Saturday, April 6, 2013

Fish, Out of Water

Now that the spring monsoons seem to be back, it can be hard to think about problems with water supply.

Nonetheless, it seems to be on a lot of people’s minds.

For example, Federal District Court Judge Ricardo Martinez, who grew up in Whatcom County and graduated from Lynden High (according to Wikipedia, so it must be true), recently issued a decision about water. 

You may have read about the decision (United States of America v. State of Washington); you can read the actual decision here.   

In a nutshell, the court found that the depletion of salmon stocks has harmed Washington’s tribes, including the Lummi Indian Nation and the Nooksack Tribe, both of which are parties to the case.  It also found that salmon habitat has been degraded by blocked culverts, and requires the state to fix barrier culverts under transportation projects.

The case is based on language in the 1855 Treaty of Point Elliott, in which the Tribes were promised that “[t]he right of taking fish at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory.”  As the decision notes, “Governor Stevens assured the Tribes that even after they ceded huge quantities of land, they would still be able to feed themselves and their families forever.”  (U.S. v. State of Washington at 2 of 35.)

The United States, the tribes, and the State of Washington all agreed on a number of facts – pages 3- 21 of the decision.  They agree that the Tribes have continued to rely on salmon, that salmon populations have been harmed by human activities, and that more tribal members would engage in salmon fishing if there were more salmon. 

The Judge then made his own findings, based on the record.  He found that “[s]almon production is directly related to the amount and quality of habitat available.  Loss and degradation of habitat have greatly reduced salmon production”. (Page 22 of 35).  His findings of law state that “[t]he Treaties were negotiated and signed by the parties on the understanding and expectation that the salmon runs were inexhaustible and that salmon would remain in abundance forever.”  However, salmon stocks have “declined alarmingly since treaty times.  A primary cause of this decline is habitat degradation, both in breeding habitat (freshwater) and feeding habitat (freshwater and marine areas).”  (Page 32 of 35.)

Salmon need to be able to swim upstream to spawn and downstream to reach the ocean.  Culverts can be a barrier.

So can a lack of water.  

“Instream flow” requirements are supposed to make sure that there’s enough water for fish and other wildlife in the Nooksack and its tributaries.  In order to meet these requirements, some streams and lakes are closed to new water withdrawals year round, while others are closed in the summer.  If you want to see a full list of the water bodies that are closed, or have use restrictions, it’s here at WAC 173-501.  

And here’s a graphic depiction, from the 2010 WRIA 1 State of the Watershed Report (click here for the whole report, which is well worth a look).  The green areas are the parts of the watershed that are open to new surface water withdrawals year-round.  Everywhere else -- just about everywhere -- is subject to restrictions. Tapped out, you might say.


But why does this matter?  After all, it seems like “closed” watershed are pretty much imaginary, since it’s likely that over half of the farmers in Whatcom County (I’ve heard 75%) are farming without legal water rights.  And the County plans to allow housing for 50,000 more people – the equivalent of 10 Blaines – to be built in the rural area between now and 2029, and most of those new houses will be digging wells to use groundwater.  Groundwater and surface water are often interconnected systems, so what goes into wells won’t be going into surface water.

One reason that it could matter is that Treaty of Point Elliott. 

On March 21st, the Lummi Nation made a presentation to the WRIA 1 joint board.  The power point of the presentation is here.(It says that it's a presentation to the Unitarian Fellowship from 2012, but the same presentation was used in March.  Lummi Nation representatives said that they'd be happy to make the presentation to any group that asks for it.)

During the presentation, Jeremy Freimund, the Lummi Natural Resources Department’s Water Resources Manager, made three points that pretty much sum up the situation.

First, the tribes have federally reserved water rights.  In the case of the Lummi Nation, these rights include sufficient water to support the reservation as an economically viable homeland, as well as the right to sufficient instream flow to support the tribal fishery.  The priority date for water for the reserved fishing right is “time immemorial” – in other words, before any other water right in the County.

Second, this federal reserved right sets the baseline for for the availability of water.  As Mr. Freimund put it, “X is the pie, Y is the tribal section, Z is the amount of water available to the junior users, the state water rights users.”  He was referring to slide 14 of the presentation, but you get the idea even without it.

Third, “You couldn’t deal with the tribal rights without dealing with instream flow, and you can’t deal with water quantity without dealing with water quality.”

This reality is not, of course, accepted by all.

Kris Halterman, who has a web page on Tea Party Nation and a Saturday morning show on KGMI, interviewed former County Council member Marlene Dawson and Elaine Willman, from the “Citizens’ Equal Rights Allowance,” or CERA, on KGMI this morning. 

