The spirit of the salmon: how the tribal restoration plan could restore Columbia basin salmon.

I. INTRODUCTION

Columbia River salmon(1) stand on the brink of extinction.(2) Historically, an estimated eleven million salmon spawned in the Columbia River watershed, but fewer than 500,000 fish return to them upstream spawning grounds today.(3) Of those still returning, at least 80% are produced in hatcheries, and most lack the necessary genetic characteristics to perpetuate the species.(4) For the remaining native stocks, the National Marine Fisheries Service (NMFS) has listed twelve runs (or evolutionary significant units) as endangered or threatened under the Endangered Species Act (ESA).(5) Of the many causes attributed to the salmon's decline, habitat degradation and destruction have caused significant losses in salmon populations.(6) In the Columbia River Basin hydropower developments in particular have decimated upstream salmon populations by effectively cutting spawning salmon off from them spawning grounds and creating inhospitable habitat for migrating and rearing salmonids.(7)

Recognizing that continued habitat destruction would result in the complete extinction of salmonids, fish managers have developed various salmon restoration and recovery plans. Since 1995, federal entities have managed salmon under a plan implementing a biological opinion developed by NMFS.(8) The NMFS Biological Opinion (NMFS BiOp) evaluated the impacts of federally administered dams on the Columbia and Snake Rivers and recommended changes to operations to comply with the ESA.(9) To avoid jeopardizing the continued existence of listed salmon and steelhead, NMFS proposed various "reasonable and prudent alternative[s]" under which state and federal agencies must manage the listed species.(10) Accordingly, agencies currently operate hydropower facilities under these NMFS requirements, which assume the continued existence of the current river infrastructure, and thus operate within a small range of mitigating options in order to reduce harm to salmon.(11) Under NMFS's implementation of ESA protections, salmon populations have not recovered or even improved.(12) In fact, despite the protections outlined in the NMFS BiOp, NMFS has listed eight additional runs of Columbia River salmon and steelhead as threatened or endangered under the ESA since NMFS first issued its 1995 Biological Opinion.(13)

The states have also weighed in on salmon management. In 1980, under the Northwest Power Act, Congress authorized a regional program that involved states in salmon restoration.(14) Through the Northwest Power Planning Council (Council), the states have developed a fish and wildlife mitigation plan for salmon recovery.(15) The Council's program strives to improve salmon habitat, rather than relying solely on technology to replace degraded habitat.(16) Specifically, the Council's program calls for increased instream flows and reservoir drawdowns to improve salmon migration.(17) Unlike the NMFS BiOp, which anticipates continued barging and trucking of juvenile salmon around existing dams,(18) the Council's program considers artificial transport to be a last-ditch effort appropriate only under "extremely adverse" river conditions.(19) Proponents of the Council's program have. heralded it as a progressive plan that could possibly help restore salmon.(20) However, since the measures of the ESA effectively trump any plan developed by the Council, the Council's program has not changed the manner in which agencies manage Columbia River salmon.(21)

A year after the Council promulgated its program calling for substantial changes in hydropower operations, the Columbia River Inter-Tribal Fish Commission (CRITFC) released a tribal plan for salmon restoration.(22) CRITFC based the "Spirit of the Salmon" tribal plan on the simple idea that restoration must involve putting fish back into ecologically improved rivers that can support salmon.(23) Unlike both the federal BiOp (i.e., NMFS BiOp) and the states' program, the Spirit of the Salmon aims to restore salmon to their historical populations in their historical habitats.(24) The tribal plan also emphasizes strategies that will result in natural production, healthy river systems, and protection of tribal sovereignty and treaty rights.(25)

Furthermore, the tribal plan provides a means by which anadromous fish will exist for future generations,(26) CRITFC set an ambitious time frame to halt population declines and begin recovery.(27) Specifically, the Spirit of the Salmon seeks to halt salmon population declines within seven years of implementation and to also increase the number of adult salmon returning to habitat above the Bonneville Dam by four million annually within twenty-five years.(28)

To achieve these goals, the tribal plan recommends "gravel-to-gravel" management that aims to increase salmon survival at all salmon life stages.(29) Much of the tribal restoration plan focuses on habitat improvement, setting broad goals in order to increase instream flows, prevent harmful land use practices, and restore riparian habitat through the implementation of a series of watershed-specific subbasin plans.(30) The tribal plan also recommends ocean harvest ceilings based on population abundance, particularly for Columbia River Chinook.(31)

The Spirit of the Salmon also advocates controversial actions to improve the chances of salmon survival In particular, the plan recommends that salmon managers take advantage of hatchery technology to supplement extremely depressed salmon populations.(32) Supplementation is a hatchery technique that produces fish from native, wild broodstock and then rears the fish in habitat that closely resembles natural rearing habitat.(33) CRITFC believes that supplementation could restore fragmented and declining populations, at least when other recovery actions will not improve conditions quickly enough to stop population losses or extinction.(34) Critics of supplementation view it as just another hatchery technique that will further harm native populations by exposing native gene pools to high risks of damage.(35) The supplementation proposals in the Spirit of the Salmon have created divisions among salmon advocates.(36)

Finally, the tribal plan recommended permanent drawdowns of the John Day and McNary reservoirs in the Columbia River and four reservoirs in the lower Snake River.(37) While the Council recommended seasonal drawdown of various reservoirs, the tribal plan was the first recovery plan to suggest permanent drawdown.(38) Since CRITFC released its plan, other agencies have advocated permanent drawdowns.(39) However, widespread political opposition(40) and reluctance by the Army Corps of Engineers may prevent permanent drawdowns in the near future.(41)

This Comment argues that the tribes' Spirit of the Salmon plan represents the best hope for salmon recovery in the Columbia River Basin. Part II explains the need for the tribal restoration plan by detailing salmon life history and factors that contribute to salmon decline. Part III describes the main elements of the Spirit of the Salmon Restoration Plan.(42) Part IV discusses how the tribal plan could lead to salmon recovery. Finally, Part V explains the significance of the tribal restoration plan as a unique exercise of tribal sovereignty. The Comment concludes that federal and state agencies should adopt the tribal plan because its comprehensiveness could lead to salmon restoration.

II. SALMON LIFE HISTORY AND DECLINE

A. Salmon Life History and Habitat Requirements

Salmon are anadromous fish, meaning that they begin their life in freshwater, grow to maturity in the ocean, and return to freshwater to spawn and die.(43) This unique life cycle has mesmerized those interested in salmon for centuries, if not millennia.(44) It has also made salmon a particularly elusive species to understand, follow, and, therefore, protect.(45) Not only do salmon travel between fresh and saltwater, they have also evolved to depend upon habitat characteristics specific to the salmon life stages. Salmon's adaptation to and evolution with its natural environment help to explain its current decline, as its native habitat continues to suffer degradation from various land use practices, hydropower operations, and pollution.(46) The salmon life cycle and habitat conditions go hand-in-hand: without adequate habitat to support the salmon's life cycle, salmon populations will likely continue to decline.

The anadromous fish life cycle both begins and ends with adults returning to rivers or lakes to spawn. Spawning salmon lay their eggs in nests, or redds, located in gravel beds beneath fast-flowing, clear, and well-aerated waters.(47) The water must have enough depth to cover the fragile eggs so they do not dry out. After two or more months--depending upon the species--the eggs hatch as alevins and eventually emerge from the gravel redds as fry.(48)

At the fry stage, salmon continue to require clear, swift water that can provide adequate nutrients. Some fry, particularly those of pink and chum salmon, immediately migrate toward the Pacific Ocean.(49) However, Chinook, sockeye, coho, and steelhead, in preparation for their arduous voyage downstream and into the ocean, to different parts of the rivers or lake to grow and rear.(50) At the fry stage--prior to migration--juvenile salmon depend on nearby areas to provide adequate shade and oxygen, protection from predators, and an abundant food supply.(51) Specifically, juveniles rely on stream complexity and large woody debris to create refugia away from the typical stream flow.(52) Refugia areas usually contain large amounts of food for salmon.(53) Large woody debris and overhanging banks provide salmon with necessary shade during the hot summer months.(54) During spring and winter, the refugia provide salmon with areas where they can rest and possibly avoid high flow events caused from snowmelt or heavy rains.(55)

Migrating juveniles, called smolts, depend upon swift currents to conduct them downstream. In fact, they usually descend with their heads facing upstream, and turn to actively swim only when water slackens.(56) As they migrate, they usually rest and feed in the slack water of shorelines and eddies.(57) Smolts have evolved to time their migration with "smoltification," extreme physiological changes salmon undergo to prepare for their ocean phase of life.(58) Consequently, significant changes in migration time will impair salmon's ability to adjust to and survive the ocean environment.(59)

Once they reach the Columbia River estuary, rearing juveniles take advantage of abundant food sources to prepare for their ocean stage of life.(60) They will spend days or weeks in the estuary to acclimate to increased salt concentrations and new food supplies.(61) They also use the time to become familiar with and remember the chemical cues of the estuary, in a process called imprinting.(62) This process enables adults to return to the river to spawn. While in the estuary, salmon depend upon aquatic vegetation and channels to provide cover from predators and refugia from swifter currents.(63)

Salmon use their time in the ocean to feed and grow.(64) Some salmon migrate as far north as the Bering Sea, while others remain close to the Oregon coast.(65) Scientists remain confounded as to why salmon migrate and dumbfounded as to precisely what habitat conditions salmon require in the ocean.(66) Although habitat may limit salmon survival at the ocean stage,(67) the salmon's real threat in the marine environment comes from fishermen's nets and hooks.(68)

After one to five years in the ocean, the adults return to their rivers to migrate upstream to spawn in the same place they first hatched.(69) Before spawning, returning adults spend more time in the estuary to prepare for their arduous upstream migration by readjusting to a freshwater environment.(70) Once they enter the freshwater, adult salmon cease feeding and rely on the fat they have stored from their ocean feasting.(71) They swim ceaselessly upstream to their place of birth to spawn. Adults have the ability to jump up large waterfalls and other obstacles, but cannot scale large dams without the use of fish ladders. For successful upstream migration, salmon need cool, well-oxygenated water.(72) All of the Pacific salmon die after laying their eggs, but steelhead may repeat the migration and spawning cycle more than once.(73)

At every stage of their life cycle, salmon have "rather precise" habitat requirements.(74) As land use practices, hydropower operations, and pollution have degraded habitat, the habitat's ability to provide for salmon has diminished.(75) Consequently, salmon populations have plummeted in areas with degraded and destroyed habitat.(76)

B. Salmon Decline

Pacific rivers once teemed with salmon, upon which Columbia River tribes depended for food and trade.(77) Lewis and Clark's expedition marveled at the massive quantities caught at tribal fishing stations and drying scaffolds.(78) In the early 1800s, tribal salmon harvests averaged approximately 42 million pounds annually.(79) However, as early as the 1840s, salmon runs began to decline from both overfishing and the pollution of streams.(80) As white settlers established canneries along west coast streams, the salmon catch for tribes proportionally decreased.(81) In fact, by the 1880s, fishery managers had already introduced hatcheries to the Columbia River basin, while local newspapers warned that the salmon species would cease to exist based on then-current harvest numbers and population decline resulting from logging, grazing, and increased urbanization.(82) As much as salmon had declined, the advent of the dam-building era in the 1930s caused further loss of salmon habitat.(83) Today, with twelve runs of Columbia River Basin salmon on the Endangered Species list(84) and some stocks completely lost,(85) fishery managers and conservationists have tried to turn the tide on the same historic causes of salmon decline, including overfishing, hatchery production, harmful land use practices, and hydropower installations.

I. Overfishing

Before the turn of the twentieth century, salmon managers had already identified overfishing as a prime cause of salmon decline.(86) The salmon-canning industry enabled fishermen to catch and market huge quantities of salmon, and salmon became an important commodity in the Pacific Northwest.(87) As technology increased the effectiveness and efficiency of salmon fishing, fishermen moved into the ocean and created a troll fishery.(88) Until the 1970s, ocean trolling grew, placing the burden of conservation on the fishermen in the rivers.(89) Ocean trolling can cause a myriad of problems for salmon populations because it catches immature fish, causes incidental deaths, and indiscriminately takes all kinds of fish.(90) Trolling is also difficult to regulate and has led to a "tragedy of the commons" type situation, where fishermen would rather take too much salmon than leave it for another fisherman to harvest.(91) Finally, one lingering consequence of harvest is the way in which it has influenced hatchery production.

2. Hatchery Production

To abate salmon declines resulting from overfishing, salmon managers began to develop artificial production facilities, or hatcheries, in which scientists sought to improve the low survival rates of juvenile salmon.(92) Although hatcheries have produced extraordinary numbers of harvestable salmon,(93) they have also probably contributed to salmon decline.(94) One commentator has called hatcheries a "halfway technology" that is doomed to failure.(95) Hatcheries have reduced the genetic variability between and within salmon populations and thereby have destroyed the resiliency necessary for long-term survival in the wild.(96) Hatcheries can cause direct changes to genetic variability through artificial selection, gene migration, and genetic drift.(97) They further degrade the gene pool through indirect means such as competition, habitat destruction, and disease transmission.(98) This decline in genetic variability has created perhaps the greatest irony in the history of hatcheries: although hatcheries are intended to prevent the decline of wild salmon stocks, they have actually increased the negative impacts on wild salmon and have likely accelerated the rate of decline in native stocks.(99)

Despite the risks that hatcheries impose, Pacific Coast fisheries have become dependent upon hatchery technology.(100) Indeed, most returning fish originate from artificial production facilities.(101) Tribes, likewise, have become dependent upon hatchery technology to provide them with fish for subsistence and ceremonial use.(102) Because this dependence is so strong, fishery managers have continued hatchery production, despite its negative effects.

