The treaty promises of the United States to protect the aboriginal right of our tribes to take fish at all of our usual and accustomed fishing places precedes all other laws affecting the Columbia Basin and were not diminished by those laws. The laws regarding operations that may affect treaty fisheries are subject to the treaties and need to be read consistent with them.

The decline of many Columbia Basin anadromous populations has been observed for over a century. Departing from the policies that produced the Mitchell Act and the Lower Snake River Compensation Plan (LSRCP), the last twenty years produced the U.S. v. Oregon Columbia River Fish Management Plan (CRFMP), the Northwest Power Planning Council's (NPPC) Fish and Wildlife Program (FWP), and mid-Columbia orders under the Federal Energy Regulatory Commission (FERC); plans for in-place, in-kind rebuilding and restoration using habitat and propagation techniques to increase naturally spawning populations.

Our tribes first proposed a realistic, authoritative program for recovery of damaged upriver salmon in 1982. In the instances where our proposals were implemented, the tribes demonstrated that recovery is possible when the uses of the river are balanced to increase survival at all salmon life stages, not just at the time when fish pass our fishermen. In other instances, new institutions lacked the authority to overcome the imbalance of a century of development built on the backs of upriver anadromous fish.

In 1986, our biologists estimated our cumulative salmon losses due to hydropower development at 140 to 340 million fish, and the taking continues. By this proposal, the tribes are not asking for repayment of this debt in dollars. We are simply asking that the region utilize our know-ledge and modify regional institutions to support our methods for restoring our fish and fisheries so the debt stops mounting.

Since time immemorial the Columbia River and its tributaries were viewed by the Columbia River Basin tribes as "a great table where all the Indians came to partake." The tribal peoples' sustainable culture and the natural resources upon which it depended--including, but not limited to, land, water, natural foods and medicines--were reserved by the tribes when they signed treaties with the United States. The fisheries resources of the Columbia River, including all salmon stocks, are part of the tribes' treaty protected fisheries. The treaties, though challenged often, have been affirmed repeatedly as legally binding documents by numerous court decisions.

The right of the tribes to govern their members, and manage their territories and resources flows from tribal sovereignty as recognized by treaty. In general, tribal governmental powers are described as "inherent powers of a limited sovereignty which has never been extinguished." The tribes' status as one of three sovereigns is recognized in the Constitution and has been upheld by the courts since the early years of the Republic. Treaties made with Indian tribes, indeed the fact that treaties were made at all, reflect the federal government's recognition of tribal sovereignty.

The fishing right means more than the right of Indians to hang a net in an empty river. However, Columbia River runs of sockeye, coho, and spring, summer, and fall chinook have declined drastically since the mid-1800's. Where once the Columbia produced annual runs of at least 10-16 million salmon, its runs are now diminished to approximately 600,000. In negotiating the treaties, the tribes did not envision nor sanction the U.S. government using or allowing the use of the resource common to each sovereign in a manner that would diminish its availability to the other. The devastation of fish runs is inimical to Indian treaties and the United State's trust responsibilities to the tribes.

In 1855, representatives of the United States government negotiated separate treaties with the tribes and bands that now compose the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes and Bands of the Yakama Indian Nation, and the Nez Perce Tribe. Retaining the right to continue traditional fishing practices was a primary objective of the Columbia River tribes during treaty negotiations. In addition to reserving hunting, pasturing, and gathering rights, each treaty contained a substantially identical provision reserving to the tribes the right to take "fish at all usual and accustomed places in common with citizens of the United States." The fishing clause is the heart of the Columbia River tribes' treaties. The Columbia River tribes each reserved the right to take fish: (l) within their respective reservations, (2) at all usual and accustomed fishing sites on lands ceded to the United States government, and (3) at all usual and accustomed fishing sites outside the reservation or ceded areas.

The right to take fish is integral to the Columbia River tribes' subsistence, culture, religion and economy. The Supreme Court recognized the importance of fish to the tribes early in the development of treaty interpretation:

In the 90 years since the Court's opinion in United States v. Winans, the treaty fishing clause has been the subject of no fewer than six additional written opinions by the United States Supreme Court. All of the Court's decisions have upheld the basic rights of the treaty tribes to take fish at all usual and accustomed fishing places. In addition, the fishing clause has been the subject of dozens and dozens of federal district court and court of appeals opinions. The federal court opinions have confirmed that the tribes are entitled to 50% of the harvestable number of fish destined to pass usual and accustomed fishing places. In their interpretations of the treaties, the federal courts have established a large body of case law setting forth certain fundamental principles.

