Fulfilling the executive's trust responsibility toward the native nations on environmental issues: a partial critique of the Clinton administration's promises and performances.

I. Introduction

In a fittingly symbolic display of nature on April 29, 1994, clouds darkened in the sky over the south lawn of the White House as a tribal leader waved eagle feathers toward the four comers of the earth against a background of beating drums, traditional singing, and burning sweet grass. The ceremony opened an historic summit between the President of the United States and over two hundred leaders of Indian tribes from across the country. President William Clinton, the first president in history to invite leaders from all 547 recognized tribes to meet and develop federal Indian policy, promised a new era of partnership between the native nations and the federal government.(1) Holding a sacred eagle feather in hand the President paid important tribute to the place of the native peoples in the ecological destiny of the United States:

[F]or thousands of years, you have held nature in awe, celebrating the bond between Earth and the Creator. You have reminded people that all of us should make decisions not just for our children and their grandchildren but for generation upon generation yet to come.

I believe in your rich heritage and in our common heritage.... ....

In every relationship between our people, our first principle must be to respect your right to remain who you are and to live the way you wish to live.... I pledge to fulfill the trust obligations of the Federal Government.(2)

The President's words appropriately give recognition to the close relationship between the native nations and the natural environment. Many peoples continue to lead a substantially land-based way of life(3) that depends upon ecosystem health and a continued abundance of natural resources such as water and wildlife. Consequently, any evaluation of Administration's record on environmental policy must necessarily address issues.

This Article presents a partial critique of the Clinton Administration's performance in fulfilling the trust responsibility toward tribes in the area of environmental and natural resources policy. Tribal interests play two unique roles in environmental policy. First, the government has a fiduciary obligation under federal Indian law, known as the trust responsibility, protect the tribes' property, treaty rights, and way of life. Tribes are directly and severely impacted by environmental degradation, and fulfilling this trust responsibility may require environmental protection above and beyond the standards set by statutory environmental law - standards that, because they are tailored to the needs of an industrialized society, are often minimalist in nature. Second, the vast majority of native nations retain aboriginal or treaty rights to land, water, and wildlife. These legal rights determine the allocation of increasingly scarce natural resources shared between the federal sovereign and the native sovereigns; such rights also create important constraints on the Executive's authority to regulate tribal activities affecting those resources.

President Clinton's promises of April 29, 1994 provide a fair yardstick which to measure his performance.(4) Broadly stated, the President made a vow to respect the right of tribes to continue their way of life and to fulfill the trust obligations of the federal government. The statements implicitly contain a commitment to preserve the ecological context so integral to a tribal land-based way of life.(5) Indeed, many tribal leader's traveled to the summit with natural resource concerns at the forefront of their agenda,(6) and as should be expected, tribes have reminded the President of his April 29 promises in subsequent appeals for federal protection of their natural resources.(7)

A complete assessment of the President's environmental record toward tribes would necessitate a survey of the overwhelming number of individual issues facing the several hundred tribes in this country, a task well beyond the scope. of this Article. Instead, this Article explores the Clinton Administration's current efforts to develop Indian policy on environmental matters at the highest administrative levels.(8) President Clinton signed a directive at the April 29 ceremony requiring all federal agencies and departments to implement their programs in a "sensitive manner respectful of tribal sovereignty."(9) The directive calls for agencies to deal with tribes on a "government-to-government" basis and to consult the affected tribes when federal actions impact tribal lands or resources.(10) Additionally, several agencies and departments have drafted internal guidance policies to deal with uniquely Indian concerns in the areas of environmental and natural resources management." Such policies may significantly shape the dealings between the tribes and federal agencies on environmental issues.

This Article presents, in part II, the historical and legal background that frames modem executive policy in the area of Indian affairs. It explains the trust obligation and its role in the implementation of statutory mandates and agency programs. Part III focuses on the policy initiatives taken by the Clinton Administration. It examines the merits and drawbacks of developing agency Indian policies, describes the policies developed thus far, and offers a general critique of those policies.

Part IV then selects one policy area - fish and wildlife conservation as it applies to tribal treaty rights - for a more in-depth focus on how the trust obligation operates in a statutory context. Wildlife use is a key element in maintaining a traditional way of life,(12) and protection of tribal harvest therefore represents one of the most vital trust obligations incumbent on the executive branch. At the same time, however, fulfilling the trust obligation often necessitates regulating non-Indian activities that drive species toward extinction. Such non-Indian interests often have a large economic stake in the status quo and carry strong political influence with the regulatory agencies. Consequently, in precisely the instance in which the trust responsibility is most needed to protect a tribe's traditional way of life, it is likely to be improperly subordinated to non-Indian interests. Part IV provides a factual context for this discussion by drawing upon recent regulatory actions by the National Marine Fisheries Service (NMFS) acting pursuant to the Endangered Species Act (ESA)(13) to curtail Indian treaty salmon harvest in the Columbia River Basin while allowing significant other non-Indian sources of mortality to continue much as they have in the past. The section discusses the issues involved in formulating a trust strategy for avoiding such outcomes under the ESA and then offers a brief critique of the policies recently developed by the U.S. Fish and Wildlife Service and NMFS in this area.

II. The Sovereign Trust Framework

A. The Modern Role of the President Against an Historical Backdrop

President Clinton's promise to fulfill the government's trust obligation to the tribes(14) is Shadowed by a political tapestry spanning two centuries. Throughout d& period, the President has assumed the primary responsibility for establishing relations between the federal government and Indian tribes. Historically, this was attributable to the nature of tribes as independent sovereigns. At the time of the Revolutionary War, the native nations and the United States established mutual relations on a government-to-government level through treaties. Because the Constitution places treaty-making power in the President,(15) the executive branch dominated Indian affairs. While treaties were not employed after 1871,(16) Presidents liberally used executive orders thereafter to establish Indian policy. Nineteenth-century Presidents also controlled Indian affairs through their constitutionally-derived power as commander-in-chief of the military forces.(17)

In the modern era, the President maintains an active role in Indian affairs, but one that no longer flows from the treaty-making or war powers. Instead, the President interacts with tribes through the structure of the immense administrative state that grew up during this century. Because the conflicts that arise between the federal government and the more than five hundred federally recognized tribes cannot all be dealt with effectively at the congressional level, the executive branch is, by default, the branch that largely defines many of the terms of the federal government's relationship with the native nations.

Conceptually, the President's modern role in Indian affairs includes three distinct components. The first largely a figurehead role deriving from the historical position of the President in Indian affairs. Presidential statements set the tone for national Indian policy. President Richard M. Nixon, for example, is credited with reversing decades of assimilationist and domineering policy toward tribes by announcing a new era of "Self-Determination" in which tribes would be recognized as sovereign entities.(18) Each of the succeeding administrations embraced this perspective, and President Clinton reaffirmed it on April 29, 1994 when he issued his directive on dealings with tribes.(19)

The second aspect of the President's role has to do with his duties as "trustee" of Indian lands and resources. Nearly all Indian land is held in trust by the United States, with the beneficiary interest residing in the tribe or individual Indian allottee. Such trust title has given rise to an extensive land management role on the part of the Executive, in most cases performed by the Bureau of Indian Affairs (BIA) of the U.S. Department of Interior.(20) In general, the President's role in managing Indian lands and resources is shrinking as more tribes gain control of their own resources by establishing tribal management programs. President Clinton recently signed the Tribal Self-Governance Act of 1994,(21) a program that redirects federal funding from BIA to tribes, enabling tribal governments to administer their own programs on reservation lands.(22)

The third aspect of the President's role involves administering bureaucratic programs of general applicability. While administratively tangential to Indian affairs, this role has a significant impact on native existence, because many federal programs carried out under general public lands laws and environmental statutes affect tribal lands or resources.(23) For example, polluting activities permitted by the U.S. Environmental Protection Agency (EPA) under the various federal environmental statutes cause environmental degradation of reservation lands and water supplies. Similarly, federal programs designed to allocate or manage shared resources, such as water and wildlife,(24) often affect a tribe's ability to support a reservation-based tribal livelihood derived from such resources. Moreover, a host of activities, such as mining, timber harvest, oil and gas production, recreation, hazardous waste disposal, and defense operations, carried out on federal public lands or at federal facilities can have serious impacts on the culture, economy, and environment of nearby reservations.

B. The Impact of Federal Natural Resources Policy on the Separate

Viability of Native Nations

The Executive's environmental and natural resources policy under statutory law may emerge as the most critical policy area to tribes as they move into the twenty-first century, because it win substantially determine the future ecological viability of their separate native land base. Since the beginning of federal-Indian relations, tribes have fought in war, in Congress, in courts, and in public forums to maintain a separate existence apart from the majority society - an existence described as "islands of Indianness" by Professor Charles F. Wilkinson in his landmark American Indians, Time, and the Law.(25) The promise by the United States of separatism in perpetuity was a fundamental premise underlying the treaty negotiations with the tribes in the lower forty-eight states. Tribes across the country relinquished millions of acres of land in exchange for assurances of a retained homeland of smaller size in which they would remain free from federal and state interference and the intrusions of non-Indian settlers.

In many respects, the promise of native sovereignty has survived a two-century span of subjugation only because of the separatism made possible by this retained tribal land base, which roughly amounts to only three percent of the original native land holdings.(26) The land base provides a place of habitation for present and future generations of a tribe, marks the jurisdiction within which tribal government operates, supplies the reservation economy, and provides a sacred place for time-honored cultural traditions. Without an ecologically viable land base and an adequate supply of corollary resources to support a tribal community and economy, the promise of true autonomy is beyond the grasp of the native nations.

Despite the comforting tenor of modem federal Indian policy - a policy supportive of tribal autonomy - the minimal tribal land base and the associated treaty resources stand vulnerable to the development and pollution that now plagues nearly every sector of the majority society in the United States. Throughout the country there are instances of tribal lands and water resources contaminated with pollution originating from off-reservation sources.(27) Further, treaty rights to take wildlife, while integral to maintaining a traditional economy and fulfilling the promise of separatism, are quickly fading into paper rights largely because of the environmentally destructive actions of the majority, industrial society. Rampant non-Indian development is increasingly destroying wildlife habitat and pushing species toward extinction at an accelerating rate.(28) Even in cases in which wildlife remains available for native take, there are mounting health. risks associated with contamination of the flesh from toxins present in the habitat.(29)

For many tribes, the modem practice of traditional lifeways that may reach back tens of thousands of years is itself poised on the brink of a broader ecological crisis. The collapse of salmon runs in the Columbia River Basin,(30) and the restricted Indian fishing that has resulted, provide a sobering example of this decade's mark on both the natural and human history of the Pacific Northwest, once a region of great natural bounty. For the first time in the memory of tribal people in the Basin, there are not enough harvestable fish to support even the most basic cultural needs.(31) The decimation of what was once the world's largest salmon runs has occurred rapidly as a result of the massive industrialization and dam-building that accompanied non-Indian settlement of the region. As one tribal leader recently stated in an urgent plea for federal protection of the fish:

My ancestors understood that we are only borrowing this Earth and its resources from our children....

....

... Yet today, less than 140 years after the signing of the Treaty, the salmon are almost extinct. Some species are already gone forever. Our economic base has been devastated and my people are suffering.

....

... The rivers in the Western United States, and the life that depends on them, are in a crisis state.

....

It is almost impossible to describe in words the pain and suffering this has caused my people. We have been fishermen for thousands of years. It is our life, not just our economy.(32)

For the Columbia River tribes as well as many other tribes, the President's implementation of federal statutory programs in the realm of environmental and natural resources law will determine the future of their traditional native existence. In administering such programs, the executive branch is held to a trust responsibility emanating from federal Indian law.

C. The Trust Obligation

The "trust responsibility," is one of the "primary cornerstones" of federal Indian law.(33) Its central thrust recognizes a federal duty to protect tribal lands, resources, and the native way of life from the intrusions of the majority society.(34) As a doctrine that evolved judicially,(35) the trust responsibility stands independent of treaties and inures to the benefit of all tribes, treaty and nontreaty alike.

The origin of the trust responsibility is best understood as a duty arising from the transfer of native lands to the federal government - whether by conquest, treaty, executive order, or congressional flat.(36) Nearly all native peoples in the United States, including those in Alaska and Hawaii, share a common loss of land and resources to an immigrant majority population with colonialist impulses.(37) The trust doctrine represents that measure of legal responsibility on the part of the majority society to invoked by tribal leaders in their appeals to the federal government to protect their rights,38 and it is enforced in the courts.(39)

Each federal agency is bound by this trust responsibility.(40) Federal agencies must respond to the independent obligations the trust duty forms in carrying out statutory programs that affect tribes.(41) Courts have often emphasized that federal agencies must deal with tribes according to the "most exacting fiduciary standards."(42) Emanating from federal common law jurisprudence, this trust responsibility can be thought of as an interstitial body of law that, when applied in concert with applicable statutes, imposes on agencies a duty to protect tribal interests in carrying out general statutory mandates.(43) The duty of protection is a substantive one (44) and is properly interpreted to include an affirmative duty to take action when necessary to protect Indian property.(45) The law is settled that federal agencies cannot abrogate or extinguish the trust relationship, or violate treaty rights, though courts still allow Congress such plenary power.(46) Absent a direct conflict between an applicable statutory provision and the trust responsibility, a federal agency must implement its program in a manner that protects tribal lands and resources.

While the trust responsibility is relatively straightforward in the context of managing tribal lands and resources - a function largely performed by the Bureau of Indian Affairs (BIA) - the duty of protection is admittedly complex in the context of agency implementation of general environmental or land and resource management programs that have an impact on tribal property rights. Full adherence to the trust responsibility is vitally important in this context, however, as a tribe's way of life can be wholly destroyed by agency actions that impair the fun use and enjoyment of tribal property or treaty rights.(47) It is well settled that the trust responsibility applies to actions taken off the reservation that impact tribal lands.(48) Moreover, many tribes retained in treaties the right to use certain resources found in ceded areas off the reservation; such water rights, fishing and hunting rights, and gathering rights are all tribal property rights to which the federal government owes a duty of protection.(49)

The multitude of statutes passed by Congress over the last several decades authorizes a host of federal agencies to manage the nation's ecosystem.(50) Such statutes, however, often leave those agencies with a vast amount of regulatory and management discretion in implementing sweeping mandates. The trust responsibility provides a parameter to guide this discretion when Indian rights are affected. In the environmental context, the trust obligation to protect tribal resources should often translate into a higher level of ecological protection than that which might result when solely non-Indian interests are affected.

The importance of the trust obligation in protecting tribal separatism, tribal autonomy, and the tribal way of life cannot be overstated. Statutory protection is often woefully inadequate to protect tribal interests, particularly in environmental matters. The statutes passed by Congress have, by and large, failed in significant ways to arrest the deterioration of the environment in many regions of the country.(51) Moreover, the standards they contain were promulgated to meet the needs of a highly industrialized majority society with vastly different needs than those of tribes continuing a land-based way of life.(52) Due to the unique nature of tribal land tenure and tribal culture, tribes cannot simply relocate to new areas when their reservation lands become contaminated, or their water polluted, or their wildlife resources decimated as a result of ecological abuse by the non-Indian sector. The transience and mobility that provide short-term solutions to members of the majority society do not provide options to tribes when their way of life is threatened. For these reasons, the trust obligation is often necessary to establish an enhanced measure of ecological protection and to protect a tribe's use of treaty resources over other uses.

Often when an agency implements a general program that affects tribal property interests, there are also conflicting interests of other constituencies at stake - such as the interest of an applicant seeking a permit under the Clean Air Act(53) for a coal-fired plant that would contaminate a tribal airshed, or the interest of a logging company in harvesting timber despite the damaging impacts to spawning habitat that supports a tribal fishery.(54) These private stake-holders often exert overwhelming pressure on agencies to render decisions favorable to them, and often public or environmental values fall sway to more immediate and quantifiable economic nomic interests.(55) The historic disenfranchisement of tribes from the political and economic forces of the majority society render them - and their property - particularly vulnerable to exploitation in these circumstances. Scholars and, more recently, the BIA, have emphasized that a strong and enforceable trust duty of protection is particularly critical in this context and that agencies may not subordinate that duty to other interests unless Congress has specifically directed that Indian property be taken.(56)

Courts have appropriately held that the trust obligation requires protecting tribal property interests against competing interests of other constituencies to which agencies may feel beholden. The rule derives from the well-established line of authority that holds that agencies are not empowered to violate or abrogate Indian treaty rights.(57)

In Pyramid Lake Paiute Tribe of Indians v. Morton,(58) for example, the court found that the Secretary of Interior violated his trust duty to the Paiute Indians by trying to achieve an 'accommodation' of competing water rights claims between the tribe and the Bureau of Reclamation, which was filing on behalf of an irrigation project. The court stated:

It was not [the Secretary's] function to attempt an accommodation.

In order to fulfill his fiduciary duty, the Secretary must insure, to the extent of his power, that all water not obligated by a court decree or contract with the District goes to Pyramid Lake [for the benefit of the tribe]. The United States, acting through the Secretary of Interior, "has charged itself with moral obligations of the highest responsibility and trust. Its conduct ... should therefore be judged by the most exacting fiduciary standards."

... The Secretary was obliged to ... preserve water for the Tribe. He was further obliged to assert his statutory and contractual authority to the fullest extent possible to accomplish this result.(59)

Another district court also emphasized that the trust obligation is particularly acute when competing interests threaten Indian rights. In Northern Cheyenne Tribe v. Hodel,(60) the district court reviewed a Cheyenne claim challenging the federal government's decision to lease vast tracts of coal on public lands adjacent to its reservation. While the tribe contended that the coal development would adversely impact its lands, the Secretary of Interior argued that his trust duty toward the tribe was overshadowed by the "national interest" in developing coal. The court rejected the Secretary's reasoning, stating:

The Secretary's conflicting responsibilities ... do not relieve him of his trust obligations. To the contrary, identifying and fulfilling the trust responsibility is even more important in situations such as the present case where an agency's conflicting goals and responsibilities combined with political pressure asserted by non-Indians can lead federal agencies to compromise or ignore Indian rights.(61)

As a general matter, when an irreconcilable conflict exists between tribal property rights and other interests, an agency should prioritize tribal rights because it lacks the authority to abrogate such rights.(62) Such prioritization schemes are inherently difficult to develop because they must respond to a myriad of varying circumstances regarding tribal property rights, statutory mandates, and public interests. However, without policies in place to carry out the trust obligation, tribal property rights and other treaty rights stand to be violated - and a sacred, enduring way of life obliterated - behind a veil of agency discretion in administering generalized statutory mandates. As discussed in part IV, NMFS's implementation of the Endangered Species Act in the Columbia River Basin and its effect on tribal treaty harvest of salmon provides an extreme, and wrenching, example of the tragic results for tribes when agencies carry out their general statutory mandates in disregard of their trust responsibility.

An overriding challenge facing the Clinton Administration, then, is to blend the statutory duties of federal agencies with the unique trust obligation owed to tribes at the level of program implementation. Unfortunately, no prior administration has made a systematic effort to develop a coherent, legally valid trust policy to guide implementation of agency programs. As a result, over the past thirty years an enormous federal bureaucracy has mushroomed under the structure of statutory law with no executive guidance on implementing the trust obligation. Consequently, agency officials are generally not versed in the principles of Indian law, much less the trust responsibility, and most are accustomed to making decisions without regard to their special trust obligations. Overcoming this systemic bureaucratic predisposition is a challenge under any circumstances. Unfortunately, it is often a very stark situation of ecological collapse that triggers the threat to tribal members' rights and their way of life.(63) Fulfilling the trust responsibility in the environmental area may require bold, and in some cases, dramatic remedial action to reverse unsustainable management and violations of treaty rights and trust obligations extending back several decades.

The next part of this Article surveys and evaluates the ongoing initiatives in the Clinton Administration to deal with tribes on a government-to-government government basis and to uphold the federal trust responsibility. While a discussion of current Administration policies will necessarily entail some criticism, any overall evaluation must acknowledge the immensity of the challenge facing the President in this area of Indian affairs.

III. Indian Trust Policy Initiatives in the Clinton Administration

A. The Clinton Directive and the Policy Context for Developing

Indian Trust Guidance

President Clinton's directive of April 29, 1994 sets the tone for the Administration's approach to federal Indian affairs. Styled as a memorandum for the heads of executive departments and agencies,' the document is entitled Government-to-Government Relations with Native American Tribal Governments."(64) The brief memorandum essentially calls on all federal agencies to assess the impact of their programs on affected tribes and remove any procedural impediments to working with tribes on matters that affect their rights.(65) Although the language of the memorandum does much to restore respect for, and an understanding of, the sovereign status of tribes, it notably falls short of establishing any policy regarding the fulfillment of the government's trust obligation toward the tribes. As noted in the prior section, the trust obligation forms a central duty in the federal-tribal relationship. The memorandum's silence with respect to that binding and enforceable obligation is a significant shortcoming and leaves an ill-founded impression that the full duty of executive agencies in dealing with tribes is simply a procedural one of consultation. This gives rise to the very real danger that symbolism will overtake substance in the area of Indian affairs. If federal officials believe that they need only provide tribes with special procedural access to agency decisionmaking, but then may disregard native rights after gaining tribal input, breaches of the trust obligation will become not only routine but seemingly sanctioned. The substantive trust duty of protection is so integral to the "government-to-government" relationship with tribes that its omission in the President's memorandum is particularly unfortunate.(66)

Despite this shortcoming in the President's memorandum, many agencies within the executive branch are currently endeavoring to define their trust responsibilities toward tribes. Many have issued draft or final policy directives to deal with Indian issues in their programs. The way in which the trust obligation is defined in these policies will no doubt carry significant consequences for tribes. Before reviewing these various policies, two threshold issues are worth exploring. The first concerns both the merits and drawbacks of developing policies that define the trust duty as it applies to various agency programs, and the second concerns whether it is appropriate to formulate such policies as internal agency guidance documents or as rules according to the procedures for formal rulemaking under the Administrative Procedure Act (APA).(67)

With respect to the first issue, there are some inherent limitations and drawbacks to developing trust policies. First, there is presently no comprehensive articulation of the trust obligation by the Clinton Administration to guide current policy development within the various agencies. While a well-reasoned explanation of the trust responsibility is found in a recent memorandum issued by the Assistant Secretary of Indian Affairs, Ada Deer, the subject matter of the memorandum is directed primarily toward fish and wildlife resource issues.(68) The trust doctrine, like so many areas of federal common law, has developed in an ad hoc manner in response to specific factual circumstances. Many of the issues regarding its scope and substantive fiduciary duties remain unresolved.(69) Absent overall direction regarding the scope of the trust obligation, agencies are likely to render - and indeed have already rendered - scattered and variable interpretations of their responsibilities toward the tribes.

Second, any iteration of the trust doctrine will inherently set limits on its reach. There may be good reason to allow courts, rather than agencies, the role of defining the outer contours of the doctrine. This is particularly true with respect to complex trust issues involving agency responsibilities in taking actions indirectly affecting tribal property interests when other interests are also at stake. These conflict-of-interest situations present the most complex array of issues for the trust responsibility. In their efforts to establish general policy, agencies may take overly restrictive or simplistic approaches to the resolution of these issues.

Third, no trust policy can possibly respond to the fun myriad of questions that inevitably arise in dealing with the large number of tribes (over five hundred) in the nation and the vast disparity of circumstances they face. Property interests differ from tribe to tribe, defined by individual treaties and construed by separate cases. Indian policy generally is based on a vast assortment of treaties, statutes, executive orders, cases, and historical experiences that vary tremendously from tribe to tribe - a reality that has made federal Indian law a field of great, complexity and contradiction. There is a danger that any trust policy will fail to account for the interests of certain tribes. Trust issues, in other words, may not lend themselves to any generic resolution.

Those concerns notwithstanding, the merits of developing formal trust policies likely outweigh the drawbacks. First and foremost, trust policies will serve to educate officials throughout the ranks of the agencies of their trust responsibilities toward tribes. Without such policies, federal officials are likely to continue carrying out their programs in complete disregard of the impacts on tribal property or treaty rights. The necessity for increasing the awareness of federal officials is an urgent one. Native cultures that depend on viable ecosystems are facing extinction themselves as those ecosystems collapse. The salmon crisis in the Columbia River Basin, brought on in large part by the actions of a multitude of federal agencies,(70) bears witness to the urgent need of reversing federal abdication of the trust responsibility.

Second, aside from serving an educational purpose, such trust policies can provide a basis for federal officials within the agency to take actions that are more protective of tribal interests. Even those federal officials who are aware of the trust responsibility generally will be hardpressed to fulfill it if doing so appears to be outside of their discretion because it has no mention in the agency's written guidance.

