecosystem with tribal treaty rights

Northwest Indian Fisheries Commission this week released two new videos, including one that shows how tribes are using their treaty rights to protect the environment on behalf of all Northwest residents.

The video was released under the commission’s new communications banner, “Northwest Treaty Tribes: Protecting Natural Resources for Everyone.”

The video describes the Lummi Nation’s success in getting the U.S. Army Corps of Engineers to reject the Gateway Pacific Terminal at Cherry Point near Bellingham. If approved, the shipping terminal could have been the transfer point for up to 59 million tons of Montana coal each year. The coal would be transported by train to Cherry Point and onto ships bound for China and other Pacific Rim countries.

The Corps of Engineers halted the permitting process last May, saying the project was too big to be considered de minimis, and it would violate the tribe’s treaty rights to take fish in the usual and accustomed area. See news release.

The video does a nice job of explaining the tribe’s position and the ecological value of fish, including a Cherry Point herring population that has declined so severely that it can no longer support the food web as it once did. Also described well are the cultural values of the Cherry Point site and longtime fishing practices.

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