In accordance with these established principles, also known as the conservation standards, for government regulation of fishing rights to be permissible, it must be demonstrated that the regulation is "a reasonable and necessary conservation measure ... and that its application to the Indians is necessary in the interests of conservation." The regulation must not discriminate against Indians exercising treaty rights, either on its face or as applied. And, all measures must be taken to restrict non-Indian activities before treaty rights may be regulated.

Conservation in the context of fisheries management often includes "wise use" considerations. However, in the context of regulation of treaty Indian fishing rights, conservation is a term of art whose meaning is limited to maintenance of a reasonable margin of safety against extinction.

Although the tribes' rights to take fish and regulate the fishery resource have been clearly upheld in numerous courts, these rights are meaningless if there are no fish to be taken or resources to be managed. As described in Section 3, fish runs passing through usual and accustomed fishing places have been severely diminished by environmental degradation. In the most general terms, this degradation has profoundly impacted the quality and quantity of the waters that sustain the fish.

In the realm of treaty fishing rights, the tribes, states, and federal government share the responsibility to protect and enhance fish habitat as co-tenants.

To protect fish habitat and tribal fisheries, courts have grounded their decisions on reserved water rights and treaty fishing rights in situations where certain uses of water impact fish habitat. In 1985, for instance, the Ninth Circuit affirmed a federal district court order which required that water be released from a dam in the Yakima system to protect 60 spring chinook salmon redds from destruction.

In addition to the concept of a co-tenancy regarding the fishery resource, the United States stands in a trust or fiduciary relationship to Indian tribes. The trust relationship is a legal doctrine which embodies the many political promises made by the federal government to Indian tribes. The trust doctrine governs all aspects of federal government actions that affects Indian tribes. Because the federal government and its agencies are subject to the United States' fiduciary responsibilities to tribes, all federal actions and the implementation of federal statutory schemes affecting Indian people, land or resources must be "judged by the most exacting fiduciary standards." Because the trust doctrine permeates every aspect of the federal government's relations with Indian tribes, the United States' trust obligations extend to all federal agencies that manage fisheries, water projects, hydroelectric projects, and federal lands. Thus, the federal government and its implementing agencies owe a duty to not only recognize the impacts of their activities on the tribes, but also a duty to safeguard natural resources which are of crucial importance to tribal self-government and prosperity. In addition, the trust responsibility imposes an affirmative duty upon a federal agency to use its particular expertise, in meaningful consultation with the tribes, to protect tribal resources. As discussed later with regard to U.S. v. Oregon and the other major institutional structures affecting Columbia basin anadromous fish, procedures exist that provide such meaningful consultation.

For the last thirty years, treaty fishing rights cases and the federal trust responsibility toward Indian tribes have been major factors in the evolution of institutional structures for the management and protection of Columbia Basin salmon fisheries. From a tribal perspective, the development of management institutions in the basin reflects and must continue to reflect the implementation of treaty promises through the development of joint or co-management strategies by the tribes, the states and the federal government.

During the past twenty years, the region has established institutions to manage restoration of anadromous fish in the Columbia Basin in addition to structures used for managing fisheries. Using the authorities of their participating governments, these structures are intended to focus personnel and resources on the tasks of restoration in an efficient and effective manner. Restoration of Columbia Basin anadromous fish requires procedures that are authoritative, efficient, goal-oriented, and can effectively resolve disputes. Where existing processes meet these standards, their most useful aspects should be retained. Where they fail, they should be modified, replaced, or eliminated.

The tribal recommendations for institutional change reflect the need to manage activities affecting anadromous fish in a manner that implements restoration and recovery through adaptive management, or "learning by doing." This document proposes a series of hypotheses that are designed to lessen human-caused mortality at all stages of the life cycle of the species in question. The institutional recommendations are aimed at managing the implementation of the hypotheses, evaluating outcomes and modifying the hypotheses to reflect knowledge obtained. In general, these recommendations utilize existing structures but modify them to provide increased accountability for the parties with direct responsibilities for increasing survival and meaningful participation for the tribes whose very existence is dependent upon restoration and recovery.

