Tag Archives: treaty rights

Orca health assessment, legal rights, and two upcoming presentations

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 Mechtcn” was never superseded by treaties signed between the tribe and the U.S. government, so these rights still stand, he said.

A letter from Lawrence Solomon, secretary of the Lummi Nation, outlines the tribal position.

Based on moral concerns, the tribe supports strong actions to save the Southern Resident orcas from extinction. That should involve a health assessment for the two orcas that seem to be in declining health, Kurt said. Feeding the two whales and providing medicine to help them recover could be part of the plan, he added. Whether the tribe could support capturing the whales to nurse them back to health is a controversial question that has not yet been resolved among tribal members, he said.

“How does the moral obligation define that scenario?” Kurt wondered. “It would be traumatic to take a whale away from its family. There is not a firm decision yet about that solution.”

Finding a way to feed the entire population of 75 Southern Residents could be critical to their survival, Kurt said, and it might require setting up feeding stations where the whales could come for food.

“The killer whales are sending a message,” Kurt said. “It’s now or never. We will soon know if the Salish Sea is going to remain an ecosystem that can be repaired. It’s not an issue of more science. We have to act on what we know.”

Legal rights for orcas themselves

A coalition of various groups today unveiled a declaration proclaiming the inherent rights of the Southern Resident orcas to exist. The recognition comes with some urgency, according to the group, because a new calf was recently born — the first birth in three years.

“We’d be having very different conversations if we approached recovery with the orca’s best interests in mind,” said Elizabeth M. Dunne in a news release.

“The orca shows us how our current laws are not remedying the severe decline of entire ecosystems – from the Salish Sea to the Columbia River basin and Snake River watershed,” said Dunne, who helped draft the declaration. “We must adopt a framework recognizing that ecosystems have the rights — to exist, flourish, evolve, to sustain life, and to be restored to a healthy state — if we truly want to save the orca, and ultimately ourselves, from extinction.”

Among its provisions, the Declaration of the Rights of the Southern Resident Orcas calls for the immediate creation of a stewardship board for the Salish Sea based on a rights-of-nature framework. It should include a guardian representation for the Southern Resident Orcas, according to the petition.

Movie: “The Whale” to play in Port Orchard

The true story of Luna, a young killer whale separated from his Southern Resident community, will be shown tomorrow (Thursday) at 6:30 p.m. at Dragonfly Cinema in downtown Port Orchard. Kitsap County Commissioner Charlotte Garrido invited me to be on hand after the movie to answer questions and talk about orcas.

Luna, or L-98, made his appearance suddenly in 2001 in Nootka Sound along the West Coast of Vancouver Island, where he became lonely and developed a habit of seeking out human companionship. An effort to capture the orca and return him to the Salish Sea failed amidst a conflict between the Canadian government and the local band of First Nations people.

In a move review I wrote for Water Ways in September 2011, I called “The Whale” a beautiful film for its photography and careful portrayal of characters and situations. It was not easy to balance the varying viewpoints, but I thought filmmakers Suzanne Chisholm and Michael Parfit pulled it off accurately.

I happen to know something about this story, because I was in Nootka Sound for two weeks leading up to the attempted capture of Luna and for a short time after the project was abandoned. I was the so-called “pool reporter” representing U.S. media, and I became acquainted with Mike and Suzanne.

Ways of Whales Workshop

On Saturday, the annual Ways of Whales Workshop, including speakers and presentations on a variety of marine mammal topics, will be held from 10 a.m. to 4 p.m. at Coupeville Middle School, 501 S. Main St, on Whidbey Island.

Speakers and their topics include:

  • Howard Garrett of Orca Network on Lolita/Tokitae;
  • Cindy Elliser of Pacific Mammal Research on harbor porpoise status and identification;
  • Stephanie Norman of Marine-Med and Central Puget Sound Marine Mammal Stranding Network on harbor porpoise health and diseases;
  • Sandra O’Neill of Washington Department of Fish and Wildlife on contamination in herring, salmon and orcas;
  • Amy Carey of Sound Action on nearshore habitat protection and regulatory reform; and
  • Deborah Giles on Southern Resident killer whale research.

Singer/songwriter Dana Lyons will perform his song “The Great Salish Sea.”

The event is sponsored by Orca Network. Cost for the workshop is $35, or $25 for students and seniors. Lunch is available for an additional $10. Advance registration is highly recommended because of limited seating. Visit www.orcanetwork.org, email info@orcanetwork.org or call either 360-331-3543 or 1-866-ORCANET.

A no-host social will follow at Ciao Restaurant in Coupeville for everyone attending the workshop.

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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:

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Culvert case about treaty rights could be a new landmark

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.
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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.

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