[Senate Hearing 108-125]
[From the U.S. Government Publishing Office]
S. Hrg. 108-125
IMPACTS ON TRIBAL FISH AND WILDLIFE
MANAGEMENT PROGRAMS IN THE PACIFIC
NORTHWEST
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
CHALLENGES CONFRONTING TRIBAL FISH AND WILDLIFE LAND MANAGEMENT
PROGRAMS IN THE PACIFIC NORTHWEST
__________
JUNE 4, 2003
WASHINGTON, DC
87-846 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
Statements:
Aitken, Sr., Gary, vice chairman, Upper Columbia United
Tribes..................................................... 14
Anderson, Jim, executive director, Northwest Indian Fisheries
Commission................................................. 19
Bolton, Hannibal, chief, Division of Fish and Wildlife
Management and Habitat Restoration, Fisheries and Habitat
Conservation, U.S. Fish and Wildlife Service............... 30
Cantwell, Hon. Maria, U.S. Senator from Washington........... 2
Frank, Jr., Bill, chairman, Northwest Indian Fisheries
Commission, Olympia, WA.................................... 4
Gibson, Terry, chairman, Shoshone Paiute Tribes of the Duck
Valley Reservation......................................... 12
Hererra, Dave, natural resources director, Skokomish Tribe... 22
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
chairman, Committee on Indian Affairs...................... 1
Lohn, Bob, regional administrator, National Fisheries
Service, National Oceanic and Atmospheric Administration,
Department of Commerce..................................... 37
Moon, Mel, natural resources director, Quileute Tribe........ 33
Patt, Jr., Olney, executive director, Columbia River Inter-
Tribal Fish Commission..................................... 16
Robinson, Mark, director, Office of Energy Projects, Federal
Energy Regulatory Commission............................... 40
Rusco, Frank, assistant director, Applied Research and
Methods.................................................... 35
Smith, Hon. Gordon, U.S. Senator from Oregon................. 3
Wells, Jim, director, Natural Resource and Environment, GAO.. 35
Wilkinson, Charles, University of Colorado School of Law..... 5
Wright, Stephen J., administrator, Bonneville Power
Administration............................................. 25
Appendix
Prepared statements:
Aitken, Sr., Gary............................................51, 55
Anderson, Jim (with attachment).............................. 48
Bolton, Hannibal (with attachment)........................... 74
Frank, Jr., Bill............................................. 62
Gibson, Terry................................................ 82
Lohn, Bob.................................................... 87
Patt, Jr., Olney (with attachment)........................... 92
Robinson, Mark............................................... 102
Slickpoo, Jr., Allen, chairman, Columbia River Inter-Tribal
Fish Commission (with attachment).......................... 119
Smith, Hon. Gordon, U.S. Senator from Oregon................. 47
Wells, Jim (with attachment)................................. 219
Wilkinson, Charles (with attachment)......................... 241
Wright, Stephen J. (with attachments)........................ 272
Yakama Nation (with attachment).............................. 132
Additional material submitted for the record:
Confederated Tribes of the Umatilla Indian Reservation,
Columbia Basin Salmon Policy, March 8, 1995................ 323
Giese, Thomas, CBFWA, Results of the Provincial Review:
Estimated Budget Needs Through FY 2006..................... 339
Letters...................................................... 350
IMPACTS ON TRIBAL FISH AND WILDLIFE MANAGEMENT PROGRAMS IN THE PACIFIC
NORTHWEST
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WEDNESDAY, JUNE 4, 2003
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 2:09 p.m. in room
485, Senate Russell Building, Hon. Daniel K. Inouye (vice
chairman of the committee) presiding.
Present: Senators Inouye, Cantwell, and Smith.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Inouye. The committee meets this afternoon to
receive testimony on the challenges confronting tribal fish and
wildlife land management programs in the Pacific Northwest.
Yesterday the committee received testimony on the good work
that is being conducted by tribal fish and wildlife management
programs across Indian country.
We learned from the written testimony that was submitted
that in the Pacific Northwest, that there are a series of
complex relationships with a myriad of Federal agencies in
which tribal resource managers engage. Or put another way,
there are an array of Federal agencies whose responsibilities
have an impact upon the health and habitat of fish and wildlife
resources. Some of those agencies join the Committee today,
including the U.S. Fish and Wildlife Service, the National
Oceanic and Atmospheric Administration Fisheries Service, the
Federal Energy Regulatory Commission and the Bonneville Power
Administration.
There are other agencies, including the U.S. Forest
Service, of the Department of Agriculture, the Army Corps of
Engineers and the Northwest Electric Power Conservation
Planning Council, the Environmental Protection Agency, the
military services of DOD and the Department of Energy, whose
activities have an impact on the natural resources for which
tribal governments serve as stewards. And of course, there are
also important relationships with the respective States in
which tribal lands are located, as well as international bodies
that have been established to oversee the implementation of
provisions of international treaties, such as the United
States-Canada Pacific Salmon Treaty.
Just as there must be a careful balance between the forces
of nature and the impacts of human activities on precious
natural resources, there must also be well coordinated and
cooperative relationships amongst all of these entities to
assure the preservation and protection of fish and wildlife.
We know that some of the Federal agencies have suffered
severe cuts in their operating budgets and that more and more
tribal governments engage in supplementing Federal
responsibilities under the various Federal laws with their own
resources. And we know that at some point, tribal governments
will no longer be able to maintain their current level of
effort in the absence of enhanced Federal support. So it may be
that we have to look to other sources of funding or establish
new authority for the funding of activities that some of these
agencies are no longer able to fully sustain.
Because we know that there has been some confusion
generated about this hearing, I want to be clear that we are
not here to scold or chastise any agency. Rather, we want to
develop an accurate understanding of what the present
capabilities are and where we may need to address some gaps. We
want to know what is working and what may need to be adjusted
or fixed.
With that, I would like to advise the witnesses today that
in response to a request from one of my colleagues in the
Senate, we have departed from the Senate's customary protocol
today so that the Federal agencies who are represented here
today will have the opportunity to hear the tribal testimony
before they testify. Accordingly, our last panel will be
composed of the instrumentalities of the U.S. Government that
have such an important role to play in assuring the long life
and well-being of fish and wildlife resources and in carrying
out the United States trust responsibility for Federal lands
and resources.
So I am pleased to welcome an old friend of the committee,
one of the prominent scholars of Federal Indian law and a well-
known author of many books and law review articles, Professor
Charles Wilkinson. I also want to welcome back our esteemed
tribal leader, Billy Frank, Jr., chairman of the Northwest
Indian Fisheries Commission.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman, and thank you
for holding this hearing today on the issue of critical
important to the Pacific Northwest and to many tribes in my
home State. Your work to highlight the Federal obligations to
any tribe in the Pacific Northwest is greatly appreciated and
those that are here in the audience I'm sure appreciate this
opportunity as well.
I'd like to welcome Billy Frank of the Northwest Indian
Fisheries Commission, Olney Patt, executive director of the
Columbia River Inter-Tribal Fish Commission, Jim Anderson, the
executive director of the Northwest Indian Fisheries
Commission, and many representatives from Washington State
tribes here today, and to thank them for their great leadership
and great progress that's been made by working together on
natural resources management capabilities.
Mr. Chairman, I think it is a vitally important issue that
we address the Federal agencies and how they work and the
greatest possible efforts with tribes on a government to
government basis, and to make sure we meet Federal treaty
obligations to fully preserve tribal fishing, hunting and
gathering rights. Meeting these trust responsibilities is
essential to ensuring tribal self-sufficiency. In Washington
State, Indian tribes are making significant contributions to
improve management of fish and wildlife resources and to help
protect and recover Pacific salmon stock.
Tribal fish and wildlife professionals in Washington State
have really become national leaders in this area. They have
worked very hard to recover and manage salmon and other
sensitive species on both tribal and non-tribal land. Many of
these tribal contributions have been made in close partnership
with Federal and State agencies responsible for salmon recovery
and natural resource management. And Congress recognizes that
tribes are full partners with Federal agencies and States in
the salmon recovery process. We need to provide the tribes,
though, with adequate resources and ensure that government to
government relations can happen so they can fully participate
in this process.
In addition, this hearing reflects the fact that the
Northwest does have a unique challenge and requirements
relating to off-reservation tribal fish and wildlife activities
that deserve additional resources. Washington State utilities
are also working to relicense privately owned hydropower
facilities through the Federal Energy Regulatory Commission and
tribes need to have the opportunity and resources to
participate in these relicensing processes, many of which will
have a direct bearing on their tribal resources.
Providing additional resources to tribes is especially
important in light of a recent Federal district court ruling on
the biological opinion of the Federal Columbia River Power
system. While this litigation is ongoing, it's clear that
tribes have an important role to play in implementing the
biological opinion, particularly in the area of sub-basin
planning.
Mr. Chairman, I look forward to working with you and the
committee on these matters of importance concerning legislative
proposals for greater Federal assistance to help tribes fulfill
our century old obligations in Northwest Tribes in managing
resources. And again, I thank the chairman for this hearing
today, and for all those who traveled from the Northwest to
participate in it.
Senator Inouye. Thank you very much.
And now may I recognize the gentleman from Oregon, Senator
Smith.
Senator Smith. Thank you, Mr. Chairman, and thank you for
holding this very important hearing. I want to ask that my full
statement be entered into the record.
Senator Inouye. Without objection, so ordered.
[Prepared statement of Senator Smith appears in appendix.]
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM OREGON
Senator Smith. I'll not give it in the interest of hearing
from our witnesses, but I would like to say, I have been and
will continue to be a supporter of the tribal efforts to
restore naturally spawning salmon populations in the Columbia
River Basin. I hold up the Umatilla Tribes near my home town of
Pendleton, OR as a great example of effective salmon
restoration programs.
I also know that the need for more resources is great. And
in the scales of prioritizing needs, Senator Cantwell's State
and mine are in the midst of a very severe economic downturn,
in part driven by drought, extraordinarily high electrical
rates, now high unemployment rates. And tremendous pressure has
been put on the BPA and I think the officials there, Steve
Wright and others, are doing their level best to keep prices
down, after a 40 percent increase, try not to have any more
increases, because we have a lot of people that are hurting.
So in trying to meet our obligation to the tribes, trying
to meet the mandates of the Endangered Species Act and trying
to meet the needs of the entire population of the Pacific
Northwest, we need the wisdom of Solomon, and it's not easy to
find. But we need to keep trying to do that. But there are many
interests at play here, and I will look forward to the
testimony and trying to find new ways to better meet our
obligations to our Native American brothers and sisters and to
all the residents of the Pacific Northwest and our fish and
wildlife habitats.
Thank you, sir.
Senator Inouye. Thank you very much.
And may I now recognize Chairman Frank.
STATEMENT OF BILL FRANK, Jr., CHAIRMAN, NORTHWEST INDIAN
FISHERIES COMMISSION, OLYMPIA, WA
Mr. Frank. Thank you, Mr. Chairman, for the second day of
testimony. I'm only going to take a few minutes I thank my
Senator, Senator Cantwell, for her statement. I appreciate
that. And I'd like to remind Senator Smith that I used to swim
in the Cayuse River where he lives. When I was 14 years old, my
relatives are all over there at Umatilla. There was no water in
that river then. There's water there today. And, as the Senator
says, the Umatilla Tribe and the agriculture people all got
together and there's in-stream flows and salmon in that river
today. So these are things we can do together when we work
together.
I appreciate coming back for the second day and talking
about specific things. I remember this hearing room when you
opened it. And Mr. Chairman, I remember when that rug was put
up there by Peterson Zah. That Navajo rug was made by hand,
something that tells us who we are. You said we'd have our own
room to come into and talk about our culture and our way of
life and how we want to have the responsibility of finding our
own way in life.
And here we are today testifying about our salmon, about
this very important Indian fish and wildlife bill that we
support and hopefully everyone in this room supports. As my
Senator, Senator Cantwell is saying don't be scared of us
Indian people. We've come a long way. We've been managing for
1,000 years, but we've come a long way in 30 years. We are very
capable of sitting down with anyone and everyone on the
watersheds or throughout the ocean, throughout our Pacific
Northwest, Columbia River Snake River, wherever we might be. We
have professional people within the infrastructure of the
tribes. We have our science people, we have our policy people,
we have our legal people. We're capable of sitting down and
talking about anything and everything there is on the
watershed.
Tribes are working the watersheds 24 hours a day. And we're
taking care of all our medicines, all our animals, all of our
birds. We even brought back the bluebird, the bluebird that was
just about gone. We brought that back to life and it's healthy
throughout the Northwest and in Puget Sound right now. It lives
up on the prairies. That bluebird was at the impact area of
Fort Lewis, the military reservation. We all, all of us brought
that bluebird back to life. And it's there and it's healthy.
