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One tribe's perspective on 'who runs the reservoirs.'(The Second Annual 'Who Runs the River?' Colloquium)

The question that this Colloquium asks is, "Who runs the river?" If tribal people were asked that question 150 years ago, we would have had a much different answer than today because we knew how the river ran, why it ran, and where it ran to. Now, however, when asked the question, the answer that we have to give is that the river is nm by the same old tired cast of characters. power, politics, and greed. These are the driving forces behind how the river runs today. The result is an salmon are endangered, and last year, a federal district court judge and the Ninth Circuit Court of Appeals chastised both the federal government and the Northwest Power Planning Council (NPPC) over their rigid adherence to status quo river operations and their failure to involve fisheries scientists from tribal and state entities in their decision-making processes.(1)

What was the response of those who rim the river to these court decisions? This year, they rigidly adhered to status quo river operations and failed to involve tribal and state fisheries scientists in their decision-making processes. At the same time, they created an illusion of constructive change and aggressive action. But this was merely to disguise their continued pandering to those usual suspects. power, politics, and greed. The federal agencies, and particularly the National Marine Fisheries Service (NMFS), have adopted a classic, age-old approach of courageously confronting a problem by forming committees. We now have a lot of committees - I have seen them all and participated on some. In fact, they have not just formed one committee, but a whole parade of committees to implement NMFS's recovery plan. There is the Coordination and Planning Team (CPT),(2) the Reservoir Operations Team (ROT), the System Configuration Team (SCT), the Gas Bubble Technical Working Group (TWIG), the Process for Alternative Testing of Hypotheses (PATH), and the Technical Management Team (TMT). This is just a partial list of those groups whose ostensible purpose is to implement the NMFS recovery plan. There are dozens more devoted to other salmon-related issues and activities. The whole scenario is very confusing and enormously complicated. There are also committees associated with the System Operation Review, the System Configuration Study, the Bonneville Power Administration (BPA) and its Business Plan, the BPA Rate Case, the NPPC's Strategy for Salmon, and the Interior Columbia Basin Ecosystem Management Project.(3)

When we consider the tribes' participation in these committees, I think one of the things we look at is that it takes a lot of money for us to send biologists to Portland or Seattle to participate in all of these meetings. We question whether our participation is meaningful. We wonder how our involvement is affecting decision making. An example of the difficulties confronting us is the Reservoir Operations Team, or ROT, which is composed of a steering committee of approximately seventy people and a technical working group.(4) They have meetings scheduled on October 20, 25, and 30, and November 13, 15, 17, 27, and 29.(5) Now, it is simply not possible for my tribe to participate in all the meetings of just that one committee, let alone the other fifteen or twenty that are out there.

All this is nothing less than slow strangulation by paperwork and process. It is more paralysis by analysis. This is studying the salmon to death. Further, when we are able to participate, when we provide input, it is getting shelved, it is tossed into the round Me. We thus question the worth of participating in all of these committees.

River operations in 1995 clearly illustrate who runs the river. Back in February and March of that year, NMFS made its usual lofty promises in its biological opinion on the mainstem hydroelectric system operations, promising a "spread the risk" policy that would follow a flexible, "adaptive management" approach.(6) More specifically, the NMFS opinion promised that there would be less reflexive reliance on artificial transportation of juvenile salmon, particularly when improved water conditions allowed for more in-river passage. But look back at what actually happened. The U.S. Army Corps of Engineers (Corps or COE) boasted that in 1995 it collected more juvenile salmon - more than 24.5 million - and transported more of them in trucks and barges - more than 18.5 million ever before in history.(7) This occurred at a time when "[w]ater supply was better than recent years [and] closer to historic normal runoff."(8) So, how flexible, how balanced was NMFS's approach? How could it "spread the risk"? The Fish Passage Center, a technical coordinating body for the tribes and the states, reported that "[p]reliminary estimates of the percentage of the Snake River wild yearling chinook run migrating in river below Lower Monumental Dam in 1995 [was] approximately 22% with the other ... 78% being transported from the three Snake River collector dams."(9)

