Government Decisions Harm Tribal Culture and Economy

By PAUL KOBERSTEIN

In 1855 the Columbia River Indian tribes began leaving their traditional fishing grounds, moving upland from Chee-wan-a, or Big Water, one of the names given for the Columbia. In treaties they had ceded much of their land to the federal government, but had reserved the right to fish for salmon at all their customary places.

Decades of mismanagement by federal agencies nearly destroyed the salmon. At times tribes fought each other over the diminishing resource. But today these tribes are united in an epic defense of their salmon, culture and economy that are being crushed by the Bonneville Power Administration, the Bush administration, the power industry, and the Columbia’s massive hydroelectric system.

Their prime tribal fishing place was Celilo Falls, 10 miles east of The Dalles. But 50 years ago on March 10, 1957, rising waters behind brand-new The Dalles Dam submerged the falls, an event that is being remembered this year in solemn ceremonies along the river's banks by the residents of Celilo Village and the Yakama, Nez Perce, Umatilla and Warm Springs tribes who had reserved treaty rights to fish there. 

Before the arrival of European settlers, Celilo produced more fish than any other aboriginal fishing site in the world, at a time when the Columbia produced more salmon than any other river in the world. Today the world's largest hydropower system entombs the falls and countless other ancient fishing sites along the river.

Some tribal members look forward to the day when their descendants can return to Celilo Falls. Others say the ghosts of the ancient fishing grounds should remain undisturbed. 

Tribal and non-tribal Coastal fishing communities from California to Alaska that rely on ocean catches of Columbia River salmon have joined the Celilo commemorations, at least in spirit, to demonstrate their own aspirations for a day when the river’s salmon will return for them as well. The decline of Columbia River salmon has already devastated many of these communities.

“Today, the tribes struggle for a very small fraction of their reserved fishing rights,” says Rob Lothrop, an attorney working at the Columbia River Inter-Tribal Fish Commission for the tribes. “The treaties — the supreme law of the land under the U.S. Constitution — promised more.”

The Huntington Fraud

The words “remember Celilo” have become an inspiration to tribal leaders and their allies who see the destruction of the Celilo Falls fishery as emblematic of a continuing series of betrayals in which the U.S. government has failed to honor its legal trust obligations to the fish, the tribes and their rights to catch fish.

In the words of the 1855 treaties, the tribes reserved the right to fish at all their “usual and accustomed fishing grounds and stations” forever, while ceding 40 million acres in the Northwest to the U.S. Government. Eventually, the government sold most of the land to white settlers, while allowing the salmon to wither, first by overfishing by non-Indians, and later by hydropower production.

The betrayals began as early as 1867, when unscrupulous federal agent J. Petit Huntington presented a fake “Treaty with the Tribes of Middle Oregon” to Congress for ratification. The agent claimed the Warm Springs Indians traded their off-reservation fishing rights for $3,500. The treaty was a fraud; the tribe did not, would not, sign such a document. The money disappeared, and with it Huntington.

The Huntington fraud not only remains law, but it was used by the Army Corps of Engineers in the early 1950s prior to the construction of The Dalles Dam. The Army, seeking support for the dam, told members of the Warm Springs Nation that the 1867 treaty disqualified them for compensation payments for the loss of Celilo Falls. Ultimately the Army decided to pay a modest sum, but not without reopening some old wounds.

Huntington clearly wasn't the last federal agent to deceive the tribes. Far from it.

A Cascadia Times investigation has found evidence that Bonneville and the Bush administration are using such tricks as deception, secrecy, gagging key government scientists, censorship of key government documents and lying to further their control of cheap power, regardless of the impact on salmon or the tribes. Their hydro operations are so perilously close to criminal under the Endangered Species Act that a federal judge has sternly warned their leaders that they risk “severe consequences” if the illegal hydro operations continue.