In Puget Sound, we work together hand in hand on everything
that's happening within our area. As Senator Cantwell said,
U.S. Army, the U.S. Navy. We work with the utilities people. We
have in-stream flows on some of our rivers and we're working
for more of them. We are taking dikes out. Dikes are now being
breached and water is coming into the dikes so the salmon will
have a big feeding ground there, for all salmon that are
traveling north to south through Puget Sound and the Pacific.
So these are some of the things that we're doing. We're
taking care of our medicines up there. We're working with the
timber industry, we're working with agriculture, we're working
with whoever wants to work with us to take care of all of our
Indian medicines, our berries up in the mountain and all of our
campgrounds along the areas, and all of our cedar trees, and
all the things that make a healthy watershed for our Indian
people and our way of life. These things we are doing. We're
going to hold the United States responsible for protecting our
treaty rights and our way of life and culture that's what we
stand for.
We also stand for working with these agencies behind us.
Sometimes we have to do their job. That's how capable we are
today. But that's all right. The job has to get done. If we put
our resources together, we can get that job done and make that
comprehensive plan come true. We can implement U.S. versus
Washington. We can do anything we want to do if we're all
together, working together.
Thank you.
[Prepared statement of Mr. Frank appears in appendix.]
Senator Inouye. I thank you very much, Chairman Frank. And
now may I call upon Professor Wilkinson.
STATEMENT OF CHARLES WILKINSON, UNIVERSITY OF COLORADO SCHOOL
OF LAW
Mr. Wilkinson. Thank you very much, Mr. Chairman and the
committee, for the honor of appearing before you today. I hope
that this testimony will be of use to you.
My name is Charles Wilkinson. I'm the Moses Lasky Professor
of Law at the University of Colorado. My primary specialties
are Indian law and natural resources law in the American West.
My books include the standard law texts on Indian law and
Federal public land law.
When I entered law teaching at the University of Oregon in
1975, the state of the Pacific salmon fishery captivated me.
And my research and writing over the years has regularly
addressed the law, history and social and economic context of
the salmon controversy. Today, if the committee please, I'll
give a brief overview of the historic effort to recover the
Northwest's magnificent salmon runs and the central role that
modern tribal governments play in that effort.
The far-flung and complex campaign to salvage the salmon
runs of the Pacific Northwest is in all probability the most
extensive environmental restoration effort ever undertaken,
whether in this Nation or any other. Ultimately, a commitment
of this magnitude has been anchored in the fierce determination
of the people of the region, and across the country as well, to
preserve this precious resource. From the Klamath, Columbia,
and Snake rivers, up through Puget Sound and the Olympic
Peninsula, our Nation has been blessed with a bounty of
flashing silver runs that brings us untold economic,
recreational, and spiritual benefits.
The salmon stocks began to diminish during the 1870's with
the new canning technology, and the decline accelerated in the
20th century with the widely documented efforts of over-
harvesting dams and various other development activities that
degraded the rivers and the upland old growth forest and plains
habitats that feed the water courses. Over the years,
especially after World War II, the States and Congress
responded in many ways. In 1976, with the runs in freefall,
Congress passed the Magnuson Act, since expanded by Senator
Stevens, to apply modern management principles to the fishery.
The Northwest Power Act of 1980 addressed the declines on the
Columbia. In 1985, this body ratified the United States-Canada
Treaty. In the late 1980's and 1990's, the Endangered Species
Act came front and center.
Today, salmon recovery in the Pacific Northwest is a
patchwork quilt of many dozens of Federal and State statutes,
tribal and international treaties, and county and city land use
plans and regulations. Once in writing an article about the
Columbia River, I found that a Chinook salmon born in the
Lochsa River in Idaho would have to pass in its life's journey
8 dams on the Columbia, 16 passages in all out and back. And
that the Chinook, in its return journey as an adult harvestable
fish, would pass through no fewer than 17 separate Federal
tribal, State and international jurisdictions.
Thankfully, Sammy, as I affectionately came to call my
imaginary salmon, did not need a separate passport for each
jurisdiction. The Northwest salmon runs have long been
considered a front line matter of national importance. Federal
interests and activities include the commercial and
recreational values, the Indian and international treaties, the
many Federal dams and crucial public lands habitat. As a
result, this national legislature has given special attention
to Pacific salmon through both substantive law and continuing
appropriations.
Although many others are involved, lead Federal agencies
include the Interior Department through the Fish and Wildlife
Service and the Bureau of Indian Affairs, the Commerce
Department through the National Marine Fisheries Service, the
Federal Energy Regulatory Commission and the Bonneville Power
Administration, which supplies one-half of the Pacific
Northwest's electricity through its power sales. The Indian
tribes of the region have become an integral part of the
contemporary management regime through their treaties, the
Congress' trust relationship to the tribes, and the diverse and
mightily constructive role of tribal wildlife agencies and
scientists in modern times.
The treaties were enacted in one of history's most
explosive bursts. Isaac Stevens, known for his aggressive and
bullying tactics [his biography is entitled Young Man in a
Hurry] negotiated 11 major treaties with nearly 3 dozen
Northwest Indian Nations between late 1854 and early 1856. He
thus obtained from the tribes, who under American law had an
ownership interest in their aboriginal lands, most of the
Northwest and paved the way for Oregon, Washington, Idaho, and
Montana Statehood.
Stevens knew, however, that he could never obtain tribal
consent to the treaties and the land sessions he craved unless
the treaties guaranteed the tribes the right to fish on their
ceded lands. Pacific Northwest Indian leaders said it at treaty
time, and they say it today, ``We are salmon people.'' Indian
fishers continued to take salmon after the treaties but as new
arrivals began to fill up the region, the States cracked down
on Indian fishing. Indian people, now under the thumb of the
BIA and unfamiliar with the United States legal system, had no
effective way to respond. After World War II, as settlement
accelerated, State enforcement intensified. Still the tribes,
poverty-wracked and overtly suppressed by the BIA and the
churches, lacked the ability to protect their rights.
By the early 1950's, tribalism on this continent had
reached its all time low point. At that moment, tribal leaders
somehow rose to the occasion and began a movement to regain
control of their reservations and to assert their rights. It
was nothing short of a crisis. As Vine Deloria, Jr. put it,
``we'd better win this one, because if we don't, there won't be
another.''
Yet, implausibly, almost impossibly, given the dire
circumstances in Indian country in the post World War II years,
the modern sovereignty movement has remade Indian country and
achieved most of its goals. Over the course of the past two
generations, Indian tribes have among many other things
eliminated the stranglehold of the BIA, improved their economic
situation, greatly increased the numbers of college and high
school graduates, created their own tribal colleges, achieved
much improved health care, added large amounts of land to their
reservations, and made all manner of advances in tribal
governance, so that they have now established a serious working
sovereignty in Indian country.
The tribes still have much work ahead of them. They have
not achieved all of their goals. Movements never do.
Nonetheless, the modern Indian tribal sovereignty movement
deserves to be spoken of in the same breath as the civil
rights, women's, and environmental movements.
The tribes of the Pacific Northwest in modern times have
placed heavy emphasis on fishing rights and fisheries
management. In the late 1960's, Indians across the country
finally found the wherewithal to retain excellent lawyers to
defend their treaty rights. The resulting litigation in the
Northwest surely ranks among the region's most important court
cases ever. Judge George Boldt and Judge Robert Belloni, two
eminent, conservative, and courageous Federal judges, construed
the treaties as the trial negotiators intended, finding that
they still remain fully in force over the passage of time, and
that the right to fish at traditional off-reservation sites
``in common with the citizens of the territory,'' guaranteed
the tribes the right to take one-half of the harvestable runs.
The U.S. Supreme Court affirmed those rulings.
Tribal salmon management has proved every bit as critical
as tribal salmon rights. Judge Boldt's ruling squarely affirmed
the sovereign, that is, governmental authority of tribes to
regulate harvesting by their members. Thus tribal Indian
fishers have the right to fish outside of State law, just as
fishers in Idaho have the right to fish outside of Oregon law.
But treaty fishers must obey tribal law. Judge Boldt's
reasoning was consistent with historical research showing that
tribes had elaborate fishing laws long before non-Indians
arrived. In a broader sense, Judge Boldt's decision embodied
opinions from Chief Justice John Marshall up through today's
Supreme Court, acknowledging that tribal sovereignty, along
with the sovereignty of the Federal Government and the States,
is one of the three sources of governmental authority within
our borders and within our constitutional system.
The Boldt and Belloni decisions unleashed a torrent of
pent-up energy and creativity in Indian country. In the 1970's,
more than 20 tribes in Northwest Washington formed the
Northwest Indian Fisheries Commission, located in Olympia.
Today the Commission, whose programs now encompass ocean ground
fish and shellfish as well as salmon and other species, has
some 50 fisheries scientists on staff, and a state of the art
laboratory specializing in fish genetics and fish health. The
four Columbia River tribes, the Nez Perce, Umatilla, Warm
Springs, and Yakama, joined together and established the
Columbia River Inter-Tribal Fish Commission, with offices in
Portland. CRITFC, which has about the same staffing level as
the Northwest Commission, also has a strong scientific
capability and extensive enforcement division, and is about to
open a laboratory in Hagerman, Idaho, that will conduct
research on fish genetics and water quality.
In addition to the inter-tribal organizations, every tribe
in the Pacific Northwest now has its own on-reservation
fisheries operation. This is part of the dramatic revival of
tribal governance generally. Indian tribes, which had
essentially no full time employees in the 1960s, are now full
service governments. As one gentleman at Nez Perce told me,
``back in the 1970's, we were a mom and pop store. Now we're a
supermarket.'' Tribal governments in the Northwest range from
100 employees to 1,000 or more in the larger tribes.
The tribal natural resources agencies in the Northwest,
which are a priority for every tribe, employ from 10 up to 100
on-reservation fisheries scientists. Several Northwest tribes
operate modern hatcheries to complement the depleted native
runs. It's worth mentioning that these developments far
preceded tribal gaming. The rise of modern tribal governments
and the creation of first-rate salmon management capabilities
in the inter-tribal commissions and on the reservations took
place before there was a single tribal casino in the Pacific
Northwest.
Tribes are now accepted as co-managers of the salmon
resource along with the Federal and State governments. This
means that hundreds of tribal fisheries scientists, the total
numbers are approximately equal to the numbers of Federal and
State scientists, are, as you deliberate today out in the
watersheds taking water quality samples, tagging fish,
measuring water flows and temperatures, identifying insect
life, counting smolts and returning fish, analyzing ocean
conditions, assessing fish health, planting native vegetation
in riparian areas, and interviewing elders to document the
traditional knowledge that is so enriching tribal resource
management.
Other tribal scientists are in the laboratories or in
meeting rooms or on conference calls to set, in collaboration
with their Federal and State colleagues, the flow regimes from
the dams in order to give some aid to the migrating fish. These
and many other chores are the stuff of the sacred campaign to
save and restore the Pacific salmon runs. The tribes are
respected and valuable professional participants, right in the
middle of it.
As I've mentioned, because salmon restoration is accepted
as an overriding national obligation, this Congress has
consistently supported tribal salmon management just as it has
supported the Federal and State operations. In the case of the
tribes, an additional kind of obligation is at work. Chief
Justice John Marshall articulated the high and special duty
that the United States has assumed toward Indian tribes, and in
every era since, the legislative, executive, and judicial
branches have reaffirmed the trust relationship. The trust,
which has always had particular force and broad applicability
to tribal natural resources in general, and salmon in
particular, remains a guiding star and a primary responsibility
for this Congress.
In the treaties, where the tribes relinquished nearly all
the land they had, this Nation promised them salmon. That
promise of salmon was the essential guarantee that caused them
to sign the documents that opened the Northwest.
If the committee please, I'll take the liberty of outlining
a course that the committee might consider in addressing the
continuing resource needs of the Northwest tribes. The
overarching concept would be for the Congress to acknowledge,
institutionalize and regularize tribal fish and wildlife
management. This involves both substantive legislation and
appropriations.
Substantively, legislation should acknowledge, in the area
of fish and wildlife management, the tribes' status as
governments, the existence of the trust relationship, and the
government-to-government relationship and the tribes' role as
comanager when Federal, State and tribal laws all apply. This
would be done for clarification and to enhance continuity so
that State and Federal managers new to Indian issues will have
a single statute to go to for clarity on these broad issues.
These principles are not new. They already exist on the
pages of Federal statutes and court decisions and importantly,
they are manifested in the ongoing, on the ground work in the
field among tribal, State and Federal colleagues. But these
foundational structural principles need to be ratified and
articulated in one place.
As for appropriations, Congress should aim to bring
stability and regularity to this field. Resource managers need
to be able to plan ahead. In the case of Pacific salmon, a
scientist gets data on a single run only after three to seven
years when the adult fish return. Gaps in this data weaken or
destroy potentially valuable bodies of knowledge.