CERA is holding a conference at the Best Western today.   Its intent seems to be to rile folks up, so they’ll be very, very, very upset about tribal rights.  Upset at the tribes, angry at the government, upset with folks who suggest that maybe business as usual isn’t going to work when it comes to our use of water.

According to Ms. Willman, CERA supports tribal culture but opposes “the existence of tribal governments, per se” because they are “unnecessary and unconstitutional.”  Marlene Dawson said that “we have no permanent-type reservations in Washington state” and that the “Point Elliott treaties were for the tribes’ present use and occupancy.”  “The idea that they’re permanent – no.”

Ms. Halterman suggested that, if the Boldt decision went back to court today, “things” would happen that could “really dramatically change the course of what’s happening with our issues with water rights here in Whatcom County. . .”

Ms. Willman did let slip that “the state is not on our side,” which I would view as a significant problem.  But she urged supporters to go out and push back.

Fight against the state and federal government, fight against the tribes, fight, fight, fight.  Make believe that Whatcom County is the Tea Party’s own little fiefdom, exempt from the forces – of law and of nature – that govern anywhere else.  It all sounds so familiar.

It must be an election year. 

More on water, to continue my response to Abe and Tip:

Water, as I noted below, is a special case.  The tribes, like everybody else, are stuck in a system where our official mechanism to determine water rights is a court action.  It's archaic, it's slow, it's not optimal. But it's the system that we have.

Alternatively, why can’t we all just agree on water rights through the WRIA process? An author who studied collaborative water basin efforts around the world, focusing particularly on California's CALFED process, reached a conclusion that seems to apply to WRIA:

"Clear apportionment of water supplies is essential to effective collaborative governance, whether the participants are sovereign governments or so-called stakeholders. When all the talk of public rights and stakeholder interests is finally ended, water governance is the allocation of water to particular uses (and non-uses). If there is no legally enforceable apportionment of water to specific uses and particular users, the water resource will be inefficiently used and the river basin environment will suffer unnecessary and avoidable harm.. . .

Comprehensive river basin management is not the solution to water allocation and distribution in the United States or around the globe. It is a noble concept, generally promoted for the best of reasons, but the realities of often intense competition for an increasingly scarce resource assure that good intentions and voluntary cooperation will seldom carry the day."

Huffman, "Comprehensive River Basin Management:  The Limits of Collaborative, Stakeholder-Based, Water Governance," 49 Nat. Resources J. 117, 148 (2009).

As the author states, the problem is that "stakeholders" include parties with no legal rights to water.  If they are given the same vote as parties with legal rights, this provides a disincentive for parties with legal rights to participate in the "stakeholder" process. The author wasn't writing specifically about the tribes or the WRIA process, but the analysis does seem applicable.

Now what we're seeing is a group of "stakeholders" -- the Tea Party and some other groups -- insisting that the County provide them with the same rights as parties with legal water rights.  They probably believe that they are bolstering this approach by arguing that the tribes do not, in fact, have legal rights.

If this campaign revs up and gains support in the County, I should think that it would have the opposite effect from what the CERA/ Tea Party folks want. If the tribes are asked to negotiate in a forum that is hostile to their legal rights, it is hard to see why they would engage in a collaborative process. I don't speak for the tribes, of course, but that's the outcome suggested by the logic of the situation and experience in other areas.

During the WRIA meeting, the Lummi Nation's water resource manager observed that "Sometimes resolution is more likely when there's the framework of a lawsuit."  Bob Kelly stated that the Nooksack Tribe isn't at all interested in stopping farmers from farming.  All in all, the tribes didn't seem to be taking a belligerent stance.  Their statements simply appear to reflect the reality of the situation.

Tip, it is true that the law is not static.  The County can indeed wait and hope for a ruling that the tribes don't have water rights.  After all, despite multiple adverse legal rulings, the County still assumes that the Growth Management Act will be repealed and de-plans accordingly.

Or - the County could take a "no regrets" approach on water issues.  Even if a court found that tribal water rights don’t extend to the preservation of tribal fisheries, we would still have instream flow requirements.  We would still have tribal and non-tribal people who want to fish.  We would still have rivers and streams that will provide us with more natural functions if we leave some water within them. So, we could plan for streams that will ensure healthy salmon and shellfish, regardless of the tribal water right. 

That would be a framework that could be conducive to an effective collaborative process.  How likely is that?