Although NMFS created various teams and work groups to implement the proposed recovery plan, it would not support implementing measures its own plan called for. For example, although the NMFS biological opinion called for 20,000 cubic feet per second (cfs),(10) NMFS later "[a]greed to limit discharges from Libby Reservoir to 16,000 cfs after the state of Montana threatened to sue the federal government if flows from Libby and Hungry Horse reservoirs exceeded that amount."(11) Neither Grand Coulee, Hungry Horse, nor Libby reservoirs met the targets set in the biological opinion by August 31.(12)

These river operations largely reflect decisions made by the Technical Management Team(TMT), an interagency group established by the biological opinion to implement its provisions.(13) The dominant feature of the TMT is that tribal and state fish and wildlife agency representatives have absolutely no meaningful say in its deliberations or its decision making.(14) At one point, I heard that even a journalist from Lewiston, Idaho was involved in the TMT conference calls. So we wonder why tribal representatives should be involved in these types of decision-making processes. We have limited resources and our ability to become involved in numerous committees that ultimately ignore our advice is questionable at best.(15)

According to one System Configuration Team participant, "NMFS and the Corps have unilaterally prioritized [fiscal year] 1996 general construction activities under protest from the tribes and states."(16) Specifically, tribal and state fisheries scientists have expressed their "joint concern" to NMFS and the Corps, stating that the federal agencies ... [were] not providing the state agencies and the treaty tribes meaningful opportunity to influence the expenditure of general construction and mitigation funds and development of mitigation programs at COE projects, as is called for by the 1995 Biological Opinion for the [Federal Columbia River Power System]."(17) Yet "NMFS and the COE [have] finalized the majority of the projects for 1996 and [have] already let contracts with little or no consultation and agreement by the state and tribal fishery management entities."(18) Tribal and state fisheries experts believe that "the NMFS/COE program lacks a long-term rational strategy for investment of limited mitigation funds."(19) The System Configuration Team's basic premise seems to be that the artificial transportation program will always be the passage method of choice, so it is prioritizing the construction funding accordingly.(20) But the tribal and state fisheries scientists warn that, "[s]ince the future of transportation is at present uncertain it does not seem prudent to make long-term investments on the basis that the long-term relevance of [artificial] transportation is pre-determined."(21)

The System Configuration Team has also virtually abandoned all John Day drawdown planning and design work, contrary to the NMFS biological opinion.(22) The team is emphasizing installation of questionable extended length screens without fully considering other passage alternatives.(23) The team is also planning for a $20 million Passive Integrated Transponder (PIT) tag sampling facility at John Day Dam, although there are far more critical passage measures on which scarce money can and should be spent. The PIT tag facility may even cause greater salmon mortalities.(24) We are not spending salmon restoration money where the biggest problems are, or where the greatest opportunities for recovery exist.(25)

Tribal and state fisheries experts describe the situation this way. "The COE/NMFS program does not appear to address the key passage survival issues. The ... program places a high priority on construction of a juvenile sampler at John Day Dam,"(26) although that dam requires better bypass facilities. As they also state,

[s]pecific projects do not seem to respond to the central passage issues. At John Day Dam a key passage issue is poor guidance and the inability to spill sufficiently due to dissolved gas. Efforts at John Day Dam, therefore, should be aimed at improving dam passage via reducing dissolved gas and increasing spill efficiency.(27)

One more example of how power, politics, and greed commonly run the river was almost added recently to this exhausting but by no means exhaustive list. Thankfully, that potential disaster was narrowly averted when the Clinton Administration turned back efforts to exempt BPA from many environmental laws through so-called "sufficiency language."(28) I thank Senator Hatfield and the Administration for this agreement. I certainly hope this agreement puts us in a position where legislation on fish costs is not necessary.