There are currently five major institutional structures governing anadromous fish restoration in the upper Columbia Basin. They include: the Columbia River Fish Management Plan under the jurisdiction of the Federal District Court of Oregon (CRFMP); the Pacific Salmon Treaty; the FWP adopted under the authority of the Pacific Northwest Power Planning and Conservation Act of 1980 (Northwest Power Act); the orders of the Federal Energy Regulatory Commission (FERC), and the processes authorized under the Endangered Species Act. Each of these structures addresses important aspects of the life cycle of upriver anadromous fish and each, to varying degrees, coordinates recovery efforts among necessary parties and authorities and provides an authoritative planning process, appropriate goals and objectives, and dispute resolution for restoring Columbia Basin anadromous fish. The first four programs, however, are based upon the concept of co-management recognizing, especially, the unique authorities and functions of the federal, state, and tribal governments in managing salmon resources. Implementation of the ESA, how-ever, centralizes authority for recovery in one federal fishery agency that has demonstrated neither the capacity nor the intent to rebuild upriver salmon runs.
 

In 1977, after eight years of litigation, the federal district court in U.S. v. Oregon approved a five-year management and allocation agreement regarding upper Columbia fish runs. That first management plan established an in-river harvest sharing formula and included an agreement by the parties (the United States, Oregon, Washington and the Warm Springs, Yakama, Nez Perce, and Umatilla tribes) that they would "diligently pursue and promote through cooperative efforts upriver maintenance and enhancement of fish habitat and hatchery rearing programs...." The plan also established a technical advisory committee to develop and analyze biological information. However, the plan relied upon the federal district court as its sole means of policy dispute resolution.

In 1982, two of the tribes gave notice of their intent to withdraw from the original plan based upon the lack of a connection between plan objectives and ocean fishing regulations, and the vague objectives of the plan regarding enhancement. The court then ordered the parties to attempt to agree upon a modified agreement. Negotiations among the parties continued from 1983 until 1988. During that period, the court allowed both the State of Idaho and the Shoshone-Bannock tribes to intervene. In October 1988, the federal district court approved the Columbia River Fish Management Plan (CRFMP).

The CRFMP is an agreement among the tribal, state, and federal parties with jurisdiction over Pacific salmon originating in the Columbia Basin that provides procedures whereby the parties co-manage anadromous fish harvest, production and habitat. The CRFMP is similar to the 1977 Plan by its inclusion of inriver runsize allocations but the resemblance ends there. At the core of the CRFMP is the goal "to rebuild weak runs to full productivity and fairly share the harvest of upper river runs." The preamble continues:

Dispute resolution is a key element of the CRFMP. The parties to the CRFMP, in light of their experience with U.S. v. Oregon, recognize the need for expeditious judicial review but also realized that an opportunity to review positions and supporting data is required for successful resolution. In this regard, the parties established a technical advisory committee to make technical recommendations regarding harvest and a production advisory committee to review artificial and natural production programs and make recommendations to the management entities. The CRFMP further provides procedures whereby these technical committees are to deliberate with assistance from the court's technical advisor and submit consensus recommendations or a "consensus description of unresolved technical issues."

Under the CRFMP, a Policy Committee composed of representatives of the parties was established to "facilitate cooperative action by the Parties with regard to fishing regulations, policy disputes, coordination of the management of fisheries on Columbia River runs and production and harvest measures." Detailed dispute resolution rules are provided for the technical committees and the Policy Committee concerning notice, additional issues, confidentiality of proceedings, and judicial action. In the harvest area, dispute resolution processes evolved from the initiation of the 1977 Plan and now take place on a scheduled basis that provides systematic consideration. On the production side, dispute resolution has focused on specific disputes concerning the use of hatchery-bred fish to increase natural production rather than on production policy objectives, a key requirement to effective case-by-case dispute resolution.

In contrast to the 1977 Plan, the CRFMP also addressed the linkage between ocean harvest and inriver fisheries by setting a schedule for determining ocean harvest allocations. This effort linked with the operations of the Pacific Salmon Treaty considered below. The major limitation of the CRFMP, however, was that the federal parties to the plans were limited to the Bureau of Indian Affairs, the US Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration, agencies without the authority to regulate use of public lands or water projects.
 

The U.S. - Canada Pacific Salmon Treaty, which established the Pacific Salmon Commission, was adopted in 1985. It provides for the conservation and equitable allocation of north Pacific salmon stocks originating from Canada and the United States. The treaty was preceded by fourteen years of negotiations; its signing was finally caused by the drastic decline of chinook stocks in Southeast Alaska, Canada and the Pacific Northwest in the early 1980s. The treaty's chinook rebuilding program, with a goal of rebuilding naturally spawning chinook stocks coastwide by 1998, is a cornerstone of the treaty and serves as a base for management actions in other salmon fisheries.