Third, such trust policies are vitally needed to translate broad trust mandates into agency direction that fits within the context of particular program areas. Agencies typically operate according to a highly developed set of procedures, and officials may not have the administrative means of incorporating the trust obligation into their daily actions without some guidance from the agency head. An interstitial common-law obligation, however strongly enforced in the courts, is likely to fade without procedures to incorporate the obligation into the agency's functions. Trust guidance should be fairly specific in form so that agency officials of all ranks may fully incorporate their fiduciary duties into the other aspects of their work. In sum, the Clinton Administration's effort to develop agency trust policies likely offers promising advantages to tribes that outweigh the unavoidable drawbacks.

The second threshold issue concerns the form trust policies should take. Most of the Clinton Administration's policy statements are fashioned as internal guidance documents or memoranda to agency officials.(71) None are promulgated as formal rules under the APA. The effect of the policy statements on agency programs is, accordingly, somewhat unclear, and the appropriate format for developing such guidance presents an important issue.

Perhaps the primary drawback to developing trust policy in the form of internal agency guidance, as opposed to formal rules, is that the former approach results in policy that is not clearly binding on agencies and that provides a flimsier legal handle for tribes to rely on in their dealings with agencies. Of course, this is probably precisely the reason why such policies are fashioned as guidance: Agencies may presently be liable for many trust violations, and officials may fear that, if they formulate their duties into binding tribes, the trust obligation will be enforced more readily and frequently by tribes in court.(72) Indeed, some of the policies contain express disclaimers stating that they do not give rise to independent legal obligations.(73)

Despite this apparent drawback, the advantages to tribes of policy development in the form of internal guidance rather than rulemaking may far outweigh the disadvantages. First, since the trust obligation is, fundamentally, one deriving from federal common law, the duties owed to tribes are present and enforceable in court whether or not agencies articulate those duties in the form of binding rules. Moreover, on at least one occasion, a court has looked to an agency's Indian policy that was not in the form of a rule in determining special obligations owed to tribes.(74)

Second, if trust policy is promulgated in the form of rules in accordance with full formal rulemaking procedures under the APA, agencies win have to afford the broader public an opportunity to provide input.(75) This process is largely a political one that could result in significantly diluting any agency's iteration of its own trust responsibility toward tribes. Moreover, the trust responsibility arises out of the Executive's long-standing, unique relationship with tribes as sovereigns; it seems particularly inappropriate to shift d& aspect of federal-Indian relations into the realm of standard administrative process where entrenched political and economic interests often predominate.(76) Fashioned as policy guidance, the agencies can, and indeed should, consult with tribes on a government-to-government basis in developing trust standards and make appropriate revisions in response to tribal input without being bound by the more formal rulemaking procedures of the APA.

Third, as the discussion below demonstrates, some trust policies developed by agencies may initially fall short of expressing the full trust responsibility owed to tribes. Political, economic, and practical considerations undoubtedly influence an agency's interpretation of its trust obligations. There is a danger that trust policies promulgated as formal rules will carry added weight in the courts, because judges often give agencies deference in administering their own programs, despite how unjustified this approach seems in the trust context.(77) There is less of a danger of flawed or compromised expressions of trust responsibility gaining undue stature in the courts when agency positions are expressed in guidance documents.(78)

Finally, and importantly, developing trust policy in the form of guidance documents still achieves the overriding goal of educating agency officials as to the nature of their trust responsibilities. Moreover, though not binding rules, guidance documents nevertheless provide tribes with some agency expression of the trust responsibility that will no doubt be of use in dealing with the agencies. Even when fashioned as guidance documents, trust policies should provide the necessary measure of internal agency direction to prompt federal officials to fulfill their trust responsibility to tribes. Such policies may also provide additional protection to agencies against potential claims by competing non-Indian interests contending that the agency actions in fulfilling the trust responsibility are arbitrary and capricious.(79)

The next section provides a brief inventory of the various policies developed thus far by the Clinton Administration. Perhaps predictably, the policies vary considerably in their content and reflect markedly different approaches to dealing with tribes.

B. The Various Policy Initiatives

1. Department of Interior

The U.S. Department of Interior (DOI) houses those agencies that arguably have the greatest impact on tribes: the Bureau of Indian Affairs (BIA), the U.S. Fish and Wildlife Service (USFWS), the Bureau of Reclamation, and the Bureau of Land Management (BLM).(80) Critical efforts to address tribal concerns were well underway in DOI prior to President Clinton's April 29, 1994 executive order. In November 1993, DOI Secretary Bruce Babbitt issued a departmental order that "clarifie[d] the responsibility of [agencies within the Department] to ensure that the trust resources of...tribes ... are identified, conserved and protected."(81) The order requires all agencies and offices to "operate within a government to government relationship" with tribes and consult with tribes, BIA, and the Office of the Solicitor if any of their anticipated actions will affect Indian trust resources.(82) Agencies are required to explicitly address impacts on Indian trust resources in all planning and operational documents.(83) Finally, the order directs all agencies within DOI to prepare and publish internal procedures to ensure compliance with the order.(84)

Even prior to Secretary Babbitt's November 1993 order, the Bureau of Reclamation announced its "Indian Trust Asset Policy" in July 1993.(85) The policy's purpose is "to protect Indian wt assets from adverse impacts" of program activities and to "better enabl[e] the Secretary of Interior to fulfill his responsibility to Indian tribes."(86) The policy requires the Bureau to "carry out its activities in a manner which protects trust assets and avoids adverse impacts when possible."(87) It also provides for modification of the agency's National Environmental Policy Act (NEPA)(88) procedures to allow evaluation of Indian trust assets in the process of environmental analysis.(89) In November 1993, the Bureau Med procedures to integrate the agency's trust responsibility into its NEPA process.(90) More recently, the agency developed a detailed "Questions and Answers" document to provide further guidance to Bureau personnel on both the Indian Trust Policy and the NEPA implementing procedures.(91) Finally, in July 1994 the Bureau also developed a draft policy to address unauthorized use of federal water supplies for the Pacific Northwest region.(92) The practice, commonly known as "water-spreading," is pervasive in the Columbia River Basin and may significantly infringe on tribal water rights.(93) The draft water-spreading policy acknowledges the Bureau's trust responsibility to protect Indian water rights, but it states that post hoc approval of illegal non-Indian uses may occur if impacts to Indian trust assets are "eliminated or mitigated."(94) The draft policy has recently been superseded by an effort within the Bureau of Reclamation to develop a national policy offering procedural guidance for illegal use of water resources.(95)

USFWS issued a Native American Policy in June 1994.(96) The policy primarily deals with matters such as improved communication with tribal governments, better education for USFWS personnel on Indian matters, coordinated law enforcement efforts between tribes and the agency, and more expeditious processing and distribution of eagle feathers for tribal ceremonies.(97) While the policy promises to fulfill "trust responsibilities," it offers no direction on how to implement agency programs in a manner that fulfills the trust duty. USFWS, however, is currently in the process of developing a more substantive trust policy on implementation of the Endangered Species Act program. The Director of USFWS distributed a working draft of a Director's Order to tribes in September 1994, setting forth substantive standards for program implementation.(98) That draft is discussed at greater length in part IV.B.3 of this Article.(99)

2. Department of Agriculture

The U.S. Department of Agriculture (USDA) has had a policy on American Indians and Alaska Natives in effect since October 1992.(100) The policy recognizes the obligation of the United States "to protect and maintain the lands, resources, and traditional use areas of Indians."(101) It requires consultation with tribal governments "regarding the influence of USDA activities on water, land, forest, air, and other natural resources of tribal governments" and states that USDA "will seek to reconcile Indian and Alaska Native needs with the principles of good resource management and multiple use."(102)

A far more extensive treatment of Indian issues within USDA is found in a draft "Resource Book" being developed by the Forest Service.(103) The handbook, designed as a reference for Forest Service employees in their dealings with tribes, sets forth a history of Indian relations, background principles of Indian law, applicable statutes, and general guidance for consulting with tribes. A section on the trust responsibility stops short of offering specific principles defining the agency's fiduciary obligations, but recognizes the duty of protection and its application to off-reservation as well as on-reservation resources.(104)

3. Environmental Protection Agency

The Environmental Protection Agency (EPA) has had an Indian policy in effect since November 1984, due to the agency's long-standing effort to encourage development of tribal programs to implement federal pollution control requirements on reservations.(105) The 1984 Indian policy recognizes tribal governments as the entities with primary responsibility for the reservation environment and pledges the agency's support in developing tribal environmental programs.(106) It also states: "[I]n keeping with the federal trust responsibility, [EPA] win assure that tribal concerns and interests are considered whenever EPA's actions and/or decisions may affect reservation environments.... [T]he Agency will endeavor to protect the environmental interests of Indian Tribes when carrying out its responsibilities that may affect the reservations."(107) In 1991, EPA administrator William Reilly affirmed the 1984 EPA Indian policy and endorsed a "Concept Paper" that recommended strengthening tribal environmental management on the reservations.(108)

EPA Administrator Carol Browner has taken further initiatives in this area. In a March 1994 Memorandum to Tribal Leaders, she reaffirmed the 1984 Indian policy and announced the, formation of a Tribal Operations Committee comprised of eighteen tribal representatives to draft new guidance for implementing the policy and developing tribal environmental programs.(109) In July 1994, EPA announced the formation of the Office of Indian Affairs to coordinate tribal programs.(110) The announcement was accompanied by a "Tribal Operations Action Memorandum" that set forth initial steps in developing tribal regulatory programs.(111) However, despite the relatively significant and sustained attention devoted by EPA to tribal issues, the agency's policies are primarilly aimed at assisting tribes in regulating activities on their own reservations; EPA skirts the issue of transboundary pollution affecting reservation environments or environmental risks associated with tribal use of water and wildlife.(112)

4. Department of Energy

The Department of Energy (DOE) oversees a nuclear program that could have a substantial adverse impact on certain tribes. In the Pacific Northwest alone, DOE manages two nuclear facilities situated near Indian reservations. The Idaho National Engineering Laboratory (INEL) is located in southeastern Idaho near the Shoshone-Bannock Reservation, and the Hanford Nuclear Reservation is located in south-central Washington, along the Columbia River and near the Yakama Nation's reservation. The Hanford facility in particular poses extraordinary safety, health, and environmental risks to the surrounding area.(113) DOE's ongoing nuclear waste disposal program also substantially affects tribes. DOE is currently engaged in selecting a temporary, 40-year repository for spent nuclear fuel from 112 commercial reactors, as well as for waste from a huge nuclear complex that produced weapons-grade nuclear material for defense purposes. Proposed repository sites threaten to impact Indian lands and resources.(114)

DOE promulgated a two-page "Indian Policy" in July 1994, recognizing tribal governments as the appropriate entities for setting priorities and goals in developing and managing their own energy resources.(115) The policy also sets forth principles to facilitate consultation with tribal governments to ensure that tribal rights and concerns are considered in the development of DOE policies and issues. But notably, the policy stops short of setting forth any substantive obligations toward tribes.

The Bonneville Power Administration (BPA), an agency within DOE, released a Revised Draft Tribal Policy in January 1995 to implement its trust responsibility toward the thirteen federally recognized Columbia Basin tribes.(116) BPA's activities have a significant effect on the viability of the Columbia River salmon runs and, consequently, tribal treaty harvest in the region. BPA markets the power from the Columbia River hydropower system, which is the primary contributor to direct salmon mortality.(117) While the draft Indian policy recognizes a trust responsibility toward tribes, it provides only for consultation with tribes to ensure that "Tribal rights and concerns are considered prior to BPA taking actions ... that may affect Tribal resources."(118) Elsewhere, the draft policy states that "BPA will protect cultural resources by fulfilling its obligations as a Federal trustee,"(119) but the policy fails to mention the impact of its activities on Columbia River salmon runs in particular.

5. Department of Justice

Attorney General Janet Reno issued a "Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes"(120) on June 1, 1995. The policy expressly recognizes the federal trust obligation as well as principles of native sovereignty and self-determination.(121) It announces the formation of the Office of Tribal Justice to coordinate policies with tribes and "assist Indian tribes as domestic dependent nations within the federal System."(122) While the policy recognizes the important role of the Department of Justice (DOJ) in bringing litigation on behalf of tribes, and while it states that the trust responsibility "will guide the Department in litigation,"(123) it notably fails to elaborate on perhaps the most pressing and vital trust issue facing DOJ - namely, how the trust duty should operate in conflict situations in which DOJ is called upon to represent a federal agency with interests directly adverse to tribes. While the policy promises adherence to trust principles in this context, it is unhelpful in defining the federal trust duty.

C. A General Critique

The policy development by several federal agencies to respond to uniquely Indian concerns represents a promising step toward fulfilling the nation's trust obligation toward tribes. However, this effort is deficient in several important respects. First, some of the agencies having the greatest impact on tribal resources are not developing national Indian policies.(124) Notably missing in the overall effort are the Department of Commerce(125) and the Department of Defense (DOD).(126) Second, among those agencies that are developing Indian policies, there appears to be no consistent approach to involving tribes in the process.(127) Policies drafted behind closed doors without the participation of those most affected will not achieve their laudatory purposes. The inclusive approach taken by EPA may serve as a useful model for gaining broad tribal involvement.(128) Third, most of the policies make sweeping promises without providing detailed guidance on how to implement the promises on a procedural and substantive level within the scope of agency programs.(129)

Most seriously, however, the policies vary considerably in terms of the mandate they issue. Though most explicitly recognize the duty of protection stemming from the trust responsibility,(130) many call for merely procedural steps to safeguard tribal interests by requiring, for example, consultation with tribal governments. While emphasizing a government-to-government relationship with the tribes, many of the policies lack a firm substantive mandate reflecting prioritization of native interests. For example, the policy issued by DOE states: In keeping with the trust relationship, the DOE will consult with Tribal governments regarding the impact of DOE activities on the energy, environmental and natural resources of American Indian Tribes when carrying out its responsibilities."(131) In a similar vein, the USDA's Indian Policy promises only that USDA officials "will consult" with tribal governments regarding the impact of the agency's activities on tribal property and resources and will "seek to reconcile [native] needs with the principles of good resource management and multiple use."(132)

Such directives fail to reflect the full trust responsibility, the essence of which incorporates a substantive obligation on the part of every agency to fully protect Indian property interests.(133) Interpreting the trust obligation as merely a procedural mandate makes it nearly inevitable that the implementation of programs will benefit the majority society at the expense of the tribes. It is, therefore, critical to develop prioritization schemes that fit within the various agencies' management programs. Failure to do so will very likely result in the incremental loss of Indian rights behind a curtain of administrative discretion.

Perhaps no other contemporary situation illustrates that danger more dramatically than the recent events surrounding implementation of the Endangered Species Act (ESA) in the Columbia River Basin. The next section of this Article draws from the Columbia River Basin context to illustrate how an agency's exercise of discretion under the ESA absent a trust policy can result in a de facto violation of treaty rights and jeopardize the continuation of a tribal culture that depends on fish harvests. The circumstances provide a compelling demonstration of the need for a substantive trust policy in the area of wildlife conservation management as applied to tribal treaty resources.(134)

IV. The Trust Responsibility and Implementation of the ESA

A. Columbia River Basin: A Case Study in Conflict and Crisis(135)

1. Background

Any focus on current tribal fishing issues in the Columbia River Basin must begin with a sobering historical reflection.(136) Before the arrival of white settlers in the region, up to sixteen million salmon returned every year to spawn in their native waters.(137) Tribes have fished for salmon in the great Columbia River Basin since time immemorial, using the fish for subsistence ceremonial and commercial needs.(138)

In 1855, white encroachment forced the Yakamas,(139) Umatillas, Warm Springs, and Nez Perce to enter into treaties with Governors Isaac Stevens and Joel Palmer. Relying on the government's repeated promises that they would be secure in their way of life if they lived within a confined area,(140) they ceded a total of thirty-eight million acres to the United States, retaining only the lands that presently constitute their reservations.(141) Because of the critical importance of salmon to their survival and way of life, the tribal leaders unequivocally reserved rights to fish in perpetuity at their usual and accustomed fishing sites located off the reservations. Each of the Stevens treaties contained a substantially identical clause that "secured" to the tribes "the right of taking fish at all usual and accustomed places in common with citizens of the Territory."(142) The Supreme Court later interpreted this language as securing a tribal right to harvest up to fifty percent of the harvestable fish.(143) Courts have uniformly upheld the right of Indians to access their off-reservation fishing grounds as an easement encumbering private and public land holdings, and courts have enjoined interfering uses.(144)

While the fishery resource seemed inexhaustible in the mid-1800s, now, just 150 years later, the salmon's very survival is precarious throughout the Pacific Northwest. Returns are a fraction of historic levels, with the numbers declining further as each season passes.(145) Two chinook salmon runs collapsed in 1994.(146) The Snake River coho has passed into extinction.(147) Two Snake River chinook stocks and one sockeye stock are now listed under the Endangered Species Act (ESA), and additional coho stocks have been proposed for listing.(148) Scientists believe that, throughout the Columbia River Basin, fifty-nine salmon stocks have gone extinct and that another fifty are at high or moderate risk of extinction.(149) Fisheries managers have warned that outmigration of juvenile smolts from the Snake River and its tributaries to the ocean is "projected to drop catastrophically over the next 3 years."(150) Environmental authorities now acknowledge that the collapse of the salmon runs is a sign of serious basin-wide ecosystem failure(151) that holds dire consequences for Indian and non-Indian peoples alike.

Because of its authority under the ESA, the National Marine Fisheries Service (NMFS) has emerged as the leading agency charged with ensuring the survival of the listed species throughout the region.(152) Though the causes of the population collapse are multiple, they are generally classified as the "4 Hs' - hydropower operations, habitat destruction, hatcheries, and harvest.(153) A host of federal agencies have managed the public lands, the river system, and the water resources in a manner that has brought about the present crisis, and therefore any recovery of salmon must include a multitude of federal actors, including the U.S. Army Corps of Engineers, the Bonneville Power Administration, the Federal Energy Regulatory Commission (FERC), the Bureau of Reclamation, the Bureau of Land Management, the Forest Service, USFWS, and NMFS.(154)

By far the most overwhelming cause of direct salmon mortality is the hydropower system operated by the U.S. Army Corps of Engineers (Corps).(155) The eight dams positioned along the mainstem Columbia River and its tributary, the Snake River, pose formidable hurdles to spawning fish migrating upstream(156) and are virtual death traps for juveniles migrating downstream. The turbines injure many of the juveniles, and the slack, warm water in the reservoir behind each dam makes the fish vulnerable to predators and illness.(157) Up to twenty percent of the migrating Young fish may be killed at each mainstem dam and reservoir complex.(158) A program instituted by the Corps to barge the fish around the dams to assist their migration downstream has failed to arrest the species' decline after nearly twenty years of operation,(159) and the collection facilities that operate in conjunction with the program can actually cause significant mortality in their own right.(160) It is estimated that the hydropower operations alone account for over ninety percent of direct, human-induced mortality of the listed chinook stocks.(161) Bold changes in hydrosystem management(162) are now critical to reversing the spiraling decline of the Columbia River Basin salmon stocks.(163)

Habitat destruction contributes significantly to species decline as well, although its effects are not measured in direct juvenile and adult mortality as is the case with hydropower operations. Fisheries biologists estimate that over fifty percent of the original salmon habitat in the Columbia River Basin is now destroyed, either because the fish cannot access the habitat due to dam impediments or because logging, grazing, mining, pollution, or urban development has severely degraded the area.(164) NMFS has concluded that, due to habitat degradation, "[f]ew examples of naturally functioning aquatic systems (watersheds) now remain in the Pacific Northwest."(165) Because the fish rely substantially on spawning grounds located in federally owned areas,(166) public lands management by the Forest Service and the Bureau of Land Management will have a critical effect on the species' survival.

Traditional hatchery practices are now recognized as another leading cause of wild salmon decline. Hatcheries have been developed throughout the last century to mitigate for loss of natural populations due to destruction of habitat and blocked migratory routes.(167) NMFS funds and USFWS manages many of the hatchery programs throughout the Northwest. Despite the obvious benefit to harvest interests, artificial production of salmon causes serious impacts to the wild stocks. Interbreeding of hatchery fish with wild fish weakens the native gene pool, reducing the natural adaptive abilities of wild fish, and hatchery fish also compete with wild fish for shared habitat and food.(168) Of course, hatchery-bred populations have also plummeted in recent years,(169) because they face the same high rates of mortality from hydroelectric operations as do wild stocks.

The final source of salmon mortality is harvest, by both non-Indians and Indians. Harvest occurs in the Columbia River Basin as the adults return to their spawning grounds. The Indian fishing grounds (known as "usual and accustomed" fishing grounds) consist of one geographic area of the river, known as zone six, located far inland.(170) The non-Indian in-river fishing occurs in the lower reaches of the Columbia. There is also a significant non-Indian harvest of fish in the ocean (particularly off the coast of Alaska and British Columbia) where the salmon spend one to four years of their adult lives.(171) Because the Indian fishing grounds are located upriver and close to spawning grounds, the Indian harvest is the last harvest affecting the salmon's life-cycle. It accounts, however, for only a fraction of the direct human-induced mortality to the listed stocks. Incidental take of the listed Chinook species from tribal harvest amounts to only one to three percent of direct mortality to the overall population.(172)

The Yakama, Umatilla, Nez Perce, and Warm Springs tribes have firm treaty rights to take salmon at their usual and accustomed fishing sites,(173) but their take has diminished dramatically over the past thirty years. The tribes are suffering the brunt of conservation to compensate for massive, region-wide destruction of the resource as a result of the majority society's hydropower operations, habitat destruction, poor hatchery management, and over-harvest. Tribal officials estimate that the tribal take in the past few years is only one percent of historic take levels.(174) A long line of litigation reflects a tragic saga of Indian fishing curtailments.(175) The landmark case, Puyallup Tribe v. Department of Game of Washington,(176) determined the scope of tribal fishing rights at a time of increasing scarcity and allowed states to regulate tribal fishing "in the interest of conservation" as long as the regulation was not discriminatory.(177)

Tribal leaders today appropriately draw upon the historical framework to demonstrate how the majority society's "conservation" approach has led to the present ecological crisis for salmon and a cultural crisis for Indians. As a member of the Yakama Tribal Council recently declared in public hearings:

My ancestor Meninock, who signed the treaty [with the Yakama Nation],... accepted the word of the United States - that this treaty would protect not only the Indian way of life for those then living, but also for all generations yet unborn. In return, we gave up our lands and moved to the Reservations - believing that we could forever continue to take our fish at all our old places.

Less than 40 years after the ratification of the treaty, my grandfather was arrested by the white man for exercising his treaty fishing rights on the Yakima River....

In essence, my grandfather's conviction, nearly 100 years ago, was the first instance of the enforcement of the non-Indian's concept of "conservation" - the white man's progress had diminished the fish runs, and therefore, the Indians had to stop fishing to protect what was left. This is not what we were promised at the Treaty Grounds.(178)

2. Current Regulatory Framework

The majority of salmon remaining in the Columbia River Basin are hatchery stocks, developed to compensate for depressed wild nuts.(179) The present harvest of salmon in the Columbia River is targeted to those hatchery stocks, which are not listed under the ESA.(180) However, the listed stocks migrate along with hatchery stocks up the Columbia River, and some incidental take of listed stocks is an inevitable consequence of any hatchery fish harvest.

The allocation of each year's returning salmon between Indian and non-Indian fishers falls to the Columbia River Compact (Compact), an interstate agency created by Oregon and Washington and ratified by Congress.(181) The Compact determines "escapement"(182) needs to conserve the fishery as a whole and then allocates fishing quotas based on the remainder.(183) Disputes are resolved under the continuing jurisdiction of the federal district court of Oregon.(184) The listing of certain wild stocks under the ESA, however, adds a new regulatory dimension to the allocation of fish for harvest. NMFS now reviews the Compact's decisions to ensure that fishing quotas meet the ESA's section 7, which requires federal agencies to "insure" that their actions will not "jeopardize" a listed species.(185) The ESA requires NMFS to render a biological opinion stating whether or not a proposed action, such as the Compact's harvest decision, will jeopardize a listed species.(186)

While the ESA's language creates an impression of almost mechanical application of the jeopardy standard to the various activities potentially affecting the salmon's survival, in reality, NMFS exercises vast discretion in applying the jeopardy standard.(187) In the Columbia River Basin, NMFS's regulatory discretion expands with the sheer number of sources contributing to the decline of the salmon. The categorical sources of salmon decline are four-fold - hydropower operations, habitat destruction, hatchery management, and harvest - and each category encompasses a myriad of federal actions that should trigger a section 7 jeopardy determination. The determination as to whether any given action causes "jeopardy" a species is, essentially, a relative determination, depending on the impact of other activities on the viability of the species. Thus, if habitat destruction, hydropower operations, and poor hatchery practices go unregulated, a fishery will inevitably fall into such a severe state of decline that harvest has a greater impact than it would in an otherwise healthy, functioning ecosystem.