By way of example, without speaking to the right or wrong
of the underlying dispute, let me refer to the current issues
involving the Bonneville Power Administration. A major funding
stream to the mid-Columbia tribes for salmon management has
come from the revenues of the BPA, which markets the
electricity from the dams built and operated on the Columbia by
the Army Corps of Engineers and Bureau of Reclamation.
Now, the BPA is facing reduced revenues. The BPA, which is
itself charged with the trust duty to tribes, has been directed
by this Congress to follow the fish and wildlife plan developed
for the Columbia by the Northwest Power Planning Council.
Designating a portion of the BPA power revenues to tribal
salmon management was a wise decision as a matter of policy:
Congress knew that the low cost power that Northwesterners
value came at the expense of the salmon they value.
Given all the circumstances, it would seem appropriate that
Congress, in its oversight capacity, ensure that tribes are
receiving the fair share of BPA revenues to which they are
entitled. If BPA is doing all that Congress has charged it to
do, and if sufficient power revenues are not available, then it
seems most appropriate that Congress would in one way or
another replace the reduced BPA funds.
A somewhat similar situation exists in Northwest
Washington, where the new and emerging need to manage ocean
ground fish has been left mostly unfunded by the Federal
Government with the result that the Northwest Indian Fisheries
Commission is doing some management, but at a much lower level
than is needed. Leaving aside the specifics of BPA, or the
ocean ground fish situation, and recognizing the many
difficulties that Congress faces in making consistent funding
decisions from year to year, the larger point is that Congress
should have in mind the clear objective of regularizing tribal
annual funding for Pacific salmon and other fisheries
management.
There are two kinds of reasons for this. The United States
as a trustee made solemn pledges and treaties in laws to salmon
peoples. Further, the tribes are doing good and significant
work on one of the great enterprises of our time, the
restoration of the Pacific salmon. We as a Nation need the
professionalism and dedication that tribal fisheries managers
bring to a noble cause.
I'll finish off by saying this. The tribes offer us
something beyond professional salmon management. The members of
this Committee, as opinion leaders, know well how a distinctive
voice can articulate a cause and generate action in the name of
that cause. We are blessed to have the Indian voice,
ecological, spiritual and authentic, to give life to the cause
of salmon restoration. Don Sampson, Umatilla and former
executive director of the Columbia River Inter-Tribal Fish
Commission, has written:
Tribal peoples have lived side-by-side with the salmon for
thousands of years. We know them. We honor them. Today we must
speak for them and act for them.
Billy Frank, Jr., with whom I am so privileged to sit next
to today, and who, like Don, and thousands of other Northwest
Indian people, has the flow of the deep rivers running in his
blood, has said these words to me:
I don't believe in magic. I believe in the sun and the
stars, the water, the tides, the floods, the owls, the hawks
flying, the river running, the wind talking. They are
measurements. They tell us how healthy things are, how healthy
we are. Because we and them are the same. That's what I believe
in.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Wilkinson appears in appendix.]
Senator Inouye. Professor, I thank you very much for your
very comprehensive background information on what we are
discussing today. The committee had intended not to ask any
questions of witnesses in order to provide sufficient time for
our Government witnesses. But I have one question I would like
to ask.
In your presentation, you spoke of the rights of Native
Americans based upon treaties, upon laws and our constitution
and the United States trust relationship to harvest salmon.
Today we will be considering the Energy Bill. There is a
section in the Energy Bill, section 511. That section relates
to the conditions imposed on the operation of hydroelectric
dams and facilities. As currently formulated, States and Native
Americans have been left out of the relicensing process. They
are completely left out.
When one considers that hydroelectric generating plants, if
operated improperly, could have a devastating impact upon the
salmon stock, do you think that this section is in line with
the policy of the United States as it relates to Indian treaty
fishing rights?
Mr. Wilkinson. Well, what I would hope, Mr. Chairman, is
that this issue is really considered carefully by in committee
and by Senators as a whole. It's a very important provision. I
would suggest that if such a provision were to be added it
would almost unique in administrative law of Federal agencies.
It would be far outside the scope of what we normally provide
for in administrative agencies, which is to allow all affected
groups to participate. And certainly in the case of tribes, the
idea that somehow their rights would be diminished and made
largely ineffective, which that provision would do, seems to me
to run directly in the face of the treaties and the trust
relationship.
Senator Inouye. I thank you very much. On behalf of the
committee, Chairman Frank, Professor Wilkinson, thank you.
Senator Smith. Mr. Chairman, I wonder if I might ask the
gentleman, isn't it true that States, tribes and non-
governmental organizations have intervenor status in FERC hydro
relicensing proceedings, and that this status is unaffected by
section 511 of the pending Energy Bill?
Mr. Wilkinson. No; I don't agree with that. I think that
their status is substantially reduced, if that were to pass,
that it would be substantially reduced from the position it is
in existing law.
Senator Smith. Isn't it true that intervenors can under
section 10(a) of the Federal Power Act, which requires FERC to
do what is in the public interest, ask that the mandatory
condition be made more stringent?
Mr. Wilkinson. They would have the right to ask that. But
the procedures in the proposal give a heavy weight toward the
project proponent, as compared with the tribes or any other
members of the public.
Senator Smith. It's my understanding that a FERC issued
license in a Federal court, that States, tribes, Federal
resources agencies and environmental groups all have standing
to challenge a license in court. And certainly this is
something we ought to explore, Mr. Chairman. It's an important
issue.
Senator Inouye. Thank you very much.
We have a vote scheduled at this moment, but I would like
to call up the next panel. The chairman of the Shoshone Paiute
Tribes of Duck Valley Reservation of Nevada, Terry Gibson; the
executive director of Columbia River Inter-Tribal Fish
Commission of Portland, OR, Olney Patt, Jr.; the executive
director of the Northwest Indian Fisheries Commission of
Olympia, WA, Jim Anderson; the chairman of the Kootenai Tribe
of Idaho representing the Upper Columbia United Tribes as vice
chairman, Gary Aitken.
May I first call upon Chairman Gibson.
STATEMENT OF TERRY GIBSON, CHAIRMAN, SHOSHONE PAIUTE TRIBES OF
THE DUCK VALLEY RESERVATION
Mr. Gibson. Good afternoon, Mr. Chairman, honorable members
of the committee. My name is Terry Gibson. I'm chairman of the
Shoshone Paiute Tribes of Duck Valley. We're a federally
recognized tribe and our reservation straddles the Nevada and
Idaho borders. We have 1,800 enrolled members. Our reservation
consists of 280,000 acres and is geographically located next to
several non-Federal and one Federal hydroelectric project.
Speaking to how we became to exist in Duck Valley, through
the 1863 Treaty of Ruby Valley, our western Shoshone tribal
people came from the great basin area and were moved by
executive order, established the Duck Valley Indian
Reservation. Because of the inexhaustible supply of salmon,
there were two other executive orders that extended our
reservation into the State of Idaho, and that was for a
specific group called the Paticat Band of Paiutes, who had been
caught up in the Bannock war and were held as prisoners of war
for 5 years in Fort Simco, WA.
Upon their release, they were sent to the reservation in
Duck Valley. The two executive orders that expanded the
reservation into Idaho, one of them was for salmon for that
group of people and for the people who existed in Duck Valley.
And keep in mind that the Duck Valley Reservation was
established for its inexhaustible supply of salmon.
Well, 50 years ago, when these hydropower plants were put
in the Snake River and the Hells Canyon area, the BIA was
supposed to be watching out for my tribe's best interests.
Well, lo and behold, they didn't do that. They dropped the
ball. I am now a tribe in the Northwest that does not get any
salmon because of what the Bureau of Reclamation has done with
the Oihee Dam and stopped the total salmon run to our
reservation on the Oihee River, and because of what the
hydropower companies were allowed to do on the Snake River in
the State of Idaho, they eliminated the rest of our salmon run
that came to the east side of our reservation.
Now I sit here before you as a tribe that has no salmon.
And I hear these things that are going on throughout the
country and it disturbs me. Because I'm sitting here trying to
obtain or trying to preserve a right to participate in a
process that allows for us to help the hydropower industry and
help the States and help all the Federal agencies determine a
way to find passage, fish passage.
Now, our fear is that if this new energy language that is
being proposed, if this is honored and it goes through, I think
that is going to take my tribe's ability away to participate at
this point in time. And that disturbs me because my people
wanted and tried to participate 50 years ago when the BIA was
supposed to watch out for our interests. And they didn't allow
my leaders of my tribe to participate.
So now I sit before this honorable committee and ask that
we all get together and we all come together and try to
maintain our ability to be part of the process that the power
companies are now undertaking. I'm involved in the process in
the Hells Canyon area and the C.J. Strike area of the Snake
River. And in those areas, we are having a very difficult time
being part of it, because the power company, a private entity,
does not have to consult with Indian tribes. They don't have to
consult on a government-to-government basis.
So all our study plans and all studies that are essential
to the protection of cultural resources, of burials, of sacred
sites, the Indian Religious Freedom Act, all these things,
Executive Order 13007, all these things are not being addressed
in this process that the power company is utilizing at this
point. They tell us that once the license application, pre-
application is sent to FERC, then the process to consult will
start. Well, at that point, everything is compiled and it's
submitted.
The tribes haven't been allowed to participate to develop
any of the criteria that satisfies Section 106 of the National
Historic Preservation Act as it pertains to Bulletin 38, which
is very important for us. Because we are a very traditional
group of people. We were put 100 miles out in the middle of
nowhere hoping that we would go away or die. Well, we didn't do
that. And our sacredness is very important to us and our
people. Our ancestors' remains are very important to us, and
we'd like to keep them in the ground. But we find at this point
in time, in this, throughout this process, that our dead people
do not even have rights to stay in the mother earth where they
were put.
So I ask and I plead with the members of Congress that they
consider what I'm saying here. Because if in fact the rest of
the tribes in the Northwest are taken out of this process, such
as my tribe has been, then all of those resources are going to
go away. This is what we're faced with. I think it's a very sad
time in the lives of Indian people that something like this
would come about and the Congress would consider legislation
that changes trust status and responsibility and all of this
thing is swept off the table, all of these provisions are swept
off the table in my mind.
So it's very important that we come together as tribes.
Senator Inouye. May I call for a recess at this moment,
because I have exactly two minutes to report to the Senate to
vote?
Mr. Gibson. Yes; Mr. Chairman.
Senator Inouye. I'll be right back.
[Recess.]
Senator Inouye. Chairman Gibson, are you finished?
Mr. Gibson. No; Mr. Chairman.
Senator Inouye. Please proceed.
Mr. Gibson. Thank you.
As I was stating, you know, I don't want to see the other
tribes lose any of the resources that they have there. I know
the testimony today is geared more toward the fish and wildlife
programs, but I think it is so important while we have the
other tribes here to hit on the provision in the energy bill
that I didn't want to lose that opportunity.
I also have a statement here from my sister tribe, the
Shoshone Bannock Tribes, that they would like entered into the
record pertaining to the fish and wildlife programs, and that
is the Shoshone Bannock and the Shoshone Paiute Tribes have
been sponsors of several fish and wildlife project proposals
that ranked high in the comanagers and independent peer review
of scientific validity, only to get bumped out of the process
by lower ranked proposals due to recommendations made by
Governor-appointed Northwest Power and Conservation Council
members.
These are politically driven funding decisions that are not
beneficial for fish and wildlife recovery and that resemble
fraudulent waste of Federal funds.
Senator Inouye. Without objection, those statements will be
made part of the record.
Mr. Gibson. Thank you, sir.
[Information appears in appendix.]
Mr. Gibson. Also, you know, during this bicentennial
celebration of Lewis and Clark and the core discovery, I think
it's pretty sad that we may lose our right to participate in
the process within hydropower relicensing at this point in
time, and lose the right to participate in bringing back
resources and protecting resources that are out there for all
of us. I think that's very important that that be stated here.
And also, that the programs that are out there with the
Bonneville Power Administration, my tribe is experiencing
problems at this point in time with funding attempting to be
cut because they tell us that we are in a blocked area, meaning
we're above the Hells Canyon hydropower complex. And so the
funding that is out there that has been allocated by the
Congress and through the Bonneville Power Administration is
drying up on our end of things. So we no longer get the salmon
and we no longer get the funding that's available.
Thank you, Mr. Chairman, members of the Committee.
[Prepared statement of Mr. Gibson appears in appendix.]
Senator Inouye. Thank you very much, sir.
And now may I recognize Chairman Aitken.
STATEMENT OF GARY AITKEN, Sr., VICE CHAIRMAN, UPPER COLUMBIA
UNITED TRIBES
Mr. Aitken. Mr. Chairman, members of the committee, my name
is Gary Aitken, Sr. I'm a tribal chairman of the Kootenai Tribe
of Idaho and vice chairman of the Upper Columbia United Tribes
[UCUT]. On behalf of the Coeur d'Alene Tribe of Idaho, Colville
Confederated Tribe, Kalispel Tribe of Indians, Kootenai Tribe
of Idaho and the Spokane Tribe of Indians, thank you for the
attention you are devoting to this matter.