The Pacific Salmon Commission, in carrying out the parties' obligations under the treaty, is guided by two principles: conservation and equity, which are described by the treaty as follows:

The Pacific Salmon Commission itself is composed of a Canadian Section and a United States Section of four members each. Each section has one vote and a decision may only be made with the approval of both sections. Within the United States Section there are three votes that must be cast on a consensus basis before the U.S. may agree to a recommendation of the Commission.

With regard to chinook salmon, the treaty included specific annex language to halt the decline in spawning escapements in depressed chinook salmon stocks and, by 1998, to attain escapement goals to restore production of naturally spawning chinook stocks based on a 1984 rebuilding program. This was designed to be a dual track approach: first, implementing harvest restrictions for immediate reductions in impacts on depressed stocks; and, second--and perhaps more importantly--addressing habitat and production problems that were critically limiting the productive capability of naturally spawning stocks.

Unfortunately, the region and the federal agencies are still struggling to meet this second commitment. Stock abundances continue to decline, hastened by recent poor ocean survival conditions, forcing fishery managers to further restrict ocean and terminal fisheries. These restrictions cause further economic disruption and dislocation for communities and businesses dependent upon healthy fisheries.

Under the Pacific Salmon Commission, the Parties are developing abundance-based approaches for harvest management with the goal of addressing conservation concerns during periods of poor survival while meeting domestic and international equity objectives as well. In addition, the Commissioners acknowledge that harvest management will become only more contentious as more stocks collapse along the coast, unless habitat and production problems are addressed by management agencies in both countries.
 

Prior to 1980, with the passage of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act) and its mandate to "protect, mitigate and enhance," the prevailing notion of mitigation in the Columbia Basin was to make the habitat safe for development by moving fish production to federal hatcheries in the lower river as mitigation for hydro, timber, mining and irrigation development in the watersheds of the upper Columbia. Federal statutes such as the Federal Power Act and the Fish and Wildlife Coordination Act of 1934 were designed to provide mitigation for the damage caused by water and other federal projects but not necessarily in the place where the damage occurred or for the same species that were damaged.

Mitigation for federal mainstem dams is illustrative. The Mitchell Act was passed in 1938 as companion legislation to the Bonneville Project Act of 1937 to mitigate for fishery damage caused by Bonneville and Grand Coulee Dams as well as other federal water projects. The Mitchell Act was implemented by state and federal agencies through development of hatchery programs that resulted in taking upper Columbia and Snake River salmon as broodstock for downriver hatcheries. Less than 5% of Mitchell Act production is now released above The Dalles Dam. Placement of Mitchell Act facilities resulted in mixed-stock fisheries that focused on the abundance of lower river hatchery production rather than the protection of the naturally-spawning stocks of the upper river that were being diminished by the combined effects of water withdrawals, land management activities, and hydroelectric projects.

To address the impacts of the four federal hydro projects on the Lower Snake River, Congress included the Lower Snake River Compensation Plan in the Water Resources Act of 1976. This series of hatchery programs, though located in the general area of damage caused by the Lower Snake dams, failed to mitigate for Snake River coho, sockeye or fall chinook in Idaho. Snake River coho were extirpated from the Snake during the late 1980's while Snake River sockeye and fall chinook are listed under the ESA.

Since the 1968 passage of the National Environmental Policy Act with its provision for environmental impact statements, federal conservation statutes have shifted from earlier policies of off-site mitigation for damage to fisheries to protecting fish and wildlife in their habitats. The Endangered Species Act and the National Forest Management Act, among others defined a new federal policy that shifted from the mitigation/ substitution concept to a habitat-based policy.

The Northwest Power Act is an example. In this legislation, Congress incorporated the notion of protecting anadromous fish in their habitat by providing for a "program to protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries".

The Act required the NPPC to adopt a fish and wildlife program that would deal with the Columbia Basin as a system and that would rely upon the recommendations of the region's State fish and wildlife agencies and appropriate Indian tribes. The Act also specified that the Bonne-ville Power Administrator was to use the funds and authorities of BPA 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 and its tributaries. ...

The 1982 and 1987 FWPs adopted by the NPPC consisted of measures required to be funded by the Bonneville Power Administration and established the foundation for carrying out congressional intent.

Throughout implementation of the program, BPA funding processes were a cause for concern. As early as 1983, the tribes and NMFS found it necessary to intervene as parties to the BPA wholesale power rate adjustment proceedings (rate case) in order to assure adequate funding to implement high priority projects in the 1982 FWP. Though the Administrator denied the rate adjustments sought by the tribes and NMFS, Congress subsequently directed BPA to implement the high priority projects in the BPA appropriation bill.