A mugging on the way to the courthouse

Congress created the Bonneville Power Administration in 1937 to sell power from federal dams on the river — just before the completion of Bonneville Dam in 1938. Today, the power agency has emerged as Lord of the River, selling three billion dollars worth of electricity each year, a revenue stream it claims is threatened by proposed measures to protect salmon. Despite this obvious conflict of interest, Bonneville until 2005 was allowed to make daily life-and-death decisions on behalf of migrating juvenile fish, when a federal judge stepped in.

Dams blocked salmon from reaching 55 percent of its historic range in the basin and buried almost all fishing sites in the mainstem under at least 100 feet of water. In 1910, Swan Falls Dam blocked salmon from reaching the Upper Snake. Owyhee Dam on Oregon’s Owyhee River blocked access to southeast Oregon, southern Idaho and northern Nevada in 1932. Grand Coulee in 1941 blocked access to the Upper Columbia in Canada.

If they chose to, Bonneville and the other federal agencies can reduce salmon losses by increasing flows and unleashing water over spillways, but those methods cost a great deal of money. Instead, Bonneville tries to minimize its costs by collecting salmon upstream and barging them around the dams. But barging causes deadly trauma to most of the fish, according to biologists with the U.S. Fish and Wildlife Service and other agencies who have studied the phenomenon.

Fishing and environmental groups have sued the government numerous times since 1993 over its failures to reduce salmon mortality in compliance with the Endangered Species Act. Three times, federal courts held that the government was operating the Columbia's hydropower system in violation of the Act.

Bonneville claims its operations are entirely legal, and disputes many of the court’s findings. 
Under the Endangered Species Act, NOAA Fisheries must determine whether Bonneville’s actions comply with the law, or whether they would pose a “jeopardy” to listed species. It does so through a “biological opinion.” NOAA has issued four biological opinions since 1993, each finding that Bonneville’s operation plans are legal so long as the agency adopted additional measures to help the fish. Courts have struck down three of the four biological opinions. 

As professor Michael Blumm of Northwestern School of Law in Portland sees it, Bonneville has persuaded the public into thinking it has been “making a meaningful attempt to restore salmon spawning populations, when in fact it was doing no such thing.”

In an article last year in Environmental Law, Blumm says the Bush Administration’s entire approach to Columbia Basin salmon has been “dominated by deception.” For example, when a federal judge rejected a biological opinion (BiOp) in 2003 because its provisions were not reasonably certain to be implemented, the Bush Administration seized the opportunity to completely revise the standards BiOps must satisfy under the ESA. The result produced a new BiOp in late 2004, in which the Administration attempted to reverse an earlier conclusion that Columbia Basin hydrosystem operations jeopardized listed salmon runs — “a brazen attempt to ratify the operational status quo for at least five additional years.”

Federal Judge James Redden, who threw out the last two “BiOps,” as they are called, has grown increasingly skeptical. Both Bonneville and NOAA are too willing “to risk large numbers of listed salmon, while professing to fulfill their ESA duty to avoid jeopardy” for the salmon, he says.

He says that the federal agencies “have repeatedly and collectively failed to demonstrate a willingness to do what is necessary to halt and reverse the trend towards species extinction in both the Columbia and Snake River Basin whatever the cost.”

The federal agencies, he said, “appear to be narrowly focusing their attention on what the establishment is capable of handling with minimal disruption,” instead of on the salmon’s needs.
Bonneville and NOAA argued in 2004 that the damage done by dams can be overlooked because dams are part of the natural landscape, for purposes of the Endangered Species Act. Redden found this ludicrous and ordered them to rewrite their hydro operations plans. The next version is scheduled to be out in July 2007.

He declared that without a change in direction, the hydrosystem was headed for a “train wreck.” He vowed the court would “run the river” itself if NOAA Fisheries or Bonneville didn't correct its failures, and soon. “Such a dysfunction of government is not a rational option,” Redden ruled. “There must be cooperation between the parties and all of the three branches of government to avoid such an embarrassment.”

Bonneville, eager to avoid losing its authority to run the river, has pushed back hard in an effort to shield itself from Redden's threat. Last December, it coerced tribal governments into helping reach a temporary settlement of ESA litigation, in an effort to circumvent Redden's mandate that it fix its salmon problem, at least for 2007.