However, the funding agreement only keeps us from losing ground. The real task still lies ahead - developing a sound, effective plan for saving salmon and putting it in place. Salmon recovery and restoration efforts and activities that will work cannot be identified, developed, and implemented without the appropriate involvement and investments of tribal and state fish managers and biologists. The Confederated Tribes of the Umatilla Indian Reservation have adopted a Columbia Basin Salmon Policy that expresses the principles that guide us as we seek to recover and restore salmon and preserve our way of life.(29) With the assistance of the Columbia River Inter-Tribal Fish Commission, we have also devised a mainstem hydroelectric operations strategy. Our plan as a whole is the most aggressive, far-reaching proposal offering the greatest benefits to salmon. However, the plan does not ignore other interests in the region; rather, it truly balances them with the needs of fish.

The four Columbia Basin treaty tribes - the Umatilla, Nez Perce, Warm Springs, and Yakama Tribes - have also developed a Tribal Restoration Plan.(30) This plan is the tribes, prescription for recovering salmon so that they can be delisted under the Endangered Species Act.(31) But more than that, it is a plan to restore salmon so as to finally fulfill our treaty rights and the federal government's trust responsibility to us. We are looking beyond simply the delisting of salmon.

The theme of this conference - "Who runs the river?" - might be more accurately called, "Who runs the reservoirs?" It is my hope that we can have a river again some day and return the salmon it once sustained. It is also my hope that my tribe can play an integral part in bringing about salmon restoration. The Confederated Umatilla Tribes and other treaty tribes draw on 10,000 years of knowledge and experience. Our role is based on that and the rights we secured in the Treaty of 1855.(32) Our treaty with the United States government secured the right of taking fish ... at all ... usual and accustomed stations."(33) The tribes were assured that "[t]his paper [treaty] secures your fish."(34) This is what Governor Stevens told us. As stated in our Columbia Basin Salmon Policy, without this promise we would not have signed the treaty.(35) Nor would we have ceded 6.4 million acres of land to the federal government.(36) In promising to honor the tribes' right to take fish, the federal government impliedly promised that there would be fish to take. Our treaty-secured rights include the right to a suitable environment and the necessary habitat to sustain the resources that were the subject of the treaty.(37) In promising that there would be fish to take, the United States also promised there would be land and water where salmon could survive.

Now, much of the environment, including salmon habitat in tributaries and the mainstem, is literally lethal to fish. The federal government admits as much when its primary solution, to the salmon crisis is to remove the fish entirely from the river. This is no way to recover salmon. It. is a quick fix, a superficial Band-Aid. Similarly, blaming BPA's financial troubles on salmon recovery costs is merely smoke and mirrors. BPA's difficulties are caused by a number of complex factors, some many years in the making. To correct them will require an open, reasoned, and comprehensive approach. Remedying BPA's financial difficulties is completely compatible with a fair and balanced solution to the salmon crisis.

Settling upon BPA's fish and wildlife funding(38) merely sets the stage, however, for we still have not agreed on a single, coherent, biologically based plan to save the salmon. We have asked many times that the tribes, the states, NPPC, and NMFS all sit down and try to reconcile the plans that are now out there. So far, we have achieved no success. We hope that we can begin working toward that effort soon.

Unfortunately, there are those who assert that it is not worth saving salmon. There are those who complain that salmon recovery costs are too high. These are often the same people who complain about the so-called "War on the West." Well, my people are quite familiar with the "War on the West." We have lived with it for over a century and a half. These same people who say that salmon costs are unreasonable advocate maintenance of a huge corporate welfare system of subsidies and giveaways that have so often degraded our land, our water, our resources, and our families and communities who depend upon them. These subsidies rob from the poor and give to the rich. In doing so, they threaten to drive more salmon to extinction. They endanger not only fish and wildlife, but also Indian people who depend on salmon as the center of our economic, cultural, and spiritual life. These subsidies include a $150 to $300 million annual subsidy for irrigators,(39) and a $180 million annual subsidy for BPA's direct service industries, most of which are aluminum plants.(40)