I want to share with you some of the impacts on tribal fish
and wildlife management programs, as well as some of our
suggested solutions to the problems we have faced. The UCUT
appreciate the funding from Bonneville Power Administration,
another source of our tribal fish and wildlife programs. We put
those dollars to productive use and would be pleased to have
members of the committee visit to see how we use limited funds
to accomplish a great deal of resource restoration and
protection.
Here's what you'll see. In the Coeur d'Alene and Kalispel
tribal communities, you will see tribes working with the
Kootenai tribe and our Washington and Idaho State coal managers
to protect over 4,000 acres of wildlife habitat acquired in
mitigation for the impacts of Albany Falls Dam. In my community
in Bonners Ferry, you would see the Kootenai Valley resource
initiative, which the tribe created with the city of Bonners
Ferry and Bounty County to restore the resources of the
Kootenai Valley. Kootenai Valley KBRI includes the tribe,
private citizens and landowners, local governments, Federal and
State agencies and environmental advocacy groups and
representatives of business and industry all working together
to ensure stakeholders have a voice in management activities.
The KBRI is working hard for recovery of the Endangered
Species Act, listed in the Kootenai River white sturgeon, and
to avoid the listing of burbet, a native freshwater cod,
commonly referred to as ling. Burbet historically were abundant
and provided an important subsidy for the fisheries for members
of the tribe. We were an important social sport and commercial
fishery for the people of Idaho. Habitat changes caused by the
Libby Dam have imperiled the species and available literature
does not predict a recovery without a planned, coordinated
intervention.
In the communities of the Spokane Tribe and the Colville
Confederated Tribes, you will find a Lake Roosevelt forum,
which allows everyone to develop a management plan with 150
miles of reservoir behind Grand Coulee Dam. The Grand Coulee
Dam generates the largest percentage of electricity of all
Federal dams, serves as a check valve on flood control and
irrigation and is responsible for greatly wiping out the
anadramous fish runs above it. These are fish runs that
historically shaped the tribe's culture and spirituality and
provided 80 percent of their nutrition. There are still
unresolved issues concerning the impacts of the Grand Coulee
Dam and the failure of the regional process to fairly address
comprehensive problems in the basin.
The written testimony of the Spokane Tribe describes in
detail how we got into this problem, what we've learned and how
we can avoid continuing this situation in the future. You would
see the UCUT members working hard with communities to resolve
important issues and to implement obligations of BPA and the
Federal agencies under treaties, Northwest Power Act,
Endangered Species Act, Natural Historic Preservation Act,
Clean Water Act and other legal responsibilities.
What you will not see, however, is trust among the tribes
and Federal trustees. You will not see accountability of
Federal agencies. You will not see certainty for the tribes and
the communities they work with. And you will not see an
adequate voice for the tribes and regional governments. The
reasons for these problems are set forth in the written
testimony provided by the UCUT and its member tribes. The
frustration will be evident in these statements and documents.
The frustration underscores the importance of these issues to
the tribes.
Please take these statements seriously. Here are some
suggestions for solving these problems. Create trust. Ensure
BPA continues to build on small first steps it has taken to
respect tribal sovereignty and to improve its government to
government relationships. BPA must keep its word. Ensure
Federal agencies engage in meaningful dialog to address
management and trust responsibilities.
No. 2, force accountability. Review the GAO audit and
ensure that BPA is complying with its responsibilities. More
audits and oversight of BPA. Direct BPA to disclose fully how
it came to be in this financial condition, including, among
other things, where the carryover funds from 1996 through 2001
MOA have been used and the amount of income BPA realized from
the emergency power operation during the summer of 2001.
No. 3, create certainty. Support Congressional
appropriations for other regional agencies to make their own
financial contributions to fish and wildlife and habitat in the
Columbia Basin which such costs should not be charged to BPA.
Give BPA a deadline to get back on track with habitat
acquisitions, and to use its Federal borrowing authority for
this purpose. Give BPA a deadline to execute a written
commitment to clear well defined funding programs for fish and
wildlife and cultural resources, and include tribes in
developing the funding agreement. This commitment must be for
the period up to 2006. The tribes cannot accept uncertainty
until 2006, as BPA would like.
Support the comprehensive Indian Fish and Wildlife
Management Legislation and funding for the tribal fish and
wildlife managers, the UCUT and other tribal entities. Ensure a
voice for the tribe. Direct BPA and other Federal agencies to
proceed quickly to negotiate a formal and comprehensive role
for the tribes in decisionmaking process.
Please review the written testimony provided by UCUT and
its individual member tribes for additional information. Thank
you again for your time on these matters.
[Prepared statement of Mr. Aitken appears in appendix.]
Senator Inouye. I thank you very much, Mr. Chairman.
And now may I call upon the executive director of the
Columbia River Inter-Tribal Fish Commission, Olney Patt.
STATEMENT OF OLNEY PATT, Jr., EXECUTIVE DIRECTOR, COLUMBIA
RIVER INTER-TRIBAL FISH COMMISSION
Mr. Patt. Good afternoon, Mr. Chairman, members of the
committee. My name is Olney Patt, Jr. I'm a member of the
Confederated Tribes of the Warm Springs Reservation of Oregon
and the executive director of the Columbia River Inter-Tribal
Fish Commission, whose members are the Confederated Tribes of
Umatilla Indian Reservation, Yakama Nation of Washington, Nez
Perce Tribe of Idaho and the Confederated Tribes of Warm
Springs.
While I am providing oral testimony to the committee on
behalf of the Commission, I would like to direct your attention
to the written testimony provided by the member tribes of the
Commission. I will reference some of the points and issues made
there.
Two years ago, a former member of this committee, the
distinguished Senator from Oregon, Mark Hatfield, addressed a
broad group of Columbia Basin stakeholders and governments
concerning the governance of the Columbia River. His message
simply and eloquently recounted the history of the Bonneville
Power Administration and its goal of rural electrification and
employment in the Pacific Northwest during the great
depression.
He further stated that this mission had been accomplished,
but that Bonneville needed to redefine its societal goals, to
take into account new realities in the Pacific Northwest or
risk losing the benefits of the Federal Columbia River power
system to the Pacific Northwest. He believed that the
redefinition of the Bonneville mission could be found at the
core of its history, high social purposes that could improve
lives.
With his permission, I have included Senator Hatfield's
remarks as part of this testimony and request that it be
included in the record.
Senator Inouye. Without objection.
Mr. Patt. Senator Hatfield was correct in stating that the
original goals of the Bonneville Project Act of 1937 were
accomplished. However, they were achieved while leaving both
the tribes of the Basin and the ecosystems and salmon upon
which tribes depended in Bonneville's wake.
The passage of the Northwest Power Planning and
Conservation Act in 1980, under the leadership of Senator
Hatfield and the early work of the act's council, under the
chairmanship of Senator Dan Evans, were important attempts to
remedy the damages caused by the system. The regional act's
mandate was for the project operators to protect, mitigate and
enhance fish and wildlife resources affected by the hydrosystem
through a planning process that included rigorous consultation
with the tribes in terms of a statutory trust responsibility
and the use of the Bonneville revenue stream, consistent with
the fish and wildlife program.
As our written testimony yesterday and today points out,
during the first 20 years that the Act was in place, we made
great progress in our efforts to rebuild our ecosystems and
salmon populations, while providing significant economic
benefits to our own and surrounding communities. These included
the multiplier effects of capital expenditure and the stream of
benefits in terms of fishing opportunities that are helping to
buoy up our sagging rural economies that suffer from high
unemployment and hunger rates.
However, during the last 2 years, Bonneville, and for that
matter the council, which has the responsibility to develop an
effective fish and wildlife program, has failed to fulfill the
mandates of the regional act. The Yakama Nation, the
Confederated Tribes of the Umatilla Indian Reservation and the
Nez Perce Tribe are providing written testimony to the
committee. In each testimony they provide a detailed account of
the problems they have encountered since the year 2000.
They include failure to implement the fish and wildlife
program and the hydrosystem biological opinion that was
recently held invalid by a Federal district court; placing the
risk of energy related financial mismanagement on fish and
wildlife funding; failure to consult and coordinate with tribes
over the funding of fish and wildlife programs; failure to
honor numerous commitments to the tribes made in their 1996 MOA
and its rate case; failure to employ efficient contracting
procedures and prompt expense reimbursement resulting in missed
opportunities and unnecessary cost to the tribe; providing an
increase of $4 million to its $8 million fish and wildlife
division budget, resulting in new impediments to efficient fish
and wildlife funding; emphasizing certain Federal agency needs
in the name of ESA at the expense of successful tribal fish and
wildlife programs that address both watershed and system-wide
needs.
I would also direct your attention to a memo attached to
this testimony from the Nez Perce Tribal Department of
Fisheries Resource Management, detailing the contracting
problems that are wreaking havoc on the time and resources of
our tribal programs. Bonneville continues to provide the
cheapest electricity in the United States, in part because it
has not internalized the full cost of its fish and wildlife
responsibilities that are normally borne by power plant
operators. As noted in the Yakama testimony, our analysis shows
that BPA could meet funding levels for high priority fish and
wildlife projects and still be 6 to 14 percent below market
prices for electricity. This additional funding would add only
about $1.90 per month to the average consumer.
In order to provide the impetus for BPA to recognize and
fund its obligations, our tribe believes that greater oversight
at the national level is essential. In this regard, we greatly
appreciate this committee's effort and call on you to ensure
that BPA's trust responsibilities are implemented. BPA must
also honor its commitments by providing adequate funding to pay
for high priority fish and wildlife projects, and not use fish
and wildlife funding as a shock absorber for bad water years or
bad management.
Most important, though, echoing Senator Hatfield's words,
BPA needs to redefine its commitment to societal values,
including environmental justice. This Federal agency needs to
assist in honoring the obligation of the United States when
Congress ratified our treaties, securing our right to take fish
at all usual and accustomed fishing places. Tribes are partners
to the States and Federal Governments and exercise jurisdiction
over the waters and the fish and wildlife of the Columbia
Basin. As partners under the supreme laws of the United States,
we must be treated as true partners at the same table, not as
supplicants whose needs can be arbitrarily and capriciously
ignored.
I would also like to enter into the record unanimous
resolutions of both the Affiliated Tribes of Northwest Indians
and the National Congress of American Indians that detail our
grievances and call upon the Congress and the Administration to
remedy them.
Senator Inouye. So ordered.
Mr. Patt. Along with the Yakama testimony, these
resolutions call for specific remedies for the problems that
tribes have identified in their relationship with Bonneville
Power Administration. These remedies include: Providing strong
oversight, including GAO review and regular reports to this
committee; improving implementation by streamlining contracting
or transferring implementation to another Federal entity;
providing assured and adequate long term funding for
Bonneville's fish and wildlife obligations; providing a
coordination mechanism among the Federal, State and tribal
governments consistent with Sections 4(h)(11)(b) of the
regional act; improve BPA tribal policy and set measurable
objectives; require BPA to document compliance with the
substantive standards of the regional act, especially the
equitable treatment standard.
Thank you for this opportunity to testify. If you have any
questions about our testimony or our programs, other members of
the commission or myself would be happy to answer them.
[Prepared statement of Mr. Patt appears in appendix.]
Senator Inouye. I thank you very much, sir.
And now the Chair recognizes Mr. Anderson, the executive
director of the Northwest Indian Fisheries Commission,
accompanied by Dave Hererra, of the Skokomish Tribe, and Mel
Moon, of the Quileute Tribe.
STATEMENT OF JIM ANDERSON, EXECUTIVE DIRECTOR, NORTHWEST INDIAN
FISHERIES COMMISSION, ACCOMPANIED BY DAVE HERERRA, NATURAL
RESOURCES DIRECTOR, SKOKOMISH TRIBE AND MEL MOON, NATURAL
RESOURCES DIRECTOR, QUILEUTE TRIBE
Mr. Anderson. Thank you, Mr. Chairman and Senator Smith. We
appreciate the opportunity to be here and provide testimony.
On behalf of the Commission and our member tribes from
western Washington, we feel it is a great honor to talk about
issues that are important to us, and we hope that we have a lot
to say and that you will agree with that on the completion of
this hearing. I'll try to do my best to shorten the talk and
try to get us back as much on time as possible for the benefit
of the others.
As Charles Wilkinson mentioned, the Northwest Indian
Fisheries Commission was formed in 1974. The Commission is
really a support entity for the 20 tribes. We provide technical
assistance, information sharing, and policy coordination for
the 20 individual tribal programs who have the management and
enforcement responsibilities for the salmon runs. It's the
tribes that have the comanagement authority. The Fish
Commission is an entity that supports them.