Bonneville offered the tribes $5 million in 2007 for tribal habitat and hatchery projects that employ 60 tribal staff — but only if tribal leaders accepted Bonneville's terms. First, the tribes could not seek a court injunction requiring more salmon-friendly hydropower operations in 2007, no matter how deadly to salmon the operations might be; and second, they could not provide technical assistance to salmon groups who in Redden's courtroom are fighting Bonneville over its hydro operations. Reluctantly, the tribes agreed to both of these conditions.

Bonneville also asked the tribes to participate in press events intended to portray the agency's operations as friendly to salmon, said Charles Hudson, a spokesman for CRITFC. Bonneville also asked the tribes for help in “getting the plaintiffs to settle” the ESA case, Hudson said the tribes flatly rejected both of these demands.

Bonneville CEO Steve Wright “was speaking publicly about the agreement before some of the tribes had signed it, leaving a bad taste in the mouth of tribal leaders,” Hudson added.
Todd True, a lawyer for the plaintiffs, led by the National Wildlife Federation, said Bonneville “appears to have concluded that they cannot win in court by following the law. Some of the parties (in the case) are being mugged on the way to the courthouse.” 

“Bonneville was playing dirty,” says Nicole Cordan, legal director for Save Our Wild Salmon. “Bonneville doesn’t seem to like the fact that the Endangered Species Act applies to them, so they are looking for a way around the law. I don't think that is how a federal agency should behave.”

Greg Delwiche, a Bonneville vice president for environment, fish and wildlife, said in an interview with Cascadia Times that Bonneville prefers to settle the ESA litigation with a long-term agreement lasting through 2017. Without a settlement, he said, the tribal jobs will be eliminated next year.

Rob Lothrop, an attorney for CRITFC, said there is “no chance” the tribes will agree to a long-term deal under the same terms that Bonneville demanded in December 2006.

A secret draft of Bonneville’s new proposal is leaked

Meanwhile, Bonneville and NOAA must present a new plan for protecting the salmon. The current deadline is July, but the plan has already been delayed by a year. 

Draft versions of Bonneville’s proposal, marked “not for outside distribution,” have been leaked beyond the inner circle of government agencies that are reviewing it. 

Cascadia Times reviewed a draft dated Dec. 20, which shows that Bonneville is prepared to make just a few minor tweaks in the hydropower system, but nothing remotely close to the “complete overhaul” Federal Judge Malcolm March observed in 1995 is needed. It claims that endangered runs will improve by small amounts. Leading scientists with the U.S. Fish and Wildlife Service and other fishery agencies say the Snake River runs, at least, need to double their rate of survival to give them a fighting chance of recovery. The proposed plan comes nowhere close to that.

“It's not even as good as the status quo,” said one source, who could not comment on the record because of the document's sensitive nature.

The “behind closed doors” nature of Bonneville’s process for developing the plan appears to conflict with Judge Redden’s instructions in his 2005 order.

“The many failures in the past have taught us that the preparation or revision of NOAA's biological opinion on remand must not be a secret process with a disastrous surprise ending,” he wrote.

Of course, Bonneville could simply comply with the judge's wishes, but many of its utility customers have clamored for electric rate relief and have grown increasingly critical of Bonneville’s salmon costs. They also contend that the salmon runs are in relatively good health.

One group, the Northwest River Partners, representing utilities, farmers and business, claims on its web site that “there are more fish in the Columbia River than at any time since the first dam was built at Bonneville in 1938.”

In fact, as the chart at left shows, the total number of salmon crossing Bonneville Dam has declined by 50 percent since 2001, and each year saw fewer fish than the year before.

Northwest River Partners also says that salmon survival is “higher today than it was before the Snake River dams were built.”

That statement contradicts studies by the U.S. Fish and Wildlife Service showing that the survival rate today for Snake River wild spring and summer Chinook, from smolt to adult, is about 1 percent. Before the dams were built, scientists say, the smolt-to-adult survival rate ranged from 2 to 6 percent.