3. Land Use Practices

Salmon-bearing streams suffer degradation from adjacent land use activities, including logging, grazing, agriculture, and urbanization.(103) While the activities may differ in intensity and impact on the streams, some general consequences result from nearly all types of land use. Most land use activities increase sedimentation input into streams by reducing the soil's ability to retain moisture.(104) Heavily used areas usually have high erosion potential, particularly on steep, unstable slopes.(105) Consequently, these areas often experience extremely heavy spring floods (because the soil cannot moderate the amount of water going into a stream) followed by late-summer dewatering (because the soil has no more moisture to share with the waterway).(106) Spring floods can scour streams, reduce the waterways' sinuosity and complexity, remove large woody debris and salmon refugia, and, frequently, directly kill salmon.(107) Dewatering may result from the spring boom and bust cycle or from irrigation withdrawals.(108) Dewatering deprives salmon eggs of necessary moisture, and redds may dry out in dewatered streams.(109) Land use activities also reduce shade cover, thereby increasing stream temperatures to levels lethal to migrating and rearing salmon.(110) Finally, the same activities increase water pollution, either through direct discharges of harmful chemicals into the waters or by indirectly lowering the amount of oxygen available to salmonids.(111)

Many of the same land use practices that currently threaten salmon occurred in the 1800s and early 1900s, some on an even greater scale.(112) While these activities undoubtedly reduced the amount of suitable habitat and directly harmed salmon, no single activity has contributed as greatly to salmon decline as the installation of hydropower dams throughout the Columbia River basin.(113)

4. Hydropower Operations

"The Columbia River system is probably the most dammed river system in the world."(114) Dams harm salmon--both directly and indirectly--at all stages of the salmon life cycle and also cause significant losses to juvenile salmon migrating downstream.(115) Slackwater behind dams causes confusion and delay for migrating juveniles, which rely upon a strong downstream current to guide them toward the sea.(116) The slackwater also becomes hotter behind dams than free flowing water, and the slackwater can reach temperatures lethal to Columbia River salmonids.(117) In addition, reservoirs provide an ideal environment for predators.(118) Those juveniles that survive the various slackwater obstacles must still survive passage through the dam itself. Salmon that pass over dams via spillways may experience gas bubble disease (an overaccumulation of nitrogen that can gravely harm or kill salmon).(119) Salmon that instead pass through turbines run a fifteen percent chance of being killed directly by the turbines.(120)

Adult spawning salmon also face risks from dams. Although most large dams have fish ladders that enable adults to negotiate the large structures, not all spawning salmon successfully make it to the fish ladders and through the dams.(121) Any smaller dams completely block adult migration.(122) Also, adults suffer the same consequences from excessive temperatures that juveniles experience.(123)

a. Efforts to Improve Salmon Passage

Flow augmentation, bypass systems, and water spills should all ideally lead to decreased migration time for juveniles through the mainstem reservoirs.(124) If timed perfectly, the combination of these measures could theoretically lead to increased juvenile survival and health.(125) However, coordination and timing of flow augmentation and fish migration have not abated the salmon's decline.(126)

A primary flaw in NMFS's scheme lies in the assumption that flow augmentations will flush juvenile salmon through the mainstem as quickly as possible.(127) Although increased migration time has contributed to salmon decline, the flushing idea ignores the way that salmon would normally migrate to the sea. As the Independent Scientific Group explained, juvenile migration involves more than just downstream movement.(128) Instead, juvenile salmon alternate movement with resting and feeding as they migrate downstream.(129) Flushing flows, therefore, deprive migrating juveniles of the opportunity to grow and accumulate energy as they migrate.(130)

Even where flows help the fish by decreasing the smolts' exposure to high temperatures and predators, the water ultimately just leads the juveniles into dams. To decrease the mortality caused by passage through turbines,(131) dam operators have included spillways through which juveniles may pass.(132) The effectiveness of spillways is subject to debate. However, a few general ideas emerge: 1) the number of salmon that actually go through the spillway is proportional to the amount of water spilled(133); 2) surface spillways are probably more effective than standard spillways(134); and 3) high spills can lead to gas supersaturation, a condition that can lead to death when gas bubbles enter the salmon blood stream and tissue.(135) Even if spills did not have associated risks from supersaturation or increased predation,(136) it bears repeating that only total spills would result in one hundred percent of migrating juveniles passing through spillways.(137) Dams, however, do not operate to allow one hundred percent spill; indeed, dam operators tend to adjust spills to accommodate the bulk of the migrating run,(138) so smolts that begin migration before or after most of the run do not always benefit from timed spills. Those salmon that do not make it through spillways must instead pass through turbines, where they run a fifteen percent chance of dying.(139)

b. Artificial Transportation

Recognizing that spills and bypass systems do not completely eliminate harms from the hydropower system, the Army Corps of Engineers has attempted to mitigate these harms by transporting juveniles by barge or truck past the various dams along the Columbia and Snake Rivers.(140) Nevertheless, transportation has its own risks. Collection systems target yearling salmon, and those juveniles not yet at yearling stage must instead run the gauntlet of dams.(141) Even for the targeted fish, collection systems fail to capture all of the migrating yearlings and--depending upon the species--may miss entire populations of salmon.(142) Consequently, assuming that artificial transportation benefits migrating juveniles, not all stocks profit equally from its implementation.(143)

Artificial transport may not even benefit the salmon. The collection process itself can kill juveniles,(144) and transport can have other significant indirect impacts on salmon survival. For some Snake River Evolutionary Significant Units (ESUs), barging and trucking may decrease a normally month-long voyage into three days, thereby depriving the transported juveniles of critical growth and adaptation time.(145) Transportation can also impair salmon homing behavior and result in greater spawning delay for adults.(146) Artificial transport can cause increased mortality (referred to as differential delayed transportation mortality),(147) which salmon would not experience absent the barging or trucking.(148) That is, barged salmon may actually die at greater rates than those salmon that run the gauntlet of dams. This can result from the stress that collection and barging place on salmon or from other unknown causes associated with differential delayed transportation mortality.(149) While the exact causes of increased mortality remain uncertain, one thing is clean, transportation has not resulted in salmon recovery or even decreased the rate of salmon decline.(150)

C. The Need for a Comprehensive Management Plan

As this section has shown, many factors have contributed to the imperiled status of Columbia River salmon. While scientists can point to many causes of salmon decline, they have not agreed on any clear solution.(151) CRITFC, however, believes that it has at least provided a way to begin moving toward salmon recovery or, at a minimum, toward stopping salmon decline. Part III describes the Tribes' Spirit of the Salmon restoration plan, which is a comprehensive management plan that seeks to remedy many of the problems described in this section.

III. THE SPIRIT OF THE SALMON PLAN

The Spirit of the Salmon restoration plan is a comprehensive plan that attempts to recover salmon at all stages of the salmon lifecycle.(152) To achieve this goal, CRITFC applied adaptive management, defined as "a process consisting of identifying a problem, taking actions to address the problem, observing the results, and modifying the assessment of the problem and needed remedies."(153) The tribal plan acknowledges that adaptive management may lead to unexpected results, but it states that the failure to act, rather than undertaking the wrong actions, has allowed the continued decline of salmon toward extinction.(154)

To implement its adaptive management approach, the tribal restoration plan developed eleven hypotheses and related actions that may improve salmon habitat and recovery potential at all levels of the salmon life stage.(155) The hypotheses covered four broad topics: 1) habitat restoration through land management, 2) increased control over salmon harvests, 3) improved salmon migration through permanent reservoir drawdowns, and 4) increased salmon production through the use of supplementation.(156) This part describes these major components of the tribal plan.

A. Habitat Restoration

The tribal restoration plan seeks to improve salmon habitat by improving water quality and increasing water quantity. First, to improve water quality, the tribal plan aims to promote recovery of impaired watersheds by limiting high-impact land use activities near salmon-bearing streams, surveying all watersheds to assess their quality, and using a standardized process to evaluate and guide land use practices in watersheds that provide habitat for salmon.(157) The plan also mentioned, but did not extensively discuss, habitat protection.(158) Second, in order to increase water quantity, the tribal plan proposed to increase instream flows and protect riparian vegetation to provide sufficient water for salmon migration, spawning, and rearing.(159) To achieve these goals, the tribal plan included a set of subbasin plans, which applied specific restoration activities to certain areas of the Columbia River watershed.(160)

1. Water Quality Improvement: Habitat Protection and Restoration

The tribal plan for water quality improvement included protection of habitat in good condition and restoration of degraded habitat. Recognizing that most water quality problems in the Columbia Basin derive from land use activities, the water quality improvement plans targeted regulation of land use.(161)

Interestingly, the tribal plan did not emphasize protection of high-quality habitat.(162) Although the plan mentioned the need to protect existing habitat,(163) it specifically focused on habitat protection only in the Columbia River Estuary.(164) Otherwise, where the tribal plan discussed high-quality habitat, it focused on the fragmentation of such habitat and the need for connectivity of these areas.(165) In another area, the plan noted the existence of high-quality habitat as an example of a potential spawning area, but it did not necessarily include mechanisms to protect this habitat.(166) The plan did, however, suggest that enforcement of existing land use regulations could help protect existing high-quality habitat.(167) This limited focus on habitat protection represents a flaw in the tribal restoration plan.

The tribal plan instead emphasizes passive and active habitat restoration. Passive restoration involves management that establishes riparian buffers and roadless reserves to provide protection from harmful activities.(168) Under passive restoration, habitat managers would not permit activities that would further degrade habitat or impede recovery of a particular watershed.(169) In those areas where watershed or stream restoration will not occur naturally, the plan recommends active restoration.(170) Active restoration measures include stream revegetation, road obliteration, and fencing.(171) For both types of restoration, the plan stresses a watershed-based program, so that upstream degradation would not continue to degrade actively restored areas downstream.(172) Finally, the Tribes stress that any sort of habitat restoration must involve comprehensive surveys of the habitat conditions.(173)

2. Water Quantity Increases: Instream Flows

To abate the harms associated with inadequate instream flows and dewatering, the Spirit of the Salmon plan recommends water law reforms.(174) Among the reforms, the tribal plan proposes that states mandate that water appropriators use the most efficient irrigation methods available.(175) Water saved from this shift to efficient practices would then provide adequate instream flows for salmon and the Tribes.(176) The tribal plan also recommends that state and federal managers measure both groundwater and surface water withdrawals to ensure that water permittees do not consume more than their permitted amount.(177) Finally, the restoration plan recommends longer term riparian and wetland restoration to moderate flows of water and prevent dewatering.(178) Ultimately, the Tribes hoped to stop wasteful water use and thereby provide enough water for year-round salmon habitat.(179)

3. Implementation of Habitat Restoration: Subbasin Plans

To achieve these broad habitat restoration goals, the tribal plan uses a series of subbasin plans that focus on activities specific to each subbasin.(180) For the upper watershed areas, habitat restoration focuses on improved land use practices that would reduce sediment inputs into the upper watersheds.(181) For example, the Clearwater River Subbasin Plan recommends halting or restricting all logging, road building, mining, and development until the watershed recovers from past and ongoing degradation.(182) For mainstem areas, the tribal plan focuses on restoration of spawning habitat and salmon passage.(183) In the Mid-Columbia Mainstem Subbasin, for example, the restoration plan recommends riparian restoration of the tributaries, increased instream flows, and improved passage through mainstem dams.(184) In the lower Columbia tributaries, the restoration plan recommends removal of diversion dams that impede salmon passage, restoration of riparian passage, and elimination of logging and development in riparian areas.(185)

The Spirit of the Salmon plan anticipates that a collaboration of persons and entities interested in using the Columbia Basin's resources will initiate subbasin-level habitat restoration.(186) To implement the habitat restoration measures, the Tribe proposed establishing a tribal watershed restoration trust fund that would finance restoration projects.(187) The plan recommends that the Bonneville Power Administration transfer an unspecified amount of funding in trust to the Department of Interior, which would then use this money to fund the efforts of a new restoration entity comprised of state and federal fishery agencies and the Tribes.(188) It would also pay for at least one full-time tribal employee per watershed to coordinate restoration efforts.(189) Federal and state agencies would supply technical and financial resources, and the agencies, stakeholders, and tribes would collaborate to actually implement restoration actions.(190)

B. Ocean Harvest Limitations

When CRITFC released the Spirit of the Salmon plan, NMFS had placed only chinook and sockeye on the Endangered Species list.(191) To address the problems unique to a listed species, the tribal plan suggests additional measures to help protect chinook, including limitations on harvests.(192) The plan advocates selective fishing (i.e., where fishermen retain only marked hatchery fish and release unmarked fish).(193) CRITFC also recommends basing harvest amounts on abundance levels--that is, the actual amount of fish available at the time of the harvest.(194) Abundance-based harvests usually regulate ocean harvests more accurately than fixed-number harvests because fixed-number harvests often represent a somewhat arbitrary determination of how many salmon a fishery can catch.(195) Abundance-based harvests, in comparison, fluctuate with the stock levels and should decline when stocks have dropped.(196) Finally, CRITFC also recommends that abundance-based harvest levels include weak-stock provisions that can abate the harm of overfishing in mixed-stock fisheries.(197) As discussed below, many of CRITFC's harvest recommendations were adopted by the governments of the United States and Canada in their 1999 amendments to the Pacific Salmon Treaty.(198)

C. Salmon Passage: Dam Breaching and Permanent Drawdowns

A juvenile salmon migrating from the Lochsa River in central Idaho must pass through eight dams and three hundred miles of slackwater before reaching the Pacific Ocean.(199) In 1995, the NMFS estimated that as many as seventy percent of migrating juveniles suffered dam-related mortalities.(200) Recognizing that dams cause quantifiable losses to salmon populations, the tribal plan recommends permanent changes in hydrosystem configuration and operations.(201) Specifically, the proposed actions include altering dam operations to insure adequate water flow, operating turbines to allow for safer salmon migration, and controlling spill to improve migration.(202) The tribal plan also recommends permanent drawdowns to some mainstem dams.(203) Finally, the plan recommends halting all barging and trucking and seeking alternative passage measures.(204)

1. Operational Changes

The tribal plan identifies several aspects of dam operations that impede juvenile and adult salmon migration.(205) Specifically, the plan notes that low water flow, turbines, predators, and high temperatures all harm juveniles, while high water temperatures and low water flows can harm adults.(206) To abate these problems, the tribal plan recommends several operational changes. First, the plan recommends flow augmentation to facilitate juvenile migration. In the short term, the Tribes suggest that the federal agencies would arrange to draft Canadian and Montana reservoirs to meet specific flow targets at the Dalles Dam.(207) State, federal, and tribal fishery agencies would also direct flow augmentation from reservoirs on the upper Snake River.(208) In addition, these releases would also lower high water temperatures and thereby increase adult survival.(209) In the longer term, the plan recommends that dam operators relax flood control rule curves and recalculate flow rates to achieve historical flows.(210) Second, to increase fish survival through turbines, the Tribes note that dam operators must operate turbines within one percent of peak efficiency, until they have retrofitted turbines.(211) CRITFC also recommends implementation of a controlled spill that, without exceeding tolerable gas concentrations, would provide for eighty percent fish passage in the short term and ninety percent passage within seven years.(212) To do so, dam operators would have to install flip-lips, structural devices that lower dissolved gas concentrations.(213) Finally, dam operators would also improve fish ladders and fishways--and increase attraction flows--so that more adults would successfully pass by the dams.(214)

