The ongoing shutdown of the federal government has kept federal
marine mammal biologists and administrators from paying close
attention to the critically endangered Southern Resident killer
whales. The folks I know at NOAA’s Northwest Fisheries Science
Center must be going crazy over their inability to do their jobs,
which have always been central to the survival of our beloved
orcas.
To take a breath sample, mist
from an orca’s blow is collected at the end of a long pole then
tested for pathogens. // Photo: Pete
Schroeder
But now a coalition of non-government orca experts plans to step
in to at least conduct an initial health assessment of two orcas
showing signs of “peanut head,” an indicator of malnutrition that
frequently leads to death. Initial plans for taking minimally
invasive fecal and breath samples were developed during a meeting
of the minds on a conference call yesterday. Further efforts, such
as medical treatment, would need special authorization from federal
officials.
I won’t go into further details here, since you can read the
story published this morning by the
Puget Sound Institute.
Treaty rights related to orcas
After all my years of covering killer whale issues, it is
interesting to see the emergence of the Lummi Nation as a major
participant in the orca discussions. Kurt Russo, senior policy
analyst for the Lummi Sovereignty and Treaty Protection Office,
told me that tribal members have a spiritual connection with the
orcas that goes back thousands of years. The inherent right to
commune with the “blackfish” or “qwe i/to! Mechtcn” was never
superseded by treaties signed between the tribe and the U.S.
government, so these rights still stand, he said.
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.”
UPDATE, Oct, 25
Former Washington Department of Fish and Wildlife director Jeff
Koenings testified in the federal culvert trial on Friday. See AP
reporter Tim Klass’s
story in the Kitsap Sun. Koenings told the court that diverting
state dollars for culvert repair and replacement could harm salmon
if it means less money for higher-priority salmon-restoration
projects.
—————
I was beginning to wonder if I was the only environmental
reporter who recognized the significance of a lawsuit involving
Indian treaty rights and state culverts. I wrote about the case for
the
Kitsap Sun in March, after it appeared negotiations had broken
down.
The outcome of the case could well determine how much power the
courts hold over state budgets when it comes to the enforcement of
Indian treaty rights.
After all, from the tribes’ perspective, the state has been
dragging its feet in restoring salmon habitat — including the
replacement of culverts that block the passage of salmon. On the
other hand, the courts could force the state to spend money that it
doesn’t have, or else shift dollars from education, social
programs, law enforcement, even other environmental initiatives.
That is why I think this is such an important precedent-setting
case.
The issue is now in trial, having started in U.S. District Court
last week. Reporter Craig Welch does a nice job of putting the
issue into historical perspective in
today’s Seattle Times.
I was on vacation when the trial started, so we referred the
story to the Associated Press. AP reporter Tim Klass has done a
good job of following the trial. See his first story in the
Oct 13 Kitsap Sun and a
follow-up in today’s paper.
If I hear the tribal attorneys correctly, they are looking to
fix the major blocking culverts under state jurisdiction within 20
years, rather than the 50-60 years under the state’s current
schedule.
If this case succeeds, the next logical step would be to go
after counties — which may have hundreds of culverts that need
attention. Other habitat issues also would be on the table. Anybody
want the courts to set stream and shoreline buffers?
I suppose we’ll have plenty of time to talk about the
implications once the decision is handed down. And there will be
appeals, of course. No matter the final outcome, this case will
have repercussions for decades to come.