Indeed, this type of scenario has played itself out in the Columbia River Basin, culminating in a crisis for tribal fishing in the fall of 1994. Until August 1994, NMFS had not issued a jeopardy opinion on any activity affecting the survival of the listed salmon species.(188) In fact, remarkably, NMFS issued an opinion in May 1993, and again in March 1994, finding that the hydropower system did not pose jeopardy to the Snake River salmon - even though it accounts for a staggering percentage of direct mortality to the species.(189) The State of Idaho challenged the 1993 NMFS biological opinion, and Judge Marsh of the District Court of Oregon held it invalid, stating that the system "literary cries out for a major overhaul."(190) Aside from resisting changes to the hydrosystem, the government also allowed a host of other damaging activities, such as logging, mining, and grazing, to continue on public lands without proper consultation, even though such activities indisputably degrade salmon habitat.(191) And further, NMFS continued to issue "no jeopardy" opinions to Alaska fisheries that have an incidental take of the listed species.(192)

After failing to regulate a broad spectrum of federal activities that were pushing the listed stocks toward extinction,(193) and after allowing the hydrosystem - the overwhelming source of direct mortality - to continue operating under a no-jeopardy opinion, NMFS proposed in August 1994 to hand down the first jeopardy opinion ever issued for the listed stocks to curtail the four Columbia River Basin tribes' treaty fishing.(194) The annual fall chinook fishing season was the tribes' only remaining commercial fishery; the others had been previously curtailed in the interest of conservation.(195) While the vast majority of the fall chinook passing through Indian fishing grounds were unlisted stocks, less than one percent were the listed wild Snake River fall chinook that were subject to unavoidable incidental take in Indian fishing nets.(196) Applying a conservation standard based on escapement needs of the entire fishery, the Columbia River Compact had preliminarily approved an eleven-day tribal fishery that would yield thirty-two thousand fish from unlisted stocks.(197) But under its ESA authority, NMFS proposed to issue a draft biological opinion cutting the tribal harvest by twenty thousand fish in order to allow twenty-eight additional wild chinook to reach spawning grounds.(198) Simultaneously, NMFS issued a no-jeopardy opinion to a non-Indian Alaskan fishery even though it would incidentally take a certain number of listed Chinook as well.(199)

The agency's proposal ignited controversy(200) and demonstrated how far the government had strayed from its trust obligation toward the tribes and its duty of wildlife conservation under the ESA. The exercise of regulatory and management discretion by NMFS and the numerous federal land and water management agencies operating in the Basin had perpetuated widespread institutional avoidance in addressing the major contributing sources of salmon mortality. Ultimately this long-standing failure led to a situation of crisis in the Basin. When NMFS finally took regulatory action, it singled out the tribal fishery, which represented a mere fraction of the overall mortality to the species,(201) for regulation, while allowing the overwhelming source - hydropower - to continue operating unregulated.(202)

The curtailment carried severe consequences for the tribes. The salmon harvest is integral to the modern livelihood of tribal members.(203) As the last commercial fishery left, the fall harvest represented the year's only opportunity to supply the economic and subsistence needs of the sixteen thousand members of the four Columbia River treaty tribes.(204) Further, interruption of a traditional subsistence livelihood amounted to a cultural penalty of no small consequence to the tribes.(205) By using its regulatory discretion in a manner that afforded no prioritization for tribal fishery use, NMFS risked transforming the ESA - a statute that should be used to its maximum potential to protect the very resource that the tribes depended upon - into a formidable tool of cultural assimilation. In many ways, the threatened curtailment of this only remaining significant fishery presented a last stand for the Columbia River tribes and their way of life.(206)

The tribes sought relief in federal district court after negotiations with high-level federal officials broke down.(207) The dispute presented a striking conflict between NMFS's approach to regulation under the ESA, and the conservation based allocation scheme of the Columbia River Fish Management Plan.(208) Underlying the dispute was an inherent uncertainty as to whether NMFS even had the authority under the ESA to restrict tribal treaty rights.(209) The government averted resolution of this issue by agreeing to a settlement in which a somewhat shortened tribal fishery would take place.(210) The Settlement included an agreement by NMFS to engage in good faith discussions with the tribes to protect tribal needs in future ESA implementation and to begin regulating the non-tribal sources of salmon mortality.(211)

In the ensuing months since the fall fishing incident, NMFS has issued three critical regulatory decisions under the ESA, all of which call into question whether the agency is meeting its trust obligation toward the tribes. On March 2, 1995, the agency issued a final biological opinion for the 1994-1998 operation of the Columbia River Basin hydropower system.(212) The agency found that present operations will cause "jeopardy" to the listed species, but offered "reasonable and prudent alternatives" which, in its opinion, if followed will avoid jeopardy.(213) While this most recent biological opinion is indeed styled as a "jeopardy" opinion rather than a "no-jeopardy" opinion (as was the earlier one held invalid by Judge Marsh),(214) tribal representatives and environmental groups criticize it heavily, contending that the reasonable and prudent alternatives it offers would allow the hydrosystem to function, at least in the next few critical years, without the changes deemed necessary to restore salmon populations.(215) Separate comments submitted by the tribes and the Assistant Secretary of Indian Affairs on an earlier draft of the biological opinion express the view that NMFS is continuing to place an undue burden of conservation on the tribes by restricting their harvest while allowing hydrosystem operations to continue substantially unchanged for the next several years.(216)

On March 1, 1995, NMFS also issued a biological opinion covering practices on federal lands, such as mining, logging, grazing, and road building.(217) Such activities make up much of the "habitat" component of overall Columbia River Basin salmon mortality. Examining eight federal Land and Resource Management Plans (LRMPs) for national forest areas within the critical habitat of the listed salmon, the agency rendered a somewhat ambiguous biologial opinion in which it listed a set of goals and guidelines that, if complied with, would provide "reasonable certainty" that site-specific actions such as logging, mining, and grazing would not result in jeopardy to the species.(218) The opinion, interpreted by commentators as a conditional "no jeopardy" opinion, has been sharply criticized for not setting forth adequate standards to protest fish.(219)

Just weeks after issuing the two biological opinions, NMFS released a broad draft recovery plan for the listed Snake River species, addressing all sources of mortality, including hydrosystem operations, habitat degradation, hatchery production, and harvest.(220) The plan was based largely on a prior strategy developed by a recovery team appointed by NMFS.(221) As of the time of this writing, the tribes are in the process of providing comments on the draft. Comments submitted by the tribes on the recovery team's earlier plan, however, indicated their strong view that the plan did not meet the agencies' trust responsibility toward the tribes, because it failed to establish adequate goals for restoration of the fish and it placed an undue emphasis on tribal harvest in allocating the conservation burden.(222)

B. The Trust Responsibility as Applied to Wildlife

Conservation Under the ESA

As the 1994 Columbia River fall fishing incident and subsequent regulatory events illustrate, a trust policy is vitally needed to prevent wholly inequitable regulatory consequences to tribes when NMFS or USFWS takes regulatory actions under the ESA.(223) This next section discusses the difficulties in developing an Indian ESA trust policy and evaluates the Clinton Administration's efforts in this area.(224)

1. The Context

Wildlife harvest is an integral component of a traditional native livelihood for many tribes, and yet, because the ESA has no specific provisions setting forth special responsibilities toward tribes, wildlife agency officials unfamiliar with Indian law principles may treat tribal interests just as they would non-Indian interests in implementing the Act. This may result in setting recovery goals for species at levels too low to support any continued tribal harvest or imposing an undue burden of conservation on the tribes. The absence of express statutory direction, combined with the potentially devastating consequences to tribes resulting from unfettered agency discretion, renders this context of federal action a particularly compelling one for development of trust principles.

At the same time, however, it must be recognized that wildlife conservation amounts to one of the most complex areas in which to develop an Indian trust policy, for several reasons. First, it is altogether unsettled as to whether NMFS and USFWS (hereinafter, generally, the "Services") even have authority to directly regulate tribes under the ESA when such regulation amounts to a restriction of treaty rights. The Supreme Court held in United States v. Dion(225) that federal statutes cannot abrogate treaty rights unless there is "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty."(226) In Dion, the Court held that the Eagle Protection Act could be applied to restrict treaty hunting of eagles, but the Court expressly left open the issue of ESA jurisdiction over treaty use of wildlife.(227) This holding left the Services' authority over tribal activities on slippery footing. The only formal guidance regarding the relationship between the ESA and Indian hunting and fishing rights is a 1980 Solicitor's Opinion, known as the "Martz Opinion,"(228) written prior to the Supreme Court's decision in Dion. The Martz Opinion concluded that the ESA grants full authority to the U.S. Department of Interior (DOI) to regulate Indian treaty harvest of protected wildlife.(229) That opinion is now outdated due to Dion, and the Solicitor's Office is revisiting the issue but has not yet promulgated any formal guidance to the contrary.(230) In the meantime, the Services appear to be assuming, tentatively, that they have the authority to restrict treaty use of wildlife.(231)

A second complicating factor in developing a trust paradigm for wildlife conservation arises from the vastly ranging tribal interests in wildlife. The point of departure for any trust analysis is the tribal interest that warrants protection. In the context of wildlife conservation, the tribal interest is by no means generic across all circumstances. The tribal property interest in wildlife is uniquely sovereign in nature(232) and is often expressed in treaties negotiated between the tribe and the federal government, and further defined by case law. Some tribes have very explicit rights to continued harvest of wildlife; others do not. Some may have shared rights to a wildlife resource, but others may have exclusive rights. Moreover, a tribe's modern activities that are affected by a federal conservation program may or may not be related to the exercise of its treaty harvest rights. Some tribes seeking to engage in land development on their reservations may be constrained from doing so because a species that is not a target of their harvest has its last remaining habitat on the reservation.(233) Seemingly different concerns arise, for example, from a tribe's logging activities on a reservation that provides habitat for threatened spotted owls, and the Columbia River Basin tribes' exercise of treaty guaranteed rights to harvest salmon. In both cases the tribe has a property interest that is affected by the government's conservation program, but such property interests may be fundamentally distinct and give rise to different obligations under the trust responsibility. Such variance in the underlying tribal interest engenders an initial level of complexity that renders development of a comprehensive national policy difficult.

Third, because species undergo natural fluctuations in populations, any sovereign interest in those species is necessarily elastic and not susceptible to fixed numerical quantification on a long-term basis. Predictions in future population levels are by nature tentative, and regulatory prescriptions for allocating harvest rights are subject to adjustment. The fluctuating nature of the resource, however, does not detract from the sovereign interest in it; allocation of water rights between sovereigns is subject to the same type of natural uncertainty. Any trust paradigm must simply incorporate those constraints.

Fourth, additional complexity is added by the fact that wildlife is a shared resource, and both the burdens and benefits of wildlife fall in most instances on more than one sovereign. Any sovereign interest in wildlife is therefore relative to other sovereigns and is equitable in nature. Further, all sovereigns bear some duty, relative to their interests in and use of the wildlife, of ensuring the continued perpetuation of the species.(234) Nevertheless, this burden of conservation must be equitable, and a disproportionate burden on one sovereign inevitably detracts from that sovereign's right to use the wildlife (or its habitat) for its own benefit.(235) Inequitable results occur in particular when one sovereign shoulders an undue conservation responsibility in order to compensate for another sovereign's destruction of the species or its habitat. Accordingly, any trust paradigm in the realm of wildlife conservation must account for the equitable distribution of the conservation burden between tribes and the majority society. But despite the conceptual clarity of this principle, it is sometimes difficult to pinpoint precisely when the burden of conservation is so disproportionately placed on a tribe that it improperly infringes on that tribe's interest in wildlife. Perhaps the only redeeming factor in the dire circumstances faced by the tribes in the Columbia River Basin is that the depletion of salmon stocks as a result of non-Indian activities has reached such an extreme level that there can be no doubt that the tribes are presently shouldering a vastly disproportionate conservation burden to compensate for the federal government's failure to protect the salmon resource. In other resource management contexts, however, identifying the proportionate conservation burden may be a more difficult matter, but still one integral to assessing the government's trust responsibility.

A fifth complicating dimension in the wildlife context is the ever prevalent biological uncertainty surrounding species management. Matters such as identifying the necessary degree of conservation, translating the conservation need into appropriate management actions, and distributing the conservation burden equitably between the tribes and the federal government are complicated by the scientific uncertainty inherent in wildlife management. Nevertheless, the lack of scientific certainty in these matters should not provide an excuse for failing to fulfill the trust obligation. While implementation of the trust obligation necessarily may have to be satisfied with somewhat less precision in the wildlife context than in other areas, the duty itself should still carry the same substantive force.

And finally, perhaps the most difficult aspect of enforcing the trust obligation in the wildlife context is purely a practical one. Breaches of the trust obligation by federal agencies in the wildlife context may not be immediately evident. This is in part because natural populations of wildlife fluctuate, and a decline in wildlife may go unnoticed for a number of years. Moreover, the causes of wildlife decline may be unknown, and remedial attention is likely to focus on the most obvious cause of mortality, which is often harvest.(236) Trust violations, therefore, may persist for an extended period.

Unfortunately, it is predictable that when federal trust violations continue over a long period of time, political and economic interests benefiting from a new regime of wildlife destruction become entrenched, and ultimately the trust violations become so institutionalized and part of the pattern of behavior for federal agencies that such violations are difficult to reverse. As in the Columbia River Basin, where there have been longstanding and pervasive violations of the trust obligation, realigning rights and obligations of the federal and tribal sovereigns in accordance with the trust responsibility may necessitate substantial shifts, and meet with considerable political resistance. Moreover, as a practical matter, it may be impossible to fully rectify the trust violations in the immediate short term, particularly where the stocks are so depleted that they are threatened with extinction, as they are in the Columbia River Basin.

The gravest danger resulting from these systemic concerns is that federal agencies will, when confronted with trust issues, define the trust obligation by its many violations rather than by sound legal and equitable principles. In other words, if long-term measures and institutional overhaul are required to realign the conservation burden, or recover the species to harvestable levels, agencies that by their nature are often predisposed to responding to short-term political concerns may seek to recharacterize their trust obligation to reflect and incorporate the political and practical pressures facing them. Agencies may be inclined to define their trust obligation according to what they are willing to do, rather than what legal principles would require them to do.(237) This predilection, if allowed, would drain the trust obligation of any affirmative duty to protect treaty use of wildlife; therefore it is imperative that courts faced with these issues identify and reject any such tendency on the part of agencies. Addressing practical constraints and providing for the legitimate needs of the majority society can be achieved without corrupting the essence of the trust obligation.(238)

2. The Issues

a. Recovery Levels

Despite these various factors which render the trust responsibility in the area of wildlife management perhaps more complex than other realms of agency action, the = issues likely to reoccur in this context reduce to three central ones. The first concerns the level of species recovery. The ESA provides that the Service will develop recovery plans for listed species.(239) The regulatory effect of such plans is not explicitly addressed in the statute, but the Service often uses such plans templates for its biological opinions rendered under section 7.240 Indeed, the draft recovery plan NMFS recently released for the Snake River salmon in the Columbia River Basin sets forth standards that the agency will use to make future jeopardy determinations for the various federal activities causing salmon mortality.(241) Moreover, because a recovery plan by its nature is broad-based and may (to the extent feasible) address all sources of mortality throughout the life-cycle of a species, it is likely to guide management decisions outside of the ESA for federal agencies whose actions contribute to species decline. The Snake River salmon recovery plan addresses impacts to listed species resulting from hydrosystem operations, habitat degradation, hatchery production, and harvest.(242) These recovery measures will inevitably have an impact on the Columbia River stocks that have not yet been listed, as well as hatchery fish, both of which share the same ecosystem with the listed species.(243) Federal management agencies such as the Bureau of Reclamation, the Corps of Engineers, the Bonneville Power Administration, the Forest Service, the Bureau of Land Management, and the Fish and Wildlife Service are likely to refer to the recovery plan as a measure of their obligation with respect to ecosystem management.(244)

The level of recovery for listed stocks is of tremendous importance to tribes. Where a tribe has treaty rights to harvest the listed species (or species sharing habitat with listed species), the level of recovery set by the Service may well determine the viability of tribal treaty harvest in the future. The recovery plan provides a framework for bringing the species back into a stable state. The plan's goals for species recovery will largely determine whether the populations will hover just above the extinction threshold or be robust enough to support resumed tribal harvest.

While tribal needs are not explicitly addressed in the ESA, language in the statute certainly leaves room for levels of recovery sufficient to support treaty harvest, and indeed the Must obligation seemingly requires that.245 The statute contemplates setting recovery goals at levels that will permit delisting of the species, and NMFS has followed that approach in numerous recovery plans.(246) Delisting may occur when the species has reached a point of stabilization such that the various factors that prompted listing in the first place will not put the species in danger of extinction. Among the factors that generate a listing decision are "other natural or manmade factors affecting [the species'] continued existence. 247 Because most tribal treaty use arguably falls within this language, NMFS can incorporate the expected mortality from full tribal harvest into the assumptions that guide recovery goals.(248) The trust responsibility seemingly requires control of other factors causing species decline to the extent that the population will rebuild to levels sustaining tribal treaty harvest.(249)

The recovery levels have a related impact that must be considered for trust implications. When the recovery plan serves as a basis for jeopardy or no-jeopardy decisions made in biological opinions, the degree of recovery sought will often affect the period of time over which the Service will continue to regulate activities contributing to species mortality. When higher recovery levels are set, the time period for regulating human sources of mortality is arguably lengthened. When tribal activities are among those sources of mortality, the impact of such extended regulation on their harvests must be considered.

b. The Conservation Burden

The second trust issue in this area concerns allocating the burden of conservation equitably between the tribes and the non-Indian interests.(250) The issue arises dramatically in contexts where there are numerous, distinct sources of species mortality of which the tribal activity is just one, such as in the Columbia River Basin.(251) As noted earlier, when the various activities involve federal action, the Service is called upon to make jeopardy determinations under section 7.(252) Yet the jeopardy determination is necessarily a relative one that the Service makes in light of the environmented "baseline" it chooses.(253) Typically, the Service allows for a certain level of species mortality without funding "jeopardy" to that species' survival.(254) In theory, this sub-jeopardy "mortality increment," as it might be called, may be distributed in several different ways among the various activities causing species decline, absent any biological constraints which mandate that the entire burden fall on particular uses. Adverse activities that are allowed to continue consume a greater share of the mortality increment and assume a lesser conservation burden relative to other activities. While the ESA does not specify exactly how the conservation burden ought to be allocated, the Services' current approach seems to be one based largely on timing. The "baseline" against which jeopardy is assessed is defined by regulation as consisting of those activities that have been subject to prior consultation or where consultation is presently ongoing.(255) Therefore, as a hypothetical, when four separate activities each cause approximately 25% of the aggregate mortality to the species' breeding population, and when the Service determines that jeopardy to the species occurs at roughly 75% mortality to the breeding population, the first three activities that undergo consultation would not result in a jeopardy opinion; instead, they would consume the full acceptable mortality increment. The fourth, however, would trigger jeopardy in light of the impacts caused by the first three.(256) While the hypothetical assumes a simplicity that is rarely, if ever, present in the real-life context, this first-in-time approach is plainly articulated both in the ESA regulations and internal agency memoranda.(257)

Compelling reasons indeed exist for allowing the Service full latitude in most circumstances to use its discretion as it sees fit in allocating the conservation burden. But when applied to the Indian use context, such full discretion can translate into improper subjugation of treaty rights. The potential for this outcome is magnified in circumstances when the tribes lack the political and economic power of other established interests that engage in activities also contributing to. mortality. Politics can be masked all too easily behind a veil of agency scientific discretion.

The Columbia River Basin example demonstrates that the time-based approach can produce wholly inequitable results for Indian interests. As noted earlier, NME has recently, rendered a biological opinion on the hydrosystem to cover operations through 1998.(258) While the opinion is styled as a jeopardy opinion, the reasonable and prudent alternatives offers allow the hydrosystem to continue operating much as it has in the past, causing continued high mortality to both spawning and juvenile populations.(259) The agency has also issued a biological opinion on land management activities, again allowing much of the habitat degradation to continue.(260) Interestingly, however, by the time of this writing NMEN has not yet issued a biological opinion on fall season commercial harvest. In theory at least, the mortality that will inevitably result from the hydrosystem operations and habitat degradation becomes part of the "baseline" against which future harvest activities will be considered.(261) The sequential of the biological opinions, and the positioning of the harvest opinion near the end of the sequence, makes it ever more likely that little of the acceptable mortality increment will be left for tribal harvest.(262) Though the mortality associated with tribal harvest is a mere fraction of the mortality caused by other sources, the "first in time" approach effectively positions the harvest activities precariously near the point of jeopardy on the continuum of activities contributing to species mortality.(263) In other words, when NMFS allows other activities to become part of the baseline, the agency effectively creates a premium of impact with respect to tribal harvest despite its relatively fractional contribution to species mortality. This approach conflicts with the essence of the wt responsibility, which should, to the extent possible and consistent with the needs of the species, prioritize tribal activities guaranteed by treaty.(264)

c. Deference to Tribal Scientific and Technical Conclusions

The third trust issue concerns management decisions regarding conservation. Increasingly, tribes and federal agencies disagree on a technical and scientific level as to the measures necessary to restore imperilled wildlife populations. In the Columbia River context, for example, the tribes and NMFS fundamentally disagree on certain recovery approaches having to do with in-river management, the role of artificial transportation in juvenile migration, and the role of supplementation to enhance fish production.(265) When a species is precariously close to extinction, as are some of the Snake River listed stocks, the difference in scientific approach to an issue may well determine whether the species survives.(266)

The tribes are recognized co-managers of their treaty wildlife resources,(267) such management has traditionally taken the form of harvest management.(268) Many tribes now have fish and wildlife management agencies that have considerable technical and scientific expertise spanning the full realm of biological issues arising with respect to the species.(269) Moreover, tribes are gaining an increasing role outside of the ESA framework in bringing their science to bear in managing habitat and other biological factors affecting the species. In the Columbia River context, for example, the Northwest Power Act calls for a tribal role in developing a regional plan to recover fishery resources in the basin.(270) The Ninth Circuit recently found the plan issued by the Northwest Power Planning Council invalid in part because the Council had failed to explain a statutory basis for rejecting the recommendations of state and tribal fishery managers.(271) The tribes also participate with other fisheries agencies in a Technical Advisory Committee (TAC) established by the Columbia River Fish Management Plan to develop and analyze data regarding harvest and passage conditions.(272)

While the ESA contemplates that NMFS or the USFWS will be the primary regulatory and consulting agency for biological opinions rendered under the ESA,273 it does not address the extent to which the agencies must, under their separate trust responsibility, take into account tribal input in making such regulatory decisions.(274) Nor is it clear, as a broader matter, how the standard principle of deference to agency determinations operates when NMM' scientific decisions made within the ESA framework conflict with tribal scientific judgements made in the context of another statutory framework such as the Northwest Power Planning Act.(275) There is little doubt that the degree of deference due to tribal management decisions will attract increasing attention as a critical issue in wildlife management within and outside the framework of the ESA.(276)

3. The Government's ESA Indian Trust Policies

a. Emerging Expressions of Trust Responsibility

Given the complexities identified above in formulating a trust paradigm for implementing the, ESA, k is appropriate to question at the outset whether a trust policy should be developed on a national level or a regional level. On one hand, the individual complexities of wildlife conflicts and the unique and vastly disparate property interests of the various tribes affected by wildlife conservation measures caution against any detailed national approach. On the other hand, a set of general fundamental principles would provide a useful framework for case-specific resolution of issues.(277)

At the present time, policy development in the area of wildlife management is ongoing both at the national and regional levels. At the national level, USFWS has developed a draft Director's Order setting forth a broad Indian policy for Endangered Species Act implementation.(278) Due to apparent disagreements within the U.S. Department of Interior over the content of the policy, it remains in draft form. In developing the Draft Policy, USFWS received substantial input from Assistant Secretary for Indian Affairs, Ada E. Deer, in the form of a guidance memorandum issued in June 1994.(279) The memorandum explains the basis of the trust obligation and suggests appropriate standards to balance fiduciary obligations toward tribes with wildlife conservation needs.(280) More recently, in November 1994,, the Associate Solicitor for Indian Affairs, Michael J. Anderson, issued a memorandum to the Solicitor endorsing an approach to Endangered Species Act (ESA) implementation that would afford prioritization to Indian treaty uses of wildlife.(281) Both memoranda articulate many of the principles underlying the government's trust obligation and serve as useful, though presumably not binding, references for trust issues in this area.