2. Dam Breaching and Permanent Drawdowns

Beyond these operational and structural changes, the tribal plan recommends full-scale modifications to the mainstem dams to achieve river flow that would more closely resemble the Snake and Columbia Rivers' natural hydrograph.(215) In the short term, the tribal plan recommends that (by 1996) the Army Corps of Engineers permanently draw down the reservoir at Lower Granite Dam on the Lower Snake River to 710 msl and, at John Day Dam on the Columbia River, to the minimum operating pool.(216) Short term recommendations also include seasonal drawdowns to the minimum operating pool level at the remaining Lower Snake River dams (Little Goose, Lower Monument, and Ice Harbor).(217) The tribal plan also presents three long term options for permanent drawdown. The first option would draw down John Day and Ice Harbor dams to natural river level, which the Tribes estimate would increase salmon survival by three times.(218) The second option would draw down John Day reservoir to its spillway crest and draw down Ice Harbor and Lower Monumental Dams to a flowing natural river.(219) This would increase salmon survival by a factor of 3.4.(220) The final option would draw down John Day and all of the four Lower Snake River dams to natural level, thereby increasing salmon survival by an estimated fourfold.(221) The Tribes warn that if dam managers fail to implement drawdown and increased flow--and conditions of the past ten years continue into the future--modeling analyses show that Snake River spring, summer, and fall chinook would likely go extinct.(222)

3. Ending Artificial Transportation

Along with recommending operational and structural changes, the tribal plan stresses that artificial transportation should not continue. The plan notes that barging and trucking have failed to offset the decline of salmon and suggests that the transportation process actually increased salmon mortality.(223) As the plan points out, only yearling salmon benefit from transportation--if they benefit at all--and subyearling salmon must survive the slackwater, turbines, and spills to successfully migrate.(224) Further, the use of barges to transport salmon actually precludes the use of spill and additional flow to protect juveniles.(225) The tribal plan therefore recommends halting all transportation measures, at least to test the effectiveness of the other passage measures.(226)

According to CRITFC, these changes to the hydropower system would greatly improve juvenile and adult survival and productivity.(227) However, even if state and federal agencies adopt these recommendations, the tribal plan seeks to boost salmon productivity through supplementation.(228)

D. Supplementation

The tribal restoration plan advocates the use of supplementation to help severely depressed salmon populations. Supplementation involves using native salmon stock and then rearing the smolts in hatchery conditions designed to simulate natural conditions so that the original and supplementation groups are managed as one gene pool.(229) The plan proposes to use supplementation for two purposes. First, the Tribes will use supplementation to increase survival of naturally spawning salmon populations that may be too depressed to adequately reproduce, or where other remedial actions will not improve conditions soon enough to abate further harm to the already-depressed population.(230) Second, the Tribes propose to use supplementation to reintroduce salmon populations into areas of the Columbia River Basin where salmon populations once existed but no longer do.(231) As discussed below, the Tribes expect supplementation to stabilize salmon stocks and eventually lead to salmon recovery.

1. Stabilization and Recovery of Depressed Stocks

The Tribes intend to use supplementation to stabilize and help restore severely depressed stocks.(232) The tribal plan states that--for stocks that are fragmented and declining or where other actions will not halt further losses quickly enough--supplementation can at least maintain minimum population levels so that, when habitat conditions improve, the populations can begin to improve.(233) The plan suggests that, by raising native broodstock in controlled conditions, supplementation could even result in population increases or at least provide the artificially produced salmon a refuge from severe environmental disturbance.(234) CRITFC does not, however, explain exactly how supplementation would achieve these goals.

2. Reintroductions

The Tribes also propose using supplementation to reintroduce salmon into areas from where salmon were extirpated.(235) Most of these areas lie upstream of the Bonneville Dam, where the Tribes' usual and accustomed fishing grounds exist.(236) In contrast, most hatchery production occurs in the lower basin, and hatchery-produced salmon do not typically reach the upper basin areas.(237) Even when hatcheries exist in the upper basin, they do not always lie on the same river or tributary from which the salmon were extirpated.(238) Also, the number of returning salmon do not usually fulfill tribal needs.(239) Consequently, existing hatcheries do not adequately mitigate the salmon losses.(240)

CRITFC anticipated that total salmon production in the Columbia River would increase by reintroducing salmon into unused areas, providing salmon more habitat in these areas, and allowing these localized population increases to buffer against future salmon losses.(241) As with supplementation used for stabilization and recovery, CRITFC does not provide specific details about how it would use supplementation for reintroductions, except to say that it would follow accepted techniques.(242) Part IV critiques both this omission and the rest of the Spirit of the Salmon restoration plan.

IV. HOW THE TRIBAL RESTORATION PLAN COULD HELP SALMON RECOVERY

In 1996, a group of scientists called the Independent Scientific Group (ISG) reviewed the Northwest Power Planning Council's (Council) Columbia River Basin Fish and Wildlife Program's strategies for salmon recovery.(243) ISG criticized the program, with scientists noting that the whole approach behind the Council's program was flawed.(244) The Council compiled its program from a set of recommendations that regional fishery managers, Tribes, and other interested parties made about the plan.(245) According to the ISG, the lack of a common goal or conceptual foundation made the Council Program little more than a list of measures designed to serve individual interests.(246) The ISG recommended that the Council use an integrated approach to salmon recovery--based on the conceptual foundation that the ISG developed (i.e., the "normative river" system).(247) By structuring a salmon recovery plan around a common set of goals, the ISG believed that the Council could create an effective salmon management plan that could lead toward salmon recovery.(248)

In many respects, the Spirit of the Salmon plan contains the necessary cohesiveness and comprehensiveness that the Council Program lacked. Based on the concept that salmon recovery involves putting fish back into ecologically improved rivers,(249) the tribal restoration plan attempts to achieve that goal by incorporating certain necessary components: habitat restoration, harvest regulation, improved salmon passage, and salmon production. This Part evaluates the effectiveness of the tribal restoration plan and examines how its implementation could lead to recovery. Although some of the individual components may have flaws, the tribal plan's comprehensiveness is perhaps its strongest component.

A. Adaptive Management

The tribal plan's adaptive management approach could make the entire plan more feasible and effective. Adaptive management is a scientific process that "applies the concept of experimentation to the design and implementation of natural-resource and environmental policies."(250) Appropriate adaptive management consists of descriptions of hypotheses, test conditions (or management actions), and an explicit experimental design.(251) Under adaptive management, salmon managers would test the effectiveness of different hypotheses while implementing restoration actions. For adaptive management to succeed, salmon managers and scientists must work together to treat their plans as experiments and to accept some failures as valuable learning experiments.(252) In other words, salmon managers must embrace the adaptive aspect of adaptive management, because scientific uncertainty dominates salmon restoration.(253) To date, however, most management agencies have used. "adaptive management" to justify many scientifically uncertain activities that may provide salmon managers with new information.(254)

1. The Potential for Successful Adaptive Management

The National Research Council outlined several elements that successful adaptive management should embody. First, an adaptive policy must intend to test clearly designed hypotheses,(255) particularly at a watershed or subbasin level. Second, those implementing adaptive management should view any restoration action as an opportunity to learn, either from failure or success. This requires both patience on the part of salmon managers and the acceptance that some actions may fail.(256) Third, adaptive management should include the participation of the resource-users.(257) Finally, adaptive management must include extensive monitoring and record keeping, so managers can actually learn from the restoration actions that they undertake.(258)

The tribal plan's approach to adaptive management appears to meet the necessary qualifications. The tribal plan proffers hypotheses that the Tribes seek to prove through various management actions implemented at a subbasin level.(259) Further, the tribal plan includes provisions for monitoring the success of its actions.(260) It also acknowledges the high costs of effective monitoring, and it proposes to keep costs reasonable through coordination of various projects.(261) Perhaps most importantly, CRITFC appears to recognize the chance for failure and the need to reconsider its hypotheses if they do fail.(262)

2. The Pitfalls of Adaptive Management

Ideally, adaptive management begins when a species still has a strong population.(263) This enables scientists to learn more about the salmon populations and life cycles in their natural state.(264) It also provides an opportunity for salmon managers to feel more comfortable about experimentation and, possibly, failure. Conversely, the listing of a species as endangered or threatened creates a sense of urgency and increases the perceptions of risk of a management failure.(265) Nonetheless, the Tribes believe that they must act even in the face of uncertainty, even if some of their recommendations fail to restore salmon.(266)

Another risk of adaptive management is that it can become a smokescreen for agency recalcitrance or irresponsibility.(267) Unless an agency approaches adaptive management as a scientific method that requires close monitoring and evaluation, adaptive management will fail.(268) Likewise, without the political will to formulate and implement an actual restoration activity, adaptive management becomes just another term for compromise and inaction.(269) On the face of the tribal restoration plan, it appears that CRITFC has the political and scientific will to effectively implement adaptive management. Whether that is true will remain uncertain until the plan is implemented.

B. Habitat Restoration

Scientists widely recognize that habitat degradation is a common factor in the decline of anadromous salmonid populations.(270) The Tribes' plans for habitat restoration could result in a significant step toward salmon recovery. The plan's combined focus on restoration of water quality and efforts to secure instream flows--if implemented--could increase salmon spawning, salmon rearing habitat, and, ultimately, salmon survival.(271) Unfortunately, the tribal plan's recommendations, and the plan's implementation strategies remain quite vague.

1. Water Quality Restoration

One of the primary strengths of the tribal restoration plan's habitat restoration hypotheses is its focus on habitat connectivity.(272) Like the ISG's emphasis on habitat in a "normative" river system, the tribal plan emphasizes habitat restoration and connectivity.(273) To achieve a normative river, the tribal plan appropriately focuses on improving land-use practices to improve water quality.(274) Improved logging, grazing, and development practices could result in reduced sedimentation input into rivers, lower stream temperatures, and reduce pollution levels.(275) Logging and grazing restrictions could also increase input of large woody debris, increase stream complexity, reduce downstream sedimentation, and provide salmon refugia.(276) The tribal restoration plan's proposals to actively restore actively degraded areas could likely achieve these results.(277)

Unfortunately, the tribal plan's habitat restoration recommendations suffer from vagueness. For example, in the subbasin plans, the tribal plan recommended improved land use regulations, but it did not indicate exactly what those regulations should entail.(278)

Another shortcoming of the plan is its failure to provide mechanisms to protect high quality habitat. As important as restoration of degraded habitat may be, salmon recovery plans should also protect existing high quality habitat.(279) The Snake River Salmon Recovery Team (SRSRT), an independent body appointed by NMFS to study listed species' recovery, stressed that, in terms of habitat restoration and protection, "[p]rotection of high quality habitat must be given the highest priority, since prevention of habitat degradation is far easier and more economical than after-the-fact restoration."(280) In its recovery plan--based on the SRSRT recommendations--NMFS also advocates habitat recovery, stating that the bulk of habitat protection should occur on public lands.(281) Thus, the tribal plan should stress habitat protection along with restoration.

2. Water Quantity

The tribal plan emphasizes that salmon restoration should involve securing more water for instream flows.(282) Unlike the NPPC and NMFS, which anticipate securing only enough water for flushing flows, the tribal plan emphasizes restoration of flows in de-watered tributaries.(283) If the tribal plan results in increased instream flows in overappropriated river systems, this would likely have a great effect on salmon restoration.

3. Implementation: Subbasin Plans

The tribal plan's use of subbasin plans also represents a positive step toward salmon recovery.(284) Division of recovery areas into subbasins can accomplish several important goals. For example, division enables salmon managers to tailor specific recovery actions to appropriate areas, just as CRITFC did in the tribal restoration plan.(285) Application of the appropriate recovery action requires sufficient knowledge of the relevant habitat. To gain this type of information about subbasin habitat, CRITFC recommends use of the "coarse screening process," which determines the status of the habitat and recommends watershed-specific actions.(286) Furthermore, subbasin plans also enable salmon managers to prioritize recovery actions and to stagger implementation where financial resources preclude widescale recovery actions.(287)

The tribal plan's implementation recommendations generally correspond to NMFS's and the NPPC's recommendations for coordination between federal, state, and local agencies.(288) The tribal plan suggests that tribes would coordinate the restoration efforts.(289) By assigning that task to one group, the tribal plan would likely result in more accountability and therefore a greater likelihood of implementation.

C. Ocean Harvest Ceilings

In some aspects, CRITFC was well before its time in its recommendation of abundance-based harvests. In 1999, after several years of failed negotiations to effectively implement the Pacific Salmon Treaty, the United States and Canada finally agreed to harvest levels.(290) The United States and Canada signed the Pacific Salmon Treaty in 1985 to promote the conservation and sharing of salmon resources in the Pacific Northwest.(291) Under the original treaties, fixed-catch ceilings determined harvest levels.(292) Based on inaccurate abundance estimates, the ceilings allowed for more fishing than the population could actually support.(293) For chinook in particular, as the species population continued to decline, the harvest ceilings failed to account for actual run sizes and, consequently, led to overharvest.(294)

Under the 1999 amendments, however, the countries adopted abundance-based management for chinook, just as CRITFC had recommended four years earlier in its 1995 tribal restoration plan.(295) Abundance-based management requires fishery managers to calculate the stock's abundance each year and then allocate a percentage of the total allowable harvest to each fishery.(296) This type of management will likely promote conservation rather than fixed-catch ceilings.(297)

Similarly, the Pacific Salmon Treaty's solutions for the problem of mixed-stock fisheries resembled the recommendations in the tribal restoration plan. Although abundance-based harvest levels adequately regulate salmon fishing in single-stock fisheries, they may fail to adequately protect all stocks in mixed-stock fisheries.(298) For example, if a mixed stock fishery contains two stocks with reduced populations, fishery managers can set a low harvest level and protect both stocks. If, however, one stock begins to improve, an abundance-based regime might allow increased harvest levels for the healthier stock--to the detriment of the weaker stock.(299) Recognizing these problems, the tribal plan recommends improving harvest management by establishing escapement goals for each stock and documenting the effects of harvest management at the stock level.(300) The plan also recommends the development of regulations to ensure escapement goals for weak stocks.(301) The Pacific Salmon Treaty also includes such weak-stock provisions, in which weaker stocks receive absolute protection through closed fisheries when abundance-based levels fail to adequately protect these depleted stocks.(302)

Setting ocean harvest ceilings based on abundance could help limit overfishing of depressed stocks. This, in turn, could result in immediate progress toward recovery simply by reducing mortality levels of fish that may then spawn.(303) However, without improved habitat and passage, harvest limits will have no real effect.(304)

D. Juvenile and Adult Migration

The tribes recommend three complementary actions to improve juvenile and adult migration survival: 1) operational changes, 2) permanent drawdowns of several mainstem dams, and 3) ending all artificial transport of juvenile salmon.(305) These actions, when implemented in conjunction with each other, could help both juvenile and adult migration.