  1. Jean,
    We saw this popular animus against the Lummi, during the negotiations for a new ferry arrangement. The most strident voices at the time were-then Council Member Tony Larson and perennial Council Member Barbara Brenner. "When white men demand their property rights, that's OK, but when Native Americans do the same, that's not OK", seemed to be the gist of their screed.

    By the way, this current spring rainfall is still related to winter-type Pacific fronts, bearing water vapor from the Pacific, and is not a true "monsoon". Western Washington doesn't really have a monsoon.

    A real monsoon is driven by a quasi-predictable seasonal wind shift. For example, the summer rains of New Mexico are a monsoon effect, associated with the seasonal summer shift to southeasterly flow from the Gulf of Mexico, bearing water vapor. The summer monsoon of northern India is due to a summer-season shift of the wind to southeasterly, bearing moisture from the Indian Ocean.

    Best wishes,
    Abe Jacobson

  2. Though carrying a common thread, the Lummi Island ferry issue is quite distinct from in-stream and future withdrawal water issues, or treaty rights related to usual and accustomed fishing areas.

    It was the tribe that petitioned the federal government to keep the ferry at Gooseberry Point when the County owned land and wanted to move the ferry nearer the Portage (now the Stomish Grounds). Originally, the tribe affirmed that a road from Bellingham to Lummi Island (and Orcas, as approved) would benefit the tribe. Did you know Gooseberry Point was then an island? The County was noted as having fulfilled all the requirements for the road as set forth in federal law, compensating landowners and achieving approvals. Recently, the tribe defied all to challenge and impose a tribute on this hundred year old pubic road at a crossing favored by people for millennia. By tribute, I mean an arbitrary charge, imposed with duress, and unrelated to costs or operations.

    The ferry issue is more about the federal rights of all US citizens, notably including tribal members. The Lummi were overly fixed on tribal rights during this dispute and harmed their future position by failing to acknowledge the need for mutual accommodation of all citizens with basic services, in this case the ability to go home. The principle extends also to tribal water rights, and we will again see what priority public accommodation receives in the fray. Lake Whatcom water qulity and the health of our community will be at stake.

    We do all work together, maintaining roads, water and sanitation systems, emergency services, etc., in the same way that we should all work together to maintain streams, estuaries and water quality for the health of fish populations.

    The Lummi threat to blockade Lummi Islander's access home, to work, schools and hospitals will cost them when they apply to build a harbor in the federal navigable waters they denied Islanders. Despite legal rulings, all should be aware that Congress and the President both have reserved the right to make any changes they want to the terms of the treaties and the conditions under which they administer their trust with tribes.

    Budget woes always befall tribes before, say, banks or universities. When cuts impend, tribes get cut, then libraries, then parks and last everything else. When times get tough, the likes of Marlene Dawson and Skip Richards rear their ugly heads with hateful messages to rally the weak minded against what little the poorest of our poor have left.

    I personally support tribal rights and believe First Nations must prosecute their claims. However, I feel their progress would be greater and better accepted if the concept of mutual public accommodation around basic services was more generously integrated into their campaigns.

  3. I understand that attitudes towards the tribes may be driven by a whole range of issues, but -- water is a special case, and water is the topic of this blog.

    See the rest of my response above, added to the end of the blog. And thanks for commenting.

  4. You rightly point out the significance of water issues to denizens of Whatcom county. And the several federal court rulings, starting with Boldt's, will be ignored at their peril. Every tax payer, not just those with an environmental conscience, should consider the financial consequences of continued degradation of salmon habitat.

    As to a cooperative process of resolving the issues related to water rights, or the lack thereof, the salmon themselves may be the tie that binds.

    While you state the tribes have federally reserved water rights, that right, as far as it goes for the Lummi, is limited as was recently determined by retired J. Zilly. Boldt, on the other hand, found the right "from time immemorial" was the salmon's.

    Like the members of treaty tribes, we all have an interest in the salmon; "in common" with tribal members. Not only did the treaty assure the tribes a livelihood in perpetuity, but bound us, as Martinez understands, to preserve the same for non natives as well.

    We too soon forget how valuable the salmon fishery was to immigrants arriving here. Our memories fail to remind us how many supported themselves and their families because of this great resource. And it is shameful how many ignore and deny how we allowed short sighted economic interests to squander the salmon.

    Thank you for this piece, Jean. While those blind interests would still steal the waters these noble fish rely on, for another tract of shacks in a watershed or some other equally degrading purpose, perhaps some will see that it's not a fight with the Lummi or Nooksack, but a fight for our salmon.