The model that we have chosen to develop as I mentioned,
tribes as primary managers, commission as support, really
allows for the unique tribal perspectives and vision, the local
watershed geography and circumstances and allows for the
flexibility to really get in and do the things that are needed
in these watersheds. I think that's something that's rather
unique and very much a big part of our success.
Charles Wilkinson also did a very good job describing the
comanagement situation. I'd like to pick up on that just
briefly in saying that what Judge Boldt did when he made his
findings in United States v. Washington was to create this
comanagement framework where the tribes are responsible for
managing their portion of the resource and the State is
responsible for managing their portion of the resource. While
that may seem like an awkwardness, I think what has happened
over the past three decades is that we've really been able to
institutionalize how we do business and we've been able to
develop a coordinated mechanism for allocating and managing
Puget Sound and coastal salmon and steelhead populations.
Comanagement, like I've described, has effectively linked
different cultures, tribes and the States, different
watersheds, different ways of managing, and thereby, I think,
has provided a connection between the rather diverse scales of
the human and natural systems. It's important to understand
that serious impacts do occur to the salmon and habitat from
side effects of other activities, such as logging, farming,
urban development and hydropower.
That raises the questions of how well these management
institutions effectively deal with things perhaps outside their
purview. I think one of the duties of the comanagement effort
and the effort of the tribes, of which others have already
spoken about, is the ability to bring things together. Tribes
don't have the same limitations on them that other agencies do,
the Federal Government has, State governments, local
governments. Tribes have a bridging ability.
So in effect they're what I would call the glue for making
things work. Certainly they are in western Washington. Co-
management can be seen as an integrator, and strategic systems
thinking that really allows us to have more effective real time
resource management. I think we really get things done because
we don't have those borders.
Let me be a little more specific. We spend hours and days
and weeks and even months in many, many different processes
that range from the Pacific Salmon Treaty to the Pacific
Council to the Shared Salmon Strategy in western Washington to
a wide range of habitat issues. When the tribes are included as
full governmental partners, we have success. Where the tribes
are not included as full partners, we don't have as much
success. And I think the record bears that out elsewhere.
To give you a good example of where it could be better, the
Pacific Fishery Management Council right now has one seat. It's
an at-large tribal seat. That really should be a governmental
seat. There ought to be a couple of seats, at least, for the
tribes in the Pacific Council. If, I believe, that seat were a
governmental seat, we could do a better job representing and
participating in the Pacific Council process, because we would
be allowed to have an alternate to our representative, who does
a very good job, but he may not be particularly attuned to the
needs of northern California tribes.
So that's just one example of where if the tribes could be
factored in a little bit better, it would help. Tribes, as I
mentioned, want to be involved in all aspects of salmon and
other resource management. I think the tribes have the
capability and the technical capacity. They certainly have the
vision, perspective and leadership and are real players.
But while our message is generally positive, I wanted to
hit upon a few items that are bumps along the road, and I think
whenever you have institutions coming together you will have
those bumps. So this is not meant to be directed negatively,
but rather call attention to some of the issues that are out
there.
Without a doubt, one of the most difficult things that we
have facing us is the Endangered Species Act. The ESA is a pit
bull. It can be your best friend at one time and it can bite
you the next time. I think pretty much anybody that's ever
dealt with that knows what I'm talking about. Right now we have
three species of salmon listed in the Puget Sound and coastal
areas. By far the most difficult one is Chinook, the Puget
Sound Chinook, because there are millions of people who live on
the spawning grounds.
Tribes often resent the fact that NOAA fisheries will have
much more interest in constraining harvest and hatchery
activities of the tribes and the other managers, the State,
than they do in terms of being tougher in habitat area. Those
are the sectors of ESA. We call that, it's been called sector
equity, but I would call it sector inequity. It's inappropriate
emphasis on a couple of portions of salmon management and not
an overall balance.
NOAA obviously would try to make a case that the ESA
habitat protections are overrated, but we believe that they
have authorities under consultation, section 9, to be a
persuasive force, in a good fashion, in a commonsense fashion,
to bring about change. We need to have that change. Certainly
in Puget Sound, we need to get with some of the landowners. If
we do not get that, we will not have local plans developed and
we won't have a comprehensive recovery plan ever developed.
We have other concerns around the application of the
National Environmental Policy Act, NEPA. The tribes feel
extremely vulnerable to third party lawsuits associated with
ESA listings. One of the biggest areas where we've had
difficulties in the past has been procedural matters, flaws, if
you will, in how the Federal agencies have developed their NEPA
process. So they've been sued on process, not always on
substance. We have had to jump in from a tribal perspective and
find the resources through the Bureau of Indian Affairs. We've
gotten some from NOAA and we've gotten some from the State of
Washington after some effort.
But we have been a cooperative agency with the Bureau of
Indian Affairs and NOAA in terms of developing NEPA documents
for both our hatchery resource management plans and our harvest
resource management plans, extremely costly endeavor and very
time consuming. This is something that we feel, frankly, that
it's not our responsibility to do, but to do it right, we had
to jump in.
We also have some concerns around Section 10 and habitat
conservation plans. Basically, these plans give up to 50 years
or more certainty to landowners and entities to develop
conservation plans. While it sounds good in principle, what
we've seen is that these negotiations at times are done behind
closed doors, and tribes are not involved and not able to
provide the expertise and science that we have. So when the
results come back, we end up having real differences of
opinion, because certain data was not provided, certain
information was not provided.
I believe that NOAA fisheries and Fish and Wildlife Service
must make more diligent efforts to involve the tribes in the
development of these HCPs. And at the same time, when they sign
off on these HCPs, realize that they have a 50 year commitment
to stay with them, they cannot walk away because we've already
seen in the case of the Washington State Department of Natural
Resources HCP for their 1.5 million acres of forest land a
propensity to walk away from some of the commitments in writing
that they made. So those agencies need to stay focused on this.
Another area is in case of whaling. You might ask what does
whaling have to do with all this. But clearly what has happened
is the Ninth Circuit court found in favor of plaintiffs and
basically had halted the Makah whaling treaty rights. We have
asked and NOAA has been wonderful in this, has supported a
rehearing, en banc rehearing at the Ninth. Justice has
likewise.
But the Fish and Wildlife Service did not. And we have real
questions about why the Fish and Wildlife Service would walk
away from their trust obligations to the tribes. They chose
basically to turn, or take the position that 200 years of
treaty law should not prevail. And I think that has a big
potential to undermine a lot of our co-management activities.
Finally, we have some funding concerns with regard to
tribal funding. I'm not speaking about BPA, I am speaking about
principally the Department of Interior monies. We have seen the
Bureau of Indian Affairs not request base moneys year after
year. We spend a lot of time trying to work with Congress and
others to get that money put back in, working to restore the
base rather than to meet new obligations like shellfish and
ground fish that were spoken about yesterday and earlier today.
We believe that Fish and Wildlife Service has also
opportunities to provide resources to the tribes, but they do
not want to address some of the funding mechanisms that they
have, like Wallop-Breaux-Dingell-Johnson moneys. They hide
behind the fact that the States may object. Some of these
moneys are tax monies that come from sales of equipment, et
cetera, moneys that go to the States for recreational
management purposes. Well, the tribes have a lot of
recreational management, too. We grow a lot of fish, we do a
lot of management to ensure that fish are out there for
recreational people to use. Why can't that law be changed?
And one final issue with regard to Fish and Wildlife
Service. They've spent 20 months trying to get tribal wildlife
grant regulations out of the system, since the 2002
appropriation, and have yet to do that. They are not
prioritizing funding for the tribes through that program. I
think they ought to make some changes.
That concludes my remarks, and I'll pass the microphone
over to David Herrera.
[Prepared statement of Mr. Anderson appears in appendix.]
Senator Inouye. Mr. Herrera.
STATEMENT OF DAVID HERRERA, FISHERIES DIRECTOR, SKOKOMISH TRIBE
Mr. Herrera. Good afternoon. My name is David Herrera. I'm
a member of the Skokomish Tribe and I am the fisheries director
for the tribe.
The Skokomish Tribe is a party of the treaty of Point-No-
Point. We're located in Mason County, WA. Our reservation is
bordered on the north by Hood Canal and by the Skokomish River.
The Skokomish River is the largest river in Hood Canal and
historically produced the largest runs of Chinook salmon in the
Hood Canal region, as well as large runs of all the Pacific
salmon. These salmon, along with the shellfish and game, were
the major source of food for our people.
In 1924, the city of Tacoma received a license from the
Federal Power Commission to construct a dam on the north fork
of the Skokomish River. Without any further license or
authority, the city of Tacoma proceeded to build two dams, two
reservoirs that flooded over 4,000 acres, two power houses,
diversion works and power lines on the north fork of the
Skokomish River. The project, which is known as the Cushman
project, is located upstream of the reservation. It diverted
all the water out of the north fork and passed the water
through pipes down to the western shore of Hood Canal where the
power plant number two is located. It completely dewatered
portions of the north fork of the river. The dams completely
blocked the passage of anadramous fish to areas above the lakes
where there is spawning and rearing area that they cannot reach
today. The lakes destroyed traditional tribal fishing sites as
well as cultural sites.
Tacoma also constructed part of this project on tribal
trust land which they had had condemned illegally by the Mason
County Superior Court in 1920. Those facilities still occupy
tribal lands.
In 1930, tribal legal efforts to stop the dewatering of the
north fork were unsuccessful because the Federal Government
refused to represent the tribe in Federal district court, and
the district court ruled that the tribe could not represent
itself. This allowed then the city of Tacoma to operate these
facilities without any requirement for the protection of tribal
reservation lands or treaty resources or cultural resources.
The dewatering of the north fork has contributed significantly
now to the buildup of gravel in the main stem of the Skokomish
River. This has caused the water table to rise, which has
increased the amount and severity of flooding on the Skokomish
reservation. It has also rendered the remaining tribal land
unbuildable for tribal housing, because we are not able to put
septic systems in.
The change in hydrology in the river caused by the Cushman
project has contributed to the decline of all species of salmon
in the river. It has also degraded the habitat in the river and
in the estuary, and has contributed to the listing of Hood
Canal summer chum and Chinook salmon which were listed as
threatened under the Endangered Species Act in 1999.
In 1974, the original license was issued to the city of
Tacoma expired, FERC continued to issue licenses to Tacoma on
an annual basis until they could issue a new long term license.
The Skokomish Tribe, along with the joint resource parties, who
consisted of the National Marine Fisheries Service, the
Department of Interior, the U.S. Fish and Wildlife Service, and
the Bureau of Indian Affairs, all intervened in the licensing
process, seeking restoration of flows and other mitigative
measures to restore the health and productivity of the
Skokomish River.
This new licensing process went on for 24 years, during
which time the Skokomish Tribe and the joint resource agencies
appealed to FERC for interim relief, which included a minimum
flow of water to be returned to the north fork of the river.
The Skokomish Tribe also sought compensation for the damages
that we have suffered for 50 years by the operation of these
facilities. All of these appeals were either denied or ignored
by Tacoma, FERC and the Federal Government.
In 1998, FERC was issued a new 25 year operating license
for the Cushman dams. This license included 13 conditions under
Section 4(e) of the Federal Power Act that Tacoma must meet in
order to receive the new license. These include returning a
minimum flow of water to the north fork, constructing a
facility to allow passage of fish above the dams and releasing
flushing flows to help push the gravel that's built up in the
river out into the estuary where it should be.
The tribe and the joint resource parties had sought higher
minimum flows and greater mitigative measures than those
required by FERC in the 4(e) conditions. Tacoma has stated that
if they have to meet the 4(e) conditions that the Cushman
projects would become unprofitable and that they would refuse
to accept the new license and would simply walk away from the
projects. Tacoma then appealed to FERC for a stay of the
requirements to implement the 4(e) conditions while they
appealed the license requirements. FERC granted the stay to the
city of Tacoma, which allowed them to continue to operate the
dam as they have for the last 70 plus years while the appeal
process went forward.
A case was filed by Tacoma in district court to have the
4(e) conditions dismissed from the license. In hearing the
case, the court determined that the----
Senator Inouye. May I interrupt? How much longer will your
presentation be?
Mr. Herrera. I'm almost done.
The biological opinion needed to be conducted on the
license and the conditions because of the listing of salmon
stocks, which had occurred in 1999, prior to the issuance of
the license. So the court remanded the issue to the National
Marine Fisheries Service in 2000 to conduct a biological
opinion. It has now been three years and the NMFS has not even
begun to do the biological opinion. This is again causing harm
to the tribe.
In closing, the Skokomish Tribe is requesting this
committee and Congress to use its authority to direct FERC,
National Marine Fisheries Service and all the Federal resources
agencies to have a meaningful consultation with the Skokomish
Tribe on the Cushman project licensing, and to meet their trust
obligations in protecting the tribe and its treaty-guaranteed
natural resources. Thank you.