On a regional level, perhaps the most concerted policy development is occurring with respect to the Columbia River Basin issues, due in part to sustained efforts by the treaty tribes of the region to urge the federal government to fulfill its trust responsibility to protect their treaty fishing rights. The draft recovery plan for Snake River Salmon recently released by NMFS includes a section setting forth the agency's approach to fulfilling its trust responsibility and meeting treaty obligations.(282) The agency has not yet, however, developed a national policy setting forth its responsibilities toward tribes.

Finally, equally important policy initiatives are talking place on the part of the tribes themselves. The Columbia River treaty tribes have developed a comprehensive plan for restoring fish populations in the basin. The Columbia River Inter-tribal Fish Commission (CRITFC), which represents the four tribes on fisheries matters, presented the restoration plan to President Clinton and to Congress in June 1995.283 Additionally, the Umatilla Tribes released a salmon policy in May 1995, which calls for extensive salmon recovery measures.(284) The CRITFC plan and the Umatilla policy present the tribal perspective on what the government's trust responsibilities are in the context of Columbia River salmon recovery. The various tribal and federal expressions of trust responsibility provide alternative paradigms for comparison.

b. The Conservation Principles

In both the USFWS draft Indian ESA policy and NMFS's Snake River salmon recovery plan, the government has expressly acknowledged its trust obligation to protect native treaty rights in carrying out wildlife conservation under the ESA.(285) Both policies appear to define the federal government's substantive trust obligation according to a set of "conservation necessity principles," derived originally from treaty fishing cases,(286) which will govern when the Services may regulate tribal treaty uses impacting listed Species.(287) Interestingly, both policies express four "conservation necessity principles" on which there appears to be full agreement, but the policies diverge as to a fifth criterion. The four that have gained a consensus would allow the government to impose restrictions on tribal activities only when

1) the restrictions are "reasonable and necessary" for the conservation of the species;

2) the restrictions do not "discriminate" against Indian activities, either on their face or as applied;

3) voluntary tribal conservation measures are not adequate to achieve the conservation purpose;(288) and

4) the restrictions are "the least restrictive [measures] available" to achieve the required conservation purpose.(289)

The controversial fifth conservation principle focuses on the extent to which non-Indian activities must be restricted before regulation may be directed at Indian activities. In their guidance memoranda, the Secretary for Indian Affairs and the Associate Solicitor for Indian Affairs suggested that restrictions on tribal activity are proper only when "their purpose cannot be achieved solely through the regulation of non-Indian activity."(290) This fifth criterion was expressly included (along with the other four) in a plan recently issued to govern management of old-growth forests that contain spotted owl habitat.(291) Nevertheless, USFWS omitted the fifth criterion from its draft Indian ESA Policy.(292) A somewhat diluted version of the fifth criterion was included by NMFS in the draft recovery plan for the listed Snake River salmon, allowing restrictions on tribal treaty harvest when the conservation purpose of such restrictions "cannot be achieved through reasonable regulation of non-treaty activities."(293)

c. A Critique

While the government's attention to its trust responsibility in ESA implementation is a promising first step, the expression of trust principles in the current draft policies is markedly flawed. As a preliminary matter, there is a fundamental problem with defining the trust obligation according to the five conservation necessity principles. Those principles arose out of cases in which governmental agencies sought to restrict treaty fishing for conservation purposes.(294) The principles represent a point beyond which the government may not venture in its conservation program without violating treaty rights.(295) The trust obligation, by contrast, is that constant, enduring obligation on the part of the government to affirmatively protect the treaty rights and other property rights of tribes. This federal trust duty of protection is a key part of the sovereign property expectations that underlie the tribal cessions of land that occurred two centuries ago.(296) In the Columbia River Basin, the trust duty unquestionably requires protection of the salmon resources that support treaty fishing. Notably, had the government lived up to its trust responsibility in the Columbia River Basin, there would now be no need for it to restrict the exercise of treaty fishing through ESA regulation: the role for conservation necessity principles developed only after the government had persistently violated its trust obligation to protect the tribes' treaty resources.(297)

As a source of law, the treaties themselves, quite apart from the trust doctrine, establish the framework within which courts have developed the conservation necessity principles to delineate the outer bounds of permissible agency regulation. Defining the trust obligation by reference to these principles folds two vastly different lines of legal doctrine into one, and transforms an affirmative federal obligation into the lowest echelon of permissible federal conduct. Such an approach would effectively reformulate the duty to protect tribal resources into the prohibition against abrogating treaty rights. Rather than inspiring adherence to trust principles, the Services' emerging policies greatly distort the trust duty.(298)

As a result of this ill-configured approach, the trust policies fail to squarely confront the three overriding trust issues identified earlier that arise in wildlife conservation: establishing recovery levels, distributing the conservation burden, and allowing deference to tribal expertise.(299) With respect to the first, as noted earlier, NMFS and USFWS have a duty to incorporate the trust responsibility into their recovery planning process to ensure protection of the trust corpus, the wildlife resource.(300) In the Columbia River Basin, NMFS has a trust duty to restore conditions that support treaty salmon harvest.(301) But by focusing entirely on when it is appropriate to regulate tribal activity, the five conservation principles alone fail to address U& aspect of the trust responsibility.(302) In contrast, the tribal restoration plan for the Columbia River Basin makes long-term projections of populations necessary to meet tribal needs. Offering an approach that "emphasiz[es] sustainability for future generations," the CRITFC plan calls for rebuilding upper Columbia River stocks to 4 million adult salmon in 25 years, and to levels of historic abundance within 200 years.(303) These numerical goals offered by the tribes should provide an initial measure of the government's trust obligation to restore fish populations in the basin.(304)

Second, the conservation necessity principles as expressed in the Services' policies fail to adequately confront the issue of allocating the conservation burden in an equitable fashion between Indian and non-Indian. interests. The controversial fifth principle(305) comes the nearest, by allowing restrictions on tribal use only when the purpose of such restrictions cannot be achieved by regulating non-Indian uses. But that principle has not been adopted in the USFWS draft policy, and it has been diluted in the NMFS recovery plan.(306) Even expressed in fullest form, the principle falls short of affirmatively mandating regulation of other uses, because it is framed instead as a factor to guide the restriction of Indian harvest activities.

By not affirmatively mandating the restriction of other activities causing species decline, the policies may still leave room for discriminatory outcomes against the tribes. This is because, without the affirmative mandate, USFWS or NMFS may simply allow human pressures on a particular species to mount until a crisis point is reached - as in the Columbia River Basin.(307) At the point of biological crisis, the agency's regulatory options may be so limited that restrictions of the tribal activity are the only feasible ones immediately available. While the five conservation principles would prohibit restrictions on tribal treaty activities when such restrictions are "discriminatory" and when other non-Indian activities may be regulated instead, such assurances may carry little weight when an agency has allowed a situation of wildlife destruction to continue to the point where it has in effect left itself with only one option - that of restricting the last harvest of the species.

The potential for U& outcome is particularly likely in view of the regulatory approach NMFS and USFWS take to addressing multiple threats to species. By adopting a first-in-time approach to jeopardy determinations, the agencies retain significant flexibility to arrange what activities will have a "first call" on the sub-jeopardy mortality increment.(308) It is then likely that the last activity that is subject to consultation will absorb an undue share of the conservation burden.(309) The conservation principles alone fail to reorder the sequencing discretion in this regulatory regime, leaving the potential for an outcome continually skewed against tribes. Indeed, in the Columbia River context, even while the recovery plan for the Snake River salmon endorses the five conservation principles, the tribal activity will still be assessed against the baseline of hydrosystem operations and habitat activities on which prior consultation occurred,(310) and the plan calls for further harvest cutbacks from even the minimal present harvest levels.(311)

In short, because the conservation principles do virtually nothing to prevent the agency from narrowing its choices to the point where harvest regulation is inevitable, they fail to ensure fulfillment of the trust responsibility. Not surprisingly, the tribal plan developed for the Columbia River Basin calls for an up front, equitable distribution of the conservation burden among the hydrosystem, habitat, harvest, and hatchery sources of species decline.(312) This is a preferable approach and one that is not only in keeping with the trust responsibility but also far more likely to fulfill the underlying wildlife conservation purposes of the ESA.

Finally, the conservation necessity principles fail to address the emerging trust issue of deference to tribal scientific and technical conclusions. hi many cases the tribal and federal authorities might have differing positions as to the application of the principles themselves. They may fundamentally disagree, for example, about the necessity of restrictions on tribal harvest activity, or the feasibility of regulation other uses, and any judicial outcome of such conflicts will depend largely on the degree of deference accorded by the court to the various authorities. While both the USFWS draft policy and the NMFS draft recovery plan for the Snake River salmon elsewhere provide in a general way for some tribal input into technical decisions,(313) how effectual that role will be depends largely on the weight accorded to tribal conclusions when in conflict with those of federal agencies.(314) In the Columbia River context, the tribes' own recovery plan sets forth highly technical, scientifically based proscriptions for altering those activities in the region contributing to species decline.(315) The technical detail and scientific underpinning of the plan itself reflects a tribal view of the trust responsibility that includes administrative and judicial deference to tribal agency conclusions; indeed, a court faced with competing federal and tribal plans would be justified in applying the deference principle to both,(316) effectively placing them on equal footing.

In sum, while the government's emerging Indian ESA policies do much to bring attention to an area of significant importance to tribes, their substantive mandate should focus more on the affirmative duties underlying the trust responsibility. At the very least, the policies should provide guidance on the agency's unique trust obligation in recovering species to levels that support tribal treaty harvest, allocation the burden of conservation equitably, and providing a role for tribal management decisions when appropriate. The five conservation principles, while a fruitful beginning, fail to fully address the trust responsibility. Without adequately protecting traditional tribal hunting and fishing activities, the federal government win irreparably breach a vital component of the promise of separatism underlying the massive transfer of lands from the native nations to the United States.

V. Conclusion

President Clinton's April 29, 1994 pledge to uphold the trust obligations of the federal government provides tribes with hope and promise.(317) The efforts he set in motion may well go far in restoring government-to-government relations between the federal agencies and tribes. Without, however, fury meeting the government's sovereign trust obligations toward tribes, true self-determination and tribal sovereignty will remain illusive even in the modem era.

The national environment and shared ecological resources hold tremendous importance for the tribes. The defining mark of tribal culture has always been, and continues to be, a close relationship with the land and its bounty - a feature President Clinton honored in his remarks during the historic April 29 meeting with tribal leaders. At its very core, the trust obligation requires the majority society to exercise self-restraint to avoid polluting the lands of the native nations and to avoid depleting or degrading natural resources shared mutually by federal and native sovereigns.

The basic duties inhering in the trust obligation are well recognized. But despite the compelling obligations underlying the sovereign trust relationship, and despite its binding authority on federal agencies, the trust responsibility has been shrouded in an ever-growing administrative state constructed of statutory mandates that emanate from the majority society and that often fail to respond to unique Indian interests. President Clinton already took a significant step toward fulfilling his trust obligation by directing the attention of his highest officials to Indian law principles that stand apart from statutory mandates. In so doing, he provided an opportunity to create a new sovereign trust paradigm that can affirm the sovereignty of the native nations and underscore the continuing obligation of the federal government without embracing the paternalism and dominance of the past.

The remaining task of developing trust policies to guide agencies in their program implementation holds the greatest challenge. As the Columbia River Basin fall fishing crisis so vividly demonstrates, without firm, substantive tn= policies, tribal treaty rights stand to be lost forever behind a curtain of administrative discretion. The Clinton Indian trust policies as currently drafted fail to embody the prioritization of tribal interests necessary to perpetuate a viable separatism between the native nations and majority society. In a very real sense, the formulation of weak Indian policies may do more of a disservice to tribes than the failure to develop any policies at all, because the mere existence of such policies-conveys a misleading impression of protecting native interests in the implementation Of statutory Programs. Many of the Clinton policies ought to be revisited in this light.

As the President continues to formulate his Administration's approach to Indian affairs, it is important tO recognize that fully upholding the federal trust responsibility will not only bring a sense of honor to the federal-tribal relationship, but may well provide the impetus to rescue a majority society from its own ill-chosen fate. Fulfilling the trust obligation should hasten a shift from an industrial paradigm of environmental degradation to a more sustainable paradigm of environmental stewardship. This, in turn, will confer benefits to all of American society. Nothing short of this policy shift will dignify the President's words, spoken to the several hundred tribal leaders in April 1994:

You have reminded people that all of us should make decisions not just for our children and their grandchildren but for generation upon generation yet to come. I believe in your rich heritage and in our common heritage.(318) (*) This article is preceded by two other articles by the author on the Indian trust responsibility. For background, see Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471 (1994) [hereinafter Trust I]; Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 Utah L. Rev. (forthcoming 1995) [hereinafter Trust II]. For purposes of future reference, this Article shall be referred to as "Trust III." (**) Assistant Professor of Law, University of Oregon School of Law. J.D., Stanford Law School, 1987. This Article is based on a presentation to the Natural Resources Law Section of the Association of American Law Schools at the Annual Meed" in New Orleans, Louisiana, on January 5, 1995. I wish to thank Denis Binder for helpful comments on an earlier draft of this Article and Derek Snelling and Marty Bergoffen for their extensive and careful research. I also express deep gratitude to the many individuals in tribal organizations and federal agencies who provided me with documents as web as their own valuable insights into the issues discussed herein. Special appreciation is due to the Columbia River Inter-Tribal Fish Commission, the Great Lakes Indian Fish and Wildlife Commission, the Warm Springs, Nez Perce, umatilla, and Yakama tribal attorneys and policy analysts, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Bureau of Indian Affairs, the U.S. Department of Interior Solicitor's Office, the Bureau of Reclamation, the U.S. Army (1) Douglas Jehl, Clinton Meets Indians, Citing a New Respect, N.Y. Times, Apr. 30,1994, at 10; Ann Devroy & Tom Kenworthy, High Council with "First Americans," Wash. Post, Apr. 30, 1994, at A1. (2) Remarks to American Indian and Alaska Native Tribal Leaders, Apr. 29, 1994, 30 Weekly Comp. Pres. Doc. 941 (May 9, 1994) [hereinafter Remarks to American Indian Leaders]. (3) See Mary Christina Wood, Indian Land and the Promise of Native Sovereignty. The Trust Doctrine Revisited, 1994 UTAH L Rev. 1471, 1474-75 n.12 (1994) [hereinafter Trust I]. Approximately half of the nation's 2 million Indians live on or near the 387 reservations. See Stewart M. Power, Clinton Vows to Respect Indians: Tribal Leaders Fight Service Cut, Times-Picayune, Apr. 30, 1994, at A2. (4) Many of the tribal leaders attending the meeting made it clear they would hold President Clinton accountable for the promises he made that day. As Cherokee Principal Chief Wilma Mankiller stated: "It was an act of faith for us to even come here, after all the broken promises." Keith White, Mankiller Calls Clinton Meeting an Act of Faith, Gannett News Service, Apr. 29, 1994, available in LEXIS News Library, Current News File. (5) The presidential promise reinforced an earlier commitment made with respect to environmental justice. On February 11, 1994, President Clinton signed an executive order which directed aN federal agencies to confront environmental justice issues in minority and low-income populations. Exec. Order No. 12,898, 59 Fed. Reg. 7629 Feb. 11, 1994). While the order does not specifically address unique impacts on Native American communities, it does affect tribes as part of a larger group of ethnic minorities and low-income populations. Moreover, the order expressly highlights the need for protecting populations that rely on fish for subsistence consumption - a traditional reliance of many tribal peoples. See id. [section] 4-4. For a discussion, see Clarice E. Gaylord & Geraldine W. Twitty, Protecting Endangered Communities, 21 Fordham Urb. L.J. 771, 778-79 1994). (6) Martin Van Der Werf, Clinton, Indians Talk It Out. Symbolic Summit Targets Concerns, Ariz. Repub., Apr. 30, 1994, at Al; Paul Bedard, Clinton Vows Closer Ties with Indians, The Wash. Times, Apr. 30, 1994, at Al. (7) See, e.g., Affiliated Tribes of Northwest Indians, Resolution No. 94-46, at 2 (May 19, 1994) (on file with author) (calling upon the federal government to protect tribal water rights). (8) Consistent with current policy initiatives, the Administration has also taken steps to provide tribes with access to agencies that deal with natural resources and the environment. The President appointed the Executive Director of the Columbia River Inter-Tribal Fish Commission, Ted Strong (Yakama Nation), to the President's Council on Sustainable Development, a body he chartered to develop long-term, national strategies to achieve environmental and economic sustainability. Sustainable Development Council Key Forum to Define Relationship of Environment, Economy, Gore Says, U.S. Newswire, July 20, 1993, available in LEXIS, News Library, Wires File (25-member council also includes members of the President's cabinet, enviromnental leaders, and corporate executives). In May 1994, Attorney General Janet Reno and U.S. Department of Interior (DOI) Secretary Bruce Babbitt convened a meeting with more than 200 tribal leaders to discuss a broad range of concerns, including natural resource issues affecting tribes. Louis Sahagun, Tribal Leaders Meet, Voice Sovereignty Concerns, L.A. Times, May 6, 1994, at A12. Finally, many agencies with programs affecting native enviromental rights have established special offices to deal with Indian issues and to develop working relationships with tribes. The Department of Agriculture has a Native American Programs Office located in its Office of Public Affairs at its Washington, D.C. headquarters. The Bureau of Reclamation has a Native American Affairs Office in its Washington, D.C. headquarters. The Bonneville Power Administration, housed within the Department of Energy, has a "Tribal Liaison" located in its Spokane, Washington District Office. The Environmental Protection Agency has a newly created Office of Indian Affairs as well as a Tribal Operations Committee. The U.S. Fish and Wildlife Service has appointed "Native American Desk Officers" for each region to provide a principal point of contact for the tribes. The Department of Justice has established an Office of Tribal Justice and has designated Assistant U.S. Attorneys in some regions of the country to serve as tribal liaisons. The Bureau of Indian Affairs has an Office of Trust Responsibilities that handles tribal fish and wildlife issues, among other matters. Finally, the Office of American Indian Trusts (OAIT), housed within DOI, was created in 1991 and continues to serve as an outreach and education branch of the federal government on trust issues. (9) William J. Clinton, Memorandum for the Heads of Executive Departments and Agencies, Government-to-government Relations with Native American Tribal Governments, 59 Fed. Reg. 22,951, 22,951 (May 4, 1994) [hereinafter Government-to-government Directive]. (10) Id. On the same day, President Clinton also signed another policy directing all federal agencies to improve their processes for distributing eagle feathers found on federal lands to native religious leaders for ceremonial purposes. William J. Clinton, Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes, 59 Fed. Reg. 22,953 (May 4, 1994). (11) See infra part III.B (describing policies). (12) 12 See, e.g., infra note 31 (statement of Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation); infra note 32 (statement of Antone Minthorn, Chairman, Confederated Tribes of the Umatilla Indian Reservation); Affilliated Tribes of Northwest Indians, supra note 7, at 2; see also Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 Utah L. Rev. (forthcoming 1995) at part IV.C.3 [hereinafter Trust II]. (13) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (1988 & Supp. V 1993). (14) See Remarks to American Indian Leaders, supra note 2, (15) U.S. Const. art II, [section] 2, cl. 2. Such treaties are subject to ratification by two-thirds of the Senate. Id. (16) In 1871, Congress passed a law prohibiting the President from entering into further treaties with the tribes. See Felix S. Cohen, Handbook of Federal Indian Law 105-07 (Rennard Strickland et al. eds., 3d ed. 1982). (17) U.S. Const. art II, [section] 2 cl. 1; see also Cohen, supra note 16, at 208 (observing that "during the first century of America's national existence - Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law"). For a history of Indian affairs from 1790 to 1834, see Francis P. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790-1834 (1962). (18) Richard M. Nixon, Special Message on Indian Affairs, July 8, 1970, Pub. Papers 564-76 (1970), reprinted in part in Francis P. Prucha, Documents of United States Indian Policy 256-58 (2d ed. 1990). (19) See Government-to-government Directive, supra note 9. (20) Statutes provide for substantial BIA involvement in nearly all phases of timber, mineral, agricultural, and range resource development on tribal lands. For an overview of BIA's extensive management role, see Cohen, supra note 16, at 729-36. (21) Pub. L. No. 103-413, [subsection] 201-204, 401-407, 108 Stat. 4270 (1994). (22) This legislation expands a program known as the "Tribal Self-Governance Demonstration Project" authorized by the Indian Self-Determination and Education Assistance Act. Id. [section] 204; see also Tribal Self-Governance Act Hailed as Milestone in Indian Legislation, U.S. Newswire, Oct. 11, 1994, available in LEXIS, News Library, Wires File. (23) See generally Trust I, supra note 3, at part I.C. (24) Such programs are carried out by the Bureau of Reclamation, the U.S. Fish and Wild. life Service, and the National Marine Fisheries Service. (25) Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy 122 (1987). (26) Valerie Taliman, Environment Key to Native Survival, Ethnic NewsWatch, May 31, 1993, at 14, available in LEXIS, News Library, Ethnic NewsWatch (ENW) File. (27) See Trust I, supra note 3, at parts I, II. (28) See generally Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277, 278-89 (1993); William R. Irvin, The Endangered Species Act. Keeping Every Cog and Wheel, 8 NAT. Resources, & Env't, Summer 1993, at 36, 38. The number of candidates for listing under the Endangered Species Act (ESA) has soared in recent years. Presently, there are 750 species with ranges m the United States that are listed as threatened or endangered under the ESA. There are an additional 3,600 'candidate species" that USFWS believes may be appropriate for listing. J.B. Ruhl, Section 4 of the Esa - The Cornerstone of Species Protection Law, Nat. Resources & Env't, Summer 1993, at 26, 70. A 1990 report issued by the Council on Environmental Quality states: "[A] total of 9,000 U.S. plant and animal species may be currently at risk. The problem is national in scope, with every region of the country reporting losses of native species .... More than species are being lost. Whole plant and animal communities-integrated, resilient systems - are threatened." Council on Envtl. Quality, Environmental Quality, 21st Annual Report 137 (1990); see also infra note 63 (noting loss of fisheries nationwide). (29) See Trust I, supra note 3, at 1494 n.108 (describing dioxin accumulation in Columbia River salmon and dangerous PCB concentrations in Puget Sound fish). (30) See infra part IV.A.1. (31) Senate FY96 Energy and Water Appropriations: Hearing Before the Senate Comm. on Appropriations, Subcomm. on Energy and Water, 104th Cong., 1st Sess. (1995), also available in LEXIS, Legislation library, Congressional Testimony File (testimony of Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation) (insufficient salmon for spring salmon ceremonies and root feasts) [hereinafter Energy and Water Appropriations Hearing]; Roberta Ulrich, Thin Salmon Run Darkens Tribal Feast, Spirit, The Oregonian, Apr. 7, 1995, at B1, B5. (32) Public Works - Bureau of Reclamation Project Illegal Water Use Practices: Hearing Before the Subcomm. on Oversight and Investigations of the House, Comm. on Natural Resources, 103d Cong., 2d Sess. (1994) [hereinafter Public Works Hearing] (statement of Antone Minthorn, Chairman, Confederated Tribes of the Umatilla Indian Reservation). On March 15, 1995, the Confederated Tribes of the Umatilla Indian Reservation appealed to President Clinton to declare a State of Emergency in the Columbia River Basin and to take immediate measures to assist juvenile salmon smolts in their migration to the sea. Letter from Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation, to President Clinton (March 15, 1995) (on Me with author) [hereinafter Umatilla Letter to President Clinton] (stating: "If more salmon go extinct, our very culture, religion, and way of life will also be destroyed. . . . There is a crisis in the Columbia River.'). (33) See COHEN, supra note 16, at 221. For a fuller discussion of the origins and scope of the trust responsibility, see Trust I, supra note 3. For an analysis of standards in applying the trust doctrine, see Trust II, supra note 12. (34) COHEN, supra note 16, at 225-28; see also Trust I, supra note 3, at part U. Tribal expressions of the trust obligation center on the duty of protection as well. See infra note 38. (35) COHEN, supra note 16, at 220. (36) See Trust I, supra note 3, at part II.A; see also Report on Trust Responsibilities and the Federal-Indian Relationship, Final Report to the American Indian Policy Review Commission 51 (1976) (noting trust obligation was a "significant part of the consideration" for the native cessions of land to the United States (quoting Reid P. Chambers, Associate Solicitor for Indian Affairs)). (37) For an historical discussion of the colonialist underpinnings of Indian affairs, see Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (1990). (38) The Columbia River Basin tribes, for example, have invoked the trust responsibility in calling for enhanced water quality protection, augmented water flows for fish recovery, and protection of tribal treaty fishing rights. See Trust I, supra note 3, at n.153, and sources cited therein. A representative of the four treaty tribes cast the trust obligation in the following terms:

The United States' trust responsibility toward American Indians is the unique legal and moral duty of the United States to assist Indians in the protection of their property and rights. Too often, the federal government has construed protection to mean control.... In the spirit of the law, we seek federal assistance to defend against injury to our trust resources.

