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Methow Valley News January 24, 2001 Endangered Species Tribes culvert suit: Trojan horse of fish litigation? Litigate or negotiate? Publisher's Comment by Lee Hicks Tribes’ culvert suit: Trojan horse of fish litigation? Action pursues issues not addressed by 1974 Boldt decision by Lee Hicks A suit by 20 Northwest tribes could place more of the burden on protecting endangered fish on Washington state agencies. Filed last week in a Seattle federal district court, the action seeks to extend Indian rights established by the 1974 Boldt decision beyond a guarantee to half the catch in Washington waters by requiring the state to provide additional fisheries protection. The initial thrust of the suit takes aim at the state’s responsibility to install and maintain road and bridge culverts so they don’t impede fish passage. However, the potential impact could reach far beyond roads to virtually every action overseen by the state that could affect fish, including water quantity and quality. Irrigation, timber practices and development could fall under additional scrutiny. Reaction was swift from state officials. Gov. Gary Locke and Attorney General Christine Gregoire responded that the Indian suit may reach beyond road construction and repair to "...public facilities and lands and even the regulation of land use and water." The tribal suit effectively diverts resources, "away from the vital task of saving salmon," the state officials said in a joint statement. One result of successful litigation, state officials said, would be to require the state to consult with tribes on nearly all policies and programs affecting the environment. Tribes argue that, even with the Boldt decision, the decline of fish runs continues to threaten sustainable tribal commercial and other forms of fishing. The tribes have also taken significant positions in the debate over fisheries in the Methow Valley and upper Columbia basin far from the ocean. Some of the fish-friendly programs underway to deal with endangered fish in the Methow basin involve transportation department bridge and culvert repairs. A rebuilt culvert linking Beaver Creek with the Methow River is the subject of a lawsuit arguing that federal agencies over-designated critical habitat for salmon and steelhead listed under the Endangered Species Act. Other issues and developments on the 2001 fish and water agenda: —Former NMFS regional head Will Stelle, now with the Seattle firm of Preston, Gates & Ellis, is now reportedly representing timber industry clients and others on the "other side" of endangered and threatened fish litigation issues. Greg Pratschner, manager of the Leavenworth national fish hatchery, has confirmed he is being considered for the top regional position with National Marine Fisheries Service, vacant for several months after Stelle’s departure. —Okanogan County officials and the basin watershed planning unit have agreed on proposed language that would keep the agreement with federal and state agencies in force, even if the county files suit over NMFS-imposed target flows on ditches that divert water from Forest Service land. —Wolf Creek Reclamation District, which diverts into Patterson Lake and supplies water for Sun Mountain Lodge, the Valley’s largest employer, is attempting to develop a "habitat conservation plan" acceptable to NMFS, U. S. Fish and Wildlife and the Forest Service. Extremely low snowpack is already raising concern over sufficient recharge when the district begins filling the lake in the spring. —The state Department of Ecology is holding workshops around the state to gather information that would become the basis for the state’s proposed new water law. Attorneys and water users say the workshops came after Ecology officials earlier asked for comments regarding the agency’s interest in better defining its administrative and legal role in state water issues. The reaction, one attorney said, was that Ecology would need to go through formal rule making including hearings, which are the next step after the workshops. —A Thurston County Superior Court judge has ruled that the role of water conservancy boards, such as Okanogan County’s, must be restricted to considering changes in the place of use—not the purpose— of an existing water right. The groups bringing the original lawsuit against the state Department of Ecology were the Center for Environmental Law and Policy and the Washington Environmental Council. Ecology has publicly supported the conservancy boards, which are part of legislation intended to reduce a chronic backlog in the agency’s pending applications procedures. —On the new legislative docket, a proposed state bill, Senate Bill 5020, could result in "watershed closures" including restriction of "human access" in streams with "abnormal streamflow," defined to include such factors such as low flows, high water temperatures, presence of "pathogens"..."or any other factor (that)negatively impacts threatened or endangered salmon," according to the bill summary. The sponsor is Sen. Ken Jacobsen, a Seattle Democrat. Publisher's Comment by Lee Hicks Last fall, a Bellevue attorney won about $9,300 in a Spokane federal district court settlement with the Forest Service for delays in biological opinions for Skyline ditch. The aggregate legal cost of this litigation was, of course, magnified by additional public expenses for government attorneys—as well as private counsel representing defendants. Okanogan County is now weighing whether to file a "notice to sue" regarding water rights threatened under the Endangered Species Act, while the County also supports the basin watershed planning unit in negotiations with federal and state agencies. A fish-related suit including the Tice Ranch as a plaintiff and challenging federal habitat decisions is already on the docket in a District of Columbia federal court. These are early developments that raise concern the basin could be littered with additional endangered species litigation initiated by environmental groups, property owners and even various branches of government. The simplistic view is to blame the lawyers, for all sides, for priming a lucrative market to line their pockets. But attorney-bashing is more a diversion from the real issue of government policy evolving in the complex interplay of executive, legislative and judicial branches. There are new cabinet chiefs at Interior, Agriculture and Commerce, which as parent agency of National Marine Fisheries Service is of particular interest to the Northwest and the Methow. NMFS’ regional office is now operating with an interim director and the Bush administration is considering a candidate from eastern Washington. With a new Justice Department, there is a close watch by all sides on the relationship of administration policy and enforcement priorities for environmental and other laws, such as antitrust. In the case of the potential county suit, the serious question is how to keep alive the ability to negotiate with a threat to litigate. It’s been suggested that the 60-day "notice of intent" to sue required by the Endangered Species Act can actually serve as a "cooling off" period for all parties to work harder to reach an out-of-court solution. That would be a good thing after all the effort that has been expended in two years of negotiations.
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