At a recent water hearing, Congressman Wes Cooley (R-Or.) asked, "How much is it going to cost to restore the salmon in the Umatilla River?" I said, Well, Congressman, it may cost between $30 and $50 million, including investments, ratepayers, taxpayers, the tribe, and the state investments." He then asked me, "How many individuals are in your tribe?," and I said, "There are about 1700." He said, Why don't we just divide that money among all of your members and give it to you? That will take care of your salmon restoration and your religious needs." Is it any wonder why I say power, politics, and greed run the river?

Perhaps it is time to look at the broader picture. As many of you may be aware, Indian tribes have recently come under unprecedented attack in Congress - attacks on our sovereignty, our self-determination, our economic self-sufficiency. At the same time that cuts in tribal programs are being suggested by federal budget-cutting, the corporate welfare gravy train chugs along. Grazing is being subsidized regularly as are many timber sales on federal lands.(41) So, we have to look at a much broader picture. The fish are not just in the mainstem; they exist further up into the tributaries as well. It may be useful to consider some of these larger issues as we think about the uncertain future for BPA, the salmon, and the Columbia River hydropower system.

Power, politics, and greed cannot continue to run the river, or we will all lose. If we are to save salmon and have a secure energy supply, we must rise above the current situation. While this may be easier said than done, we cannot continue to bury salmon recovery and restoration efforts in endless process, or perpetuate practices that win destroy salmon and devour financial resources. I only recently received a copy of the BPA financial deal that was put together in Washington, D.C.(42) I asked some of the deal-makers, How come you did not call us?" They said, It's now too late; it's a done deal." So, it really is the politics-as-usual that is going on - that is, done deals cut in Washington, D.C. We have to stop operating this way. We want the states and the federal government to begin respecting tribal governments and our abilities.

My tribe has developed a model plan on our reservation for a small patch of timber we have that is bug-infested. Instead of clear-cutting it and making $5 or $6 million, we told the Bureau of Indian Affairs we want to do it right, so the forest would regenerate. Even though we only made $400,000, instead of $5 or $6 million, that is what we did. We put our money where our mouth is. People talk about ecosystem planning, how you make decisions on an ecosystem basis, but it is not just a simple slogan; it is a matter of values and beliefs.

We are committed to trying to work with the National Marine Fisheries Service so that it will respect what the tribes have to say. Often, the only way we get any respect is to go to court, and I know we have a lot of lawyers that can give us some advice on that. But my tribe cannot, and we have not, ever conceded or thought for a minute that salmon will not be in the Umatilla in one hundred years. We have developed our own restoration plan. While we do not say ours is the perfect plan, we do think we have some good concepts and a good philosophy. We have based it on science, but science is not going to solve all of our problems. We need the will to implement true. salmon recovery.