1. Operational Changes

CRITFC's recommendations for operational and structural changes could likely improve salmon passage at the different dams. The tribal restoration plan recommended that 1) dam operators run turbines within one percent of peak efficiency(306); 2) dams implement controlled spill that would provide for at least eighty percent fish passage(307); and 3) federal agencies secure adequate flows from Montana and Canada to augment water flows through mainstem passage.(308) As interim measures, each of these changes could improve salmon passage. Turbine efficiency has a proportional relationship to salmon survival; that is, the more efficiently a turbine runs, the higher the survival rate of salmon.(309) Controlled spill can also improve salmon passage.(310) However, to achieve an eighty percent passage rate, dams would have to spill over ninety percent of the total river volume.(311) Also, depending upon the location and design of the spillway, spills can actually cause harm to salmon.(312) Thus, the tribal plan's figure of eighty percent probably exceeds achievable passage without substantial structural modification. Finally, flow augmentation could also present mixed results. As the ISG pointed out in Return to the River, flushing flows may actually deprive salmon of necessary feeding and resting time during their migration.(313) Also, lowering reservoirs in other areas may adversely impact other species.(314) Consequently, while all of these measures may aid salmon passage, their benefits come at a cost and would not necessarily result in full-scale recovery.

2. Permanent Drawdowns

The tribal restoration plan also recommends, as a short-term measure, seasonal reservoir drawdown in the three lower Snake River dams and permanent reservoir drawdown for the Lower Granite Dam on the lower Snake river and at John Day Dam on the Columbia River.(315) To understand what the tribes proposed, it is useful to first understand the different drawdown level options. The tribes recommended several different drawdown levels: minimum operating pool, spillway crest, and natural river level.(316) Minimum operating pool is the "lowest water level of an impoundment at which navigation locks can still operate."(317) Drawdown to spillway crests are lower than minimum operating pool, and drawdowns to natural river level are effectively the same as dam breaching.(318) Each drawdown option could help migrating juveniles and adults in many ways. Increased river velocity will help juveniles navigate the river more quickly by exposing them to hot water and predators for shorter periods of time.(319) Lower river elevations would also produce more spawning habitat, including large and highly productive alluvial reaches currently inundated by the reservoirs.(320) According to the Independent Scientific Group, breaching dams would provide even more benefits for salmon.(321) Indeed, the absence of the dams would eliminate all of the problems associated with turbine passage and spillways.

Drawdowns can present other risks for salmon, however. For adults, drawdown can prevent upstream dam passage if fish ladders and passageways are not modified to adjust to the lower river elevation.(322) Similarly, juveniles can experience greater delay at dams without modified passageways.(323) Juveniles may also experience significant harm if they have to pass through turbines operating below peak efficiency.(324) Finally, drawdown to natural river level--or even to spillway crest--could preclude navigation, and therefore eliminate barge transportation for juveniles.(325) Depending upon the success rates of artificial transport, this last point could be either a benefit or a risk.

3. Artificial Transportation

The tribal plan asserts that artificial transportation is both unnecessary and ineffective, regardless of the dams.(326) Thus, the plan recommends ending all barging and trucking, and instead the plan proposes directing resources to improve salmon passage.(327) Although the tribal plan's position may seem extreme, it may have validity. As the tribes correctly note, artificial transportation has not halted the decline of salmon populations.(328) Indeed, if differential delayed transportation mortality actually results in a higher rate of salmon mortality than the dams do, then artificial transportation obviously should end.(329) Even if barging and trucking do not increase mortality rates of salmon, they apparently have not reduced mortality.(330) Therefore, it seems logical to focus on improved salmon passage, rather than to continue spending time and resources on an ineffective and costly mitigation measure.(331)

E. Artificial Hatchery Production

Supplementation may be the most controversial aspect of the tribal plan. Debates have raged about the possible consequences of supplementation, and the issue has divided salmon advocates into pro-supplementation and anti-supplementation camps.(332) Scientists acknowledge that severely depressed salmon stocks likely will require artificial propagation for recovery.(333) When implemented as an interim measure, designed to recover or restore naturally reproducing populations, supplementation can serve an important purpose in an integrated recovery plan.(334) But due to poor design and evaluation of past supplementation projects, scientists remain reserved about endorsing artificial propagation--particularly when supplementation projects to date have failed to show any real success.(335) However, if carefully implemented, supplementation may help severely depleted stocks recover and safely replace stocks in areas where salmon no longer exist or where they have become too depleted to survive.

1. Benefits and Risks of Supplementation

Supplementation is the process of applying adapted hatchery technologies using native, wild broodstock and rearing them in conditions as natural as possible.(336) Once the fish are reared, hatchery managers either put the salmon in streams from which salmon have become extirpated or use them to supplement low stocks.(337) As advocates of supplementation, the tribes intend for supplementation to produce salmon that are genetically similar to native runs, so the stocks recover to a point where they can reproduce without artificial production.(338) While the Tribes acknowledge the risks of artificial production, they believe that risks are negligible and that the potential benefits outweigh the risks.(339)

a. Benefits of Supplementation

In an ideal situation, supplementation could achieve restoration of depleted runs, introduction of salmon into barren streams, rearing augmentation, and increased harvest.(340) CRITFC acknowledges that supplementation has possible risks, but the CRITFC scientists believe that risks of supplementation can be minimized.(341) More importantly, CRITFC challenges the idea that the best means of conserving salmon is to focus solely on conserving the genetic integrity of severely depleted runs through conservation because severely depleted runs likely lack the necessary genetic diversity to perpetuate the run.(342) Consequently, according to CRITFC, failure to supplement the stock will result in the run's ultimate demise.(343)

b. Risks of Supplementation

However, CRITFC acknowledges that supplementation poses risks. The primary risk is that--if the survival of the supplemented fish is low--the native populations from which the broodstock derives could suffer.(344) This would happen because, in order to get the broodstock, fishery managers must remove native fish from the population.(345) If the resulting fry do not survive, both the fry and the parents will have been lost.(346) On a large scale, this could cause a precipitous decline in the native stock, which already probably has low population numbers.(347) The other major risk is that supplementation could ultimately cause the same negative effects as hatcheries do: decline in genetic variability, artificial selection, gene migration, genetic drift, competition for resources, habitat destruction, and disease transmission.(348) These uncertainties about the potential successes and risks of supplementation have led to a stalemate, where some salmon advocates denounce artificial production(349) while CRITFC advocates supplementation.

c. Does Supplementation Work?

One analysis of supplementation has determined that success is rare.(350) Of 316 projects studied, only twenty-five successfully supplemented natural existing runs.(351) However, the more closely the hatchery stock resembles the natural stock, the higher the chance for success.(352) Also, supplementation projects that reestablish extinct runs or introduce salmon into uninhabited areas have shown encouraging success.(353) Likewise, salmon with short-run and short freshwater life cycles have shown success.(354) Therefore, because CRITFC's supplementation would target uninhabited streams and would use broodstock from species with shorter freshwater life cycles, the supplementation may succeed.

2. Scientific Credibility of the Tribal Supplementation Plan

Although the tribal plan carries no guarantees of success, the Tribes' supplementation plan conforms to the standards set out by scientists.(355) Recovery team scientists emphasize the temporary nature of supplementation.(356) The tribal plan embraces this idea and stresses that supplementation should only provide interim relief until habitat conditions allow for sustainable natural production.(357) Likewise, the Tribes intend to mimic natural production conditions as much as possible and to use native broodstock and high quality hatchery smolts to ensure the genetic viability of the supplemented stocks.(358)

F. Comprehensiveness of the Spirit of the Salmon

It bears repeating that the strength of the tribal restoration plan lies not so much in the individual components of the plan but in its comprehensiveness and focus on one unifying goal: restoring salmon to ecologically viable habitats. The Spirit of the Salmon represents the type of plan that the ISG recommended the Northwest Power Planning Council develop.(359) It also represents much more. Most importantly, the tribal restoration plan represents a significant step in tribal sovereignty and a model of tribal management of a wild resource. The following Part discusses the importance of the plan to tribal sovereignty and resource management.

V. THE TRIBAL ROLE IN SALMON MANAGEMENT AND RECOVERY

The merits of the plan aside, the Spirit of the Salmon restoration plan is a unique and important resource management plan. Developed through the cooperation of four separate tribal sovereigns,(360) the restoration plan sets prescriptions for salmon management that apply well beyond tribal jurisdiction. This section discusses the importance of the plan as a sophisticated exercise of tribal sovereignty and resource management. Part IV.A describes the historical and legal events that have led to the recognition of Columbia River tribes as salmon managers. Part IV.B argues that, in performing their management obligations, the Tribes organized under CRITFC have created an important precedent in tribal resource management and sovereignty.

A. Historical and Legal Background

In 1855 and 1856, the Columbia River tribes signed a series of treaties with Washington territorial governor Isaac Stevens.(361) Through nine treaties negotiated within about seven months, the United States gained title to more than sixty-four million acres of land.(362) In return, the Indian Tribes received about $1.2 million.(363) Although the tribes obviously received the short end of the bargain,(364) they expressly reserved valuable rights to natural resources, which have become more important than the monetary exchange.(365) Specifically, the treaties state:

   The right of taking fish, at all usual and accustomed grounds and stations,
   is further secured to said Indians, in common with all citizens of the
   Territory, and of erecting temporary houses for the purpose of curing,
   together with the privilege of hunting, gathering roots and berries, and
   pasturing their horses on open and unclaimed lands.(366)

Courts have interpreted this language to guarantee to the treaty tribes a property right in the fish, the right to take enough fish to provide them a moderate living, and the right to participate as co-managers in decisions relating to the salmon resource.(367)

1. The Tribes' Proprietary Right in Fish

In United States v. Winans,(368) a seminal case examining the Stevens Treaties' language, the United States Supreme Court guaranteed Indians the right to access their traditional fishing grounds and laid down important principles of Indian treaty construction that have enabled tribes to maintain their rights to fish and manage salmon.(369) The case involved two brothers who operated four state-licensed fishwheels on federal homestead lands that actively excluded members of the Yakama Indian Nation from their historic fishing grounds and destroyed their curing buildings.(370) The Supreme Court held that the brothers could not exclude the Indians because their property rights to the land and the fishwheels came burdened with an access servitude.(371) Writing for the Court, Justice McKenna determined that the Stevens Treaty guaranteed the Indians a property right that subsequent acts by the government could not diminish or decrease.(372) The Court rejected the district court's holding that the treaty only guaranteed the Indians equal treatment with the whites.(373) Using language that has influenced nearly every other judicial interpretation of Stevens treaties, Justice McKenna explained that the treaty "was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those rights not granted."(374)

One unfortunate legacy of the Winans decision came from language in the decision that states could regulate the Indian treaty fishing rights.(375) Under this language, states effectively denied Indians their treaty rights.(376) However, in a series of corresponding cases, federal courts determined that state regulation of fisheries could not discriminate against Indians.(377) Further, the regulation had to be reasonable and "necessary for conservation."(378)

2. A Moderate Living

After several cases struck down state conservation measures as unreasonable, unnecessary, or discriminatory, courts (including the Supreme Court) called for judicial allocation of harvest shares.(379) In 1969, United States District Court Judge Robert Belloni interpreted the "in common with" language to mean that the tribes were entitled to a "fair share" of harvests.(380) He then ordered Oregon to develop regulations that gave the Indian fishery coequal status.(381) In 1974, amid conflict between tribal and state fishing interests in Washington, District Court Judge Boldt handed down United States v. Washington,(382) a decision which clarified that the tribal "fair share" of salmon harvest amounted to fifty percent of the harvestable fish destined to pass the Tribes' usual and accustomed fishing places.(383) He based this decision on the treaty language "in common with" which he concluded meant "sharing equally the opportunity to take fish."(384) A year later, District Court Judge Belloni applied the same fifty percent principle to Columbia River fisheries.(385)

After the Ninth Circuit twice affirmed Judge Boldt's decision,(386) the Supreme Court addressed the issue in the landmark case of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n.(387) Justice Stevens, writing for the Court, upheld the fifty-fifty sharing decisions of Judges Boldt and Belloni, but the Court refined the standard. Justice Stevens said that the treaties guaranteed to the Indians enough fish to achieve a moderate living; this share could drop below fifty percent if the tribal population significantly declines or tribes abandon their fisheries.(388) This decision affirmed the tribal right to a fair share of the harvest. Other cases, discussed below, had already affirmed the tribes' right to manage the salmon resource.

3. The Right to Participate in Manager Decisions

Courts have recognized tribes' rights to manage fishery resources incident to their treaty-guaranteed rights to fish.(389) Judge Belloni's decision in Sohappy v. Smith(390) first directed state fishery managers to include meaningful tribal participation in developing harvest regulations.(391) Although Belloni affirmed the states' rights to regulate, he stressed that states should adopt a cooperative approach to regulation by providing tribes with notice of any fishing regulations and by incorporating tribes' viewpoints into any regulation that may affect the treaty fishing right.(392)

Five years later, Judge Boldt specifically recognized tribes as regulators and fish managers.(393) He specifically stated that the Yakama and Quinault Tribes were entitled to exercise their governmental powers by regulating the treaty right fishing of their members as long as the Tribes accepted listed conditions and maintained certain qualifications.(394) The prescribed qualifications include responsible and competent leadership, a well organized tribal government that is able to promulgate and enforce regulations, trained Indian personnel, and the availability of experts in fishery science and management.(395) The conditions require the Tribes to provide for full and complete tribal fishing regulations, to permit monitoring of off-reservation fishing, and to provide fish catch reports.(396) Most significantly, Boldt limited states' abilities to regulate tribal treaty fishing rights.(397) Although the states retain the right to establish harvest limitations to protect the fishery resources, a state may not interfere with on-reservation tribal allocations.(398) Further, under this holding, states can actively regulate off-reservation tribal fishing at usual and accustomed fishing grounds only in situations where the Tribes have not yet satisfied the enumerated qualifications and conditions to regulate their own fishery.(399)

The Ninth Circuit--enforcing Judge Boldt's determination that the Yakama Nation had met the requisite conditions and qualifications to manage its own fishery--affirmed the Nation's right to enact and enforce off-reservation fishery regulations, so long as the regulations pertained to the tribe's usual and accustomed fishing grounds.(400) The court stressed that the Yakama's "power to regulate is meaningful only when combined with the power to enforce."(401) By affirming the Yakama's enforcement power, the court recognized the Tribe as a co-manager of the fish resource.(402)

B. The Tribal Restoration Plan and Tribal Sovereignty

As an important consequence of these decisions (the Boldt decision in particular) the Tribes united to take advantage of their rights in the fishery resource.(403) To fulfill Boldt's conditions and qualifications to become fishery managers, the Tribes organized regional bodies (the Northwest Indian Fisheries Commission in the Puget Sound and the Columbia River Inter-Tribal Fish Commission in the Columbia River Basin) to help individual tribes acquire and exercise necessary scientific, technical, and legal expertise.(404) These organizations, in turn, have played an important role in salmon management in the Columbia River Basin and have increased the importance of tribal sovereignty in resource management. The Spirit of the Salmon plan, in particular, provides an excellent example of a way in which tribes can exercise their sovereignty.