Senator Inouye. I thank you very much. I have been advised
that Stephen Wright, the administrator of the Bonneville Power
Administration, has to catch a plane. So if I may at this time
recognize him. Mr. Moon, if you wish to make a statement, will
you stay around, please.
May I also call up Hannibal Bolton, the chief of the
Division of Fish and Wildlife Management and Habitat
Restoration of the U.S. Fish and Wildlife Service.
Mr. Wright, please proceed, sir.
STATEMENT OF STEPHEN J. WRIGHT, ADMINISTRATOR, BONNEVILLE POWER
ADMINISTRATION
Mr. Wright. Mr. Chairman, thank you very much for this
opportunity to appear, and I especially thank you for the
opportunity to appear now. My 10-, 6-, and 3-year-olds will be
abandoned if I don't catch the last plane. And I would also
offer my thanks to you for moving it forward here today.
The Bonneville Power Administration is a self-financed
Federal agency, as you well know. I believe we do not receive
appropriations. We are a separate fund of the U.S. Treasury
that is funded through the sale of power and transmission
revenues. We are expected to cover all of our expenses.
We provide 75 percent of the high voltage transmission
services in the Pacific Northwest, 45 percent of the region's
electric power supply. And we are directed by law to provide
that power supply at the lowest possible rates, consistent with
sound business principles, and to repay the Federal investment
of some $7 billion that has been invested in the Northwest
electric power system.
We also have a very important fish and wildlife
responsibility. It is a mitigation responsibility to assure
that damage done to the fish and wildlife resources of the
Pacific Northwest by the Federal hydroelectric resources are
mitigated. The Northwest Power Act requires also that we
provide equitable treatment to fish and wildlife resources as
equitable compared our operation of the Federal power system.
And we take these responsibilities extremely seriously.
The GAO has descried our fish and wildlife responsibilities
and power responsibilities as inherently in conflict. There is
a great deal of truth in that statement, but I don't think that
one should conclude that they are necessarily mutually
exclusive, either. When one operates a hydroelectric power
system, there is a goal of both providing lowest cost power as
possible, while also assuring that we meet our fish and
wildlife responsibilities. And we seek to accomplish both. Fish
and wildlife mitigation responsibilities are in fact a cost of
operating a hydropower system.
Our goal is to meet all of our responsibilities, to
taxpayers, to ratepayers, to the fish and wildlife interests in
the Pacific Northwest, as efficiently as possible. When the
Northwest Power Act was passed, the Bonneville Power
Administration fish program, this was back in 1979, was less
than $1 million annually. Today our cash expenditures total
more than $300 million annually. And when one considers the
modifications to hydrosystem operations for fish and wildlife
benefits, our annual costs exceed $600 million a year.
This increase in funding has created tremendous
opportunities for partnerships with the region's Native
Americans. Of the $300 million in annual expenditures for on
the ground activities, a great deal of that goes toward what's
called off-site mitigation. In fact, $139 million is off-site
mitigation. This is primarily habitat improvements, investments
in hatcheries, and other sorts of things.
There are two critical points I want to make about this
effort, and they're made in these charts I brought with me.
Funding for these efforts has increased steadily for the last
20 years since the Northwest Power Act provided us this
responsibility. And as one can see, we have steadily increased
funding to the point where we are now in excess, if you include
both the capital and the expenses and excess, of $140 million a
year.
I'd also like to make the point that our funding has
increased in the last three years as well. We have not reduced
funding. When compared against the actual levels in fact, our
actual levels continue to increase.
If we move to the second chart, you'll also see that
funding provided to the region's tribes has been a substantial
component of our overall funding. The red bars here are the
amount of funding being provided to the region's tribes as
compared against the yellow being to the States, the blue being
Federal entities and the purple being other. A substantial
amount of our funding is going to tribal entities within the
Pacific Northwest.
These funding efforts have produced substantial results,
from my perspective. In the last three years, in 2001, we had
the highest number of returning salmon in the Columbia Basin
since the Bonneville Dam was built in 1938. And 2002 was the
second highest number of returning salmon, and it appears that
2003 will be the third highest. Certainly ocean conditions are
a significant contributor to the number of returning salmon.
But we have had good ocean conditions in the last 60 years. I
believe that the investments being made, not just on the part
of the hydropower system, but investments across the region, by
the region's tribes, by State agencies and others, are
beginning to show substantial benefits.
Now, as you may have heard, the Bonneville Power
Administration is suffering a financial hangover from the 2001
west coast energy crisis and this year's drought. This has
created a substantial challenge for us. In fact, in 2001, we
put in place a 46 percent rate increase, and earlier this year,
we forecast the need for further rate increases for fiscal year
2004, and in fact are in the midst of a rate case to make those
decisions. But it is not a foregone conclusion that in fact we
will have rate increases, particularly the magnitude that we
propose, which is in the 15 percent range. The decision with
respect to rates is still dependent upon the management actions
that we take between now and then.
As one wise person said to me recently, the financial
challenges have also created opportunities for us to be able to
challenge our organization to improve our operations and to
find more cost effective ways of accomplishing our mission. The
current financial crisis has created just such an opportunity
for us. We have been revisiting our budgets across the board,
not just in the fish and wildlife area, but in every single
program that we operated, and challenging all our management
practices. This review has led us to conclude that we can do
better in terms of managing our fish and wildlife efforts.
First, we have concluded that we should not spend more than
the budgeted amounts for this year and for future years, $139
million, and that we have the opportunity to carry out our
obligations within that budgeted level. We're also in the
process of reforming our contract management processes to
assure that we're accomplishing our fish and wildlife
responsibilities in the most cost effective manner.
This reform process has five key elements. First, to
simplify our current contracting processes and contracts for
both our contractors and for BPA. We believe this will address
some of the issues that you've heard here today from some of
the region's tribes.
Second, to implement standard business practices and
provide a more consistent approach to our contracting. Again,
this should help to address some of the issues that you've
heard from tribes here today.
Third, to provide clear accountability for achieving
measurable performance based results.
Fourth, to provide improved financial information in order
to assure that we can manage this program to budget.
Fifth, to reduce Bonneville's administrative overheads.
Mr. Chairman, we are working with the regional parties to
assure funding is in budget and that our contract perform
elements will be implemented within the next year. Just to be
clear, as we've gone through this effort, Bonneville has not
terminated, breached or abrogated any contracts, and we do not
intend to do so.
I would also say though that our financial problems have
created some real challenges for us. And we had to make a
number of decisions earlier this year that were rather abrupt.
I regret the fact that we had to make those decisions in that
manner, and one of our goals is greater outreach to the
region's tribes to improve consultations, et cetera. We needed
to take those actions because our financial situation as quite
severe. In fact, we had a significant concern about maintaining
liquidity throughout the course of the year, just to be able to
pay all of our bills. But having said that, it is not our goal
that the actions we took earlier this year would become
standard business practice for us. We can and will do better
with respect to working with the region's tribes.
Mr. Chairman, frequently we get requests for increased
funding and/or more predictable funding for the wide variety of
programs that we support. We also get requests for more
stability with respect to our rates. Our goal when these
requests come in is to return to our statutory roots to
determine what are our obligations and are we achieving them in
the most cost effective manner. With respect to fish and
wildlife funding, we have recently expressed a willingness to
create a more predictable funding stream for fish and wildlife
activities, again in response to tribes and other agencies that
we work with in our region.
But first, we believe we need to define our obligations so
we can understand where the goal line is, and to create
assurances that we're seeking the most cost effective approach
to crossing that goal line.
In conclusion, let me make four points. BPA funding for
fish and wildlife activities is steadily increasing, despite
the financial difficulties that we have incurred in the last
year. Tribes are a significant partner in this effort.
Second, we are instituting reforms in contract management
which should simplify and clarify our contractual policies,
while enabling us to carry out our fiducial responsibilities to
the region's ratepayers and to the Nation's taxpayers.
Third, we're anxious to better define our ultimate
statutory and treaty obligations in order to find a path to
meeting those obligations that creates more predictable funding
from BPA.
And one final point if I could, with respect to a point
that was raised earlier. The issue was raised as to whether
Bonneville's initial mission was to electrify rural America.
There were a number of issues that led to the formation of
Bonneville Power Administration. Electrifying rural America was
among those. But another critical point was to create a
yardstick for competition, to provide power at a cost basis to
the region's ratepayers that would lead to the lowest cost
possible, not just for those who received the benefits from the
Bonneville system, but by creating competition in the
marketplace with lower rates for those who didn't directly
receive the benefit from that. We take that mission extremely
seriously as well, and believe that our goal is not to drive
our costs up as close to market as we can get, but to keep our
costs as low as we possibly can while meeting all of our
obligations.
With that, Mr. Chairman, again, I am greatly appreciative
of your allowing me to move up in the order here, and I'm open
to any questions that you or the members of the panel may have.
[Prepared statement of Mr. Wright appears in appendix.]
Senator Inouye. Senator Smith.
Senator Smith. Thank you, Mr. Chairman.
Steve, thank you for your testimony. I wonder if there
aren't different expectations about how much money is supposed
to increase every year. And I wonder if for BPA the memorandum
of agreement between Federal agencies, does it require a
certain amount or do you think people have different
expectations about what you ought to be doing?
Mr. Wright. Senator, there are in fact very different
expectations that are out there. The memorandum of
understanding that was entered into in 1996 expired in 2001.
There are two issues with respect to that. First of all, there
are some expectations with respect to carryover funds, funds
that were not spent in that period. And we have had
disagreements with the region's tribes about what the specific
language says in those agreements. Our view is that we have
completely complied with that agreement and provided all the
funding that was required by that agreement.
Beyond that, there are expectations now in the post-2001
period with respect to the level of funding that we are
providing. Under the old MOA, we provided $100 million a year
to the direct program, the program that I've described here.
Under our new rates, we are providing $139 million a year, a
40-percent increase in funding. Despite that, the Northwest
Power Planning Council created a lengthy process to look at
potential projects that could be funded, and had approved a
number of projects which, when we added them up, added up to a
lot more than $140 million a year.
So expectations were created in that process that we would
provide more money. Given our current financial circumstances,
we are not able to provide more than the budgeted amounts. So
yes, there has been a problem with respect to these different
expectations. And we have some who say we've reduced funding,
when our view is, we've actually increased funding compared to
the budgets.
Senator Smith. And your point in your charts I think are
telling us that every year you have increased funding. Is that
accurate?
Mr. Wright. With respect to the direct program, the program
that the tribes use, yes, that is accurate.
Senator Smith. You noted that we've had the first, second
and third largest salmon returns in recent history since 1938.
Mr. Wright. Yes.
Senator Smith. What percentage of those returns are from
hatchery fish and which are from wild fish?
Mr. Wright. That's a question that's probably better
directed to Mr. Lohn. But I understand a substantial portion
are hatchery fish, the great majority.
Senator Smith. The great majority.
Mr. Wright. Yes.
Senator Smith. And you have ongoing consultations with the
treaty tribes, and I think clearly from what I'm hearing from
different testimony, we could maybe boost those up and get rid
of some of the different expectations so people have a little
clearer understanding of what they can reasonably expect?
Mr. Wright. I think that's right. I think that clearly a
challenge for us is to improve the consultation process with
the region's tribes. If I could, though, I'd like to use this
as an opportunity to make a plea in that regard. There are 13
Columbia Basin tribes within the Columbia River basin, for
which we have relationships over fish and wildlife issues. But
there are 54 tribes within the service territory that we
operate within.
One of the difficulties is that there are a lot of things
that folks want to talk with us about. Attempting to do all of
that through formal consultation processes is extremely
difficult, especially when we're talking about a river that
continues to flow downstream, no matter what we might try to do
to stop it. So there are ongoing decisions every day that
people want to be involved in. And finding a way to be able to
manage and have a reasonable dialog with the region's tribes in
a timely manner has proven to be a great challenge for us.
I recently spoke to the AT&I regional conference up at
Bellingham, and at that, I made a plea to them and said, we
need to find a way to develop more informal mechanisms, to be
able to talk with each other. Because if we count on formal
consultations only to be able to work through this, my guess is
we're not going to be successful. It just is not adequate time.
Senator Smith. You may not be able to put a percentage on
this, but you've indicated that much of the money that goes
through and to the tribes for different projects, I assume many
of those are hatchery projects. And yet you've also noted that
improved ocean conditions are perhaps accounting for these
large returns of salmon. Can you quantify? What's giving us the
best results that we're enjoying right now? Is it hatcheries?
Is it improved riparian areas? Is it ocean areas? Do you have
any sense of that, so we can say to the taxpayer, the
ratepayer, this is money well spent?