$10 billion for ... what?

The Yakama Indian Nation says hydro operations on the Columbia have killed 340 to 750 million salmon over the decades, and continue to kill them today. The damages could exceed one trillion dollars, says Yakama consultant Ed Sheets. 

In contrast, Bonneville claims its failed efforts to protect the salmon have cost nearly $10 billion since 1978. 

That $10 billion includes funds Bonneville claims it loses in power sales when it must comply with environmental laws such as the Endangered Species Act, the Northwest Power Act and the Clean Water Act. 

“I am not aware of any business or government agencies that calculate the revenues or profits they could have made if they had violated federal laws, regulations or court orders,” Sheets says.

Curiously, the sum includes a $1 billion charge for salmon recovery efforts in 2001, a year when Bonneville found itself in an energy crisis mostly of its own making. That year, Bonneville did almost nothing for fish.

Michael Blumm, a law professor, says the expenditures “are quite misleading, since so much money has been spent on ineffective hatchery and artificial transportation programs that both mask the hydropower system’s operational insensitivity to salmon migration and deceive the public into believing that there exists a functional plan to protect, let alone restore, the salmon runs.”

Bonneville could not legally collect the money it considers “foregone.” To do so, it would have to operate the dams in such an illegal fashion that executives at the Bonneville headquarters in Portland could face criminal prosecution under the ESA.
Said Redden: The federal agencies “and other water users in the Columbia and Snake River Basins could be exposed to liability for taking listed species under Section 9 of the ESA. Given the precarious condition of the Snake River salmon and steelhead runs, the consequences of another failed biological opinion will be serious indeed.” 

A failure now will result in vacating the biological opinion, Redden says.
Section 9, the “Take Provision,” of the ESA, makes it unlawful for any person to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a listed species. Each knowing violation of the Take Provision can result in civil penalties of up to $25,000, criminal penalties of up to $50,000, and imprisonment for up to one year.

Surely, officials at the Bonneville Power Administration and elsewhere are aware of the value of foregone jail time

Enter the God Squad

Bonneville, with encouragement from utility groups, appears to be so determined to continue with the status quo that it is willing to play a game of “chicken” with the judge. It apparently wants to see if Redden will actually follow through with his threat to run the river or impose sanctions.

But if the judge doesn’t back down, the Bush administration might have in mind another route around the judge's courtroom. It could invoke the “God Squad” provision of the ESA that allows a special committee to give an exemption to the law if it poses a significant economic hardship. The God Squad has convened only three times — for the snail darter in Tennessee, the northern spotted owl in the Northwest and the whooping crane on the plains.

It is conceivable that the God Squad could allow the salmon's extinction. The ESA is a powerful law, but the Indian treaties are equal to the Constitution, the highest law in the land. And the God Squad cannot overturn a federal treaty. 

In defending their fishing rights, the tribes turn to the Columbia River Inter-Tribal Fish Commission, which advises them on legal and technical issues. CRITFC, as it is known, believes that “the fishing right means more than the right of Indians to hang a net in an empty river.”

CRITFC’s roots go back decades, to the days when Celilo Falls was still thriving. The fishery was managed by the Celilo Fish Committee, which protected the runs by making sure everyone shared the harvest and conserved the resource for future generations. 

Today, CRITFC is challenging the Bonneville Power Administration at nearly every turn. It has been fighting Bonneville's efforts to reduce power rates and to cut back spending on salmon recovery projects. It claims that Bonneville will fail to fulfill its duty to restore the runs until the end of this century — possibly long after the salmon are already extinct.

Based on Bonneville's assumptions, it would take 22 years to implement the production measures in subbasin plans developed by federal, state, and tribal fish managers, and more than 40 years to implement measures designed to restore habitat. But under more realistic assumptions, CRITFC's Lothrop says it would take more than 80 years to implement the habitat measures, and the production actions would never happen.

Under CRITFC's plan, salmon spending would rise from the current $143 million per year to $240 million. Bonneville plans to spend just $143 million for each of the next three years.