Somebody asked me the other day, How are you going to restore salmon? You are, like David, fighting Goliath against great odds. You do not have a lot of money; you do not have all the attorneys that you need, all the technical help you need - how are you going to do it?" I told him there is something more than power, politics, and greed that drives us. And that makes me think that we can, and we will, restore salmon to their rightful place in the Columbia Basin. (1) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994); Northwest Resource Info. Ctr. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995); see generally Colloquium, Who Runs the River?, 25 Envtl. L. 349 (1995). (2) The CPT is now referred to as the Implementation Team (IT). (3) Some other projects, with their attendant processes and committees, include the Fish Facilities Design Review Work Group (FFDRWG, or "fedderwig"), the Bonneville Pool Master Plan, the Integrated Hatchery Operations Team (IHOT), the Regional Assessment of Supplementation Projects Team (RASP), the Mid-Columbia Habitat Conservation Plan, the Lower Snake River Compensation Plan, many Federal Energy Regulatory Commission dam relicensing processes, Oregon's Hydroelectric Reauthorization Task Force, and the Lower Snake River Migration National Environmental Policy Act (NEPA) analysis, to name a few. (4) See Memorandum from Caroline Gray, Fish Passage Center, to Fish Passage Advisory Committee (FPAC) 1 (Oct. 6, 1995) (on file with author) (pertaining to "Al Wright's Group on Reservoir Operations"). (5) See Memorandum from Al Wright to Interested Parties 1 (Oct. 19, 1995) (on file with author) (regarding "Project Update"). (6) See National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years (Mar. 1995) [hereinafter 1995 Biological Opinion]; Telephone Interview with William Stelle, Northwest Regional Director, National Marine Fisheries Service (Feb. 7, 1995). (7) Walla Walla District, U.S. Army Corps of Engineers, News Release No. 95-73 (Oct. 23, 1995) (on file with author) ("Corps collects record number of salmon at dams on the Snake and Columbia Rivers."). (8) Memorandum from Michele DeHart, Fish Passage Center, to Members' Liaison Group, Fish Passage Advisory Committee 1 (Oct. 13, 1995) (on file with author) (pertaining to "Summary of the 1995 Spring and Summer Juvenile Passage Season"). (9) Id. at 2 (10) 1995 Biological Opinion, supra note 6. (11) Northwest Water Law & Policy Project, Big River News 15 (Fall 1995). This could result in a 4000 cfs shortfall from the biological opinion goal of 20,000 cfs average flow during July and August. Telephone Interview with Eric Lemelson, Assistant Director, Northwest Water Law & Policy Project (Oct. 26, 1995); see also Memorandum from Michele DeHart, supra note 8, at 1. (12) Memorandum from Michele DeHart, supra note 8, at 1. In addition, the seasonal average flow target for the summer at McNary Dam specified in the biological opinion was not met. Id. (13) 1995 Biological Opinion, supra note 6, at 101-02. (14) See, e.g., Memorandum from Michele DeHart, Fish Passage Center, to Columbia Basin Fish and Wildlife Authority (CBFWA) Liaison Group 2 (Oct. 27, 1995) (on file with author) ("Summary of Procedural Operations of 1995 Technical Management Team"). This is, not incidentally, a complete denial of the tribes' sovereignty, the federal government's commitment to government-to-government relations, and the tribes' recognized co-management authority. (15) In 1995 the TMT repeatedly made decisions inconsistent with the "reasonable and prudent alternative" for mainstem operations specified in the biological opinion. The Reservoir Operations Team (ROT) is another recovery plan implementation group that is busily planning for future reservoir operations, including options that would follow the same pattern evident in 1995 - reduced flows and general noncompliance with even the barely beneficial measures in the biological opinion. See Memorandum from Caroline Gray, supra note 4. (16) Memorandum from Bob Heinith, Hydropower Coordinator, Columbia River Inter-Tribal Fish Commission, to Lori Bodi, Co-Director, Northwest Office, American Rivers (Oct. 21, 1995) (on file with author) (pertaining to the Corps/NMFS fiscal year 1996 general construction budget). (17) Letter from Rod Woodin, Washington Department of Fish and Wildlife; Ron Boyce, Oregon Department of Fish and Wildlife; Bob Heinith, Columbia River Inter-Tribal Fish Commission; and Steve Pettit, Idaho Department of Fish and Game, to Bill Hevlin, National Marine Fisheries Service, and Dave Ponganis, U.S. Army Corps of Engineers 1 (Oct. 17, 1995) (on file with author) (on Oregon Department of Fish and Wildlife letterhead) [hereinafter Letter from Ron Woodin et al.]. (18) Id. The letter states that "[w]hen discussed with the states and the tribes [expenditure of general construction and mitigation funds and development of mitigation programs were] apparently finalized." Id.