Mr. Wright. I would turn to Mr. Lohn for specifics with
respect to the biology on this. There is no doubt in my mind,
though, that there is a substantial contribution both made by
the man-made investments in this system, as well as ocean
conditions. Again, just looking at the history of the runs
here, the largest returns in 60 years would suggest that, we've
had good ocean conditions the last 60 years. Something that
we're doing now is making a difference.
Unfortunately, I'm not able to quantify to what extent
we're making a difference. But I'm a believer that in fact this
is not a mission we should shrink from. We should in fact be
making investments in fish and wildlife resources. We have a
responsibility to mitigate for damage done by the Federal
hydroelectric resources. Our challenge is to do it in the most
cost-effective way possible.
Senator Smith. I believe we need to keep making those
investments, also, and obviously a lot of us who are ratepayer
and taxpayers in the Bonneville region, we hope it's all being
spent well and it's resulting in this. So we're looking to you
to assure us that it is money well spent and that it is making
a difference and that we can in some ways quantify it for the
people that are very interested in this.
Mr. Wright. One thought on that, Senator. Our research,
monitoring and evaluation efforts are now funded at an excess
of $30 million a year. We are putting a substantial amount of
money into RM&E. I want to compliment Bob Lohn and NOAA
fisheries. We've been able to take advantage of the new
research that's out there to begin to modify some hydrosystem
operations, to try to assure that when we do spill and flow and
those sorts of things, we're targeting the things that create
the greatest benefit. We're also creating some opportunities to
be able to reduce costs for ratepayer while increasing benefits
for fish through using that research data. NOAA Fisheries
really deserves a compliment for the work they've done in that
area.
Senator Smith. Thank you, Mr. Chairman.
Senator Inouye. Thank you very much.
Mr. Wright, the committee, together with Senator McCain,
will be sending you written questions. We look forward to your
responses.
Mr. Wright. Thank you very much.
Senator Inouye. Thank you very much, and I hope you make
the flight.
And now may I recognize Mr. Bolton.
STATEMENT OF HANNIBAL BOLTON, CHIEF, DIVISION OF FISH AND
WILDLIFE MANAGEMENT AND HABITAT RESTORATION, FISHERIES AND
HABITAT CONSERVATION, UNITED STATES FISH AND WILDLIFE SERVICE
Mr. Bolton. Thank you, Mr. Chairman and members of the
committee. I too wish to express my sense of appreciation for
allowing me to move up on the witness list.
About 33 years ago, I was happy to state that I was the
captain of my ship, and my wife quickly followed behind me that
she was an admiral. So if she gave me a direct order to be home
at a reasonable hour this afternoon, I really am especially
appreciative at being allowed to move forward.
I would also like to thank you for the opportunity to
provide testimony from the Fish and Wildlife Service regarding
the tribal fish and wildlife management program in the Pacific
Northwest. I'm Hannibal Bolton, chief of the Division of Fish
and Wildlife Management and Habitat Restoration, Fisheries and
Habitat Conservation, U.S. Fish and Wildlife Service. My
written testimony has been submitted for inclusion in the
record.
We greatly appreciate the committee's interest in our
Native American programs. The Service has a long history of
working with Native American governments to manage fish and
wildlife resources. In fact, in 1872, the McCloud Wintu Tribe,
at the northern end of Sacramento Valley, played a key role in
establishing the Nation's first salmon hatchery along the
McCloud River in the Pacific Northwest.
Since that time, the relationship between the Service and
the tribes has expanded through many of our programs. In 1994,
the Service's fisheries program took a major step forward by
developing and adopting a Native American policy. The goal of
this policy is to help us accomplish our mission, while
concurrently participating in fulfilling the Federal
Government's responsibilities to assist Native Americans in
protecting, conserving and utilizing their reserved, treaty
guaranteed, statutorily identified trust assets.
Through this policy, the Service is committed to providing
timely and adequate communication and cooperation to tribes to
provide fish and wildlife management expertise, training and
assistance, and to respecting and utilizing the traditional
knowledge, experience and perspective of Native Americans in
managing fish and wildlife resources. The Service takes its
responsibility seriously and works closely with our Native
American partners to further the well-being of tribes and the
long term health of our shared resources.
This afternoon, I'm going to outline some of the programs
and initiatives the Service utilizes to achieve these goals.
First, I'll speak about the tribal grants program. Two of our
newest grant programs that will directly benefit the tribes are
our tribal wildlife grants and landowner incentive programs.
The Service is eager to begin implementing these two new grant
programs, because they will significantly increase the funding
for Federal wildlife grants on tribal lands.
The final guidelines for both the programs emphasize
sustainability of fish and wildlife populations, habitat
conservation, partnership, and enhancing capacity. These
programs will not only enhance conservation of fish and
wildlife species and their habitats, but will also strengthen
Service-tribal relationships as we work together to address
conservation concerns on and around tribal lands in the Pacific
region and the rest of the Nation.
The Service and Indian tribes share a common goal of
conserving sensitive species, including threatened and
endangered species, migratory birds and the ecosystem on which
they depend. Through government-to-government protocols the
Service strives to significantly include affected tribes
Endangered Species Act, dam licensing and relicensing
provisions of the Federal Power Act, and Migratory Bird Treaty
Act processes. The Service solicits tribal input on not only
the species in question, but also relevant tribal cultural and
religious values, hunting, fishing and gathering rights, treaty
obligations and potential impact on tribal economies. The
Service has also had a collaborative process in place for
establishing tribal migratory bird hunting seasons.
Through its habitat conservation programs, the Service
investigates, evaluates and makes recommendations on Federal
water resource development projects, primarily those
constructed and funded or licensed by the U.S. Army Corps of
Engineers, Bureau of Reclamation, Natural Resource Conservation
Service, and Federal Energy Regulatory Commission.
Our partners for Fish and Wildlife Program place a high
priority on working in partnership with tribes to restore fish
and wildlife habitats. We implement restoration projects both
on and off tribal land in concert with various tribes in the
Northwest. Projects include wetland, riparian, in-stream and
grassland restoration. We recently established a Fish and
Wildlife Program agreement with the Kootenai Tribe of Indians
in northern Idaho. The focus of the restoration activities will
be on bull trout aquatic and riparian habitat restoration. The
Partners program is also working actively with other Pacific
Northwest tribes.
Some other examples of habitat based programs in our
fisheries program are the Fisheries Restoration and Irrigation
Mitigation Act and our National Fish Passage program, which
provides cost-shared funding for fish screen and fish passage
improvements on tribal land, State, Federal and private lands.
The Service works closely with tribal partners to further
the well-being of the tribes and the long term health of our
shared fisheries resources. For example, our fisheries
resources offices work closely with tribes to assess fish
stocks and assure fair and equitable sharing of fish harvests,
as well as providing assistance on many important habitat and
species restoration efforts.
The Service implements or administers a number of national
fish hatcheries mitigation programs to support tribal fisheries
both on and off reservation lands. It is important to highlight
that tribes are consulted on the management of national fish
hatcheries. Our fisheries resources offices work cooperatively
with tribes and other partners to gather information for
management decisions at national fish hatcheries, to minimize
the risk to wild and listed fish species.
The Service also provides funding and technical assistance
to accomplish hatchery reform of tribal and non- tribal
hatcheries in western Washington. The hatchery reform project
is systematic, science driven redesign of hatcheries to meet
two goals: To help recover and conserve naturally spawning
salmonid populations; and to support sustainable salmon
fisheries through hatchery production without negative effects
on wild salmon. The Service provides funding to the Northwest
Indian Fisheries Commission and its member tribes in western
Washington to improve hatchery practices, and to make
structural improvements at tribal hatcheries to meet the goals
of hatchery reform.
Tribes are considered co-managers of both listed and
unlisted salmon resources. The Service works to ensure tribal
harvest rights are upheld. For example, we work closely with
tribes to implement fish management plans on the Columbia River
in order to provide a management framework within which parties
of the United States v. Oregon may exercise their sovereign
powers in a coordinated and systematic manner, in order to
protect, rebuild, and enhance Columbia River fish runs above
Bonneville Dam, while providing harvests for both treaty Indian
and non-Indian fisheries. The primary goals of the parties are
to rebuild weak fish runs to full productivity and fairly share
the harvest of upper river runs between treaty Indian and non-
Indian fisheries in the ocean and Columbia River Basin.
Mr. Chairman, in closing, I would like to restate that the
Service is committed to providing timely and adequate
communication and cooperation to tribes to providing fish and
wildlife management expertise, training and assistance, and to
respecting and utilizing traditional knowledge, experience and
perspective of Native Americans in managing fish and wildlife
resources. In order to accomplish this, we are committed to
developing good working long lasting relationships and mutual
partnerships with Native American governments.
Mr. Chairman, this concludes my remarks. I would be pleased
to answer any questions.
[Prepared statement of Mr. Bolton appears in appendix.]
Senator Inouye. I thank you very much, Mr. Bolton. The
committee will be submitting questions in writing, and we look
forward to your response. Thank you, sir. Hope you make it.
Mr. Bolton. Thank you, sir.
Senator Inouye. And now may I call upon Mr. Moon.
STATEMENT OF MEL MOON, NATURAL RESOURCES DIRECTOR, QUILEUTE
TRIBE
Mr. Moon. Thank you, Senator.
For the record, my name is Mel Moon. I'm the Natural
Resources Director for the Quileute Indian Tribe in Washington
State. I'm also a commissioner with the Northwest Indian
Fisheries Commission. I serve on several panels, one of which
is the Marine Fisheries Advisory Committee, which deals with
national fisheries and NOAA fisheries. Also, I've recently been
appointed to the Protected Areas National Committee, which is
going to hold its first meeting here in about 2 weeks.
I also am the president of the American Fisheries Society's
Native Peoples section, an opportunity that I've had for 2
years and actually, Hannibal was the previous chairman before
me.
I wanted to talk about the Indian Fish and Wildlife bill in
particular, and reference our support for the bill that would
have an association with some caveats that we feel very
strongly about. First of all, we would be supportive of an
Indian fish and wildlife bill that addressed government-to-
government roles of Federal agencies and affected tribes, as
well as developing a standard of consultation and a process for
achieving co-management cooperation in natural resources.
We recently had an experience with the Northwest Forest
Plan in the Pacific Northwest, dealing with issues of the
spotted owl and Federal lands policies. At that time we were
engaged in a process known as watershed analysis. We were able
to have a pilot watershed analysis project in the Quileute
watershed, brought all the parties together, had scientists
brought together and did a multiple modules list.
In the end, our experience was that we were able to build
partnerships, to build trust. We had a lot of suspicions about
what was causing these issues. Some people thought that the
logging was a matter of erosion and high temperatures, some
people thought it was high fishing rates, some people didn't
know what to think about tribes. They were a mystery to them.
We were able to dispel all these myths and come to an
understanding of trust. And we have been able to utilize that
plan for many years thereafter.
This was our first experience with what I would call
ecosystem based management approaches. We believe that that
particular kind of approach is a good one and should be applied
in a number of natural resources forums. In particular, we see
more emphasis now on looking at the ocean in terms of how we're
going to protect the resources within that and the functions
within that to maintain sustainability.
We have several cases I wanted to bring to your attention
in regard to ground fish. We made mention of it in earlier
testimony. Essentially, for the Quileutes, we have a fishery
that takes place within a localized area. We're not necessarily
able to move around very far. The species that we have a
concern about, in particular, there's 82 that are managing to
coast, there's 9 species that are listed as over-fished.
We're engaged in council process in trying to advocate for
our fisheries as well. What we're finding out is that there are
a lot of unanswered questions which will require us to interact
with Federal agencies and State agencies as well. In
particular, we have three particular issues, one dealing with a
species known as yellow eye, which is a very long-lived
rockfish species. This particular species produces a high
abundance of fish when it's larger, when it's older, as opposed
to the smaller fish. One of the key elements of management is
that we need to have selective types of fisheries, we can't
have just take-all fisheries.
We have a tremendous bi-catch issue happening on the west
coast. It's a major concern that we need to interact with. We
have for example a halibut fishery that is targeted at 1.6
million pounds of halibut for three States, Washington, Oregon
and California, as well as the 11 tribes, which have a 50
percent treaty right. Yet we are faced with a harvest of 2
million pounds of bi-catch by other industries such as the
trawl fishery. This is totally unacceptable.
We have a sable fish fishery, black cod fishery as well, as
460 to 750 metric ton each year. In discussions with the NOAA
fisheries, we learned that as much as the 750 metric tons or
greater is caught in bi-catch. These are examples of issues
that we must wrestle with as tribes to maintain sustainability
in our areas.
In conclusion, we would support an Indian fish and wildlife
bill that would address government-to-government consultation
and define roles. We would also support standards and
communications and a process for achieving co-management
cooperation in natural resources. And lastly, we are firm
believers that ecosystem based approaches is a unique way to
approach management that brings the parties together. We would
advocate to have that implemented in marine fisheries.
That would conclude my remarks. Thank you.