1. The Role of CRITFC

In 1977, in response to the Boldt decision, the four Columbia River treaty Tribes formed the Columbia River Inter-Tribal Fish Commission.(405) CRITFC employs biologists, scientists, policy analysts, lawyers, and administrators who provide technological support and coordination for tribal fishery management policies.(406) Since the founding of CRITFC, tribes have played an active role in salmon management in the Columbia Basin.(407) State biologists must now coordinate with tribal biologists in managing the resource. In fact, by the late 1970s, the states and Tribes had successfully collaborated to establish a program to rebuild decimated salmon runs under the Council's Columbia Basin Fish and Wildlife Program.(408) Despite this collaboration, however, tribes do not have the status of co-manager with respect to off-reservation habitat restoration or salmon management. As one CRITFC attorney explained, tribes do not have final regulatory authority or veto power over most federal and state actions that affect salmon in the Columbia Basin.(409) Indeed, the treatment of the tribal restoration plan exemplifies this lack of equality in terms of management roles.

2. The Importance of the Tribal Restoration Plan

Although the tribal restoration plan has existed for five years, it has gone largely unnoticed by federal fishery managers. While it may generate a footnote or slight recognition in a federal document,(410) the plan simply has not produced any results.(411) The tribes themselves cannot implement most of the tribal plan because most of the recommended actions would occur beyond tribal jurisdiction.(412) Also, the Tribes depend upon funding from the federal government to implement most restoration projects.(413) Consequently, federal agencies' neglect of the tribal plan effectively precludes its implementation.

However, this treatment of the tribal restoration plan has not completely diminished its significance. First, the Tribes themselves use the document to guide salmon management on their own lands.(414) Second, the plan represents a unique form of tribal cooperation and exercise of sovereignty. By developing the plan, the Columbia River tribes have collaborated to develop a solution to an extremely complex problem. Their union likely strengthens the position of each individual tribe and could ultimately influence federal agencies to give more weight to tribal suggestions. Furthermore, the extraterritorial reach of the tribal restoration plan acknowledges the realities of managing the salmon resource. Because salmon do not respect territorial boundaries, a plan that limits itself to specific jurisdictions cannot possibly result in salmon recovery.(415) Therefore, to protect their property rights in the fish and their sovereign interests in managing their own resources, the Tribes appropriately applied the tribal restoration plan to the entire Columbia River basin.

The importance of the Spirit of the Salmon restoration plan has been overlooked. Not only could it become a model for other sovereigns to adopt in managing other nomadic resources, but, if implemented, it also could actually lead to salmon recovery. Federal and state salmon managers should adopt and implement the tribal restoration plan.

VI. CONCLUSION

It is possible that no salmon restoration plan can actually lead to salmon recovery. According to one biologist, salmon restoration failures made news over seventy years ago, but today failures are expected.(416) For example, salmon mangers meet to discuss salmon on a weekly, if not a daily basis.(417) The result of the meetings can be deduced from the salmon listings: they simply have not stopped salmon decline. This lack of success likely results from the number of agencies involved in salmon restoration, and agencies' failures to adopt one comprehensive restoration action plan.(418) Even where agencies have tried to coordinate their recovery strategies, they often recommend further studies rather than action.(419)

If a salmon restoration plan can actually lead to salmon recovery, it will be one that attempts to address the entire salmon ecosystem.(420) It will also be one that proposes specific actions designed to achieve a comprehensive goal.(421) Finally, it will include mechanisms that allow management to adjust when a particular action fails, without destroying the rest of the recovery. plan.(422)

Overall, the tribal restoration plan fulfills these requirements. It proposes restoration actions that apply to the entire Columbia River watershed.(423) CRITFC structured the plan to achieve one overarching goal: restoring salmon to ecologically viable watersheds.(424) Finally, its adaptive management approach includes mechanisms for implementation, but it also allows for failure.(425)

Perhaps the fact that the plan acknowledges that some of its proposed actions will not definitely succeed has rendered it unimplementable in the eyes of federal and state management agencies. That would be unfortunate, because by the time the region has definitively determined exactly which actions will result in salmon recovery, we may have effectively "studied the salmon to death."(426)

(1) Unless otherwise indicated, "salmon" refers to both salmon and steelhead trout throughout this Comment

(2) 1 COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION, WY-KAN-USH-MI WA-KISH-WIT, SPIRIT OF THE SALMON: THE COLUMBIA RIVE ANADROMOUS FISH RESTORATION PLAN OF THE NEZ PERCE, UMATILLA, WARM SPRINGS, AND YAKAMA TRIBES 3-1 (1995) [hereinafter TRIBAL RESTORATION PLAN I].

(3) Id. at iii.

(4) Id.

(5) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994). Prior to 1995, the National Marine Fisheries Service (NMFS) had listed the following Columbia River species: Snake River sockeye, 50 C.F.R. [sections] 224.101(a) (1999); Snake River spring/summer chinook and Snake River fall chinook, 50 C.F.R. [sections] 223.102(a)(1)-(2) (1999) (final listing). Species listed since 1995 include: West Coast steelhead (threatened and endangered), 50 C.F.R. [sections] 223.102(a)(5)-(9); Oregon Coast coho (threatened), 50 C.F.R. [sections] 223.102(a)(4) (1999); Washington and Oregon chinook (threatened and endangered), 64 Fed. Reg. 14,309 (Mar. 24, 1999) (to be codified at 50 C.F.R. [subsections] 223.102(a)(16)-(18), 224.101(a)); Chum salmon, 64 Fed. Reg. 14,508 (Mar. 25, 1999) (to be codified at 50 C.F.R. [sections] 223.102(a)(12)-(13)); Steelhead (threatened), 64 Fed. Reg. 14,517 (Mar. 25, 1999) (to be codified at 50 C.F.R. [sections] 223.102(a)(14)-(15));Sockeye (threatened), 64 Fed. Reg. 14,528 (Mar. 25, 1999) (to be codified at 50 C.F.R. [sections] 223.102(a)(19)).

(6) ANTHONY NETBOY, THE COLUMBIA RIVER SALMON AND STEELHEAD TROUT: THEIR FIGHT FOR SURVIVAL 56-57 (1980).

(7) NATIONAL RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 60, 231-35 (1996) [hereinafter UPSTREAM].

(8) NATIONAL MARINE FISHERIES SERV., BIOLOGICAL OPINION ON REINITIATION OF CONSULTATION ON 1994-1998 OPERATION OF THE FEDERAL COLUMBIA RIVER POWER SYSTEM AND JUVENILE TRANSPORTATION PROGRAM IN 1995 AND FUTURE YEARS (1995) [hereinafter NMFS BIOP]. NMFS recently issued a Supplemental Biological Opinion to its 1995 BiOp. The Supplemental Biological Opinion assessed the impacts of implementation of hydropower operations on species listed by NMFS after the 1995 BiOp. It will only remain in effect until a more recent consultation (begun on December 17, 1999) supersedes both the 1995 BiOp and the Supplemental Biological Opinion. NATIONAL MARINE FISHERIES SERV., ENDANGERED SPECIES ACT-SECTION 7 CONSUTATION, SUPPLEMENTAL BIOLOGICAL OPINION: OPERATION OF THE FEDERAL COLUMBIA RIVER POWER SYSTEM INCLUDING THE JUVENILE FISH TRANSPORTATION PROGRAM: A SUPPLEMENT TO THE BIOLOGICAL OPINIONS SIGNED ON MARCH 2, 1995, AND MAY 14, 1998, FOR THE SAME PROJECTS 3 (2000) [hereinafter NMFS 2000 SUPPLEMENTAL BIOP].

(9) Id.; see Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(10) NMFS BIOP, supra note 8, at 91. The Endangered Species Act (ESA) requires NMFS to include "reasonable and prudent alternatives" in any biological opinion that contains a jeopardy opinion. 16 U.S.C. [sections] 1536(b)(3)(A) (1994); 50 C.F.R. [sections] 402.14(g)(5) (1999). Although these reasonable and prudent measures do not technically bind the action agencies, the Supreme Court has stated that the measures have "a powerful coercive effect on the action agency" and result in "direct and appreciable legal consequences." Bennett v. Spear, 520 U.S. 154, 169, 178 (1997). Thus, action agencies that ignore the reasonable and prudent measures are violating the ESA.

(11) See NMFS 2000 SUPPLEMENTAL BIOP, supra note 8, at 38-41.

(12) One indication that salmon populations have not increased is that, while NMFS has proposed listing more runs as threatened or endangered since the 1995 BIOP, see supra note 8, it has not delisted any salmon populations. Indeed, NMFS's recent status update of Columbia Rivers Salmon describe the stocks as depressed. THE FEDERAL CAUCUS, CONSERVATION OF COLUMBIA BASIN FISH: BUILDING A CONCEPTUAL RECOVERY PLAN 14-15 (Dec. 1999) [hereinafter 4-H RECOVERY PLAN].

(13) See supra note 5.

(14) Pacific Northwest Electric Power Planning and Conservation Act of 1980, 16 U.S.C. [sections] 839b(h)(2) (1994 & Supp. II 1996).

(15) NORTHWEST POWER AND PLANNING COUNCIL, 1994 COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM (Dec. 1994) [hereinafter NPPC Program].

(16) Michael C. Blumm et al., Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the Mid-1990s, 27 ENVTL. L. 21, 49-62 (1997) [hereinafter Blumm, Beyond Parity].

(17) Id. at 52-55.

(18) Id. at 72 (citing NMFS BIOP, supra note 8, at 110).

(10) Id. at 58 (quoting NPPC Program, supra note 15, at 5-46).

(20) Id. at 61.

(21) The Independent Scientific Group, Return to the River. An Ecological Vision for the of the Columbia River Salmon, 28 ENVTL. L. 503, 516 (1998). The biological opinions are the mechanism by which the ESA supercedes any plan developed by the Council. Under the ESA, a federal agency must consult with NMFS whenever a proposed action may adversely affect a listed species. 16 U.S.C. [sections] 1536(b)(1994). The biological opinion that results from the consultation effectively removes decision making authority from the action agency and places that authority with NMFS. Id. Although biological opinions do not technically bind an agency, they do have what the Supreme Court has called a "powerful coercive effect on the action agency." Bennett v. Spear, 520 U.S. 154, 169 (1997). Consequently, the consultation process effectively trumps all the plans developed by the Council. See also Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH. L. REV. 519, 548-49 (1999).

(22) TRIBAL RESTORATION PLAN I, supra note 2.

(23) COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION, WY-KAN-USH-MI WA-KISH-WIT, SPIRIT OF THE SALMON: THE COLUMBIA RIVER ANADROMOUS FISH PLAN OF THE NEZ PERCE, UMATILLA WARM SPRINGS, AND YAKAMA TRIBES, Executive Summary 6 (1996) [hereinafter CRITFC Executive Summary].

(24) Id.

(25) Id. The tribal plan does not shun artificial production; rather, it relies on artificial production (supplementation) to sustain or boost depleted population levels to the point where salmon can naturally reproduce in the wild. See infra notes 229-42 and accompanying text for a discussion of the tribal supplementation strategy.

(26) Id.

(27) Id.

(28) Id.

(29) Id. at 7.

(30) Id. at 10.

(31) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-33 to 5B-34.

(32) Id. at 5B-14 to 5B-16.

(33) Jack K. Sterne, Jr., Supplementation of Wild Salmon Stocks: A Cure for the Hatchery Problem or More Problem Hatcheries?, 23 COASTAL MGMT. 123, 124 (1995).

(34) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-14 to 5B-16.

(35) Sterne, Jr., supra note 33, at 128.

(36) Telephone Interview with Jim Weber, Staff Attorney, Columbia River Inter-Tribal Fish Comm'n (Apr. 14, 2000).

(37) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-30.

(38) See NPPC Program, supra note 15, at 5-25 to 5-27 (recommending drawdown of Lower Granite reservoir from April 16 to June 15 in 1995). The Council did consider permanent drawdowns at the four Lower Snake River dams, but only recommended that the Army Corps of Engineers study either seasonal or year-round drawdowns. It never actually incorporated permanent drawdown of any reservoir into its 1994 program. Id.

(39) NATIONAL MARINE FISHERIES SERV., U.S. DEP'T OF COMMERCE, PROPOSED RECOVERY PLAN FOR SNAKE RIVER SALMON V-2-55 (1995) [hereinafter NMFS SNAKE RIVER RECOVERY PLAN] (recommending permanent drawdown of the John Day Reservoir to avoid adverse effects of river level fluctuations associated with seasonal drawdowns).

(40) Congress would have to approve dam breaching or any significant change in hydropower operations. First, Congress would have to allocate funding for breaching the dams. Second, since Congress authorized the Lower Snake River dams for navigation, irrigation, and hydropower production, it would also have to authorize the elimination of these facilities. Michael C. Blumm et al., Saving Snake River Water and Salmon Simultaneously: The Biological, Economic, and Legal Case for Breaching the Lower Snake River Dams, Lowering John Day Reservoir, and Restoring Natural Flows, 28 ENVTL. L. 997, 1049 (1998) [hereinafter Blumm et al., Saving Salmon].