Michele DeHart, of the Fish Passage Center in Portland, Oregon, reported that "there was little or no opportunity to affect the COE list of projects." Memorandum from Michele DeHart, Fish Passage Center, to "The Files" 1 (Oct. 19, 1995) (on file with author) ("System Configuration Team Meeting October 11, 1995"). Her memorandum goes on to state that

[t]he SCT process on the surface does not allow for adequate input from the states and the tribes. As an example the list of COE projects for 1996 was distributed for the first time at the SCT meeting. The states and tribes were not all present and they had not received the list. The COE indicated that the contracts and other commitments were essentially in place. There was an indication that final decisions had been made.

Id. at 2. (19) Letter from Rod Woodin et al., supra note 17, at 1. (20) See Memorandum from Michele DeHart, supra note 18, at 2 ("The COE list [of construction projects] appears to be built on the assumption that transportation is predetermined and expends funds on that basis."). (21) Letter from Rod Woodin et al., supra note 17. (22) See Memorandum from Bob Heinith, supra note 16; see also 1995 Biological Opinion, supra note 6, at 109. (23) Memorandum from Bob Heinith, supra note 16; see also Letter from Rod Woodin et al., supra note 17. (24) Memorandum from Bob Heinith, supra note 16; Letter from Rod Woodin et al., supra note 17. (25) See, e.g., Memorandum from Michele DeHart, supra note 18, at 2 ("The COE list does not concentrate expenditures in areas or at sites which will either be unaffected by future decisions or where problems presently exit."). (26) Letter from Rod Woodin et al., supra note 17. The letter states that "[a]lthough John Day Dam requires key improvements in passage, the construction of a juvenile sampler does not relate to improved survival and might actually decrease survival in the bypass." Id. (27) Id. (28) See Letter from Alice M. Rivlin, Director, Office of Management and Budget (OMB), to Senator Mark Hatfield (R-Or.), Chairman, Senate Committee on Appropriations (Oct. 24, 1995) (on file with author) (explaining details of new financial agreement). (29) Confederated Tribes of the Umatilla Indian Reservation, Columbia Basin Salmon Policy (1995). (30) Columbia River Inter-Tribal Fish Comm'n, Wy-Kan-Ush-Mi, Wa-Kish-Wit: Spirit of the Salmon: The Columbia River Anadromous Fish Restoration Plan of the Nez Perce, Umatilla, Warm Springs and Yakama Tribes (1995) (draft). (31) Species may be removed from the Endangered and Threatened Species lists if, upon review by the Secretary of Interior, the conditions leading to such a listing no longer exist. 16 U.S.C. [sections] 1533(c)(2) (1994). Currently, the listed stocks are the Snake River sockeye salmon, 57 Fed. Reg. 58,612 (Nov. 20, 1991) (codified at 50 C.F.R. pt. 222 (1995)) (listed as endangered); and the Snake River spring, summer, and fall chinook salmon, 57 Fed. Reg. 14,653 (Apr. 22, 1992) (codified at 50 C.F.R. pt. 227 (1995)) (listed as threatened). (32) Treaty Between the United States and the Walla-Walla, Cayuses, and Umatilla Tribes and Bands of Indians in Washington and Oregon Territories, June 9, 1855, 12 Stat. 945, reprinted in 2 Charles Kappler, Indian Affairs: Laws and Treaties 694-98 (1904) (preserving for Tribes the right to take fish at all "usual and accustomed" places). (33) Id. at 694-95. (34) A Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658,667 n.11 (1978), modified, 444 U.S. 816 (1979). (35) Confederated Tribes of the Umatilla Indian Reservation, supra note 29, at 2. (36) See Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 667 ("It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish ... and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right."); Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward the Native Nations on Environmental Issues" A Partial Critique of the Clinton Administrations Promises and Performance 25 Envtl. L 733, 763 (1995) (noting the Columbia River treaty tribes' reliance "on the government's repeated promises that they would be secure in their way of life") (37) See Washington State Commercial Passenger Fishing Vessel Ass'n 443 U.S. at 676 (Governor Stevens's "promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians, assent."). (38) Letter from Alice M. Rivlin, supra note 28. (39) Many complain about forgone revenue - the money BPA would theoretically reap if it were not forced to spill some water over dams and provide more flows to benefit salmon and the fishing-dependent families, businesses, communities, and economies of the region that rely on them. But their silence is deafening when it comes to the "revenues" that are "forgone" from diverting water, not for fish, but for already-heavily-subsidized agribusiness operations and waterborne transportation. Forgone hydropower revenues from water withdrawn for irrigation are estimated at to $150 to $300 million a year. Ernie Niemi et al. Economic Consequences of Management Strategies for the Columbia and Snake Rivers 42 (July 1995); Bonneville Power Admin. Task Force, Committee on Natural Resources, BPA at a Crossroads 37-38 (1994) Hydropower revenues are also forgone when ships, barges, and water pass through the locks of the many mainstem dams and bypass the turbines. But these forgone revenues are ignored for everything but fish; the federal agencies discriminate against salmon. The "forgone revenues" argument is based on the fallacy that the, water that could provide those revenues belongs entirely to the federal river operating entities. This is not the case, as has been pointed out in drawing an analogy to claiming "a $10,000 opportunity cost because theoretically that's what you could have made last year renting out your neighbor's house." Ed Chaney, Testimony Before the Energy and Water Development Subcomm. of the Comm. on Appropriations, U.S. Senate, at 5 (Mar. 15, 1995). Of course, this type of situation was described best by Thunder-Rolling-in-the-Mountains (Chief Joseph), Nez Perce, a long time ago:

Suppose a white man should come to me and say, "Joseph, I like your horses, and I want to buy them." I say to him, "No, my horses suit me, I will not sell them." Then he goes to my neighbor and says to him, "Joseph has some good horses. I want to buy them, but he refuses to sell." My neighbor answers, "Pay me the money and I will sell you Joseph's horses." The white man returns to me and says, "Joseph, I have bought your horses, and you must let me have them." If we sold our lands to the government, this is the way they were bought.

Quoted in Drex Brooks & Patricia N. Limerick, Sweet Medicine: Sites of Indian Masacres, Battlefields, and Treaties (1995). This is how the forces of power, politics, and greed have often sought to acquire water and other treaty-protected, tribal assets in the Columbia River Basin. (40) See Bonneville Power Admin., Wholesale Power Rate Development Study (1993); see also Columbia Research Corp. Aluminum Information Project 4 (July 1994) (on file with author). The Columbia River Basin is also characterized by subsidized irrigation system construction costs, subsidized water costs, and subsidized electricity costs to pump the subsidized water. Ship and barge traffic also enjoys generous giveaways. (41) A recent story illustrates how mining is egregiously subsidized. Because Congress refuses to change the archaic 1872 Mining Law, "[t]he Interior Department grudgingly sold 110 public acres in Idaho that's believed to hold more than $1 billion of minerals to a Danish mining concern. The price: $275." Charles McCoy, Babbitt Grudgingly Approves $275 Sale of Land Holding $1 Billion in Minerals, Wall St., J., Sept. 7, 1995, at B12. The article states further that the company paid the minimum under the 1872 law: $2.50 an acre. It will pay no royalties....Last year, [a] Canadian mining concern ... obtained gold deposits in Nevada with an estimated value of $10 billion by paying about $10,000...Numerous attempts to amend the law, raise fees and impose royalties on hardrock mining been beaten back by mining companies and sympathetic Western congressmen....The Republican-controlled Congress has proposed various bills that keep most of the 1872 law's provisions favoring mining interests intact. Id. Agribusiness subsidies, above and beyond those enjoyed in the Columbia River Basin, are also enormous: [T]he bulk of government [farm] payments goes to a minority of farmers....[Two] percent of farm payment recipients got 27 percent of the total subsidies paid from 1985 through 1994....[Sixty thousand] corporations, partnerships and individual farmers collected $29.2 billion of the nearly $109 billion paid out during the decade, according to [a study by the Environmental Working Group, based on USDA records], which was released [September 11, 1995]....The Agriculture Department reported last December that the top 17 percent of farms, measured in gross sales, received two-thirds of farm payments in 1993. Congress, General Accounting Office reported in March that 54 percent of all 1993 deficiency payments went to about 10 percent of the 989,000 farms receiving benefits. Robert Greene, 2% of Recipients Get 27% of Farm Payments, East Oregonian, Sept. 12, 1995, at 2A. "As an incentive for increasing foreign markets under the Export Enhancement Program the government subsidizes 80 percent of the