During the rate case and in the following year, BPA was reluctant to fund projects adopted by the NPPC until a programmatic assessment of BPA's mitigation obligations was carried out. Completed in 1986, the NPPC's assessment found that development and operation of the hydroelectric system accounted for annual losses of 5-11 million salmon from pre-development run sizes of 10-16 million salmon.

The NPPC's losses assessment was incorporated into the 1987 FWP and the NPPC adopted an interim goal of doubling adult salmon run sizes, with emphasis on protecting genetic diversity, monitoring and evaluation, and the restoration of salmon runs above Bonneville Dam that were impacted by the dams. The program was to be implemented by using adaptive management methods whereby carefully designed projects would improve knowledge of restoration techniques. The 1987 FWP called for an extensive subbasin planning effort carried out by the agencies and tribes that would assess the opportunities for rebuilding. In concert with the production policies and process of the CRFMP under U.S. v. Oregon, and the rebuilding goals of the Pacific Salmon Treaty, the 1987 program included elements of the first major workplan for Columbia basin salmon rebuilding. However, pending completion of the subbasin plans, the NPPC agreed to only support limited priority habitat and production measures.

Over a period of three years, the agencies and tribes met with subbasin stakeholders and fashioned plans designed to rebuild salmon runs consistent with the NPPC's doubling goal opportunities.

By 1991, when the completed plans were submitted to the NPPC, the prospect of ESA listings of Snake River chinook and sockeye populations diverted its attention. Instead of completing the subbasin planning process that addressed salmon needs in thirty-one subbasins and was an integral part of the CRFMP, the NPPC attempted to guide, if not foreclose, application of the ESA. However, in its 1994 amendments to the FWP, the Council revisited subbasin planning and included measures designed to encourage watershed approaches to salmon restoration and the updating of subbasin plans.

The BPA, in response to the listings, also de-emphasized the rebuilding goal and directed its budget priorities in the direction of ESA recovery activities.

Since the adoption of the first Fish and Wildlife Program in 1982, BPA Fish & Wildlife Division management of implementation has proven highly problematical. As stated in a recent report of the BPA Task Force, House Committee on Natural Resources:

The agency and tribal members of the Columbia Basin Fish and Wildlife Authority (CBFWA), beginning in 1989, initiated a process for prioritizing FWP expenditures. However, BPA ignored CBFWA priorities. Permitting the agencies and tribes to determine priorities and methods for FWP implementation is not only a means for greater accountability, it is also consistent with the Regional Act which states in §4(h)(1)(C)(iv)(1) that measures in the program shall:

The Federal Energy Regulatory Commission (FERC), under the authority of the Federal Power Act, licenses non-federal dams on navigable waterways. In 1985, Congress passed amendments to the Federal Power Act that mandated greater consideration of fish and wildlife in licensing proceedings. By these amendments, FERC must give equal consideration in licensing proceedings to "the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality." FERC is further required to make its determination upon whether the project will be best adapted to a comprehensive plan for improving a waterway, for the improvement of water-power development, "for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, ..." FERC is required to consider the recommendations of Federal and State agencies "and the recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project." In addition, FERC is required to adopt conditions for fish and wildlife recommended by state and federal agencies received pursuant to the Fish and Wildlife Coordination Act, and to prepare findings as to why the recommendations were rejected based upon inconsistency with applicable law.

Five mainstem dams, owned and operated by public utilities traverse the mid-Columbia in the state of Washington. On the Snake River, the Idaho Power Company owns the Hells Canyon Project which consists of three dams: the Brownlee, Oxbow and Hells Canyon developments. The licenses for these projects include "reopener" clauses permitting FERC to require "reasonable modifications" of project structures and operations in the interest of fish and wildlife resources. Article 39 of the Wanapum and Priest Rapids license, for instance, provides that:

The substance of the Wells Agreement addresses the elements of adult and juvenile fish passage including flows, spills, bypass, and operational requirements. The Agreement also includes a detailed hatchery-based compensation program composed of adult collection sites; a central hatchery facility for incubation, early rearing, and adult holding; and acclimation facilities in the tributaries above Wells Dam for final rearing and release. This production program includes funding for studies relating to the potential for establishing new sockeye populations in the Okanogan and Similkameen systems in a manner consistent with the NPPC's FWP.