(41) UNITED STATES ARMY CORPS OF ENGINEERS, PORTLAND DISTRICT, SUMMARY, SALMON RECOVERY THROUGH JOHN DAY RESERVOIR: JOHN DAY DRAWDOWN PHASE 1 STUDY (2000) [hereinafter JOHN DAY DRAWDOWN STUDY]. The Army Corps of Engineers runs most of the dams that salmon conservationists target for drawdown or breaching.

(42) This Comment does not provide an in-depth comparison of management under the NMFS BIOP, the NPPC Program, and the tribal plan. While some degree of comparison will inevitably occur, a more complete comparison may be found in Blumm, Beyond Parity, supra note 16.

(43) JOSEPH E. TAYLOR III, MAKING SALMON: AN ENVIRONMENTAL HISTORY OF THE NORTHWEST FISHERIES CRISIS 5-6 (1999) (explaining the life cycle of the salmon). Chapter One traces the history of Native American salmon use and its cultural role. Id.

(44) See id. at 3-12.

(45) See id. at 6.

(46) Id. at 6-7.

(47) THE INDEPENDENT SCIENTIFIC GROUP, RETURN TO THE RIVER: RESTORATION OF SALMONID FISHES IN THE COLUMBIA RIVER ECOSYSTEM 131 (1996) [hereinafter RETURN TO THE RIVER].

(48) NETBOY, supra note 6, at 43; TAYLOR III, supra note 43, at 5.

(49) RETURN TO THE RIVER, supra note 47, at 132-33.

(50) Id.

(51) Id. at 132.

(52) Id. at 135.

(53) Id. at 132.

(54) Id. at 138-39, 142.

(55) Id.

(56) NETBOY, supra note 6, at 44.

(57) RETURN TO THE RIVER, supra note 47, at 198A fig. 6.2.

(58) Id. at 199.

(59) Id.

(60) TRIBAL RESTORATION PLAN I, supra note 2, at 3-16.

(61) Id.

(62) NETBOY, supra note 6, at 44.

(63) 4-H RECOVERY PLAN, supra note 12, at 18.

(64) TRIBAL RESTORATION PLAN I, supra note 2, at 3-16.

(65) NETBOY, supra note 6, at 46.

(66) See generally id. at 46-47.

(67) See RETURN TO THE RIVER, supra note 47, at 462-65.

(68) See 4-H RECOVERY PLAN, supra note 12, at 44-48 (discussing impacts on salmon population from fishing). Significantly, in its discussion of the effects of habitat degradation on salmon, the Federal Caucus did not include the ocean habitat as a major factor. Id. at 28-30. Accordingly, the author believes that harvest has a much greater impact on salmon at the ocean stage than the quality of the ocean habitat.

(69) See NETBOY, supra note 6, at 42 tbl.3, 49.

(70) 4-H RECOVERY PLAN, supra note 12, at 18 tbl.1.

(71) TAYLOR III, supra note 43, at 6.

(72) See TRIBAL RESTORATION PLAN I, supra note 2, at 3-16, 5B-34 to 5B-35.

(73) TAYLOR III, supra note 43, at 6.

(74) NETBOY, supra note 6, at 55.

(75) See JIM LICHATOWICH, SALMON WITHOUT RIVERS: A HISTORY OF THE PACIFIC SALMON CRISIS 203 (1999).

(76) Id. (describing over harvest, poor hatchery management, logging, mining, dams, grazing, irrigation, and development as proximal causes of the salmon's decline).

(77) See UPSTREAM, supra note 7, at 18.

(78) NETBOY, supra note 6, at 12-13, (quoting BERNARD DE VOTO, JOURNALS OF LEWIS AND CLARK 251-53 (1953)).

(79) TRIBAL RESTORATION PLAN I, supra note 2, at 2-7.

(80) TAYLOR III, supra, note 43, at 39.

(81) JIM LICHATOWICH, SALMON WITHOUT RIVERS: A HISTORY OF THE PACIFIC SALMON CRISIS 98 (1999) (describing how the profitability of canneries attracted Euro-Americans, who then displaced the Indians).

(82) George Staley, "The Growth of Artificial Propagation in Oregon" in Oregon's Mitigation Experience. The Performance of Anadromous Fish Compensation Programs Operated by the ODFW, (Oregon Department of Fish and Wildlife, 1982, photocopy), reprinted in THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 38-43 (Joseph Cone & Sandy Ridlington eds., 1996).

(83) John M. Volkman, The Endangered Species Act and the Ecosystem of Columbia River Salmon, 4 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 51, 53 (1994) (stating that dams built after 1930 have blocked access to salmon habitat and that habitat degradation has increased since that time).

(84) See supra note 5.

(85) See UPSTREAM, supra note 7, at 77 (explaining that the Endangered Species Committee of the American Fisheries Society identified over 100 populations of salmon as being recently extinct in Washington, Oregon, Idaho, and California).

(86) Marshall McDonald, "The Salmon Fisheries of the Columbia River Basin," in Report of the Commissioner of Fish and Fisheries, Senate Mis. Doc. No. 200, 53rd Congress, 2d session 3-5 (1894), reprinted in THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 29-31 (Joseph Cone & Sandy Ridlington, eds., 1996).

(87) LICHATOWICH, supra note 75, at 90-91.

(88) Id. at 109-10. Gasoline engines first increased the effectiveness of the traditional gillnetter. The engines also enabled fishermen to troll for salmon over large areas of the ocean.

(89) UPSTREAM, supra note 7, at 255.

(90) Id. at 268.

(91) MICHAEL C. BLUMM & F. LORRAINE BODI, COMMENTARY, in THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 274 (Joseph Cone & Sandy Ridlington eds., 1996).

(92) Michael L. Goodman, Preserving the Genetic Diversity of Salmonid Stocks: A Call for Federal Regulation of Hatchery Programs, 20 ENVTL. L. 111, 124 (1990).

(93) Gary K. Meffe, Techno-Arrogance and Halfway Technologies: Salmon Hatcheries of the Pacific Coast of North America, 3 CONSERVATION BIOLOGY 351-52 (1992), reprinted in THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 135 (Joseph Cone & Sandy Ridlington, eds., 1996).

(94) Id. at 135.

(95) Id. at 138.

(96) Goodman, supra note 92, at 115.

(97) Id. at 126-27.

(98) Id. at 135-43.

(99) See generally id. for a complete discussion of the problems associated with hatcheries. This Comment will only briefly mention some of the problems in the context of supplementation.

(100) See id. at 125 (discussing "the modern emphasis on artificial propagation").

(101) Approximately 80% of Columbia River salmon originate from hatcheries. TRIBAL RESTORATION PLAN I, supra note 2, at iii.

(102) Hearings Before the Columbia River Fisheries Task Force Sess. 6 (Oct. 28, 1999) (statement of Delbert Frank, Sr., member of the Fish and Wildlife Commission of the Confederated Tribes of the Warm Springs Reservation of Oregon). Despite the use of hatcheries, tribes still only catch approximately one percent of their historic catch. Id.

(103) NMFS 2000 SUPPLEMENTAL BIOP, supra note 8, at 14, 16.

(104) UPSTREAM, supra note 7, at 55, 60.

(105) Id. at 60.

(106) RETURN TO THE RIVER, supra note 47, at 143.

(107) UPSTREAM, supra note 7, at 186-87.

(108) Id. at 70.

(109) Id. at 188.

(110) RETURN TO THE RIVER, supra note 47, at 144.

(111) UPSTREAM, supra note 7, at 69.

(112) LICHATOWICH, supra note 75, at 57-60 (mining), 60-66 (logging), 66-70 (grazing), 71-75 (irrigation), and 76-80 (dams).

(113) See TRIBAL RESTORATION PLAN I, supra note 2, at 5B-24 (describing hydroelectric projects as "particularly responsible for anadromous fish declines through direct kills, selection against critical life history diversity, and profound changes to the ecosystem and trophic structures in which salmon evolved").

(114) ID.

(115) UPSTREAM, supra note 7, at 65-66.

(116) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-24.

(117) NMFS SNAKE RIVER RECOVERY PLAN, supra note 39, at V-2-67.

(118) Id. at V-2-17.

(119) UPSTREAM, supra note 7, at 229.

(220) RETURN TO THE RIVER, supra note 47, at 273.

(121) See id. at 271; see also TRIBAL RESTORATION PLAN I, supra note 2, at 5B-34.

(122) Smaller splashdams used for logging have blocked salmon migration since the 1840s. TAYLOR III, supra note 43, at 39.

(123) RETURN TO THE RIVER, supra note 47, at 265.

(124) See id. at 194 for a discussion of the factors of slower migration of juvenile salmon. By mitigating the factors (languid water in reservoirs and the processes involved in passing through dams) with flow augmentation, bypass systems, and water spills the time of migration would be decreased.

(125) Id. (explaining that longer migration time is believed to increase the exposure of the juvenile salmon to many sources of mortality).

(126) The main reason these strategies have not worked is because salmon managers have not attempted to implement them to the degree necessary. Instead, salmon restoration involves the use of hatcheries and other technological means to attempt salmon restoration. Id. at 506.

(127) Id. at 194.

(128) Id. at 198.

(129) Id. at 200.

(130) Id. at 265.

(131) See id. at 272-81 for a discussion of turbine-related mortality. Approximately 15% of salmon that pass through turbines do not survive. Id. at 273.

(132) Id. at 281.

(133) Id. at 284-85. "Spill" refers to the percentage of the total river volume that passes through the dam. For example, a spill of 100% would mean that the entire river volume would pass through the dam. However, most dams only allow for a certain percentage of the total river volume to pass through, and this percentage often depends upon the elevation of the spillway. As the water spills through a spillway, a percentage of fish also pass through the dam. According to the Independent Service Group (ISG), the ratio of fish to water is slightly less than 1:1. Id. Thus, approximately 50% of the fish in the river would pass through a spill of 60% of the total river volume.

(134) Id. at 286. Most spillways, however, lie somewhere beneath the surface, and thus do not spill as many fish as possible. Id.

(135) Id. at 289.

(136) UPSTREAM, supra note 7, at 66, 234. Juvenile passage through turbines and over dam spillways causes stress and renders juvenile salmon easy prey. NMFS SNAKE RIVER RECOVERY PLAN, supra note 39, at II-21.

(137) See discussion supra note 133.

(138) RETURN TO THE RIVER, supra note 47, at 284.

(139) Id. at 273. This is a significant increase compared to the mortality rate of salmon that pass through spillways, which ranges from zero percent to two percent. Id. at 281.

(140) TAYLOR III, supra note 43, at 245. The Army Corps of Engineers began transporting fish around dams in the late 1960s. Today, the Corps transports between fifteen and twenty million juvenile salmon downstream each year. Id.

(141) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-26.

(142) RETURN TO THE RIVER, supra note 47, at 325.

(143) Id. at 329.

(144) Id. at 327.

(145) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-26.

(146) RETURN TO THE RIVER, supra note 47, at 327.

(147) U.S. ARMY CORPS OF ENGINEERS, WALLA WALLA DISTRICT, DRAFT, THE LOWER SNAKE RIVER JUVENILE SYSTEM MIGRATION FEASIBILITY REPORT/ENVIRONMENTAL IMPACT STATEMENT, II-3 (1999) [hereinafter A-FISH APPENDIX].

(148) ID.

(149) U.S. ARMY CORPS OF ENGINEERS, WALLA WALLA DISTRICT, DRAFT, THE LOWER SNAKE RIVER JUVENILE SYSTEM MIGRATION FEASIBILITY REPORT/ENVIRONMENTAL IMPACT STATEMENT, SUMMARY 9, 18 (1999) [hereinafter DEIS SUMMARY].

(150) RETURN TO THE RIVER, supra note 47, at 61.

(151) Id. at xxi.

(152) CRITFC Executive Summary, supra note 23.

(153) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-1.

(154) Id.

(155) Id. at 5B-2 to 5B-40.

(156) Id. at x.

(157) Id. at 5B-3.

(158) See generally id. at 5B-3 to 5B-10. For example, although the plan recommends protecting vegetation within riparian reserves, id. at 5B-6, none of the subbasin plans suggest mechanisms to protect high-quality habitat. See generally 2 COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION, 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, VOLUME II, SUBBASIN PLANS (1995) [hereinafter TRIBAL RESTORATION PLAN II].

(159) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-11.

(160) TRIBAL RESTORATION PLAN II, supra note 158.

(161) TRIBAL RESTORATION PLAN I, supra note 2, at 3-25.

(162) Many conservationists believe that salmon restoration will only result from a combination of protection of high-quality habitat and restoration of degraded habitat. Shauna Marie Whidden, The Hanford Reach: Protecting the Columbia's Last Safe Haven for Salmon, 26 ENVTL. L. 265, 267 (1996). For example, salmon have thrived in the Hanford Reach, a relatively pristine stretch of the Columbia River. Id. at 269-70. In her article, Whidden argues that the federal government must protect the Hanford Reach to ensure long-term protection and survival of chinook salmon. Id. at 277-90.

(163) TRIBAL RESTORATION PLAN I, supra note 2, at 3-22, 5B-2 to 5B-3.

(164) Id. at 5B-32.

(165) Id. at 3-20 to 3-22.

(166) See TRIBAL RESTORATION PLAN II, supra note 158, at 104 (discussing habitat improvement on the Clearwater River).

(167) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-3.

(168) Id. at 5B-12. The Independent Science Group (ISG) suggested that passive restoration includes high-quality habitat protection. As the ISG explained, the first step of passive restoration entails identification and full protection of areas of high ecological integrity. RETURN TO THE RIVER, supra note 47, at 354. The tribal plan does not appear to use the same definition of passive restoration.

(169) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-3.

(170) Id. at 5B-12 to 5B-13.

(171) Id. at 5B-13.

(172) Id.

(173) Id. at 5B-3 to 5B-10.

(174) Id. at 5B-11.

(175) Id.

(176) Id. at 5B-11 to 5B-12.

(177) Id.

(178) Id.

(179) Id. at 5B-12.

(180) TRIBAL RESTORATION PLAN II, supra note 158, at 2.

(181) Id. at 106-07 (subbasin plan for Clearwater River).

(182) Id. at 106.

(183) Id. at 48-49 (subbasin plan for Mid-Columbia River Mainstem).

(184) Id. at 48.

(185) Id. at 12 (subbasin plan for Wind River).