wheat shipped abroad. Last year, the program cost taxpayers $890 million..." U.S. News & World Rep., July 10, 1995, at 14. One newsletter noted: The Cato Institute cites the, Agriculture Department's $1.4 billion in price support payments to U.S. sugar cane growers. It says some $60 million a year of this gift from taxpayers and consumers (the government payments also keep retail sugar prices up) goes to one Florida family that shares its windfall in the form of gifts of hundreds of thousands of dollars to the campaign treasuries of its protectors in Congress. ... ... Technological research grants from Washington to such industry monoliths as General Electric, United Airlines, Xerox, Dupont and Caterpillar ran to $490 million last year. The Funny Farm, The Wash. Spectator, Apr. 15, 1995, at 3. The federal affinity for massive "reclamation" projects remains seemingly unshakable. For the Gila River Project in Arizona, "[t]he government has spent over $600 million on irrigation and flood control infrastructure there, and even more on operation and maintenance With about 125 farmers in the District this is a subsidy of at least $4.8 million per farm over the years." Public Employees for Environmental Responsibility, PEEReview, Summer 1995, at 6. As if these subsidies were not bad enough, we are witnessing major assaults on some of the most basic environmental laws. The Clean Water Act, 33 U.S.C. [subsections] 1251-1337 (1994) for example, may be significantly weakened at a time when there are headlines proclaiming "Pollution Deforming River's Fish." Lance Robertson, Pollution Deforming River's Fish, Eugene Register-Guard, Oct. 23, 1995, at 1C (discussing Oregon Department of Environmental Quality study of the Willamette River). Salmon and other fish and wildlife in the Columbia River also face insidious dangers from pollution and toxic contamination. See Letter from Anne Watanabe, Water Quality Project Coordinator, Columbia River Inter-Tribal Fish Commission to Environmental Program Managers (Nez Perce, Yakama, Umatilla, and Warm Springs Tribes) (Aug. 22, 1995) (on file with author), stating: [T]he Columbia River [is] in violation of the existing water quality criteria for dioxin....[T]here are nine pulp and paper mills that emit dioxin into the Columbia River: eight mills are in the U.S. and one, the Ceigar Pulp mill is in Canada...Dioxin has been described by the Environmental Protection Agency (EPA) as the most toxic chemical ever tested on animals. Recently, world wide research has hit the public documenting not only cancerous effects (dioxin is a "probable human carcinogen") but reproductive and developmental effects which appear to be of greater concern to public health. Dioxin and related compounds are lipophilic and pass through a mother's placental barrier to an unborn fetus and also pass through a mother's breast milk to newborn infants. Because these chemicals are endocrine disruptors, reproductive and developmental effects can occur, transgenerationally.... Consumption of contaminated fish is the main route of human exposure to dioxin and related compounds. Id. (42) Letter from Alice M. Rivlin, supra note 28.
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Author:Sampson, Don
Publication:Environmental Law
Date:Jun 22, 1996
Words:5899
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