... [T]he United States is bound to act always in the best interest of Indians and with the utmost good faith towards them. Hearings Before the Columbia River Fisheries Task Force (Oct. 28, 1992) (on file with author) [hereinafter CRFTF hearings] (statement of Ted Strong, Executive Director, Columbia River Inter-Tribal Fish Commission) (emphasis in original). (39) See Seminole Nation v. United States, 316 U.S. 286, 296 (1942); United States v. Mitchell, 463 U.S. 206,224-28 (1983); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256-57 (D.D.C.) (mem.), modified on other grounds, 360 F. Supp. 669 (D.D.C. 1973), rev'd in part on other grounds, 499 F.2d 1095 (D.C. Cir. 1974), cert denied, 420 U.S. 962 (1975); Northern Cheyenne Tribe v. Hodel, 12 Indian L Rep. (Am. Indian Law. Training Program) 3065, 3070-71 (D. Mont.) (May 28, 1985); see also Trust I, supra note 3, at part III. (40) Cohen, supra note 16, at 225; Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990); see also Bruce Babbit, U.S. Dep't of Interior, Order No. 3175, Departmental Responsibilities for Indian Trust Resources (Nov. 8, 1993) (on file with author) [hereinafter Interior Order]; Memorandum from Ada E. Deer, Assistant Secretary for Indian Affairs, U.S. Department of Interior, to Assistant Secretary for Fish and Wildlife and Parks 4 (June 23, 1994) (on file with author) [hereinafter BIA Fish & Wildlife Policy Memorandum). BIA, however, has special trust responsibilities beyond those of other agencies, because it is responsible for managing tribal lands and resources. See id. (41) Cohen, supra note 16, at 220; Nance v. Environmental Protection Agency, 645 F.2d 701, 710 (9th Cir.), cert. denied, 454 U.S. 1081 (1981) (trust duty in implementing Clean Air Act); Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d at 1420 (imposing trust duty implementing ESA but finding it satisfied). But see North Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980) (identifying no special trust duty to protect Inupiat subsistence use in implementing ESA because interests of Inupiat and ESA found congruent), criticized in Trust II, supra note 12, at part I.A.2. (42) Seminole Nation, 316 U.S. at 297; Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. at 256. (43) Federal common law has traditionally developed to protect unique federal interests. See Erwin Chemerinsky, Federal Jurisdiction 293, 297 (1989). The Supreme Court has emphasized that tribal property rights are protected under federal common law. See County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236, reh'g denied, 471 U.S. 1062 (1985). (44) Cohen, supra note 16, at 220. (45) In providing trust guidance to other agencies, BIA has underscored this obligation. See BIA Fish & Wildlife Policy Memorandum, supra note 40, at 3 ("[I]n cases where inaction may cause the loss of a property right, the Secretary must take affirmative action to enforce that right and preserve Indian property."). (46) See United States v. Dion, 476 U.S. 734, 740 (1986); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002, 1004 (8th Cir. 1976); Seneca Nation of Indians v. Brucker, 262 F.2d 27, 28 (D.C. Cir. 1958), cert denied, 360 U.S. 909 (1959); United States v. Eberhardt, 789 F.2d 1354, 1360 (9th Cir. 1986); Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988); Pyramid Lake Paiute tribe of Indians v. Morton, 354 F. Supp. at 256; see generally Cohen, Supra note 16, at 221-28. (47) See supra notes 30-32 and accompanying text; infra notes 203-06 and accompanying text (discussing impacts to tribes from loss of Columbia River salmon runs). (48) Pyramid Lake Paiute Tribe of Indians v. United States Dept of the Navy, 898 F.2d 1410, 1420 (9th Cir. 1990); Northern Cheyenne Tribe v. Hodel, 12 Indian L. Rep. (Am. Indian Law. Training Program) 3065, 3070 (D. Mont.) (May 28, 1985). (49) See generally BIA Fish & Wildlife Policy Memorandum, supra note 40, at 3 (noting that "Federal duties include ... assuring that the exercise of [these] rights remains meaningful"); U.S. Bureau of Reclamation, U.S. Dep't of Interior, Bureau of Reclamation Indian Trust Asset Policy 1 (1993) (on file with author) [hereinafter Bureau of Reclamation Indian Trust Asset Policy] (noting duty to protect "Indian trust assets," which may include "lands, minerals, hunting and fishing rights, and water rights"); Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 426 (1991) finding that tribe's water rights constitute trust res," which government has duty to preserve); Northern Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987) (applying trust obligation to protect tribal wildlife resources). (50) These include the Clean Air Act, 42 U.S.C. [sub-sections] 7401-7671 (1988 & Supp. V 1993); the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [sub-section] 1251-1387 (1988 & Supp. V 1993); the Resource Conservation and Recovery Act of 1976,42 U.S.C. [[sub-section] 6901-6992 (1988 & Supp. V 1993); the Safe Drinking Water Act, 42 U.S.C. [sub-section] 300f-300j (1988 & Supp. V 1993); and many others. (51) For general discussions of ecosystem decline, see William H. Rodgers, Jr., Environmental Law [section] 1.1 (2d ed. 1994); World Resources Inst., The 1994 Environmental Almanac (1994); Lester R. Brown et al., State of the World: A Worldwatch Institute Report on Progress Toward A Sustainable Society (1995); Albert Gore Jr., Earth in the Balance: Ecology and the Human Spirit (1992). (52) There are some limited exceptions. For example, the Eagle Protection Act generally prohibits the take or possession of eagles but allows federal distribution of eagle parts to Native Americans for religious purposes. 16 U.S.C. [section] 668a (1988). The ESA provides an exemption from its take prohibition for Alaskan natives. 16 U.S.C. [section] 1539(e) (1988). The Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA) allows tribes to recover natural resource damages for releases of hazardous substances to their lands and resources. 42 U.S.C. [section] 9607(f) (1988 & Supp. V 1993). Several pollution control statutes include "Treatment as States" (TAS) provisions that allow tribes to assume federal regulatory programs on their reservations. TAS provisions are included in the Clean Water Act, 33 U.S.C. [section] 1377(e) (1988); the Safe Drinking Water Act, 42 U.S.C. [section] 300h-l(e) (1988); the Clean Air Act, 42 U.S.C. [sectio] 7474(c) (1988); and the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [section] 136(u) (1988). Few tribes have yet developed full-scale regulatory programs, however. (53) 42 U.S.C. [sub-section] 7401-7671 (1988 & Supp; V 1993). (54) For a general discussion, see Trust II, supra note 12, at parts I.A., VII. (55) See id. at part VII. (56) See Cohen, supra note 16, at 227; see also infra note 62 (quoting BIA Fish & Wildlife Policy Memorandum, supra note 40). (57) See Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256 (D.D.C.) (mem.), modified on other grounds, 360 F. Supp. 669 (D.D.C. 1973), rev'd in part on other grounds, 499 F.2d 1095 (D.C. Cir. 1974), cert denied, 420 U.S. 962 (1975); see also supra note 46. (58) Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. at 252. (59) Id. at 256 (quoting Seminole Nation v. United States, 316 U.S. 286, 297 (1942)). Pyramid Lake Paiute Tribe of Indians v. Morton was followed by the Supreme Court case Nevada v. United States, 463 U.S. 110 (1983), which dealt with another aspect of the water rights adjudication and addressed the fiduciary obligation in the context of litigation For a discussion of that case, see Trust II, supra note 12, at part VII. (60) 12 Indian L. Rep. (Am. Indian Law. Training Program) 3065 (D. Mont.) (May 28, 1985). (61) Id. at 3071. But see North Slope Borough v. Andrus, 642 F.2d 589, 612-13 (D.C. Cir. 1980) (funding Secretary has discretion to balance subsistence needs of Inupiat people against other conflicting public interests in implementing ESA), criticized in Trust II, supra note 12, at part I.A.2. (62) See supra note 46. This is the position urged by Ada E. Deer, Assistant Secretary for Indian Affairs:

The government-to-government relationship requires that Federal statutes and programs be administered m a manner that does not unilaterally interfere with tribal rights, and that agency missions be interpreted in a manner consistent with Federal Indian law and policy. Where an irreconcilable conflict arises, tribal rights will generally take precedence....

Indian property rights cannot be subordinated to other interests of the Department absent overriding legal authority to do so, since the Federal Government is legally bound to protect the trust assets of Indian tribes. Moreover, in cases where inaction may cause the loss of a property right, the Secretary must take affirmative action to enforce that right and preserve Indian property. BIA Fish & Wildlife Policy Memoradum, supra note 40, at 2-3 (emphasis added); see also U.S. Dep't of Agric., Forest Serv., A Forest Service National Resource Book on American Indian and Alaska Native Relations (Draft) 59 (1995) (on file with author) [hereinafter Forest Service National Resource Book] ("Where a conflicting public duty of an official charged with responsibilities to Indians would lead to a decision or action contrary to Indian interests, the official should not act to the Indians' detriment." (citation omitted in original)). (63) This is certainly demonstrated the Columbia River Basin. See infra part IV.A.1 (discussing salmon crisis); see also, Public Works Hearing, supra note 32, at 8 ("Natural resources in the Pacific Northwest are in peril. This [is] creat[ing] many conflicts." (quoting Antone Minthorn, Chairman, Confederated Tribes of the Umatilla Indian Reservation)). Conditions of natural scarcity are now evident in nearly every region of the country. For various reasons, fish species are suffering significant losses all across the United States. The American Fisheries Society estimates that along the West coast (including the Columbia Basin), well over 100 salmon, steelhead, and trout stocks are extinct, and 214 more are in serious danger of extinction. Peter Korn, The Salmon's Last Run, Amicus J., Fall 1991, at 30, 31. The salmon inhabiting the Sacramento River in California are also facing extinction. Populations of winter-run chinook have declined 99% in the past 25 years, and the species is now listed as endangered under the ESA. Houck, supra note 28, at 287. On the East coast, the Georges Bank fishery has all but collapsed, forcing the closure of 6,600 square miles of fishing grounds in December 1994. Commercial landings of haddock dropped by 75% between 1982 and 1993, and cod and yellow tan flounder populations have also plummeted. Scott Allen, New England Fishing Areas Shut Down; U.S. & Ban Includes Georges Bank, Boston Globe, Dec. 8, 1994, at Metro 1. (64) Government-to-Government Directive, supra note 9. (65) The memorandum sets forth the following principles to guide agency dealings with tribes: 1) operate within a "government-to-government relationship" with tribes; 2) consult, "to the greatest extent practicable" with tribal governments prior to taking actions which affect them; 3) "assess the impact" of federal actions on "tribal trust resources" and "assure that tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities;" and 4) take "appropriate steps to remove any procedural impediments" to working with tribes. Id. 22,951. (66) The only mention of the am responsibility is in the form of a disclaimer at the end of the memorandum:

This memorandum is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States .... Id. (67) 5 U.S.C. [sub-section] 701-706 (1994). (68) See BIA Fish & Wildlife Policy Memorandum, supra note 40. Nevertheless, some of the principles contained in the memorandum serve as a useful beginning point for any agency. Among the important trust principles iterated in the document are the following. 1) all agencies are held to the trust obligation to protect and preserve Indian property and trust assets; 2) agencies must interpret their statutory mandates and regulations in accordance with their am responsibility; 3) the trust duty of protection extends beyond Indian reservation property to include off-reservation resources secured by treaties or other laws; 4) where Indian property rights are affected, in conflict situations, the agency may not subordinate the Indian rights to conflicting rights absent overriding statutory authority to do so; and 5) the trust duty includes an affirmative obligation to take action where Indian trust assets are threatened. See id. at 34. (69) For a discussion exploring the standards of fiduciary obligation, see generally Trust II, supra note 12. (70) See infra part IV.A. (71) See infra part III.B. (discussing policies). (72) See United States v. Mitchell, 463 U.S. 206 (1983) (allowing Tucker Act damages for violation of trust responsibility); see also Trust I, supra note 3, at parts II.D., III.A. (73) See, eg., Government-to-Government Directive, supra note 9, at 22,951; Interior Order, supra note 40, at 1; U.S. Fish & Wildlife Serv., The Native American Policy of U.S. Fish & Wildlife Service, National Policy Issuance No. 94-10, at 2 (June 28, 1994) (on file with author) [hereinafter USFWS Native American Policy); Office of the Attorney Gen., Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes 6 (June 1, 1995) (on file with author) [hereinafter Justice Tribal Policy]. (74) See Washington Dept of Ecology v. Environmental Protection Agency, 752 F.2d 1465, 1472 (9th Cir. 1985) (referring to EPA's "policies and practices" that uphold tribal self-regulation in environmental matters). (75) 5 U.S.C. [section] 553(g) (1994). The statute exempts from the notice-and-comment requirement "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice . . . ." Id. [section] (b)(3)(A). (76) On the other hand, an opportunity for public input may be warranted in compelling cases where public rights may be significantly altered or where there are several different alternatives available for accomplishing a particulary trust objective, and the agency feels public input would provide important information for making necessary choices. (77) See Trust II, supra note 12, at part VII.A (arguing that deference to agency interpretation of its own trust responsibility is inappropriate since the trust obligation is purely an issue of federal common law). (78) As a related matter, policy that takes the form of informal internal guidance is easier to change. This factor is critical, because many of the present policies are arguably deficient. See infra part III.B. (79) See 5 U.S.C. [section] 706(2)(A) (agency action may be set aside if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). (80) BIA manages tribal trust resources and serves as the primary fiduciary to tribes. See supra note 20. The Bureau of Reclamation operates massive water projects in the West, many of which deplete rivers of the water necessary to support fish habitat, thereby impacting treaty fishing rights and tribal water rights. See Office, of Inspector Gen., U.S. Dep't of Interior, Audit Report: Irrigation of Ineligible Lands, Bureau of Reclamation: Report No. 94-I-930 (July 1994) (on file with author) [hereinafter Irrigation Audit Report]. The USFWS regulates activities affecting migratory birds and threatened and endangered species, including those subject to tribal use or incidentally affected by tribal activities. See infra part IV.B.1. BLM manages mineral resources on both tribal lands and federal lands adjacent to many reservations. The Office of the Solicitor is charged with providing legal advice to these various agencies and reconciling the often-competing duties owed to tribes and other interests. (81) Interior Order, supra note 40, at [section] 1. (82) Id. (83) Id. [section] 3. (84) Id. [subsection] 3-4. The order required compliance prior to October 1994, see id. [section] 4, but the order was later extended to remain in effect until June 1, 1995. See Bruce Babbit, U.S. Dep't of Interior, Order No. 3175, Amendment 1, Departmental Responsibilities for Indian Trust Resources (August 17, 1994) (on file with author). (85) Bureau of Reclamation Indian Trust Asset Policy, supra note 49. (86) Id. at 1. (87) Id. (88) 42 U.S.C. [subsection] 4321-4370d (1988 & Supp. V 1993). (89) Bureau of Reclamation Indian Trust Asset Policy, supra note 49, at 1. (90) See U.S. Bureau of Reclamation, U.S. Dep't of Interior, National Environmental Policy Act (NEPA) Handbook Procedures to Implement Indian Trust Asset Policy, included in Memorandum from Daniel Beard Assistant Commissioner, U.S. Bureau of Reclamation, U.S. Department of Interior, to Assistant Commissioner, Resources Management, U.S. Bureau of Reclamation, U.S. Department of Interior (Nov. 29, 1993) (on file with author). The procedures call for consideration of impacts to tribal resources and consultation with tribes at the "earliest reasonable time in the decision-making process." Id, [section] 2. They further require mitigation of, or compensation for, all impacts to tribal resources. Id. [section] 4(A)(5). (91) See U.S. Bureau of Reclamation, U.S. Dep't of Interior, Bureau of Reclamation Indian Trust Asset Policy and NEPA Implementing Procedures: Questions and Answers About the Policy and Procedures (Aug. 31, 1994) (on file with author). (92) U.S. Bureau of Reclamation, U.S. Dep't of Interior, Draft Water Spreading Policy [section] 1 (July 24, 1994) (on file with author) [hereinafter Draft Water Spreading Policy]. (93) On July 13, 1994, the DOI's Office of Inspector General released an audit report documenting illegal water-spreading from at least 24 projects in 8 western states. See Irrigation Audit Report, supra note 80, at 4-8. (94) Draft Water Spreading Policy, supra note 92, [section] 5(c). (95) Telephone Interview with Zell Steever, Issue Manager, U.S. Bureau of Reclamation, U.S. Department of Interior (May 30, 1995). (96) USFWS Native American Policy, supra note 73. (97) Id. (98) Memorandum from the Director, U.S. Fish and Wildlife Service, U.S. Department of Interior, to the Assistant Secretary for Indian Affairs, U.S. Department of Interior (Aug. 24, 1994) (concerning the "Draft Director's Order on Participation of Indian Tribal Governments in Endangered Species Act Activities") (draft policy attached) (on file with author) [hereinafter USFWS Draft Indian ESA Policy]. (99) At the time this Article went to press, the USFWS Indian ESA Policy remained in draft form, and DOI could not indicate when, or even if, the policy would become final. USFWS Draft Indian ESA Policy, supra note 98. (100) See U.S. Dep't of Agric., Departmental Regulation No. 1020-6, Policy on American Indians and Alaska Natives 3 (Oct. 16, 1992) (on file with author) [hereinafter USDA Policy on American Indians]. (101) Id. at 2. (102) Id. (103) Forest Service National Resource Book, supra note 62. (104) Id. at 59-60 (noting trust responsibility may include "carrying out the intent of the treaty in a manner that protects and maintains tribal rights or privileges which cause some adjustment in the management of National Forests to accommodate the rights of Indian tribes while still maintaining a responsibility to all National Forest users"). (105) U.S. Envtl. Protection Agency, EPA Policy for the Administration of Environmental Programs on Indian Reservations (Nov. 8, 1984) (on file with author) [hereinafter 1984 EPA Indian Policy]. Most of the primary environmental pollution control statutes provide for tribal environmental programs under "treatment as state" provisions. See supra note 52. (106) 1984 EPA Indian Policy, supra note 105, at 2. (107) Id. at 3. A guidance memorandum accompanied the policy and set forth specific steps to initiate implementation of the policy. Memorandum from Alvin L Alm, Deputy Administrator, U.S. Environmental Protection Agency, to Assistant Administrators, U.S. Environmental Protection Agency (Nov. 8, 1994) (on file with author). (108) U.S. Envtl. Protection Agency, Federal and State Roles in the Protection and Regulation of Reservation Environments (1991), included in Memorandum from William K. Reilly, Administrator, U.S. Environmental Protection Agency, to Assistant Administrators, U.S. Environmental Protection Agency (July 10, 1991) (on file with author) [hereinafter 1991 EPA Concept Paper]. (109) Memorandum from Carol M. Browner, Administrator, U.S. Environmental Protection Agency, to Tribal Leaders (Mar. 14, 1994) (on file with author). (110) Memorandum from Carol M. Browner, Administrator, U.S. Environmental Protection Agency, to Assistant Administrators, U.S. Environmental Protection Agency 1 (July 12, 1994) (on file with author). (111) Id. (attaching memorandum). `The memorandum calls for tribal environmental workplans to identify environmental problems and priorities on reservations. Id. at 2. The memorandum also calls for EPA workplans, enhanced EPA enforcement on reservations that lack tribal programs, field assistance to tribes, and training of EPA staff in Indian law and programs. Id. at 2-3. (112) The 1991 EPA Concept Paper opts for a consensual approach to such problems, stating: Where tribal and State governments, managing regulatory programs for reservation and state areas, respectively, may encounter transboundary problems arising from inconsistent standards, policies, or enforcement activities, EPA encourages the tribal and state governments to resolve their differences through negotiation at the local level. EPA, in such cases, is prepared to act as a moderator for such discussion .... ... [D]ifferences are best resolved locally by tribes and states acting out of mutual concern for the environment and the health of the affected populace.... Within this framework, the Agency is convinced that the environmental quality of reservation lands can be protected and enhanced to the benefit of all. 1991 EPA Concept Paper, supra note 108. (113) From 1943 to 1966, workers at Hanford dumped massive quantities of radioactive waste directly into the Columbia River, as well as into open trenches and underground storage tanks. Paul Koberstein, Tanks at Hanford Really Could Explode, The Oregonian, July 19, 1992, at A1. At least 66 of the underground storage tanks are now leaking into the groundwater, and a plume of radioactivity 200 square miles in size has already reached the Columbia River. Id. Many of the tanks at the site also pose a serious risk of explosion, because their contents are comprised of incompatible waste. Id. A tank explosion could trigger a series of other explosions that would render a vast portion of the Pacific Northwest "uninhabitable." Teleconference with Jim Werner, Director of Office of Strategic Planning and Analysis, Department of Energy (Nov. 30, 1994) (video on file with author). (114) Currently, DOE is preparing a programmatic environmental impact statement to determine where the spent plutonium from defense facilities should be located. Both the Hanford Reservation and the INEL site figure prominently in the various alternatives for disposal sites. See 2A U.S. Dep't of Energy, Pub. No. DOE-EIS-0203-D, Department of Energy Programmatic Spent Nuclear Fuel Management and Idaho National Engineering Laboratory Environmental Restoration and Waste Management Programs Draft Environmental Impact Statement 3.0-1 to 3.3-19 (1994) (describing and assessing INEL-related alternatives). With respect to its civil nuclear program, DOE is searching for a willing tribe, state, or local government to accept the waste. Some tribal councils have expressed interest but over the strenuous objections of much of their membership. See generally Valerie Taliman, Stuck Holding the Nation's Nuclear Waste, Race, Poverty, & the Env't, Fall 1992; Valerie Taliman, Future Generations of Native People Continue to Be Threatened by the Nuclear Waste Industry, Ethnic NewsWatch, Aug. 1, 1993, available in LEXIS, News Library, Ethnic NewsWatch (ENW) File. The Mescalero Tribe of New Mexico is presently entertaining a contract to accept nuclear waste from a private firm. See Conrad L. Huygen, Clouded Vision: The Mescalero Apache and the Nuclear Legacy, 18 Environs 1 (1994); see also Trust I, supra note 3, at 1485-86 n.71. (115) U.S. Dep't of Energy, American Indian Policy, Energy Messenger, July/Aug. 1994, at 6 [hereinafter DOE American Indian Policy]. (116) Bonneville Power Admin., U.S. Dep't of Energy, Draft BPA Tribal Policy (Jan 27, 1995) (on file with author) [hereinafter Draft BPA Tribal Policy]. (117) See infra part IV.A. (118) Draft BPA Tribal Policy, supra note 116, at 2. (119) Id. at 3. (120) Justice Tribal Policy, supra note 73. (121) See id. at 2. (122) See id. In addition, the Department has designated Assistant U.S. regions to serve as tribal liaisons. Id. at 3. (123) Id. at 4. (124) Indeed, President Clinton's April 29, 1994 directive falls short of requiring agencies to develop such guidance. Instead, it simply requires each executive department and agency to apply the requirements of other executive orders dealing with regulatory planning and review to "tailor Federal programs, in appropriate circumstances, to address specific or unique needs of tribal communities." Government-to-Government Directive, supra note 9, at 22,951. (125) The Department of Commerce houses the National Marine Fisheries Service (NMFS), the agency charged by the ESA to regulate activities affecting certain fish species and marine mammals listed under the Act. See 16 U.S.C. [section] 1532(15). That authority has enormous consequences for the Columbia River tribes, coastal tribes, and Alaska native groups who continue to make a subsistence living from fish and wildlife species that are within the purview of the Act. See infra part IV. While NMFS has not developed a national Indian trust policy, it has developed guidance on a regional level to apply to the Columbia River Basin treaty tribes in the salmon recovery planning process. See infra part IV.B.3. (126) DOD operates several military installations and projects across the United States located near Indian reservation lands. Moreover, the U.S. Army Corps of Engineers, a DOD agency, operates a number of dams nationwide that affect tribes. In the Pacific Northwest alone, the Corps operates eight dams on the Columbia and Snake Rivers and accordingly wields tremendous influence over the future of the salmon runs to which the Columbia River Basin tribes have treaty rights. See infra part IV.A. (127) For example, for its early attempts to develop a water-spreading policy for the Pacific Northwest, the Bureau of Reclamation was criticized for not involving all potentially affected tribes. See Letter from Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation, to Dan Beard, Commissioner, U.S. Bureau of Reclamation, U.S. Department of Interior (July 6, 1994) (on file with author). (128) EPA Administrator Carol M. Browner formulated an EPA/Tribal Operations Committee consisting of 18 tribal representatives to assist in policy development. See Memorandum from William Yellowtail & Martha G. Prothro, Co-chairs, Senior Leadership Team for Tribal Operations, U.S. Environmental Protection Agency, to Tribal Leaders (July 8, 1994) (on file with author). EPA also issued memoranda on the policy initiative to all tribal leaders and invited formal and informal comments from tribes. Id.; see also Memorandum from Carol M. Browner, supra note 109. (129) The Bureau of Reclamation, however, has developed specific "Questions and Answers" guidance to implement its broad Indian Trust Asset Policy on a more specific program level. See supra note 91. (130) See, e.g., USDA Policy on American Indians, supra note 100, [section] 3; Interior Order, supra note 40; USFWS Native American Policy, supra note 73, at 1; 1984 EPA Indian Policy, supra note 105, at 3; Justice Tribal Policy, supra note 73. (131) DOE American Indian Policy, supra note 115, at 6. (132) USDA Policy On American Indians, supra note 100, [section] 4(c); see also USFWS Native American Policy, supra note 73, at 3, 4 (promising to "observe"' trust responsibilities but stating that in the case of off-reservation fish and wildlife resources management, policy will be to "cooperate with Native American governments and affected resource management agencies to help meet objectives of all parties"). Other policies present a somewhat diluted version of a substantive duty. See, e.g., 1984 EPA Indian Policy, supra note 105, at 3 promising to consider tribal interests in taking action affecting reservation environments, but stating only that "the Agency will endeavor to protect the environmental interests of Indian Tribes") (emphasis added). Such open-ended language seemingly leaves room for considerable agency discretion. (133) See supra part II.C. (134) While the Columbia River Basin case study involves NMFS's regulation of tribal treaty fishing, similar issues arise with respect to USFWS's implementation of the ESA. The Act provides for implementation by both agencies, with NMFS implementing the Act for certain listed marine mammal and anadromous fish species and USFWS implementing the Act for all other listed species. See 16 U.S.C. [section] 1532(15) (1988 & Supp. V 1993). (135) This section's treatment of tribal harvest issues in the Columbia River Basin is necessarily brief and not intended to be comprehensive. The author has a work-in-progress addressing more fully the issues of treaty rights and trust obligations in the Columbia River context. For commentary providing extensive background on Columbia River salmon management, see Charles F. Wilkinson & Daniel Keith Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. Kan. L Rev. 17 (1983); Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon and Endangered Species in the Columbia Basin, 21 Envtl. L 657 (1991). For general commentary on Indian issues in the context of federal wildlife law, see George C. Coggins & William Modrcin, Native American Indians and Federal Wildlife Law, 31 STAN. L. Rev. 375 (1979). (136) For a history of the salmon's decline, see generally John Daniel, Dance of Denial, Sierra, Mar.-Apr. 1993, at 64; Korn, supra note 63, at 30; Jessica Maxwell, How to Save a Salmon, Audubon, July-Aug. 1994, at 28; Grant Sims, Can We Save the Northwest's Salmon?, Nat'l Wildlife, Oct.-Nov. 1994, at 42; Michael C. Blumm & Lorraine Bodi, Salmon Law and History: Sources and Analysis (Sept. 1994) (unpublished manuscript) (on file with author); Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375-83 (9th Cir. 1994). (137) Northwest Resource Info. Ctr., 35 F.3d at 1376. (138) Columbia River Inter-Tribal Fish Comm'n, Wy-Kan-Ush-Mi, Wa-Kish-Wit. spirit of The Salmon: The Columbia River Anadromous Fish Restoration Plan of the Nez Perce, Umatilla, Warm Springs and Yakama Tribes 2-1 to 2-8 (1995) (on file with author) [hereinafter CRITFC tribal Restoration Plan]; Columbia River Inter-Tribal Fish Comm'n, Restoring Salmon to the Columbia River Watershed: A Tribal Perspective (1994) on file with author) (summary brochure of CRITFC Tribal Perspectivelm, supm) [hereinafter CRITFC Plan Summary); Confederated Tribes of THE Umatilla Indian RESERVATION, Columbia Basin Salmon Policy 1-2 (1995) (on file with author) [hereinafter Umatilla Salmon Policy]; cf. United States v. Washington, 394 F. Supp. 312, 350-53 (W.D. Wash. 1974), affd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) (describing tribal use of salmon in Western Washington); Washington v Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 664-69, modified, 444 U.S. 816 (1979) (same). (139) In 1994, by resolution of the tribal council, the Yakama Nation changed the spelling of its name from "Yakama" to "Yakama" to reflect the spelling in its treaty with the government. Accordingly, this Article will refer to the Nation as "Yakama." (140) See Washington State Commercial Passenger, 443 U.S. at 667 (noting: "It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish ... and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right."); Energy and Water Appropriations Hearing, supra note 31 (testimony of Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation) (describing tribal reliance on government's promises during the treaty negotiations); Umatilla Salmon Policy, supra note 138, at 2 (same). (141) CRITFC Tribal Restoration Plan, supra note 138, at 2-1 to 2-3 (figure derived from subtracting acreage of present tribal land holdings from past pre-cession territories); see also CRITFC Plan Summary, supra note 138 (containing map indicating ceded territory). (142) Sohappy v. Smith, 302 F. Supp. 899, 904 (D. Or. 1969) (referencing the four Columbia Basin treaties). (143) Washington State Commercial Passenger, 443 U.S. at 685-87. (144) See United States v. Winans, 198 U.S. 371, 381-82 (1905). (145) The Columbia River Basin salmon runs, once the largest in the world, have declined over 90% from historical levels. CRITFC Tribal Restoration Plan, supra note 138, at 3-1. While historically up to 12.5 million fish returned annually to the upper Columbia, that number has dropped to 600,000, over half of which are hatchery fish. Id; see also Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th Cir. 1994); Sims, supra note 136, at 44. Losses in individual river basins are staggering. For instance, in the Salmon River drainage, spring and summer chinook redd counts have plummeted from about 6,000 in 1957 to just a few hundred in 1991. Daniel, supra note 136, at 69. Similarly, while up to 5,000 Snake River sockeye returned to Redfish Lake (located in the Sawtooth Mountains of Idaho) in the 1950s, only one returned in 1992. Daniel, supra note 136, at 66. Sperm and eggs from the returning remnant fish are frozen and stored as part of an artificial propagation program. Maxwell, supra note 136, at 28. (146) See Joan Laatz & Roberta Ulrich, Yakama Nation to Assert Right to Fish, The Oregonian, Apr. 29, 1994, at A1 (1994 spring chinook returns less than half of projected returns); Joan Laatz & Roberta Ulrich, Oregon Pulls Indian Fishing Nets Off Columbia, The Oregonian, Apr. 28, 1994, at A1; Joan Laatz, Columbia Tribes to Take Salmon War to Court, The Oregonian, Aug. 26, 1994, at A1 [hereinafter Laatz, Columbia Tribes] (drop in 1994 fall chinook returns); Allen Thomas, Chinook Season May Face Delays, The Columbian, July 29, 1994, at A1 (1994 Snake River returns dropped to 280 from 742 in 1993); see also Allen Thomas, Barely Afloat: Spring Chinook Returns to the Lewis, Cowlitz, Kalama Rivers So Poor Hatcheries Might Not Fill Egg Requirements, The Columbian, Dec. 15, 1994, at A1, D6 (official predicting that 1995 run of spring chinook will have "abysmally low numbers," representing a drop of 66% from just two years ago, and noting that hatcheries will not have enough fish to meet egg needs). (147) Daniel, supra note 136, at 69; see also Sims, supra note 136, at 44 (over "100 Pacific salmon stocks have already gone extinct"). (148) See National Marine Fisheries Serv., Proposed Recovery Plan for Snake River Salmon I-6 (Mar. 1995) (on file with author) [hereinafter NMFS Draft Recovery Plan]; see also Maxwell, supra note 136, at 28; Sims, supra note 136, at 44 (listed stocks include Snake River sockeye, spring/summer chinook, and fall chinook). All three stocks are now listed as endangered. The Snake River spring/summer and fall chinook salmon species were reclassified from threatened to endangered status by emergency rule enacted on August 18, 1994 to respond to record low returns in 1994 and the likelihood of further decline in 1995 and 1996. NMFS Draft Recovery Plan, supra, at I-6; see also USFWS, Emergency Rule Reclassifying Snake River Spring/Summer Chinook and Fall Chinook, 59 Fed. Reg. 54,840 (Nov. 2, 1994). (149) NMFS Draft Recovery Plan, supra note 148, at I-2. (150) Washington Dep't of Fish & Wildlife, Oregon Dep't of Fish & Wildlife, Idaho Dep't of Fish & Game, and the Columbia River Inter-Tribal Fish Comm'n, Spill and 1995 Risk Management v (Jan. 17, 1995), quoted in Umatilla Letter to President Clinton, supra note 32, at 2-3 (on file with author). (151) The draft Snake River salmon recovery plan sets as its objective improving "Columbia Basin environmental health" as well as recovering the imperiled species. NMFS Draft Recovery Plan, supra note 148, at I-9, I-11. (152) See supra note 125. Pacific Northwest Electric Power Planning and Conservation Act of 1980 (Northwest Power Act), 16 U.S.C. [sections] 839-839h, created another body, the Northwest Power Planning Council (NPPC), which also plays a significant role in basin salmon recovery. The Act requires the Council to develop a basin-wide remedial plan to recover declining salmon species. See Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1378-79 (9th Cir. 1994). The NPPC's mandate for protecting and restoring fish and wildlife of the Columbia River Basin is broader than NMFS's authority over the listed stocks. See NMFS Draft Recovery Plan, supra note 148, at I-11. It is yet unclear how the two statutes will operate together, particularly when the NPPC plan conflicts with the recovery plan developed by NMFS to recover listed stocks. See infra note 220 (explaining recovery planning process); see also NMFS Draft Recovery Plan, supra note 148, at I-12 (calling for coordinated planning and implementation efforts between the two processes). At this time, the recovery measures set forth in NMFS's Draft Snake River Recovery Plan and the most recent NPPC plan differ in significant ways. See Mara A. Brown, Update and Commentary on Columbia-Snake River Salmon Recovery, Ocean & Coastal Law Memo, Issue 43, 1995, at 12 (comparing plans and noting that NMFS's plan favors "juvenile salmon transportation, while NPPC takes bolder steps to modify in-river conditions"). (153) See Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 889 n.4 (D. Or. 1994), vacated on mootness grounds, 56 F.3d 1071 (9th Cir. 1995); Daniel, supra note 136, at 66; Maxwell, supra note 136, at 33. (154) See 7rust I, supra note 3, at nn.100-08 (explaining various federal roles in Columbia River Basin). Recognizing the need for federal coordination in salmon management, many of these agencies entered into a Memorandum of Agreement for Pacific Salmon Conservation in October 1994. The Clinton Administration has established a Secretary-level Pacific Salmon Task Force in Washington, D.C. and a Pacific Salmon Coordinating Committee at the regional level. See NMFS Draft Recovery Plan", supra note 148, at III-5 to III-6 (discussing Memorandum of Agreement for. Pacific Salmon Conservation). (155) See infra note 161; see also Maxwell, supra note 136, at 33; Daniel, supra note 136, at 69; Sharon Begley, Better Red Than Dead, Newsweek, Dec. 12, 1994, at 79-80. The Bureau of Reclamation also operates water projects in the basin, and FERC licenses private hydropower facilities. (156) The dams account for up to 39% of the mortality of adult fish migrating upstream to spawn. Sims, supra note 136, at 46-47; see also infra note 161 (reporting additional figures). (157 See Daniel, supra note 136, at 69; Sims, supra note 136, at 46. The risks of predation and disease increase with the longer migration time caused by the reservoirs; the slackwater pools have created conditions dramatically,opposite from the fast-flowing current under which the species evolved. NMFS Draft Recovery Plan, supra note 148, summary at 4-5. Seventy percent of the 471 river miles from the mouth of the Columbia River to the Snake River has been converted from free-flowing river into reservoirs, thereby doubling smolt migration time. Id. (158) National Marine Fisheries Serv., Endangered Species Act (ESA) Section 7 Consultation Regarding 1994-1998 Operation of the Federal Columbia River Power System And Juvenile Transportation Program in 1994-1998, at 29 (Mar. 16, 1994) (on file with author) [hereinafter NMFS 1994 Hydrosystem Biological Opinion] (noting that mortality, rates vary according to passage route; direct turbine mortality can range from 10-19% for yearling salmon); Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th Cir. 1994); Sims, supra note 136, at 46; Daniel, supra note 136, at 69; see also Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886,897 (D. Or. 1994), vacated on mootness grounds, 56 F.3d 1071 (9th Cir. 1995) (citing NMFS biological opinion on the effect of hydrosystem operations on listed fan chinook); infra note 161 (providing additional figures). (159) Sims, supra note 136, at 47, Daniel, supra note 136, at 71. (160) The collection process may injure the fish and expose them to disease and distress. NMFS 1994 Hydrosystem Biological Opinion, supra note 158, at 40 (estimating that up to 6.3% mortality occurs through collection). In the summer of 1994, over 90,000 juvenile fish perished in collection facilities at McNary Dam, trapped in lethally warm water awaiting transportation downriver. Joan Laatz, Agencies OK Spills at Four Dams, The Oregonian July 22, 1994, at D1. (161) NMFS 1994 Hydrosystem Biological Opinion, supra note 158, at 49, 51, 58; see also Idaho Dep't of Fish & Game, 850 F. Supp. at 897 (summarizing the biological opinion); National Marine Fisheries Serv., Endangered Species Act (ESA) Section 7 Biological Opinion on the Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program 159 (Mar. 2, 1995) (on file with author) [hereinafter NMFS 1995 Hydrosystem Biological Opinion] (incidental take statement nothing that, if reasonable and prudent alternatives identified in the opinion are implemented, expected mortalities of listed stocks will be as follows: up to 86% juvenile Snake River sockeye and spring/summer chinook salmon; up to 100% juvenile Snake River fall chinook salmon; up to 11 and 21% adult Snake River sockeye salmon and spring/summer chinook salmon, respectively; and up to 39% adult Snake River fall chinook); Umatilla Letter to President Clinton, supra note 32, at 2 n.5 (noting figures for spring/summer chinook reported twice and that latter figures refer to fall chinook). For additional background, see Daniel, supra note 136, at 69 (stating that " [m]ore than 90 percent of human-caused mortalities are due to the dams and reservoirs"). (162) Aside from breaching or removing dams, there are essentially four alternatives in managing the species' migration at the dams: 1) spilling water over the dams, allowing the fish to pass through; 2) passing the fish through the turbines (which results in significant mortality); 3) bypassing the fish to transportation facilities (such as trucks or barges); or 4) bypassing the fish through mechanical collection facilities around the dams and depositing them directly back into the river. Idaho Dep't of Fish & Game, 850 F. Supp. at 889, n.5. Of these measures, the first (spill) is widely believed to result in the lowest mortality (0-3%). Id.; see also Northwest Resource Info. Ctr., 35 F.3d at 1379. Fisheries managers and environmental groups have argued strenuously for spills as well as increased water flows in rivers to assist in juvenile migration, but the hydropower interests have resisted such measures, because the water spilled does not produce electricity. See generally id. at 1379-80; Daniel, supra note 136, at 71-72; Save Our Wild Salmon Coalition, Wild Salmon Forever! - A Citizen's Strategy to Restore Northwest Salmon and Watersheds (1995) (on file with author). A recently issued tribal restoration plan calls for flows that are "similar in size and duration to historic flows." CRITFC Plan Summary, Supra note 138. Dismantlement of some tributary dams may also be an option. Memo Suggests Tearing Down Dams, The Columbian, Oct. 7, 1994, at A6. (163) See Idaho Dep't of Fish & Game, 850 F. Supp. at 900 (noting operation of hydrosystem is "too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation - that is, relatively small steps, minor improvements and adjustments - when the situation literally cries out for a major overhaul"). (164) NMFS Draft Recovery, supra note 148, at V-1-2, V-1-3 (noting effects of livestock grazing, road construction, timber harvest, mining, and stream channelization); Daniel, supra note 136, at 68. Over 4,000 miles of river systems are inaccessible to fish because of dams. Korn, supra note 63, at 32. Certain runs have suffered particularly extensive habitat destruction. Approximately 95% of the Columbia River Basin sockeye habitat has been lost, and 85% of the Snake River fall chinooks habitat has been either blocked or damaged. CRFTF Hearings, supra note 38 (statement of Levi Holt, member of Tribal Executive Committee and Fish and Wildlife Subcommittee, Nez Perce Tribe, and Vice-Chairman of the Columbia River Inter-Tribal Fish Commission). For a discussion of habitat degradation, see Daniel, supra note 136, at 67-69;Sims, supra note 136, at 47-48; Maxwell, supra note 136, at 30-32. (165) NMFS Draft Recovery Plan, supra note 148, at V-1-2, V-1-3. (166) Id. at V-1-6 (but noting also that 35% of salmon habitat occurs on nonfederal lands, and thus recovery strategies should emphasize an "ecosystem approach" integrating both federal and nonfederal land management). (167) Id. at V-4-1. (168) Id. at V4-3 to V-4-6; see also Daniel, supra note 136, at 69. The Columbia River treaty tribes have long criticized traditional hatchery practices. They offer an alternative supplementation program that incorporates natural conditions and would result in naturally spawning populations. See generally CRITFC Tribal Restoration, Plan, supra note 138, at 3-20, 3-21. (169) In 1993 over 110,800 spring chinook returned to the Columbia River (Bonneville Dam counts). In 1994 only 20,000 returned, and in 1995 the numbers dropped to 10,000 (Bonneville Dam counts). See Washington Dep't of Fish & Wildlife & Oregon Dep't of Fish & Wildlife, Status Report, Columbia River Fish Runs and Fisheries 1938-93, at 217 (Aug. 1994) (on file with author) (reporting 1993 returns; Bonneville Dam counts); Fish Passage Center, Weekly Report #95-13, at 13 (June 2, 1995) (on file with author) (reporting 1994 and 1995 returns; Bonneville Dam counts); see also Joan Laatz & Bill Monroe, Spring Chinook Fishing Ban Likely, The Oregonian, Jan. 24, 1995, at B1 (reporting drop in spring chinook populations). (170) See United States v. Oregon, 718 F.2d 299, 301 (9th Cir. 1983). (171 NMFS Draft Recovery Plan, supra note 148, at II-1, II-2 (ocean residency periods vary between species). (172) See Warm Springs, Umatilla, and Nez Perce Tribes' Joint Memorandum in Support of Motion for Temporary Restraining Order, filed in United States v. Oregon, Civ. No. 68-513-MA (on file with author) [hereinafter Tribal Motion for TRO], Affidavit of Steven Parker (attached), (noting 1994 hydrosystem operation harvests 90% of potential Snake River fall chinook, in adult equivalents, and tribal treaty fishery harvests 2.5%); Umatilla Salmon Policy, supra note 138, at 5; see also Joan Laatz & Roberta Ulrich, Fishing Suit Could Have Wide Effect, The Oregonian, Aug. 27, 1994, at Al; Laura Berg, Attacks on Fishing Do Nothing to Help Restore Salmon Runs, Wana Chinook Tymoo (CRITFC) Issue 1, 1994, at 8, 9; Rick Taylor & Laura Berg, Tribes, Federal Government Avoid Showdown, Wana Chinook Tymoo (CRITFC) Issue 1, 1995, at 10; supra notes 155-61 and accompanying text. Of course, because the harvest is the last impact in the life-cycle of the salmon, the effects on the spawning populations are not precisely comparable to other sources of mortality. (173) The Shoshone-Bannock tribes also fish in the Basin, but play a more limited role in the Basin's salmon management regime. For background, see United States v. Oregon, 699 F. Supp. 1456, 1464-67 (D. Or. 1988), aff'd, 913 F.2d 576 (9th Cir. 1990). (174) CRFTF Hearings, supra note 38, at 6 (statement of Delbert Frank, Sr., member of the Fish and Wildlife Commission of the Confederated Tribes of the Warm Springs Reservation of Oregon). Historically, the tribes harvested 5 million fish per year, now they harvest 50,000 per year. Id. (175) For a discussion, see Mason D. Morisset, The Legal Standards for Allocating the Fisheries Resource, 22 Idaho L. Rev. 609 (1985-1986); Judith W. Constans, The Right to Habitat Protection. A Sohappy Solution-United States v. Washington, 61 Wash. L. Rev. 731 (1986). (176) 391 U.S. 392, reh'g denied, 393 U.S. 898 (1968). (177) Id. at 398. While Puyallup dealt with tribal fisheries in two tributaries of Puget Sound, the same rule has been applied in the Columbia River Basin. See Sohappy v. Smith, 302 F. Supp. 899, 906 (D. Or. 1969). Other cases that followed suggest that all reasonable measures must be taken to restrict non-Indian activities before treaty rights may be regulated. See, eg., United States v. Washington, 520 F.2d 676, 686 (9th Cir. 1975), cert denied, 423 U.S. 1086 (1976); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 668 F. Supp. 1233, 1236-37 (W.D. Wis. 1987). Many of the tribal restrictions have, been voluntarily assumed to promote conservation. Umatilla Salmon Policy, supra note 138, at 5. (178) CRFTF Hearings, supra note 38 (statement of Jerry Meninick) (emphasis added). (179) See supra notes 167-69 and accompanying text; see also NMFS Draft Recovery Plan, supra note 148, at V-3l to V-3-2. (180) NMFS Draft Recovery Plan, supra note 148, at V-3-5. It should be noted, however, that the tribes still retain treaty rights to harvest the listed stocks, but have taken voluntary measures to minimize the impacts on those stocks. (181) See United States v. Oregon, 699 F. Supp. 1456, 1459 (D. Or. 1988), aff'd, 913 F.2d 576 (9th Cir. 1990). (182) "Escapement" refers to the number of salmon that survive to spawn, after all natural mortality and harvest have occurred. See NMFS Draft Recovery Plan, supra note 148, at G-8. The species' propagation rates are therefore closely tied to escapement levels. (183) The Compact's actions are governed by a Columbia River Fisheries Management Plan (CRFMP), approved by the district court of Oregon. The CRFMP sets forth conservation objectives based on the entire fishery but fails to set specific objectives for listed stocks. NMFS Draft Recovery Plan, supra note 148, at V-3-7. (184) See United States v. Oregon 699 F. Supp. at 1459 (approving the CRFMP). (185) 16 U.S.C. SS 1536(a)(2). Because three federal agencies (NMFS, USFWS, and BIA) are parties to the CRFMP, NMFS treats the Compact's harvest allocation decisions as federal actions which invoke section 7 of the ESA. This approach has been challenged by other river users who contend that Compact decisions should be treated as authorized "incidental takes' under section 10 of the ESA. See generally Peterson v. State of Washington, 24 F.3d 248, 249, 1994 WL 192344 (9th Cir. mem. op. May 13, 1994) (dismissing appeal as moot and remanding to district court for trial on merits). The issue is presented in a pending case, Ramsey v. Brown, Civ. No. 94-761-NA (D. Or.). (186) 16 U.S.C. SS 1536(b). A decision finding that no jeopardy will result is contained in a "no jeopardy opinion," while an opposite finding is contained in a "jeopardy opinion." (187) See Houck, supra note 28, at 316-29 (discussing application of the jeopardy standard). As Professor Houck notes, "[Tlhe number of projects actually arrested by the ESA is nearly nonexistent" due in part to "an extremely discretionary attitude toward jeopardy reflected in [the Services'] regulations and practice." Id. at 317. (188) See Tribal Motion for TRO, supra note 172, at 3, 4, 20. (189) National Marine Fisheries Serv., Endangered Species Act (ESA) Section 7 Consultation Regarding 1993 Operation of the Federal Columbia River Power System (May 26, 1993) (on file with author) [hereinafter NMFS 1993 Hydrosystem Biological Opinion]; see also NMFS 1994 Hydrosystem Biological Opinion, supra note 158; supra notes 156-61 and accompanying text (providing mortality figures). (190) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D.Or. 1994). The court ordered the parties to re-initiate consultation and produce a new biological opinion. Id. at 900. But since the 1993 Biological Opinion, which was the subject of the suit, only covered operations through January 31, 1994, see supra note 189, the parties and the court agreed that the consultation discussions should focus on a more recently issued biological opinion that covered operations through January 31, 1998, since it included many of the same deficiencies identified by the court with respect to the earlier opinion. Idaho Dep't of Fish & Game, Civ. No. 92-973-MA, at 5; see also supra note 158 (citing NMFS 1994 Hydrosystem Biological Opinion, supra note 158). While consultation discussions were proceeding, industry intervenors in the case appealed the district court's earlier ruling holding the biological opinion invalid. While the case was on appeal before the Ninth Circuit, on March 2, 1995, NMFS issued yet another biological opinion for the hydrosystem operations. See supra note 161 (citing NMFS 1995 Hydrosystem Biological Opinion). On June 1, 1995, the Ninth Circuit issued its opinion in the appeal, finding that because the biological opinion subject to initial challenge had been superseded by subsequent biological opinions, the case was moot. Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 56 F.3d 1071 (9th Cir. 1995). The court remanded the case to the district court with instructions to vacate the judgment below and dismiss the action as moot. The district court did so on June 9, 1995. Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., Civ. No. 92-973-MA, (D. Or. June 9, 1995). Accordingly, any further ESA challenge to hydrosystem operations necessarily must be brought through a new action challenging the most recent 1995 biological opinion. On July 11, 1995, a coalition of environmental and fishing organizations sent a sixty-day notice letter to the Departrment of Commerce indicating its intent to challenge the 1995 biological opinion under the ESA. Letter from Adam Berger, Sierra Club Legal Defense Fund, to Ron Brown, Secretary of Commerce (July 11, 1995) (on file with author). (191) In July 1994, however, the Ninth Circuit issued an opinion holding that the Forest Service's ongoing timber, range, and road projects conducted pursuant to Land and Resource Management Plans on several national forests constituted actions for which consultation was required under the ESA. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1051-52 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995). In response to the litigation, government agencies entered into consultation and NMFS issued on March 1, 1995 a no-jeopardy biological opinion covering habitat-degrading activities on national forests. See infra notes 217-19 and accompanying text. (192) See infra note 199; see also Tribal Motion for TRO, supra note 172, at 3, 4. (193) See generally discussion in CRITFC Tribal Restoration Plan, supra note 138, at 4-14 to 4-16. Indeed, the Snake River salmon have continued to decline since listing under the ESA. NMFS Draft Recovery Plan, supra note 148, at I-6. (194) CRITFC, Stopping Tribal Fishing Is No Solution, Aug. 19, 1994 (press release) (on file with author) [hereinafter CRITFC, Stopping Tribal Fishing); see also Tribal Motion for TRO, supra note 172, at 6. NMFS had allowed a minor portion of the fishery to proceed before determining jeopardy. See id. (195) Roberta Ulrich, U.S Official, Tribes to Discuss Fishery, The Oregonian, July 30, 1994, D1;CRITFC, Stopping Tribal Fishing, supra note 194. (196) CRITFC, Fact Sheet & Summary of 1994 Fall Season Dispute, Sept. 1, 1994, at 1 (on file with author) [hereinafter CRITFC, Fact Sheet & Summary] (citing figures from Technical Advisory Committee). The fish targeted for harvest were naturally spawning stocks and hatchery fish from the Hanford reach in the upper Columbia. (197) Laatz & Ulrich, supra note 172, at A1. (198) Id. (199) See Letter from Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, to Richard S. Lauber, Chairman, North Pacific Fishery Management Council (Aug. 19, 1994) (on file with author) (issuing no-jeopardy opinion on Alaska fisheries that would result in incidental take of approximately 53 fish which would otherwise reach mouth of the Columbia River); Laatz, Columbia Tribes, supra note 146, at A1. However, NMFS did restrict non-Indian recreational chinook fishing in the Columbia River to spare two additional wild spawners. Bill Monroe, Oregon, Federal Officials Clash Over Salmon, The Oregonian, Sept. 10, 1994, at B2. (200) A coalition of fish conservation groups in the region lent its support to the tribes. In a letter to the Assistant Secretary for Oceans and Atmosphere, Department of Commerce, the coalition stated: Incidental harvest of protected fish represents a minuscule threat to these salmon compared to the massive slaughter inflicted by federal Columbia and Snake River hydropower system operations .... This crisis has been precipitated by ... NMFS' concomitant failure to order necessary changes in the hydropower system. Now NMFS is asking the tribes to make the ultimate sacrifice because of NMFS' own failure. Letter from Michael Rossotto et al., Save Our Wild Salmon Coalition, to Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce 1 (Aug. 30, 1994) (on file with author). For editorial commentary on NMFS's actions, see Indian People Continue the Fight for Recognition, The Columbian, Sept. 4, 1994, at B8, Patrick A. Parenteau, Another Broken Promise?, The Oregonian, Aug. 30, 1994, at B5; Mary Christina Wood, Tribal Treaty Victory Helps Save Salmon, Seattle Times, Sept. 30, 1994, at B7. (201) See supra note 172 and accompanying text; see also CRITFC, Fact Sheet & Summary, (202) While NMFS focused regulatory attention on the tribal fishery's take of 28 wild spawners, biologists estimated that, by comparison, more than 400 would die on their way upriver trying to climb fish ladders around the dams. Monroe, supra note 199, at B2. Moreover, the projected conservation gain to the species from reducing tribal take of the wild spawners stood to be diminished by the significant mortality to the offspring juvenile population caused by dam impediments encountered during subsequent migration to sea. See supra notes 157-61. Tribal experts have noted that if all tribal fishing were to end, the salmon would nevertheless fail to recover unless NMFS began abating the overriding causes of salmon deaths. See Tribal Motion for TRO, supra note 172, at 12 (referring to affidavits by Gary Morishima, Steve Parker, and Earl Weber (on file with author)). (203) See Umatilla Salmon Policy, supra note 138, at 1-3; see also supra note 32. (204) The NMFS's proposed restriction essentially meant the end of commercial treaty fishing on the Columbia. Laatz & Ulrich, supra note 172, at A1; see also Roberta Ulrich, Indians Struggle Economically, Culturally, in Wake of Curtailed Fishing, The Oregonian, Nov. 13, 1994, at B6 [hereinafter Ulrich Indians Struggle]. While the fall harvest is called a "commercial" fishery, a significant portion of the fish caught in recent years has been purchased by the tribal governments (from tribal fishers) to provide for ceremonial needs that would otherwise go unmet due to severe fishing restrictions. Interview with Laurie Jordan, Public Policy and Litigation Support Department, Columbia River Inter-Tribal Fish Commission, in Portland, Or. (June 22, 1995). (205) Laatz, Columbia Tribes, supra note 146, at A1; Ulrich, Indians Struggle, supra note 204, at B6; see also CRFTF Hearings, supra note 38 (statement of Levi Holt, member of Tribal Executive Committee and Fish and Wildlife Subcommittee, Nez Perce Tribe, and Vice-Chairman of the Columbia River Inter-Tribal Fish Commission) (discussing cultural importance of salmon to Indians). Tribal members who cannot make an income from fishing will have to seek other jobs in urban areas, leading to a potentially irrevocable loss in traditional lifestyle. See Ulrich, Indians Struggle, supra note 204, at B6. For an excellent portrayal of the modern cultural importance of salmon to the Columbia River Tribes, see My Strength Is from the Salmon (1994) (video produced by the Columbia River Inter-Tribal Fish Commission) (on file with author). (206) See Laatz, Columbia Tribes, supra note 146, at A1 (quoting Executive Director of the Columbia River Inter-Tribal Fish Commission as stating, "I don't think there's ever been a treaty question so central as this one .... It's getting to the heart of the treaty, to sovereignty"). In an appeal to NMFS, tribal officials pointed out immediate steps that could be taken to offset the tribal incidental take. See id. at A28. Letters written by the Assistant Secretary for Indian Affairs and the director of the regional BIA office also urged the Secretary of Commerce to regulate non-Indian uses before curtailing the tribes' last fishery. See Letter from Ada Deer, Assistant Secretary, Indian Affairs, U.S. Department of Interior, to Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce (Aug. 9, 1994) (on file with author) (referencing affidavit of Michael A. Matylewich in Support of Tribal TRO, see Tribal Motion for TRO, supra note 172); Letter from Stan Speaks, Portland Area Director, Bureau of Indian Affairs, U.S. Department of Interior, to Gary Smith, National Marine Fisheries Service, U.S. Department of Commerce (Aug. 11, 1994) (on file with author). (207) See Laatz & Ulrich, supra note 172, at A1; Roberta Ulrich, Tribes Receive Commercial Fishing Season Extension, The Oregonian, Sept. 3, 1994, at A1 [hereinafter Ulrich, Tribes Receive Extension]. Negotiations between the tribes and federal officials over harvest conflicts are conducted pursuant to a dispute resolution process established in the Columbia River Fish Management Plan (CRFMP). If negotiations fail, as they did during the fall fishing crisis, the parties may seek relief in the district court of Oregon, which maintains continuing jurisdiction in United States v. Oregon. See supra note 184 and accompanying text; see also CRITFC Tribal Restoration Plan, supra note 138, at 4-5, 4-6 (explaining process). Accordingly, the tribes sought a temporary restraining order prohibiting NMFS from interfering with their fall fishing season. See Tribal Motion for TRO, supra note 172, at 2. (208) See supra note 183 (describing plan). (209) See infra notes 225-31 and accompanying text. (210) Ulrich, Tribes Receive Extension, supra note 207, at A1 (settlement allowing Indian harvest of approximately 22,000 fish, causing incidental take of 26 listed spawners); Settlement Agreement and Order, United States v. Oregon, Civ. No. 68-513-MA (D. Or. 1994) (on file with author) [hereinafter Settlement Agreement]. Documentation submitted by the tribes suggested that the tribes' fishery would leave sufficient numbers of spawning wild fish to migrate up the Snake River and that the tribal incidental take of spawning Snake River chinook could be fully offset by other federal actions. The tribes argued that NMFS could achieve the equivalent conservation benefit by undertaking the following actions: 1) eliminating the remaining Alaskan harvest; 2) releasing storage water in the upper Snake River system; 3) taking immediate measures to improve passage conditions; and 4) eliminating the capture of naturally spawning fish for use in hatchery operations. See Tribal Motion for TRO, supra note 172, at 22; see also Letter from Ted Strong, Executive Director, Columbia River Inter-tribal Fish Commission, to Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce (Aug. 3, 1994) (on file with author). (211) Settlement Agreement supra note 210. (212) NMFS 1995 Hydrosystem Biological Opinion, Supra note 161. The opinion was submitted to Judge Marsh in the ongoing Idaho Dep't Fish & Game v. National Marine Fisheries Service litigation. See supra note 190. In response to the court's invitation, the tribes submitted objections to the biological opinion. See Joint Memorandum of Amici Treaty Tribes Stating Objections to Federal Defendants' Report of Compliance, Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., Civ. No. 92-973-MA (D. Or.) (filed Apr. 21, 1995) (on file with author) [hereinafter Tribal Objections]. Their comments, while highly critical of the biological opinion, are primarily limited to technical issues regarding the biological basis of the opinion, rather than the broader issues of trust responsibility. After the tribes and other various affected parties submitted comments to the court regarding the 1995 biological opinion, the district court dismissed the case as moot, pursuant to a Ninth Circuit ruling. See supra note 190. (213) NMFS 1995 Hydrosystem Biological Opinion, supra note 161, at 91-135. The ESA provides that, where available, NMFS should offer reasonable and prudent alternatives to avoid jeopardy. See 16 U.S.C. [sections] 1536(b)(3)(a). (214) See supra note 190. (215) See Tribal Objections, supra note 212; Umatilla Tribes Blast Salmon Plan, The East Oregonian, Feb. 8, 1995, at A1 (responding to draft biological opinion); Save Our Wild Salmon Coalition, Final NMFS Biological Opinion Released: Too Little Too Late 1 (Mar. 1, 1995) (press release) (on file with author) (criticizing continued reliance on barging instead of in-river passage improvement and calling the plan a "prescription for extinction at high costs"). An internal analysis prepared for the Northwest Power Planning Council concluded that the reasonable and prudent alternatives set forth in the draft biological opinion would not result in rebuilding listed spring chinook populations. Memorandum from Chip McConnaha, Northwest Power Planning Council, to Files 3 (Jan. 30, 1995) (on file with author). Industry, however, criticized the measures in the biological opinion for being too costly. See Brian T. Meehan, Industry Coalition Blasts Federal Plan to Save Salmon, The Oregonian, Feb. 10, 1995, at C3 (responding to earlier draft of biological opinion). (216) See Letter from Ted Strong, Executive Director, Columbia River Inter-Tribal Fish Commission, to William Stelle, Regional Director, National Marine Fisheries Service 1-7 (Feb. 10, 1995) (on file with author); Letter from Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation, to William Stelle, Regional Director, National Marine Fisheries Service 13-17 (Feb. 10, 1995) (on file with author) (also calling NMF's actions a violation of trust obligation to tribes); Letter from Ada Deer, Assistant Secretary for Indian Affairs, U.S. Department of Interior, to Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce (Feb. 14, 1995) (on file with author). (217) National Marine Fisheries Serv., Endangered Species Act Section 7 Biological Opinion on the Land and Resource Management Plans for the Boise, Challis, Nez Perce, Payette, Salmon, Sawtooth, Umatilla, and Wallowa-Whitman Naitonal Forests (Mar. 1, 1995) (on file with author) [hereinafter NFMS 1995 Habitat Biological Opinion]; see also supra note 191 and accompanying text (describing successful litigation brought by environmental plaintiffs to force government to enter into consultation with NMFS on the land management plans). (218) NMFS 1995 Habitat Biological Opinion, Supra note 217. (219) See Joan Laatz, Documents Fault Salmon Decision, The Oregonian, Apr. 21, 1995, at A1 (noting criticism from USFWS official). The press reported that NMFS had been unduly influenced by political pressure from the Department of Justice, which allegedly sought to gain eased restrictions in the biological opinion in order to fortify the government's position in ongoing ESA litigation brought by environmental citizen plaintiffs (described at supra note 191). Id.; see also Letter from Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation, to Janet Reno, Attorney General 3 (Apr. 28, 1995) (on file with author) (criticizing political interference with NMFS's biological opinion and charging that Department of Justice acted contrary to trust obligation to tribes). (220) NMFS Draft Recovery Plan, supra note 148. Section 4(f) of the ESA requires the Secretary to promulgate recovery plans "for the conservation and survival of [listed species], unless he finds that such a plan will not promote the conservation of the species." 16 U.S.C. [sections] 1533 (f)(1). For background, see Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 Ecol. L.Q. (forthcoming Mar. 1996) (on file with author). While recovery plans are useful in providing a broad framework to guide individual future regulatory actions, the enforceability of their specific provisions is in question. See id. (concluding that while courts enforce the duty to develop recovery plans, courts generally do not require compliance with all of their terms); see also Daniel J. Rohlf, The Endangered Species Act: A Guide to Its Protections and Implementation 90-92 (1989); infra note 240 and accompanying text. (221) See Snake River Salmon Recovery Team: Final Recommendations to the National Marine Fisheries Service (May 1994) (on file with author); see also NMFS Draft Recovery Plan, supra note 148, at IV-33. (222) CRITFC Comments on NMFS's Draft Salmon Recovery Plan, Wana Chinook Tymoo (CRITFC), Issue 1, 1994, at 4-6 [hereinafter CRITFC Comments]; Letter from Ted Strong, Executive Director, Columbia River Inter-Tribal Fish Commission, to Douglas K. Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce, at 1-5, 7 (Dec. 16, 1995) (on file with author); Columbia River Inter-Tribal Fish Comm'n, Technical Peer Review of the Draft Snake River Salmon Recovery Plan Recommendations 38-42 (Dec. 6, 1993) (on file with author) [hereinafter CRITFC Peer Review]. Fish conservation groups have also criticized NMFS's draft recovery plan as offering measures too weak to restore listed species. See Fish Plan Spawns Skepticism, The Columbian, Mar. 21, 1995, at C12. (223) Both the USFWS and NMFS implement the ESA. As used herein, the term "Service" will refer to both agencies, unless otherwise indicated. (224) This section's treatment of the trust responsibility as it applies to wildlife conservation under the ESA is not intended to be comprehensive. The issues are complex and warrant much fuller treatment. The author has a work-in-progress addressing the convergence of treaty harvest rights and the trust responsibility in implementlng the ESA. It is the purpose of this Article's discussion simply to identify the contextual framework and analyze the Clinton Administration's approach to policy-making in this area. (225) 476 U.S. 734 (1986) (226) Id. at 740. (227) Id. at 745-46. (228) Application of the Endangered Species Act to Native Americans with Treaty Hunting and Fishing Rights, 87 Interior Dec. 525 (Solicitor's Opinion M-36926) (Nov. 4, 1980) [hereinafter Martz Opinion]. (229) Id. at 526. (230) See Memorandum from Michael J. Anderson, Associate Solicitor, Division of Indian Affairs, to Solicitor, and Assistant Secretary for Indian Affairs, U.S. Department of Interior 5 (Nov. 8, 1994) (on file with author) [hereinafter Associate Solicitor Memorandum] (suggesting that the federal government may impose reasonable and necessary conservation measures on the exercise of tribal treaty rights if such regulation meets certain conservation necessity standards); see also infra, notes 289-90 and accompanying text. The broad issue of ESA jurisdiction over treaty rights is beyond the scope of this Article. For a more in-depth discussion of this issue, see Robert J. Miller, Comment, Speaking with Forked Tongues: Indian Treaties, Salmon, and the Endangered Species Act, 70 Or. L. Rev. 543 (1991). (231) The USFWS has developed a draft Indian ESA policy, see infra part IV.B.3, which appears to adopt wholesale the Martz Opinion. USFWS Draft Indian ESA Policy, supra note 98, at 2; see infra note 289. While NMFS has not developed a national policy on ESA regulation as it affects tribes, its proposed Snake River salmon recovery plan calls for restriction (and full curtailment in some cases) of treaty fishing, indicating that the agency believes it has the power to restrict treaty rights under the ESA. See NMFS Draft Recovery Plan, supra note 148, at V-3-1 to V-3-25; see also infra notes 285-93 and accompanying text (describing conservation necessity principles). (232) See United States v. Washington, 443 U.S. 658, 675, 678, modified 444 U.S. 816 (1979) (noting right to fish was part of treaty negotiated between sovereigns and, as a class right, should be distinguished from an individual's "personal right to attempt to land fish"). But see Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 810 (D. Idaho 1994), appeal docketed, No. 94-36237 (9th Cir.) (failing to make sufficient distinction between tribal sovereign rights and individual rights and suggesting that tribes do not have property interest in fish runs). (233) For example, the timber harvesting activities of the Hoopa Valley Tribe in California affect habitat of the listed northern spotted owl and marbled murrelet. USFWS is engaging in section 7 consultation with BIA regarding the tribe's harvest activities. See Memorandum from Field Supervisor, Sacramento Field Office, U.S. Fish and Wildlife Service, to Michael R. Smith, Deputy Area Director, U.S. Bureau of Indian Affairs (June 25, 1992) (on file with author) (regarding "Formal Section 7 Biological Opinion for the Hoopa Valley Indian Reservation's Soctish `F' Timber Harvest"; concluding no jeopardy). (234) See Leger v. Louisiana Dep't of Wildlife & Fisheries, 306 So. 2d 391, writ denied, 310 So.2d 640 (1975) (noting "trustee" role of state with respect to wildlife); Gary D. Meyers, Variation on a Theme. Expanding the Public Trust Doctrine to Include Protection of Wildlife 19 Envtl. 723 passim (1989). (235) See United States v. Washington, 443 U.S at 682 (noting that neither non-Indian no Indian parties may "deprive the other of a `fair share' of the [fish] runs"). (236) The present salmon crisis in the Columbia River Basin serves as a poignant example of how habitat degradation and other threats to species may continue to mount but remain shielded by a regulatory emphasis that is directed exclusively at harvest. In the Columbia River Basin, breaches by a multitude of federal agencies of the trust duty to protect tribes' salmon resource have been ongoing for decades. Nevertheless, the aggregate an cumulative impacts resulting from the hydrosystem, habitat destruction, and hatchery practices have only recently reached such a crisis state that there is now an inescapable (and long-overdue) focus on the disproportionate burden of conservation shouldered by the tribes. See supra notes 153-72 and accompanying text. (237) Courts have already pointed out a certain measure of agency recalcitrance in the context of Columbia River salmon management The Ninth Circuit recently criticized the Northwest Power Planning Council's approach in developing its fish protection plan pursuant to the Northwest Power Act: The Council's approach seems largely to have been from the premise that only small steps are possible, in light of entrenched river user claims of economic hardship. Rather than asserting its role as a regional leader, the Council has assumed the role of a consensus builder, sometimes sacrificing the Act's fish and wildlife goals for what is, in essence, the lowest common denominator acceptable to power interests and [direct service industries]. Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1395 9th Cir. 1994) (emphasis added); see also Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994), vacated on mootness grounds, 56 F.3d 1071 (9th Cir. 1995) ("Instead of looking for what can be done to protect the [salmon] species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with disruption."). (238) Consent decrees are commonly employed in ongoing fish allocation disputes under the jurisdiction of a federal district court Such decrees may provide needed flexibility at the remedy stage of a proceeding without impairing or redefining the parties' legal rights See United States v. Oregon, 913 F.2d 576, 580-81 (9th Cir. 1990), cert denied sub nom. Makah Indian Tribe v. United State, 501 U.S. 1250 (1991) (noting that consent decree is a "product of negotiation and compromise" and, because it is not a decision on the merits, it "need not impose all obligations authorized by law"). (239) 16 U.S.C. [section]1533(f); see supra note 220. (240) It is increasingly recognized that the concepts of "survival" underlying jeopardy determinations and "recovery" are not easily distinguished. See Idaho Dep't of Fish & Game, 850 F. Supp. at 894 (noting "no bright line...between the concepts of 'survival' and 'recovery'"); see also Cheever, supra note 220 (discussing case law linking "jeopardy" under section 7(a)(2) and "recovery," and noting that in most cases the two are now "indistinguishable"). (241) All of the biological opinions recently issued by NMFS set as the standard for jeopardy consistency with the draft recovery plan. See NMFS 1995 Hydrosystem Biological Opinion, supra note 161, at 14, 83; NMFS 1995 Habitat Biological Opinion, supra note 217, at 21; National Marine Fisheries Serv., Endangered Species Act Section 7 Biological Opinion on 1995-1998 Hatchery Operations in the Columbia River Basin 64 ((Apr. 5, 1995) (on file with author); National Marine Fisheries Serv., Endangered Species Act Section 7 Biological Opinion on 1995 Winter, Spring, and Summer Season Fisheries Conducted Under the Columbia River Fish Management Plan, supra note 148. (242) NMFS Draft Recovery Plan, supra note 148. (243) See id, at III-13, III-14, summary at 11. Of course, the Northwest Power Planning Council (NPPC) has broad mandate to protect and restore Columbia River Basin stocks beyond the listed species over which NMFS has jurisdiction. See supra note 152. NMFS has recognized that measures in its recovery plan should be integrated with measure contained in NPPC's fish and wildlife program. NMFS Draft Recovery Plan, supra note 148, at III-13, III-14. (244) This is particularly true since the various federal agencies operating in the Columbia River Basin have signed a Memorandum of Agreement for Pacific Salmon Conservation, which establishes a federally coordinated effort so that the government will "speak with one voice" on salmon issues. See supra note 154. It is important to note, however, that these dates even apart from trust obligations expressed in the recovery plan. See supra notes 40-43. (245) See BIA Fish & Wildlife Policy Memorandum, supra note 40, at 3 (federal trust duty includes "assuring that the exercise of [treaty harvest] rights remains meaningful"); see also NMFS Draft Recovery Plan, supra note 148, at IV-1 (supporting restoration of Snake River Salmon to levels adequate to sustain tribal cultures in the region). (246) See Cheever, supra note 2220. Joint regulations promulgated by NMFS and USFWS provide: "Recovery means improvement in the states of listed species to the point at which listing is no longer appropriate under the criteria set out in [section] 4(a)(1) of the Act." Interagency Cooperation - Endangereed Species Act of 1973, as Amended, 50 C.F.R, [section] 402.02 (1994). (247) 16 U.S.C. SS 1533(a)(1)(E). (248) As another factor, the statute lists the "overutilization [of the species] for commercial, recreational, scientific, or educational purposes." 16 U.S.C. SS 1533(a)(1)(B). While this language may in some cases describe tribal harvest, treaty-guaranteed harvest is perhaps more appropriately considered under "other natural or factors affecting [the species]." Where the harvest has continued since time immemorial at sustainable levels, it should be treated as a preexisting, quasi-natural baseline against which to measure all other impacts. (249) This appears to be the position of the tribes in the Columbia River Basin salmon context. See CRITFC Comments, supra note 222, at 6 (noting tribal position that recovery must extend beyond the need to merely ensure the viability of salmon stocks as required by various federal laws' and that "the tribes did not reserve a right to take a few fish from remnant runs hovering just above arbitrarily set numerical delisting criteria") quoting CRITFC letter to Department of Commerce commenting on recovery team's proposed plan for Snake River salmon); see also letter from Donald G. Sampson, Chairman, Confederated Tribes of the Umatilla Indian Reservation, to William Stelle, Regional Director, National Marine Fisheries Service 10 Feb. 10, 1995) (on Me with author) (stating that trust responsibility requires NMFS to restore listed runs beyond point of delisting to levels at which they can provide for healthy, viable populations sufficient for sustainable Indian harvest"). (250) See supra notes 234-35 and accompanying text. (251) See Cheever, supra note 220 (observing that most species today face a multitude of threats and that the one threats model' no longer fits the modem context of environmental degradation). (252) 16 U.S.C. SS 1536(b). (253) See 50 C.F.R. SS 402.02 (Service assesses effects of the action in light of enviromnental baseline.'); see also Memorandum from Associate Solicitor, Conservation, and Wildlife, U.S. Department of Interior,to Director, U.S. Fish and Wildlife Service, U.S. Department of Interior, Aug. 27, 1981, at 6 (regarding Cumulative Effects to Be Considered Under Section 7 of the Endangered Species Act') (on file with author) [hereinafter Cumulative Effects Memo]. (254) See Cumulative Effects Memo, supra note 253, at 6 (noting "a project passing muster under section 7 is in effect allocated the right to consume" a portion of the cushion' of remaining natural resources which is available ... until the utilization is such that any future use may be likely to jeopardize a listed species ..."); see also supra note 161 describing incidental take associated with reasonable and prudent alternatives offered for 1994-1998 operation of hydrosystem). (255) See 50 C.F.R. SS 402.02 (discussing environmental baseline in defining "effects of the action"); see also Cumulative Effects Memo, supra note 253, at 6-7; NMFS 1995 Habitat Biological Opinion, Supra note 217, at 18 (biological opinion adopting this approach in Columbia River context, noting that [t]he environmental baseline does not include future discretionary activities within the action area that have not undergone ESA consultation'); NMFE 1995 Hydrosystem Biological Opinion, supra note 161, at 12 (same). The ESA regulations also require examination of "cumulative effects' along with the proposed action see 40 C.F.R. [section] 402.14(g)(4) (procedures for formal consultation), but the term is defined to include state or private, not federal, activities that are reasonably certain to occur in the future. Id. [section] 402.02 definition of "cumulative effects'). (256) See Cumulative Effects Memo, supra note 253, at 6 (noting that when resource mortality 'cushion' is used, [alt this point any additional federal activity in the area requiring a further consumption of resources would be precluded under section 7"). (257) Id. at 6-7 (noting that such an approach to baseline determination is essentially a "first-in-time, "first-in-right" approach; noting further du future federal projects which have not been previously reviewed under section 7 are not part of the environmental baseline and 'have not had their set under the fist-in-time (258) See supra note 212 and accompanying text. (259) See supra note 215; see also NMFS 1995 Hydrosystem Biological Opinion, supra note 161, at 159 describing incidental take associated with reasonable and prudent altematives; upper-end figures for expected mortality to three listed stocks noted as 86, 86, and 100% juvenile mortality, and 11.4, 21, and 3996 adult mortality). (260) See NM 1995. Habitat Biological Opinion, supra note 217, at 66-91 (providing guidelines to avoid jeopardy). (261) See NMFS 1995 Hydrosystem Biological Opinion, supra note 160, at 12 adopting first-in-time baseline approach); NM 1995 Habitat Biological Opinion, supra note 217, at 18-19 (same). (262) Infra note 310 and accompanying text ( explaining tribal objections to baseline approach); see also NMFS 1995 Habitat Biological Opinion, supra note 217, at 19 (describing the baseline approach and noting, [t]he greater the risks faced by the species at the time of consultation the more significant are any additional adverse effects to the listed species caused by the proposed or continuing action'). (263) See Laatz & ULrich, supra note 172, at Al quoting acting regional director of NM as conceding that the 4" and sequence of [NMFS's] analysis led to tighter restrictions [on tribal harvest] in the fall fishing dispute'). (264) Pursuant to its trust obligation, NM could certainly treat the Indian harvest as part of the environmental baseline, or as a cummulative effect, but NMFS has thus far failed to do so in the Columbia River context. See Letter from Ada Deer, supra note 216, at 1-2 (offering interpretation of consultation regulations to allow tribal harvest); see also supra notes 57-62 (265) See CRITFC PEER Review, supra note 222 (technical and scientific criticism by tribal commission scientists on federal recovery team's plan); CRITFC Comments, supra note 222 (describing same); see also infra note 266. (266) See infra note 272 (describing differences in life-cycle modeling between federal and state/tribal fish managers). The Columbia River Basin tribes, for example, have caused for far more aggressive recovery measures for both listed and nonlisted stocks and maintain that NMFS's measures will be inadequate to restore the species. See CRITFC Plan Summary supra note 138 (tribal measures include providing river flows "similar in size and duration to historic flows," establishing "riparian reserves' on afl streams providing salmon habitat, prohibiting new road construction in areas, and reforming harvest regimes and hatchery management); Umatilla Salmon Policy, supra note 138, at 5-14 (tribal measures include halting transportation of juvenile fish; reforming irrigation practices and water withdrawals; implementing drawdowns, spill, and structural modifications at dams; and possible removal of certain hydrofacilities); see also Brown, supra note 152, at part I (describing tribal recovery plans). (267) See Settler v. Lameer, 507 F.2d 231, 237 (9th Cir. 1974) (tribes have authority to regulate tribal fishing off the reservation); USFWS Native American Policy, supra note 73, at 4 (recognizing co-management authority and also supporting co-management contracts and agreements pursuant to Indian Self-Determination Act); BIA Fish & Wildlife Policy Memorandum, supra note 40, at 5; CRITFC Tribal Restoration Plan, supra note 138, at iii, 3-6. (268) See Charles F. Wilkinson, To Feet the Summer in the Spying: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis. L Rev. 375, 406-07 (1991). (269) In the Columbia River Basin, for example, the four major fishing tribes joined in 1977 to form the Columbia River Inter-tribal Fish Commission CRITFC). Columbia River Inter-tribal Fish Comm'n Annual Report 6 (1993) (on file with author). The commission is governed by a board consisting of representatives from the Yakama, Warm Springs, Umatilla, and Nez Perce tribes. Its Fishery Science Department provides scientific expertise on matters spanning the full realm of salmon management, including stock assessment, mainstream passage, habitat and hatcheries. Id. at 18; see also CHARLES F. Wilkinson, CROSSING nM Next Meridian: Land, WATER, Am THE Future Of The West 213 (1992) praising CRITFC's federal and scientific expertise in salmon management as "literally second to none" and at least on par with state and federal agencies). As a tribal agency with co-management functions, CRITFC regularly participates on both a technical and policy level in the multitude of federal and state processes involving salmon management. See Wilkinson, supra note 268, at 407. Other tribal commissions significantly involved in off-reservation management of fish and wildlife resources include the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) (representing 13 member tribes in Michigan, Minnesota, and Wisconsin); the Northwest Indian Fisheries Commission (representing tribes of the Puget Sound and Washington coastal areas); and the Chippewa-Ottawa Treaty Fishing Management Authority (COTFMA) (representing three member tribes from Michigan). Id. at 406-07 (giving examples of tribal management and advocating, increased reliance on joint tribal co-management agreements). For extensive background on the GLIFWC's off-reservation management functions, see U.S. DEPT OF Interior,Casting Light upon THE WATERS: A Joint Fishery Assessment of the Wisconsin Ceded Territory (1991). (270) Pacific Northwest Electric Power Planning and Conservation Act of 1980 (Northwest Power Act), 16 U.S.C. [sections] 839b(h)(2), (7) (1988) (requiring Council to solicit recommendations from agencies and tribes for fish recovery and hydrosystem management measures and, when recommendations are inconsistent, Council must give "due weight" to the recommendations and expertise of agencies and tribes and explain in writing the basis for rejecting their recommendations); see also supra note 152 (providing background on Council's functions). (271) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d. 1371, 1395 (9th Cir. 1994) (noting Act requires a 'high degree of deference" to the recommendations of state and tribal fishery managers). (272) See United States v. Oregon, 666 F. Supp. 1461, 1463 (D. Or. 1987), off'd, 913 F.2d 576 (9th Cir. 1990). Additionally, the tribes participate in numerous technicalteams that provide data and analysis used in ESA and other decision-making forums in the region. For example, in early 1995, as NMFS was engaged in consultation on hydrosystem operations, the state and tribal fisheries agencies [hereinafter STFA] offered substantial analysis on the proposed biological opinion. The analysis focused on survival and recovery probabilities using data from STFA's own passage and life-cycle modeling. See State & Tribal Fishery Agencies Analytical Team, Preliminary Summary of Spring/Summer Chinook Model Results for 1995 Biological Opinion (Jan. 12, 1995) (on file with author); State & Tribal Fishery Agencies Analytical Team, Preliminary Summary of Fall Chinook Model Results for 1995 Biological Opinion (Feb. 12, 1995) (on file with author); State & Tribal Fishery Agencies Analytical Team, Rationale for STFA Approach to Passage Modeling (Feb. 1995) (on file with author). STFA modeling uses assumptions that differ substantially from those incorporated by the federal agencies in their analysis; accordingly, STFA scientists and the federal managers often arrive at dramatically different survival probability estimates associated with hydrosystem operations and transportation methods. See NMFS 1995 Hydrosystem Biological Opinion, Supra note 161, at 84 (noting that state/tribal FLUSH model assumes high mortality associated with current in-river conditions and artificial transportation, while federally endorsed CRISP model assumes lower mortality). As NMFS has noted, salmon management recommendations will vary significantly depending on the model employed, and therefore the choice of model will have significant consequences for the survival of the species. Id. (noting great risk to the survival and recovery of the listed stocks of any management option that relies solely and conclusively on any single set of assumptions').