(186) Id. at 2-3. The tribal restoration plan refers to this as a "collaborative stakeholder process," in which all river users would cooperate to develop subbasin restoration plans. The plan did not identify who exactly would participate in the process. Id.

(187) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-13.

(188) Id. at 5A-2.

(189) Id. at 5A-2 to 5A-3.

(190) TRIBAL RESTORATION PLAN II, supra note 158, at 3.

(191) Prior to 1995, NMFS had listed the following Columbia River species: Snake River sockeye, 50 C.F.R. [sections] 224.101(a)(1999); Snake River spring/summer chinook and Snake River fall chinook, 50 C.F.R. [sections] 223.102(a)(2)(1999).

(192) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-33.

(193) Id.

(194) Id. at 5B-34.

(195) Id. at 5B-33 to 5B-34.

(196) Bureau of Oceans and International Environmental and Scientific Affairs, Summary of the Pacific Salmon Agreement (1999), available at http://www.nwr.noaa.gov/1press/060399_2.html.

(197) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-39.

(198) See infra notes 291-305 and accompanying text for a discussion of the treaty and the Tribes' recommendation.

(199) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-24; Charles F. Wilkinson & Daniel K. Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. KAN. L. REV. 17, 43 (1983-1984).

(200) NMFS SNAKE RIVER RECOVERY PLAN, supra note 39, at V-2-4.

(201) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-27.

(202) Id.

(203) Id.

(204) Id.

(205) Id. at 5B-24 to 5B-26, 5B-34 to 5B-35.

(206) Id.

(207) Id. at 5B-28.

(208) Id. at 5B-28 to 5B-29. These reservoirs include the Upper Snake, Brownlee, and Dworshak.

(209) Id. at 5B-35.

(210) Id. at 5B-30.

(211) Id. at 5B-29. Salmon survive turbine passage at higher rates when turbines operate at their highest efficiency. RETURN TO THE RIVER, supra note 47, at 281.

(212) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-29 to 5B-30; see supra notes 114-39 and accompanying text for a discussion of spill passage and mortality.

(213) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-29 to 5B-30.

(214) Id. at 5B-35

(215) Id. at 5B-27 to 5B-28.

(216) Id. at 5B-29. Minimum operating pool is "[t]he lowest water level of an impoundment at which navigation locks can still operate." NPPC Program, supra note 15, at G-9.

(217) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-29. The dams would operate at minimum operating pool from April 15 to October 31. Id.

(218) Id. at 5B-30 to 5B-31.

(219) Id.

(220) Id.

(221) Id.

(222) Id. at 5B-31. The tribal plan does not include a date by which it expects the salmon to become extinct.

(223) Id. at 5B-25 to 5B-26.

(224) Id. at 5B-26.

(225) JOHN DAY DRAWDOWN STUDY, supra note 41, at 26. The Army Corps of Engineers noted that barges require a certain water level for navigation. Thus, dam operators must limit the release of water to maintain the river at a level suitable for navigation. See also supra notes 315-25 and accompanying text for a discussion of river drawdowns.

(226) Id. at 5B-27, 5B-29.

(227) Id. at 5B-27, 5B-36.

(228) Id. at 5B-16.

(229) Id. at 5B-14 to 5B-15.

(230) Id. at 5B-14 to 5B-15.

(231) Id. at 5B-23.

(232) Id. at 5B-14 to 5B-15.

(233) Id. at 5B-14.

(234) Id. at 5B-16.

(235) Id. at 5B-23. Extirpation is the process resulting in a species extinction as a result of human activity, Id.

(236) Id.

(237) Id.

(238) Id.

(239) Id.

(240) Id.

(241) Id.

(242) Id. The tribal plan stated that it would only implement supplementation projects that met the screening criteria of the Regional Assessment of Supplementation Project (RASP). Id. at 5B-16, 5B-23. RASP set forth a conceptual framework for evaluating potential risks and benefits of supplementation projects in the Columbia Basin. U.S. DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION, DIVISION OF FISH & WILDLIFE, REGIONAL ASSESSMENT OF SUPPLEMENTATION PROJECT, STATUS REPORT 4.1-9.5 (1991).

(243) RETURN TO THE RIVER, supra note 47, at xiv. In the December 1994 amendments to the Columbia River Basin Fish and Wildlife Program, the Council called on the Bonneville Power Administration to fund the ISG's evaluation of the Council's program. RETURN TO THE RIVER resulted from that review.Id.

(244) Id. at xv-xvi.

(245) Id. at xxi.

(246) Id.

(247) Id. at xxii. A normative ecosystem is one that provides specific functional norms or standards that are essential to maintain diverse and productive populations. Id. at xvii.

(248) Id. at xxii.

(249) TRIBAL RESTORATION PLAN I, supra note 2, at viii-iv.

(250) UPSTREAM, supra note 7, at 336.

(251) RETURN TO THE RIVER, supra note 47, at 46.

(252) Id.

(253) UPSTREAM, supra note 7, at 339.

(254) RETURN TO THE REVER, supra note 47, at xxii. The ISG criticizes the Council Program for using this type of adaptive management, which failed to follow the National Research Council's guidelines, supra notes 250-53, and instead used the term "adaptive management" to justify otherwise scientifically indefensible actions. Id.

(255) UPSTREAM, supra note 7, at 336-38.

(256) Id. at 337.

(257) Id. These resource users include irrigators, commercial and sport fishers, hydropower users, loggers, recreationslists, and any other groups, such as hydropower operations, that have an interest in either salmon restoration or activities that affect salmon survival.

(258) Id. Monitoring can be very expensive, and effective adaptive management plans should anticipate costs associated with monitoring and record keeping.

(259) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-2 to 5B-42.

(260) Id. at 5D-1 to 5D-4.

(261) Id. at 5D-3 to 5D-4. The tribal plan did not. however, provide estimates of these high costs or indicate how this coordination would actually result in lower costs. Id.

(262) Id. at 5D-4.

(263) UPSTREAM, supra note 7, at 338.

(264) Id.

(265) Id. at 337.

(266) TRIBAL RESTORATION PLAN I, supra note 2, at iv.

(267) The Independent Scientific Group noted its skepticism of adaptive management strategies, particularly when applied as a general restoration prescription. According to the ISG, the Council's adoption of adaptive management has resulted in the Council's justifying a number of actions on the basis that it might learn something. Even when the Council tried to confine actions to explicitly defined hypotheses, it failed to actually monitor or test the viability of its hypotheses. Thus, according to the ISG, the weak links in adaptive management include a long-term commitment to scientific evaluation and the political will to adapt to new information. RETURN TO THE RIVER, supra note 47, at 45-46.

(268) Id.

(269) Interestingly, adaptive management can result in two different negative results: agency inaction resulting from the absence of a concrete hypothesis and excessive agency action, which uses adaptive management to justify a broad range of uncoordinated and ineffective actions. Id. at 45-46. The Federal Caucus's 4-H Salmon Recovery Plan represents an adaptive management approach that fails to set forth any concrete hypotheses. Rather than suggest any specific restoration plans, the 4-H paper recommends further studying and investigation. 4-H RECOVERY PLAN, supra note 12. In comparison, the NPPC Program represents the use of adaptive management to justify a plethora of ineffective action. RETURN TO THE RIVER, supra note 47, at 229.

(270) Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, 16 FISHERIES No. 24 (1991). The American Fisheries Society's Endangered Species Committee documented the decline in native salmon that has resulted from "habitat loss and damage." Id.

(271) SNAKE RIVER SALMON RECOVERY TEAM: FINAL RECOMMENDATIONS TO THE NATIONAL MARINE FISHERIES SERVICE V-8 (May 1994) [hereinafter SRSRT RECOMMENDATIONS].

(272) RETURN TO THE RIVER, supra note 47, at 507.

(273) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-12 to 5B-13.

(274) NATIONAL MARINE FISHERIES SERV., THE HABITAT APPROACH: IMPLEMENTATION OF SECTION 7 OF THE ENDANGERED SPECIES ACT FOR ACTIONS AFFECTING THE HABITAT OF THE PACIFIC ANADROMOUS SALMONIDS 12 (Aug. 26, 1999).

(275) See RETURN TO THE RIVER, supra note 47, at 143.

(276) Id. at 143-44.

(277) 4-H RECOVERY PLAN, supra note 12, at 37-38.

(278) See generally TRIBAL RESTORATION PLAN II, supra note 158. For example, for the Mid-Columbia River mainstem, the restoration plan recommended restoration of riparian areas of the tributaries, but the plan did not recommend the mechanisms needed to achieve this restoration. Id. at 48. In comparison, for the John Day River, the restoration plan includes detailed mechanisms to restore riparian areas.Id. at 40. Most of the sub-basin plans resemble the generality of the Mid-Columbia River mainstem subbasin plan.

(279) SRSRT RECOMMENDATIONS, supra note 271, at V-3.

(280) Id.

(281) NMFS SNAKE RIVER RECOVERY PLAN, supra note 39, at E5-4. However, NMFS did not adopt the SRSRT's recommendation of an "[i]mmediate moratorium on resource exploitation on public and private lands which imposes risks of measurable degradation of spawning and rearing habitats in watershed nurturing listed salmon stocks." SRSRT RECOMMENDATIONS, supra note 271, at V-6.

(282) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-11 to 5B-12.

(283) Id. The NPPC Program mentions that water diversions have degraded salmon habitat It did not, however, explicitly recommend water law reform to the same degree as the tribal restoration plan. NPPC Program, supra note 15, at 7-49 to 7-50.

(284) See NPPC Program, supra note 15, at 7-50 to 7-53 (advocating use of subbasin plans).

(285) NMFS appointed the Snake River Salmon Recovery Team (SSRT) to independently develop recovery plan recommendations after NMFS listed Snake River sockeye salmon as endangered. The SRSRT included three biologists, two engineers, an ecologist, and an economist NMFS evaluated and adopted some of the SRSRT's recommendations in its Proposed Recovery Plan for Snake River Salmon, supra note 39. SRSRT RECOMMENDATIONS, supra note 271, at V-8.

(286) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-10. The "coarse screening process" assesses the standard of protection necessary for a particular habitat type and condition. Based on the habitat, the coarse screening process determines what type of land-use activity can occur. High-risk activities, including road building and logging in riparian reserves, could only occur in undegraded habitat and could only occur if they would not lower habitat standards. Id. at 5B-4.

(287) SRSRT RECOMMENDATIONS, supra note 271, at V-8 to V-9.

(288) See TRIBAL RESTORATION PLAN II, supra note 158, at 2-3; 4-H RECOVERY PLAN, supra note 12, at 35-37; NPPC Program, supra note 15, at 7-34 to 7-35.

(289) See TRIBAL RESTORATION PLAN II, supra note 158, at 2-3.

(290) Agreement Amending Annex I and Annex IV to the Treaty Concerning Pacific Salmon of January 28,1985, U.S.-Can., T.I.A.S. No. 11,091, with attachments, June 30, 1999.

(291) Treaty Concerning Pacific Salmon, Mar. 18, 1985, U.S.-Can., T.I.A.S. No. 11,091.

(292) Gordon R. Munro and Robert L Stokes, The Canada-United States Pacific Salmon Treaty, in CANADIAN OCEANS POLICY: NATIONAL STRATEGIES AND THE NEW LAW OF THE SEA 17, 23 (1989).

(293) Id.

(294) Telephone Interview with Jeff Curtis, Western Conservation Director, Trout Unlimited (July 20, 1999).

(295) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-34.

(296) Bureau of Oceans and International Environmental and Scientific Affairs, Summary of the Pacific Salmon Agreement (1999), available at http://www.nwr.noaa.gov/lpress/060399_2.html (last visited Nov. 5, 2000).

(297) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-34.

(298) Telephone Interview with Jeff Curtis, Western Conservation Director, Trout Unlimited (July 20, 1999).

(299) Id.

(300) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-39.

(301) Id. at 5B-39 to 5B-40.

(302) Agreement Amending Annex I and Annex IV to the Treaty Concerning Pacific Salmon of January 28, 1985, supra note 290, at Annex IV, ch. 3, para. 9(a-g).

(303) SRSRT RECOMMENDATIONS, supra note 271, at IX-1.

(304) See Id. at IX-23.

   Even total elimination of U.S. ocean and in-river harvests would offer
   little prospect of recovery unless a full range of policy options is
   implemented to improve survival at every stage.... [This includes]
   improvements in other elements of the life cycle environment....

Id.

(305) TRIBAL RESTORATION PLAN I, supra note 2, 5B-27 to 5B-28.

(306) See supra note 211 and accompanying text for a discussion of turbine efficiency.

(307) See supra notes 133-39 and accompanying text for an explanation of spill percentages and related mortality.

(308) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-28 to 5B-29.

(309) RETURN TO THE RIVER, supra note 47, at 288.

(310) See Id. at 284-85. For an explanation see supra notes 133-39 and accompanying text.

(311) Id. at 284-85. See supra notes 13-39 and accompanying text for a discussion of the relationship between salmon passage and spills.

(312) RETURN TO THE RIVER, supra note 47, at 286-87. If spills occur from a high elevation, this can cause gas supersaturation. See supra note 119 and accompanying text for a description of gas bubble disease.

(313) RETURN TO THE RIVER, supra note 47, at 265.

(314) American Rivers v. National Marine Fisheries Serv., No. 96-384-MA, 1997 U.S. Dist. LEXIS 5337, at 6-7 (D. Or. Apr. 3, 1997) (noting that flow augmentation could harm species in Montana).

(315) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-28 to 5B-29. See supra notes 215-22 and accompanying text for a complete description of the drawdown options.

(316) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-29 to 5B-30.

(317) NPPC Program, supra note 15, at G-9.

(318) Blumm et. al., Saving Salmon, supra note 40 at 1013. Readers should consult this article for a complete description of the debate, economics, and science behind dam drawdowns.

(319) Id. at 1005 n.119.

(320) RETURN TO THE RIVER, supra note 47, at 268.

(321) Id. at 268-70.

(322) JOHN DAY DRAWDOWN STUDY, supra note 41, at 22.

(323) RETURN TO THE RIVER, supra note 47, at 250-51.

(324) Id. at 280.

(325) JOHN DAY DRAWDOWN STUDY, supra note 41, at 20-21.

(326) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-25 to 5B-26.

(327) Id. at 5B-25 to 5B-27.

(328) RETURN TO THE RIVER, supra note 47, at 61.

(329) A-FISH APPENDIX, supra note 147, at A2-6. See supra notes 141-50 and accompanying text for a discussion of the impacts of artificial transportation.