The plan relies heavily on Bonneville to mitigate for the historic and continuing loss of fish at dams by taking on recovery projects throughout the basin, not just at the dams. The tribes are calling on Bonneville to:

• Protect more than 48,000 acres of habitat;
• Improve more than 1,300 miles of streams;
• Construct 1,600 miles of fence;
• Enhance 75,000 acres of habitat;
• Correct passage problems at more than 1,200 diversions and culverts; and
• Make additions or major enhancements to fish production facilities in 11 subbasins.
More than $100 million of new, scientifically supported projects have been deferred this year due to lack of Bonneville funding. The tribes say this raises questions about whether needed actions are reasonably certain to occur.

Bonneville currently maintains a $1 billion surplus, is paying new subsidies of $177 million to multinational aluminum corporations through 2009, and is selling wholesale power at about 53 percent below the open market price. Bonneville cut wholesale power rates by 1 percent in 2006 and another 3 percent starting in 2007.

The Northwest Power Act of 1980 called for the creation of a regional program to protect, mitigate, and enhance fish and wildlife to the extent affected by the development and operation of any hydroelectric project of the Columbia River. Bonneville must act in a manner consistent with that plan. The program was to be built around recommendations from federal and state fish and wildlife agencies and from the tribes. “The Northwest Power Act finally gave the tribes a seat at the table,” says John Platt, CRITFC's policy advisor.

But Bonneville has a long history of resisting the fish and wildlife program. It claims that it has no responsibility to pay for the damage caused by hydro projects other than the ones it operates. The tribes have “misconstrued” Bonneville’s responsibility for fixing problems caused by the dams, said Greg Delwiche, a Bonneville vice president for environment, fish and wildlife, in a letter to the Yakama Nation.

“Desires for fish and wildlife project funding in the Columbia River basin will probably always be greater than the financial resources available to meet them. BPA cannot and will not attempt to meet all those needs whether identified in subbasin or recovery plans or other such plans,” Delwiche wrote.

The Power Act created the regional Northwest Power and Conservation Council to oversee the program. The Council set a goal of restoring 5 million fish to the basin by 2025 — a goal Delwiche says Bonneville cannot meet. “BPA funding at any level will not result in 5 million returning adults,” he says.

Delwiche says Bonneville is aware that “the trend line for salmon populations for the last 150 years is steeply downward and offers little hope of improvement given the multiples causes of decline.”

But the tribes contend Bonneville is legally required to do much more than it has or is planning to do.

For example, in the last 10 years, Bonneville and other federal agencies have violated river flow targets set by NOAA 53 percent of the time. It resisted spilling water as a means to move fish through the dams until Judge Redden ordered it to do so in 2004, 2005 and 2006 (in 2005 spill improved survival for Snake River fall Chinook by 64 percent.)

“Delwiche is being deceptive,” the tribes’ Lothrop says. “He says other federal agencies need to step up. But he’s no dummy. He knows other agencies are not going to get new chunks of federal money.”

“These efforts are especially important to us,” the Yakama tribe said in a statement. “For at least the past four decades, the Columbia Basin Treaty tribes have voluntarily imposed severe restrictions on their treaty-reserved fisheries to assist in rebuilding wild populations of salmon and steelhead.

“This action was taken based on the expectation that other relevant parties would also take actions to share the burden of wild stock conservation. The tribes are still waiting for these actions, particularly in the area of habitat protection and improvement.” 

Congress held high expectations that the Northwest Power Act would resolve the longstanding salmon crisis in the Columbia.

“The fish and wildlife provisions will assure that in the power-planning decisions, fish and wildlife concerns are adequately met,” Rep. John Dingell, of Michigan, chair of the House Energy and Power subcommittee, said at the time. “Fish and wildlife, for the first time in this region, will be treated on a par with power and other purposes.”

That was 27 years ago. Dingell promised he would hold oversight hearings on the Act, to see how it’s working. With Democrats now in control of Congress, he finally has the chance make them happen.

Paul Koberstein