During the next twenty years, each of the PUD dams on the mid-Columbia, except Rock Island, and the Idaho Power Company projects on the Snake will be subject to relicensing. In light of the mid-Columbia proceedings and the 1985 amendments to the Federal Power Act, non-federal dam licensing has clearly evolved into an authoritative process with dispute resolution and clearly defined responsibilities for the protection of anadromous fish. It remains to be seen whether the FERC processes will be integrated with the other major institutional structures to facilitate recovery.

The Endangered Species Act

With regard to Snake River chinook and sockeye, it would seem that the purposes of the ESA and the tribes' treaties could be read consistently with one another and with the laws of nature. But application of the ESA to treaty fisheries demonstrates otherwise.

The purpose of the Endangered Species Act is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such species, and to take such steps as may be appropriate to achieve the purposes of various international treaties and conventions.

The ESA is a process for listing, protection, and recovery of certain species, subspecies, and distinct populations. In 1991, NMFS listed Snake River sockeye and chinook under the ESA. Unfortunately, administration of the ESA by the federal government has impeded the protection and rebuilding of treaty fish resources by shifting regional priorities away from basin-wide rebuilding and restoration, by limiting necessary recovery actions and by failing to proscribe certain harmful activities. Federal implementation under the leadership of NMFS has been inconsistent with the major structures that were developed by the region during the last twenty years to guide Columbia Basin anadromous fish management.

The Listings

NMFS decision to list Snake River salmon populations hinges on its application of the ESA's provisions defining "species," which allows the listing of species, subspecies, and distinct population segments. Snake River chinook and sockeye are neither species nor subspecies, they are, according to the listing, "distinct population segments" (DPS). Under the NMFS Interim Policy, NMFS will find a DPS when a population's characteristics meet the standards of an "Evolutionarily Significant Unit." In order to meet these standards, the population must exhibit reproductive isolation and "represent an important component in the evolutionary legacy of the species."

The NMFS Interim Policy on Artificial Propagation of Pacific Salmon requires that once a population is found to be an ESU, its adaptive genetic differences are to be protected from interbreeding with other non-ESU populations as defined by NMFS. But this policy is at odds with nature: a proportion of a salmon population will home to their natal streams while the remainder will stray to other streams where they will spawn with the local population and produce hybrids that can add to the ability of the population to cope with changed conditions in the habitat.

In a healthy metapopulation, like upriver chinook or sockeye in 1855, straying and introgression occur frequently. In a damaged/declining population, isolated from other populations, the beneficial effect of straying is diminished because the population gene flow is limited by the respective sizes of the populations and the fragmentation of their habitat. By limiting straying to arbitrary limits by either limiting populations that may stray or destroying adult fish that may stray into the spawning areas of a listed population, NMFS is limiting normal biological activities that may strengthen listed populations.

The NMFS ESU policy, as applied to fragmented, isolated populations would separate those same populations from basin populations in adjoining subbasins and hatcheries that could render assistance. Thus, the ESU policy is at odds with the plans and programs of CRFMP, FERC, and FWP, which rely upon specific watershed programs that utilize habitat protection and artificial propagation techniques for restoration.

Consultations

The ESA proscribes activities that could kill or harm listed species or destroy those species' habitat. Harm is very broadly defined. However, the ESA provides an exception to this prohibition against "takings" if such takings occur incidentally to otherwise lawful activities. Section 7 provides a means for federal parties to obtain an incidental taking authorization. Section 10 provides a means for non-federal parties to obtain an incidental take permit.

Under section 7, federal action agencies are required to prepare biological assessments (BA's) for actions that they fund, authorize, or carry out that are likely to affect a listed species or its critical habitat. If the action is likely to adversely affect the species or its habitat, then NMFS initiates a consultation and prepares a biological opinion (BO) stating whether or not NMFS believes the action is likely to jeopardize the continued existence of the species or result in destruction or adverse modification of critical habitat of the species. Under Section 10, non-federal parties may obtain an incidental take permit under a more complex process involving the preparation of a habitat conservation plan (HCP).

In the Columbia Basin, section 7 consultations have taken place for harvest, hatchery activities, hydroelectric dam operation, and land management, among other activities. In each case, NMFS has preserved the status quo rather than heeding scientific information indicating jeopardy to the listed species and the need for operational changes to protect salmon.

Concerning harvest, consultation has generally taken place within the context of U.S. v. Oregon processes including the Technical Advisory Committee, the Policy Committee and dispute resolution by the court. Repeatedly, the tribes have taken issue with NMFS draft BOs that set arbitrary harvest restrictions and fail to integrate the use of propagation and remedies for other sources of mortality. These issues were brought before the court and orders were approved by the court relating to some of these issues.