(330) Blumm et al., Saving Salmon, supra note 40, at 1051.

(331) The Army Corps of Engineers would probably not agree with this position. In fact, in its draft study analyzing the feasibility of drawing down the John Day Reservoir, the Corps notes that reservoir drawdown would preclude any future barging of salmon because the water would be too low for navigation. The Corps's study seemed to suggest that it could not recommend a mitigation plan that did not encompass artificial transportation. JOHN DAY DRAWDOWN STUDY, supra note 41, at 26.

(332) Sterne, Jr., supra note 33, at 124.

(333) SRSRT RECOMMENDATIONS, supra note 271, at VI-21; RETURN TO THE RIVER, supra note 47, at 398.

(334) COLUMBIA BASIN FISH AND WILDLIFE AUTHORITY, DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT: IMPACTS OF ARTIFICIAL SALMON AND STEELHEAD PRODUCTION STRATEGIES IN THE COLUMBIA RIVER BASIN (Dec. 10, 1996).

(335) RETURN TO THE RIVER, supra note 47, at 400.

(336) Sterne, Jr., supra note 33, at 124.

(337) Id. at 123-24.

(338) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-16.

(339) BONNEVILLE POWER ADMINISTRATION DRAFT ENVIRONMENTAL IMPACT STATEMENT: NEZ PERCE TRIBAL HATCHERY PROGRAM 1-9 (June 1996) [hereinafter BONNEVILLE POWER ADMINISTRATION].

(340) Sterne, Jr., supra note 33, at 130.

(341) Id. at 129, citing Letter from Phil Mundy, CRITFC, to Merrit Turtle, NMFS 3 (Feb. 19, 1991).

(342) Id. See also TRIBAL RESTORATION PLAN I, supra note 2, at 5B-15.

(343) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-15.

(344) Robin S. Waples, Genetic Interactions Between Hatchery and Wild Salmonids: Lessons from the Pacific Northwest, 48 CAN. J. FISH. AQUAT. SCI. 124 (Supp. 1), 126 (1991).

(345) Id.

(346) Id.

(347) Id.

(348) SRSRT RECOMMENDATIONS, supra note 271, at VI-22.

(349) For a general discussion of this debate, see Sterne, Jr., supra note 33.

(350) WILLIAM H. MILLER ET AL, ANALYSIS OF SALMON AND STEELHEAD SUPPLEMENTATION III-IV, 1 (1990).

(351) Id.

(352) Id.

(353) RETURN TO THE RIVER, supra note 47, at 400.

(354) MILLER ET AL, supra note 350, at iv.

(355) U.S. DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION, DIVISION OF FISH & WILDLIFE, REGIONAL ASSESSMENT OF SUPPLEMENTATION PROJECT (1992).

(356) SRSRT RECOMMENDATIONS, supra note 271, at VI-22.

(357) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-14, 5B-16.

(358) BONNEVILLE POWER ADMINISTRATIONS, supra note 339, at 1-9.

(359) RETURN TO THE RIVER, supra note 47, at xxi.

(360) TRIBAL RESTORATION PLAN I, supra note 2, at iv.

(361) For detailed analyses of these treaties and cases interpreting them, see Michael C. Blumm & Brett M. Swift, The Indian Piscary Profit and Habitat Protection in the Pacific Northwest. A Property Rights Approach, 69 U. COLO. L. REV. 407 (1998) [hereinafter Blumm & Swift, Piscary Profit].

(362) Charles A. Hobbs, Indian Hunting and Fishing Rights II, 37 GEO. WASH. L. REV. 1251, 1252-53 n.10 (1969) (citing Treaty of Dec. 26, 1854, 10 Stat. 1132 (involving the Nisqually, Puyallup and others); Treaty of Jan. 22, 1855, 12 Stat. 927 (involving the Duwamish and others); Treaty of Jan. 26, 1855, 12 Stat. 933 (involving the S'Klallam); Treaty of Jan. 31, 1855, 12 Stat. 939 (involving the Makah); Treaty of June 9, 1855, 12 Stat. 945 (involving the Umatilla and others); Treaty of June 9, 1855, 12 Stat. 951 (involving the Yakama); Treaty of June 11, 1855, 12 Stat. 957 (involving the Nez Perce); Treaty of June 25, 1855, 12 Stat. 963 (involving the Confederated Tribes of Middle Oregon); Treaty of July 1, 1855, 12 Stat. 975 (involving the Flathead and others). See also AMERICAN FRIENDS SERVICE COMM., UNCOMMON CONTROVERSY: FISHING RIGHTS OF THE MUCKLESHOOT, PUYALLUP AND NISQUALLY, INDIANS 19 (1970) (indicating that the Indians ceded sixty-four million acres).

(363) WILLIAM DIETRICH, NORTHWEST PASSAGE: THE GREAT COLUMBIA RIVER 377 (1995).

(364) The United States paid the tribes a little more than $.02 per acre of land. Id.

(365) See Hobbs, supra note 362, at 1253 (recognizing the right to use land for hunting is very important to a tribe).

(366) Treaty with the Nisqualli, Puyallup, etc., Dec. 26, 1854, ark III, 10 Stat. 1132, 1133. Other treaties contain nearly identical language. See Hobbs, supra note 362, at 1253 n. 10 (discussing typical language of treaties).

(367) See infra notes 369-79 and accompanying text (treaty tribes' property right in salmon); infra notes 379-88 and accompanying text (moderate living); infra notes 387-97 and accompanying text (tribes as comanagers).

(368) 198 U.S. 371 (1905).

(369) Id.

(370) Id. at 379; United States v. Winans, 73 F. 72, 75 (D. Wash. 1896).

(371) Winans, 198 U.S. at 381.

(372) Id. at 381-82:

   [T]he future of ownership of the lands, therefore, was foreseen and
   provided for--in other words, the Indians were given a right in the
   land--the right of crossing it to the river--the right to occupy it to the
   extent and for the purpose mentioned. No other conclusion would give effect
   to the treaty. And the right was intended to be continuing against the
   United States and its grantees as well as against the state and its
   grantees.

(373) Id. at 380, citing the district court's Memorandum Decision on the Merits (Feb. 23, 1903) (Supreme Court Record at 38).

(374) Id. at 381.

(375) Id. at 384.

(376) For a discussion of the states' attempts to limit the Indian treaty rights, see Blumm & Swift, Piscary Profit, supra note 361, at 446-57.

(377) Puyallup Tribe v. Dep't of Game of Washington, 391 U.S. 392, 398 (1968) ("[T]he manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the Stare in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians."); Dep't of Game of Washington v. Puyallup Tribe, 414 U.S. 44, 48 (1973) (finding impermissible discrimination where Washington regulation barred all Indian net fishing while allowing only non-Indian hook-and-line fishing).

(378) Dep't of Game v. Puyallup Tribe, 422 P.2d 754, 760 (Wash. 1967), aff'd, Puyallup Tribe v. Dept. of Game of Washington, 391 U.S. 392, 401-03 (1968).

(379) See infra notes 381-89 and accompanying text.

(380) Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969).

(381) Id.

(382) 384 F. Supp 312 (W.D. Wash. 1974).

(383) Id. at 343.

(384) Id. From 1975 to 1977, the State of Washington failed to adequately enforce the court's allocation orders. Then, in 1979, the Washington State Supreme Court ruled that the State could not implement the fifty-fifty formula because it contradicted State statutes and the United States Constitution. Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, 571 P.2d 1373 (Wash. 1977), vacated, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979); Puget Sound Gillnetters Ass'n v. Moos, 565 P.2d 1151 (wash. 1977), vacated, 443 U.S. 658 (1979). In response, Judge Boldt entered a series of orders that effectively established the court as the Washington state fishery manager. See Blumm & Swift, Piscary Profit, supra note 361, at 455-59 for a discussion of the Boldt decisions.

(385) Sohappy v. Smith, 529 F.2d 570, 572-73 (9th Cir. 1976).

(386) United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) (approving Judge Boldt's fifty-fifty formula); Puget Sound Gillneters v. United States District Court, 573 F.2d 1123 (9th Cir. 1978), vacated, 443 U.S. 658 (1979) (approving court's role as fishery manager).

(387) 443 U.S. 658 (1979).

(388) Id. at 686-87.

(389) See infra notes 391-403 and accompanying text.

(390) 302 F. Supp. 899 (D. Or. 1969).

(391) Id. at 912.

(392) Id.

(393) United States v. Washington, 384 F. Supp. 312, 339-40, 403 (W.D. Waste 1974).

(394) Id. at 340.

(395) Id. at 340-41.

(396) Id. at 341. At the time of this decision, two tribes, the Quinault and the Yakama Nation, had met the qualifications. Id. Judge Boldt stated that many other tribes involved in the case were close to achieving the same status. These tribes were the Hoh, Lummi, Makah, Muckelshoot, Nisqually, Puyallup, Quileute, Sauk-Suiattle, Skokomish, Squaxin, Stillaguamish, and Upper Skagit. Id. at 342, 359-79.

(397) Id. at 401-02.

(398) Id.

(309) Id. at 403.

(400) Settler v. Lameer, 507 F.2d 231, 233-34 (9th Cir. 1974).

(401) Id. at 238.

(402) Id. at 237-38.

(403) Blumm & Swift, Piscary Profit, supra note 361, at 459.

(404) Id. at 460.

(405) For information on the four tribes (i.e., the Confederated Tribes and Bands of the Yakama Nation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, and Confederate Tribes of the Warm Springs Reservation of Oregon), see the Columbia River Inter-Tribal Fish Commission web page available at http://www.critfc.org/text/history.htm (last modified Feb. 24, 1998).

(406) Id.

(407) Blumm & Swift, Piscary Profit, supra note 361, at 460.

(408) Michael C. Blumm, Implementing the Parity Promise: An Evaluation of the Columbia Basin Fish and Wildlife Program, 14 ENVTL. L. 277, 285-86 (1984).

(409) Blumm & Swift, Piscary Profit, supra note 361, at 461-62 n. 260 (quoting Memorandum from Jim Weber, Columbia River Inter-Tribal Fish Comm'n, to Michael Blumm and Brett Swift 1-2 (Aug. 26, 1997) [hereinafter Weber Memorandum]).

(410) See, e.g., U.S. ARMY CORPS OF ENGINEERS, WALLA WALLA DISTRICT, DRAFT LOWER SNAKE RIVER JUVENILE SALMON MIGRATION FEASIBILITY REPORT/ENVIRONMENTAL IMPACT STATEMENT 1-17 (1999). (describing the Spirit of the Salmon plan as "a framework for restoration of Columbia River salmon," without further describing its merits or defects).

(411) Telephone Interview with Jim Weber, Staff Attorney, Columbia River Inter-Tribal Fish Comm'n (Apr. 14, 2000). Mr. Weber stated that both NMFS and the NPPC have completely ignored the tribal restoration plan, and to date, no part of the plan has actually been implemented.

(412) See Blumm & Swift, Piscary Profit, supra note 361, at 461-62 n. 260 (quoting Weber Memorandum at 1-2). Tribal sovereignty includes the right to regulate activities and land use within reservation boundaries. Even where tribes have the authority to regulate tribal off-reservation fishing at usual and accustomed grounds, such authority does not give the tribes veto power or regulatory authority over most actions that affect Columbia River salmon. Id.

(413) TRIBAL RESTORATION PLAN I, supra note 2, at 4-6 to 4-8 (describing the Bonneville Power Administration's obligation to fund mitigation efforts).

(414) See BONNEVILLE POWER ADMINISTRATION, DRAFT ENVIRONMENTAL IMPACT STATEMENT: NEZ PERCE TRIBAL HATCHERY PROGRAM 1-9 (June 1996) (explaining that hatchery would follow recommendations of tribal restoration plan).

(415) The NMFS biological opinions exemplify the failure of plans limited to particular jurisdictions. NMFS has issued separate biological opinions for hydropower operations, hatcheries, ocean harvest, and habitat. See, e.g., NMFS BIOP, supra note 8 (habitat); NATIONAL MARINE FISHERIES SERV., BIOLOGICAL OPINION FOR 1995 TO 1998 HATCHERY OPERATIONS IN THE COLUMBIA RIVER BASIN (1995) (hatcheries); NATIONAL MARINE FISHERIES SERV., ENDANGERED SPECIES ACT--SECTION 7 CONSULTATION: BIOLOGICAL OPINION: THE FISHERY MANAGEMENT PLAN FOR COMMERCIAL AND RECREATIONAL SALMON FISHERIES OFF THE COAST OF WASHINGTON, OREGON, AND CALIFORNIA OF THE PACIFIC FISHERY MANAGEMENT COUNCIL (1996) (harvest); NATIONAL MARINE FISHERIES SERV., BIOLOGICAL OPINION ON LAND AND RESOURCES MANAGEMENT PLANS FOR NATIONAL FORESTS AND BUREAU OF LAND MANAGEMENT RESOURCE AREAS IN THE UPPER COLUMBIA RIVER BASIN AND SNAKE RIVER BASIN EVOLUTIONARY SIGNIFICANT UNITS (1998) (habitat). None of those biological opinions adequately considers the cumulative impacts of hydropower, hatcheries, habitat, and harvest. They also only apply to activities subject to federal control. Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH. L. REV. 519, 549 (1999).

(416) LICHATOWICH, supra note 75, at 151.

(417) Id.

(418) The Independent Scientific Group, Return to the River: An Ecological Vision for the Recovery of the Columbia River Salmon, 28 ENVTL. L. 503, 516 (1998) (discussing lack of coordination between NMFS and NPPC).

(419) Don Sampson, One Tribe's Perspective on "Who Runs the Reservoirs," 26 ENVTL. L. 681, 682 (1996) (describing salmon management strategies as "studying the salmon to death.").

(420) LICHATOWICH, supra note 75, at 203.

(421) RETURN TO THE RIVER, supra note 47, at xxi-xxii.

(422) UPSTREAM, supra note 7, at 338-39.

(423) TRIBAL RESTORATION PLAN I, supra note 2, at 5B-2.

(424) Id. at iii.

(425) Id. at 5B-1.

(426) Sampson, supra note 419, at 682.

MELISSA POWERS, Student, Northwestern School of Law of Lewis and Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected May 2001; B.A., 1992, University of California, Berkeley. The author thanks Professor Michael Blumm of Northwestern School of Law of Lewis and Clark College for his help with this Comment, including suggesting the topic, editing drafts, and finding a publisher, not to mention his general support and advice over the past few years.