(273) 16 U.S.C. [section] 1532(15). (274) In Idaho Department of Fish & Game v. National Marine Fisheries Service, 850 F. Supp. 886 (D. Or. 1994), vacated on mootness grounds, 56 F.3d 1071 (9th Cir. 1995), the court strongly suggested that NMFS has an obligation to accord more deference to state and tribal scientific and technical conclusions when rendering its biological opinion on Columbia River hydrosystem operations under the ESA. Noting that section 7(a)(2) of the Act and implementing regulations require that the Service use "the best scientific and commercial data available" in making its determination, the court stated:

[NMFS is] under no legal obligation to listen and respond to almon plans

from every corner of the Northwest, but the ESA does impose substantive

obligations with respect to an agency's consideration of significant

information and data from well-qualified scientists such as the fisheries

biologists from the states and tribes. Id. at 899. -Through participation in various technical groups, the states and tribes contribute substantial analysis and data to NMFS in the consultation process on hydrosystem operations. See supra note 272. (275) See supra notes 270-71 and accompanying text. (276) See Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Comm'n, 35 F.3d 1371, 1386 (9th Cir. 1994) nod", within context of Northwest Power Act, "[t] here is no question that [the Act] requires that deference be given to the recommendations and expertise of agencies and tribes-the question is how much deference is due"). For a further discussion of tribal management and deference issues, see Mary Christina Wood, Tribal Management of Off-Reservation Wildlife Resources: The Sovereign Prerogative (paper to be presented at the Indigenous Land Use Conference, sponsored by the National Native Title Tribunal, Darwin, Australia, Sept. 1995; to be published with symposium papers) (on Me (277) In this regard, the memorandum issued by BIA Director Ada Deer to guide USFWS's development of national policy for ESA implementation serves as perhaps the best available general articulation of the trust responsibility as applied to wildlife conservation programs. See BIA Fish & Wildlife Policy Memorandum, supra note 40. (278) USFWS Draft Indian ESA Policy, supra, note 98. (279) See BIA Fish & Wildlife Policy Memorandum, supra note 40. (280) Id. at 3-6. The Solicitor's Office reviewed the memorandum for consistency with case law prior to issuance. Id. at 1; see also supra note 68 (describing standards set forth in memorandum). (281) Associate Solicitor Memorandum, supra note 230, at 1. (282) NMFS Draft Recovery Pun, supra note 148, at I-12 to I-14. Other regional policy development has occurred in the process of developing management strategies for the ancient forests of the Pacific Northwest The Clinton Forest Plan includes a section on trust responsibilities toward tribes, which sets forth principles to guide restrictions on tribal activities. U.S. Forest SERV. & U.S. Bureau of Lang Mgmt., Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within The Range of The Northern Spotted Owl 54-55 (April 13, 1994) (on file with author) [here-(283) CRITFC TRIBAL Restoration PLan, supra note 138. For additional discussion, see supra note 266. (284) Umatilla Salmon Policy, Supra note 138. For additional discussion, see supra note 266. (285) NMFS Draft RECOVERY Plan, supra, note 148, at 1-12 to I-15, V-3-1; USFWS Draft Indian ESA Policy, supra note 98, at 1-2; see also Clinton Forest Plan, supra note 282, at 54-55 (recognizing trust responsibility). (286) See, e.g., United States v. Washington, 384 F. Supp. 312 (D. Wash. 1974), affd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Urdted States v. Washington, 520 F.2d 676, 686 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Antoine v. Washington, 420 U.S. 194 (1975). For further explanation of the principles' origins, see Associate Solicitor Memorandum, supra note 230, at 3-10. (287) The USFWS draft policy also sets forth several additional requirements for dealing with tribal issues under the ESA, but all are procedural in nature. Generally, it requires consultation with tribal governments during the various phases of ESA implementation, such as prelisting, listing, consultation, habitat conservation planning, and recovery. See USFWS Draft Indian ESA Policy, supra note 98, at 3-5. (288) This principle goes far in promoting government-to-government interactions between tribes and the agency. Because any federal regulation-no matter what its purpose-interferes with the sovereignty of tribal governments, it is vital to achieve regulatory purposes with the least possible amount of regulation. In many cases, since tribes have jurisdiction over their own lands and their members' off-reservation activities, voluntary tribal regulation may adequately achieve the mutually agreed-upon goals of the tribes and the agency. (289) USFWS Draft Indian ESA Policy, supra note 98, at 2; NMFS Draft Recovery plan, supra note 148, at I-13, I-14; see also Clinton Forest Plan, supra note 282, at 54-55 (adopting same principles). These principles were also endorsed by the Assistant Secretary and Associate Solicitor for Indian Affairs. See BIA Fish & Wildlife Policy Memorandum, supra note 40, at 6; Associate Solicitor Memorandum supra note 230, at 12-13. Curiously, however, the draft USFWS policy contains sweeping language at its beginning that seems to undercut the application of these conservation principles. R states: Absent a clear expression of Congressional intent to the contrary or the application of reasonable and necessary conservation measures for the protection of trust resources, Federal fish and wildlife conservation laws must be ... administered in a manner that avoids or minimizes unilateral interference with tribal rights .... The Solicitor of the Department of the Interior has determined that the [Endangered Species] Act is a reasonable and necessary conservation measure that to the exercise of treaty hunting and fishing rights of Indians. USFWS Draft Indian ESA Policy, supra note 98, at 1-2 (emphasis added). as a whole, the quoted language seemingly justifies all agency action taken pursuant to the ESA as falling within the penumbra of "reasonable and necessary conservation measures." Such a carte blanche validation of all forms of regulatory discretion under the ESA is fundamentally inconsistent with the trust obligation and a dubious application of the principle that the federal government may not abrogate treaty rights without express congressional approval. See supra note 46. (290) BIA Fish & Wildlife Policy Memorandum, supra note 40, at 6; see also Associate Solicitor Memorandum, supra note 230, at 12. (291) See Clinton Forest A", supra note 282, at 55. Moreover, the Columbia River tribes urged the court to adopt this principle in deciding the validity of NMFS's restrictions during the fall fishing crisis. See Tribal Motion for TRO, supra note 172, at 21-22; see also supra notes 207-11 (describing litigation). It should be noted, however, that the tribes have in no way indicated that these five conservation principles amount to the fun trust responsibility. Instead they have used them primarily to challenge direct regulation of their treaty fishing rights. See supra note 207. (292) USFWS Draft INDIAN ESA Policy,supra note 98, at 2. (293) NMFS Draft Recovery Plan, supra note 148, at I-14 (emphasis added). (294) See supra note 286 and cases cited therein. (295) See supra note 46 and accompanying text (296) See supra note 36. (297) While the Columbia River treaty tribes have brought litigation in the past to challenge restriction of their treaty fishing, those cases have not squarely addressed the trust obligation to protect the fishery. (298) Even apart from this concern, the five conservation principles may amount to an oversimplified approach to a highly complex matter. The trust duty of protection is properly framed around the underlying tribal. interest, which, in the case of wildlife conservation, may vary tremendously between tribes. See supra notes 232-33 and accompanying text (discussing ranging tribal interests in wildlife). Derived from tribal treaty fishing cases, these principles may not fit well in other contexts. In some cases, they may go too far in expressing the trust responsibility. For example, the principles are unsuited for situations in which the tribal activity is not contemplated or secured by treaty and represents the sole human-caused source of mortality to the species. (299) See supra part IV.B.2. (300) See supra note 245 and accompanying text see also BIA Fish & Wildlife Policy Memorandum, supra note 40, at 4 (recognizing federal trust duty to protect "Federal lands and habitats which support the resources upon which meaningful exercise of tribal hunting and fishing rights depend, and [administer] Federal projects in a manner which prevents the diminishment of associated fish and wildlife resources, and the tribal share in them). (301) while the draft Snake River Recovery Plan recognizes that "these" stocks should ultimately be restored to levels sufficient to sustain Native American cultures," it seemingly fails to relate recovery goals to tribal harvest needs in any tangible way. See NMFS Draft, Recovery Plan, supra note 148, at 1-14, IV-1. Instead, recovery levels appear calibrated to mere species' survival rates. See id. at IV-1 1, IV-13 (tying recovery to spawner replacement ratios as well as numerical escapement goals). The tribes have, in the past objected to this failure. See supra note 249 "quoting tribal comments to recovery team's plan). Nevertheless, the Plan concludes that the unprecedented conservation effort" will fulfill the mandates of the ESA "in a manner that is fully consistent with the Governments Indian trust responsibilities." NMFS Draft Recovery, supra note 148, at I-14. It is important to note that, particularly in the Columbia River Basin, where populations of nonlisted stocks are also plummeting due in large part to hydrosystem operations and habitat damage, basin-wide recovery efforts for the listed species will undoubtedly affect the viability of other nonlisted species as well-species that also support tribal treaty harvest. Notably, the tribal restoration plan is much broader in scope than NMFS's draft recovery plan-which is directed primarily toward listed stocks-and establishes restoration goals for all upper Columbia Fish See CRITFC Tribal Restoration Plan, Supra note 138, at 5B-2, 5B-3. The long-range, ecosystem-wide focus of the tribal plan is thus more likely to achieve fuller regional benefits of fish conservation. (302) See supra notes 23949 and accompanying text The USFWS draft policy addresses the recovery component of the endangered species program by simply calling for consultation with tribes. USFWS Draft Indian ESA Policy, supra note 98, at 3-5.. (303) CRITFC Tribal Restoration Plan, supra note 138, at 14, 5B-2, 5B-3. Similarly, the Umatilla tribal policy calls for short-term standards to prevent extinction and initiate recovery, and long-term standards to restore the treaty fisheries "to their condition prior to 1855" as soon as possible. Umatilla Salmon Policy, Supra note 138, at 15. (304) At the same time, targeting recovery for higher levels to provide for harvestable species can be a two-edged sword for tribes within the narrow context of the ESA. As entities which NMFS seeks to regulate under the ESA, the tribes may encounter restrictions on their fishing as long as stocks remain listed. Including more ambitious population levels will extend the period of recovery. In order to fulfill the trust obligation, it is thus imperative to link recovery levels with the principles restricting regulation of the Indian use. See supra notes 286-93 and accompanying text (describing "conservation necessity principles"). (305) See supra note 290 and accompanying text. (306) See supra notes 292-93 and accompanying text. (307) See supra notes 188-93 and accompanying text. (308) See supra notes 254-57 and accompanying text. (309) See supra notes 262-63. (310) The biological opinions for habitat and hydrosystem activities were issued before the draft recovery plan was completed See supra notes 212-20; NMFS 1995 Habitat biological Opinion, Supra note 217, at 20; Fish Plan Spawns Skepticism, supra note 222 (reporting release of draft recovery plan on March 20, 1995). These two categories of activity, therefore, have essentially become a part of the baseline against which future activities, such as harvest, will be measured. See NMFS 1995 Habitat Biological Opinion, Supra note 217, at 18-20. While a recovery plan arguably should be used to provide a framework to rearrange the priority of activities that make up the "environmental baseline,' it is clear that the draft Snake River salmon recovery plan does not perform this function. Instead, the plan simply incorporates the assumptions of mortality that were presented in the hydrosystem and habitat biological opinions and does nothing to modify the baseline approach or reallocate the conservation burden. See NMFS Draft Recovery Plan, supra note 148, at V-2-1 to V-2-90; see also infra note 311.

The tribes, and BIA on their behalf, have strenuously objected to this baseline approach because it precludes their harvest from attaining any sort of equal footing vis-a-vis habitat and hydrosystem activities. See Letter from Ada E. Deer, Assistant Secretary for Indian Affairs, U.S. Department of Interior, to Douglas K Hall, Assistant Secretary for Oceans and Atmosphere, National Oceanic and Atmospheric Administration (Feb. 14, 1995) (expressing concern that the draft hydrosystem biological opinion did not meet the agency's trust obligations because it failed to account for ongoing tribal harvest, and noting that such harvest should be "front-loaded" by considering it as part of the environmental baseline or as a cumulative effect). (311) See NMFS Draft Recovery Plan, Supra note 148, at V-3-31. As a step toward implementing a new harvest regime, the draft plan cause for amending the Columbia River Fish Management Plan, a plan under the continuing jurisdiction of the federal district court of Oregon, to incorporate new management criteria for listed stocks. See id. at V-3-15. While the recovery plan notes that reduced harvest levels will pose a "particular hardship" for tribes and acknowledges its trust responsibility toward the tribes, see id. at V-3-22, V-3-24, it fails to address the underlying legal issue of whether NMFS even has authority under the ESA to restrict treaty fishing. See supra notes 225-31. The plan does seek, at least to some extent, to prioritize Indian fishing over non-indian fishing. See, e.g., NMFS Draft Recovery Plan, supra note 148, at V-3-15, V-3-16 allowing treaty fisheries 5% incidental harvest rate on sockeye salmon and nontreaty fisheries only 1% rate). But it notably falls to strike a broader equitable balance between the harvest impacts and the impacts of hydrosystem operations and habitat destruction. Instead the plan simply defers resumed harvest until such time as improvements in other life-stages take effect. See id. at V-3-1, V-3-8. Of course, there is a danger that, if the plan does not require sufficiently aggressive measures to address other life-cycle impacts, such survival improvements will never be realized, and harvest restrictions will be permanent This essentially has happened in the case of spring and summer chinook commercial harvest, which the tribes have had to forgo for decades due to the government's failure to take action to rebuild populations. See id. at V-3-4. (312) CRITFC Plan Summary, supra note 138; see also Umatilla Salmon Policy, s supra note 138, at 4-16 (setting forth specific restoration measures); CRITFC Comments, supra note 222, at 5 (quoting tribal comments to recovery teams plan, calling for allocating the burden equitably among the different sources of mortality). (313) See supra note 287 (discussing USFWS draft policy); NMFS Draft Recovery Plan, supra note 148, at HI-5, III-7 to Ell-12 (anticipating tribal representation on Implementation Team inviting nominations from tribes to Scientific Advisory Panel and selected committees and work groups, but not providing for tribal participation in Technical Management Team, which will manage flows and passage conditions). (314) See supra notes 265-76 and accompanying text While the draft Snake River salmon recovery plan provides for some tribal input into management and technical decisions, see supra note 313, it vests final authority in NMFS. See NMFS Draft Recovery Plan, supra note 148, at M-5 not" that Implementation Team, which includes tribal representatives, will operate "by consensus" but that NMFS will make final decisions when consensus cannot be achieved). Moreover, while tribes may be represented on many of the working committees established under the Plan, they are notably missing in one of the most important committees, the Technical Management Team TAM, Which will manage passage conditions. See supra note 313. The tribes registered objections to their exclusion from the TMT in their comments to Judge Marsh on the revised hydrosystem biological opinion. See Tribal Objections,supra note 212, at 19 (noting tribes' repeated requests' to NMFS for participation in decisions regarding flow and spill of river system, and NMFS's refusal on basis that river management was federal responsibility). (315) The plan sets forth detailed management plans for each subbasin of the Columbia River Basin. See CRITFC Tribal Restoration Plan, supra note 138, vol. II. In addition, it provides a set of management mandates addressing the entire life-cycle of the salmon. Id at 5B-18 to 5B-62. (316) See supra note 274. (317) See Remarks to American Indian Leaders,supra note 2, at 941-44. (318) Id. at 941.