With regard to hatchery activities, the NMFS BOs have generally permitted existing hatchery operations practices and releases for Mitchell Act facilities, a program administered by NMFS through contracts with the states and the USFWS. With regard to the LSRCP, NMFS has generally supported this USFWS program and its facilities, a program that was originally developed by NMFS as principle writer.

However, NMFS, based on its ESU policy, has vigorously opposed tribal propagation activities intended to rebuild of naturally-spawning runs. In response, the tribes brought certain production issues to CRFMP dispute resolution including the use of Rapid River spring chinook stock for rebuilding in the adjoining Grande Ronde basin; the use of Imnaha stock for rebuilding the listed Imnaha spring chinook population, and the use of Lyons Ferry Hatchery Snake River fall chinook stock for rebuilding naturally-spawning Snake River fall chinook populations. Though each issue was resolved in favor of tribal positions, the time and expense involved in dispute resolution as well as the potential for future disputes argue for policy modifications to support rebuilding and restoration.

With regard to hydroelectric projects, the NMFS hydrosystem BO was challenged by the Idaho Department of Fish and Game, the initial plaintiff, followed by the State of Oregon as a plaintiff-intervenor and the tribes as amicus curiae. The defendants are NMFS, the U.S. Army Corps of Engineers, and the Bureau of Reclamation. On March 28, 1994, Judge Malcolm Marsh held that the NMFS BO violated ESA and he ordered NMFS to remedy deficiencies in the 1994-1998 hydrosystem BO. After a year of negotiations, NMFS issued its 1995 BO and submitted a "Report of Compliance" with Judge Marsh's 1994 order. The tribes objected to the BO and the "Report" based upon the failure of NMFS to articulate a clear jeopardy standard and its failure to give due weight to the recommendations or survival modelling of the states and tribes.

Also with regard to hydroelectric impacts on salmon, NMFS, in its BO, has chosen to devote substantial resources to research at its laboratories in Seattle, Washington. In FY 1996, NMFS estimates a need for $23 million for research that is not subject to consultation, peer-review, or co-management.

NMFS efforts to consult with the USDA Forest Service have been hampered by the absence of data and the existence of conflicting policies. The Forest Service has generally failed to assess the quality of existing habitat conditions in much of the Salmon River. Furthermore, it has developed plans for all Snake River Basin national forests that sanction additional degradation of fish habitat. Land resource management plans for national forests such as the Sawtooth, Salmon, and Challis made no mention of the rebuilding goals embodied in the Pacific Salmon Treaty or the Columbia Basin FWP. The Forest Service has made no attempt to identify chinook production goals in the land resource managment plans (LRMP) that are consistent with rebuilding programs nor did it discuss or disclose how its habitat management will affect harvest regimes. As addressed in its forest plans, it is impossible to determine the extent of consistency or inconsistency of these plans with rebuilding goals.

In light of the consideration given to salmon in the LRMP's, the Forest Service did not consult with NMFS concerning the effect that the plans would have upon listed salmon populations. Environmental groups filed suit in the federal district court for Oregon against the Forest Service to require consultation on Oregon's Snake River national forests and won. Both the Forest Service and the environmental organizations appealed to the Ninth Circuit Court of Appeals which affirmed the decision and, in August, 1994, the Forest Service initiated consultation with NMFS on the Snake River plans.

By December, 1994, NMFS had prepared a draft BO finding jeopardy but providing a "reasonable and prudent alternative" that included, among other things: 1) protection of roadless areas; 2) reallocation of riparian areas to salmon protection; 3) strict limitations on sediment increases in salmon habitat; 4) strict limitations on grazing and mining in salmon habitat; and, 5) direction to the Forest Service to reallocate resources in the forest plans consistent with plans for salmon watershed restoration. However, in March, 1995, NMFS backed away from the jeopardy opinion and issued, instead, a "conditional jeopardy" opinion that exempted LRMP's and rephrased the December "reasonable and prudent alternative" as a series of vague guidelines, although the final opinion was based upon the same biological information as the December draft opinion.

Recovery

In the case of Snake River salmon, the ESA requires that the Secretary of Commerce "develop and implement" a recovery plan for the conservation and survival of the listed populations. NMFS issued its Proposed Recovery Plan for Snake River Salmon (PRP) in March 1995.

In general, the draft Recovery Plan overemphasizes minor sources of salmon mortality--treaty and non-treaty harvest--while failing to require significant reductions in major sources of mortality including the mainstem hydrosystem of dams and reservoirs and poor land and water management practices (logging, grazing, mining, and overappropriation) within essential tributary habitat.

The Plan gives priority to actions that preserve Snake River salmon populations and it focuses heavily on creation of new committees and processes linked together into a proposed institutional structure. In deference to the recommendations of the NMFS-appointed Snake River Scientific Recovery Team (SRSRT), NMFS will make final decisions where a consensus is not produced by its proposed institutional structure. The institutional structure consists of a Salmon Recovery Implementation Team (SRIT) appointed, convened and chaired by NMFS; a Scientific Advisory Panel (SAP) appointed, convened, and managed by NMFS; and a series of committees established, appointed, and managed by NMFS. In order to resolve disputes, NMFS proposes to adopt a formal dispute resolution process, parallel to that of U.S. v. Oregon, "to resolve scientific and technical issues associated with Snake River salmon recovery" NMFS also proposes "to map out a regional process for collecting, managing, and disseminating data."

With regard to proposed committees and subcommittees, NMFS proposes to evaluate the memberships of existing committees to ensure "the necessary breadth of expertise," and may use them rather than creating a duplicate or competing process. However NMFS intends to convene certain committees immediately "to

facilitate the immediate implementation of critical conservation measures. These include a Technical Management Team (TMT), a Passage Advisory

Committee (PAC), a Habitat Committee (HC), and a Fish Production Committee (FPC) composed of a Natural Production Subcommittee and a Hatchery Management Subcommittee.

The administration of the Endangered Species Act by the National Marine Fisheries Service has diverted resources from basin recovery envisioned by the CRFMP, the FWP, the Pacific Salmon Treaty and FERC orders. The draft ESA Recovery Plan institutional structure is inconsistent with the processes embodied by those plans and will divert future resources to another layer of committees and procedures.
 

Numerous other authorities affect anadromous fish habitat in the Columbia Basin. Federal statutes including the Clean Water Act, the National Forest Management Act and state statutes governing forest practices, water rights, growth management and statewide land use planning, and shorelines management should play significant roles in the restoration of Columbia Basin anadromous fish. However, currently they are not being used in an effective integrated manner for this purpose.

Implementation of the Clean Water Act, for instance, suffers from lack of enforcement. Temperature and turbidity regularly exceed standards in salmon habitat east of the Cascades due to the lack of non-point source enforcement provisions. The use of the total maximum daily load (TMDL) requirement for waters that exceed standards is the only tool available for enforcement yet the states have been reluctant to use TMDL's to address fish issues.

With regard to state statutes, decisions are often made at the local level at the request of resource users and developers without a view toward the cumulative impacts of decisions. With regard to water rights, in particular, instream flows are less than optimum, enforcement is inconsistent, and waste is rampant based upon a "use it or lose it" policy.

Achievement of basin-wide objectives for anadromous fish developed under CRFMP, FERC orders, the Pacific Salmon Treaty and the FWP is impossible without effective implementation of habitat protection laws at the watershed level. Yet federal and state enforcement has proven itself unable to achieve water quality goals. Watershed restoration is proposed by the tribes as a means of restoring anadromous fish by developing local buy-in and accountability for results consistent with federal and state laws and the treaties.

Restoration of Columbia Basin salmon, sturgeon and lamprey depends upon institutional structures that efficiently coordinate the actions and resources of relevant government agencies and enlist the support and energy of individuals and non-governmental agencies. A comprehensive restoration effort will require authoritative actions addressing the redirection of funding and personnel by federal, state, local and tribal entities in order to implement goals and objectives in a coordinated manner. Because of the limits of scientific knowledge about these species in specific ecosystems, an effective monitoring and evaluation program is indispensable for charting restoration progress and indicating the need for mid-course correction. Finally, when policy-makers, technical experts or implementors differ on the means for restoration, timely dispute resolution processes must be available at functional levels to address issues in a manner that does not stall the effort.

In combination, the CRFMP, the FWP, the PST, and FERC orders as well as an ESA process that incorporates the other structures provide a framework for restoration. However, by themselves, they are not sufficient to achieve tribal restoration goals. The recommendations that follow are designed to strengthen restoration efforts and provide a comprehensive approach that utilizes the authorities of the three sovereigns (federal, state, and tribal governments) that have an interest in anadromous fish.

 Continue to next section (Recommendations)

Table of Contents