Senator Inouye. I thank you very much, Mr. Moon.
May I call upon the Director of Natural Resources and
Environment of the U.S. General Accounting Office, Jim Wells,
accompanied by Frank Rusco. Mr. Wells.
STATEMENT OF JIM WELLS, DIRECTOR, NATURAL RESOURCE AND
ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE, ACCOMPANIED BY
FRANK RUSCO, ASSISTANT DIRECTOR, APPLIED RESEARCH AND METHODS
Mr. Wells. Thank you, Mr. Chairman and members of the
committee. We too are pleased to be here today to discuss
Bonneville's role in these important issues. Accompanying me
today is Frank Rusco, who's leading our current work.
Within the last several months, GAO has received two
requests from a chairman in the House and from your committee,
Mr. Chairman, to examine circumstances involving the operations
of Bonneville. Is Bonneville having financial difficulties?
Yes. Are decisions being made that may reduce expenditures on
fish and wildlife? Yes.
We just started our work. So much of what we have to say
today is a he said, she said type scenario. But we are
continuing to work. My full statement addresses five areas, and
I'll just quickly touch on each of those five areas right now.
Bonneville is required by statute and by dozens of treaties,
court cases and presidential directives to protect and enhance
fish and wildlife. Equally important, Bonneville must ensure
economic and reliable power supply. Unfortunately, these two
goals are inherently in conflict at times, and they are going
to require not only tradeoffs in the past, but maybe more
tradeoffs in the future.
Second, Bonneville calculates that it's spent over $1.1
billion in support of fish and wildlife programs from 1997-
2001. In addition, another $2.2 billion is estimated by
Bonneville in foregone revenues, because it was able to spill
water over the dams to augment the flows, enhance fish
survival, instead of using it to generate power. To date we've
not audited those figures, but we'll be glad to take a look at
those.
Third, is the financial crisis. Cash reserves have clearly
fallen from $800 million to $188 million since the year 2000.
Bonneville is estimating that its costs for the current 2002-
2006 rate period will be about $5.3 billion higher than the
previous 5-year rate period that they were operating, and
revenues will be about $1.4 billion less than what they even
projected as late as 2001. To avoid defaulting on Treasury debt
and to cover the costs which is required by law, Bonneville has
increased its power rates by over 40 percent since 2001, and
they are considering further increases.
Mr. Chairman, Bonneville has plans to reduce costs and it
hopes for favorable water conditions. It hopes for favorable
price conditions that will enable it to increase its revenues
from power sales in the future to help them out of this
financial crisis. I have to stop a moment, Steve Wright just a
few moments ago correctly pointed out the causes for the
financial crisis they're in, and he mentioned were a result of
the drought, some tough years, and the west coast high energy
prices that they were dealing with.
But as auditors, we also must point out that they did some
of this to themselves. Clearly, they signed contracts to
deliver electricity, more electricity than what they had. They
bought high, they sold low. They guessed wrong on prices at
times. Their internal costs are escalating and they're
attempting to look hard at what it's going to take to lower
their internal costs. Mr. Chairman, the bottom line is the
financial crisis, they took some risks and they lost. And now
they're working their way out.
Fourth, some recent management actions by Bonneville appear
to have adversely affected funding. That's true. For example, a
change in Bonneville's approach for budgeting fish and wildlife
expenditures recently resulted in the loss of about $40
million, some of which the tribes talked to today. Bonneville
officials, and you heard Steve Wright mention this today, they
agree this is happening and perhaps it was an abrupt change
that could have been managed better and they're going to look
toward better consultation in the future and help to prevent
that from happening again.
We are aware that Bonneville has plans to put on hold its
acquiring land to be used as habitat for fish and wildlife. To
be fair to Bonneville, they are reaching out to the power
planning councils and they're reaching out to their
constituents, trying to discuss in this era of financial
crisis, where do we go from here, where do they go from here,
and how to prioritize these purchases in the future.
Fifth, for all the reasons that I just talked about,
Bonneville and its constituents face challenges ahead.
Bonneville markets power and it uses part of that revenue that
it gains from consumers for the benefit of fish and wildlife.
Unfortunately, the hydro system that they operate in is not
dependable, in terms of it has unpredictable water supply and
that in turn makes it difficult to match supply and demand,
especially in times of drought.
What is predictable and what is unchanged is that
Bonneville does have a responsibility to pay back its debt and
it must recover its costs. And to meet these dual roles,
Bonneville has signed many contracts to provide power, it's
made agreements regarding fish and wildlife obligations. These
actions are affecting taxpayers, the consumers, the Indian
tribes and the fish and wildlife that literally will have life
and death consequences.
Mr. Chairman, there is a risk of oversimplifying this as we
continue to look at our work at your request. Bonneville may be
overcommitted and faces many additional difficult challenges as
its needs for fish and wildlife compete with increasing power
demands for a finite supply of water. In closing, Mr. Chairman,
clearly the future is uncertain. But one thing is very clear:
Bonneville and its numerous stakeholders are going to be faced
with some pretty potentially painful decisions in the coming
year. Senator Smith, as you mentioned in your earlier remarks,
the wisdom of Solomon may be required.
The outcomes of these decisions that are being made clearly
are going to affect the health, the viability of not only the
fish and wildlife populations, but the way of life of Northwest
residents who have benefitted and need to continue to benefit
from Bonneville's electric power. Given the competing
priorities that involve making these tradeoffs, this is where
GAO is today as we continue our work. We continue to support
good public oversight of decisions that are being made, and we
will continue to pursue the work that you've asked us to do,
and we will report back to you.
We as auditors also care about making sure that when
Bonneville makes these commitments and signs the treaties and
gives the agreements, that the future checks that they write,
they do not bounce. No one wants a bad check.
Mr. Chairman, that concludes my brief remarks.
[Prepared statement of Mr. Wells appears in appendix.]
Senator Inouye. Thank you very much, Mr. Wells. When do you
think that analysis and study will be available to the
committee?
Mr. Wells. Mr. Chairman, we are in receipt of the request.
We are currently in the process of pulling together a team. We
have a team that's already in place in Bonneville that we're
doing work on the financial crisis. Our goal is to tap into the
existing team to get that work done. We'll be consulting with
your staff in terms of the design of that work and how long it
may take. But it may take several months, yes, sir.
Senator Inouye. I have just one question, I'd like to
submit the rest to you for your consideration. Does Bonneville
have the discretion not to fund ``reasonable and prudent
alternatives'' recommended by NOAA to avoid jeopardy to an
endangered species?
Mr. Wells. I think Mr. Steve Wright testified about the
importance of honoring existing contracts. They have every
intent to honor what they have signed. If the inference of the
question, are these something that have not been signed to
date? Because I think they are in a situation where they are
very carefully looking at what future obligations they may take
on.
Senator Inouye. I believe this is a statutory obligation.
It's not a contract. I just wanted to know if Bonneville has
the right, discretion not to fund reasonable and prudent
alternatives that NOAA may recommend.
Mr. Wells. Mr. Chairman, I would love to consult with my
legal staff and attorneys and make sure we have a correct
answer to that question. We'll be glad to supply it for the
record.
Senator Inouye. And we'll submit the rest of the questions.
Mr. Wells. Thank you, sir. We'll be glad to answer those.
Senator Inouye. I thank you, sir.
Mr. Wells. Thank you.
Senator Inouye. And now I'd like to call the Regional
Administrator of the National Fisheries Service of NOAA, Bob
Lohn; and Director of the Office of Energy Projects, Federal
Energy Regulatory Commission of Washington, Mark Robinson. I
thank both of you for waiting this long. Thank you very much.
STATEMENT OF BOB LOHN, REGIONAL ADMINISTRATOR, NATIONAL
FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, DEPARTMENT OF COMMERCE
Mr. Lohn. Thank you, Mr. Chairman and the honorable members
of the committee for inviting us.
In the interest of time, with the permission of the chair
and the committee, I'd like to file written comments and simply
touch upon a few headlines and stand open for questions.
Senator Inouye. I can assure you that the written statement
will be made part of the record.
Mr. Lohn. Thank you, sir.
Good afternoon, Mr. Chairman, members of the committee. We
were asked to comment, Mr. Chairman, on the types of
interactions we have with the Indian tribes in the Pacific
Northwest, and I'll focus on that. There are approximately 30
tribes in the Northwest that have trust and treaty rights that
include fishing opportunities. It is with those 30 tribes that
we have our most frequent contact.
We recognize and take very seriously the fact that we have
a trust and treaty obligation to them. We try to reflect that
obligation not only in dealing with tribes but in dealing with
others, and making it clear that as part of the U.S.
Government, we need to reflect and take into consideration
tribal viewpoints in our dealings throughout our activities.
We attempt to maintain ready communication and coordination
with the tribes in our region. We do that daily. There are
probably every day a series of issues that my staff will be
dealing with with the Northwest tribes. We expect that the
tribal viewpoints and tribal interests will be treated
respectfully and responsibly in all of our dealings. We
maintain not as a sole point of contact but rather as a policy
level assurance that if contact does not work well at the staff
level or if there's need for a new type of input, a tribal
liaison and have done so since the year of 2000. That's an
additional, not a primary but a supplementary way of making
sure that we address our tribal issues.
We deal with tribes daily on issues such as research,
fisheries, not only salmon fisheries, but also groundfish
management, hydropower and hatcheries. With the two major
tribal groups, the Northwest Indian Fisheries Commission and
Columbia River Inter-Tribal Fisheries Commission, we have semi-
annual policy level meetings in which I and my senior staff
meet with our counterparts on the commissions. We've found
those to be not just courtesy visits but serious discussions of
the major issues we are facing. We cannot always get to
agreement, but we at least attempt to understand where one
another is coming from, what's trying to be achieved, and to
the greatest extent possible, we try and include that view
point and reach resolution within what we do.
In implementing the large biological opinion that governs
the operations of the Federal Columbia River power system,
there is a lengthy and complicated oversight group. At each
stage, there is tribal involvement. In particular, while there
is a series of technical committees that provide advice, this
is overseen by the implementation committee, which also has
participation by State, Federal, local utility, and tribal
interests. Just as an example, not only do we take this
participation seriously, but last year there was a request that
this committee spend some time in the field, not just in
Portland where the Federal agencies may be headquartered. So
there was a meeting scheduled in Boise to better bring the
committee close to the issues associated with the Shoshone
Bannock and Shoshone Paiute tribes and Nez Perce Tribe. And
similarly, the committee met near Grand Coulee to bring the
committee more closely in contact with the issues of the Upper
Columbia United Tribes.
We routinely share documents and incorporate informal
comments from the tribes in all that we do. In fact, I can't
think of an instance where we would be making a major decision
affecting fish in the northwest and we would not be consulting
in advance and sharing documents with the tribes. Their advice
is important and we do this not just as a courtesy, but because
they are valued co-managers.
We are also able to provide a certain amount of funding to
the tribes and to the Pacific Coast Salmon Recovery Fund. In
the year 2003, in fiscal year 2003, Congress appropriated $90
million for that fund. It's shared among four States. And also
among tribes, the Pacific Coast tribes will receive this year
$8.9 million, the Columbia River tribes will receive $3
million. That will cover a variety of areas, including habitat
protection and restoration and watershed planning.
There's also in place, Mr. Chairman, a secretarial order
from 1997. While the order was adopted with much fanfare, and
then seemed to disappear from view perhaps at the Washington,
DC level, for me it is a reality that I try to take into
account in our daily work. It's an order that covers American
Indian tribal rights, Federal tribal trust responsibilities and
the Endangered Species Act. We implement it on a regular basis
in each of our consultations.
We've also attempted to take that order further and develop
on a pilot basis some sort of implementation agreement. So all
the parties that we deal with are familiar with exactly what
the expectations are on each side, and we do our best to meet
them. That's in a pilot stage in western Washington. It's been
that way for approximately 6 months. It looks like we've got
about the right framework and assuming that that framework is
successful, we'll expand that to all of our tribal relations.
Finally, Mr. Chairman, we've been talking a lot about our
side of the partnership. But I wanted the committee to hear and
to know that this is a real partnership, and the tribes are
full partners who bring real contributions on which we rely in
conducting our business. We benefit from them, we meaning not
just NOAA fisheries but I believe the U.S. Government
generally.
I'd like to highlight just a few of those contributions
before we close. First of all, the tribes, as mentioned by
Professor Wilkinson, over the years have developed a very
substantial technical capability. They bring important,
sometimes unique technical expertise and we often rely on this
expertise. Sometimes it's the sole source for this kind of
expertise.
For example, on the role of hatcheries, a contentious
scientific issue, some of the most thoroughly documented, most
important scientific work being done is being done within
tribal hatcheries as part of tribal programs. And it's without
peer in the world.
Second, the tribes bring a deep knowledge of local habitat
and opportunities. Often there is a successful and longstanding
working relationship with other local stakeholders. And as we
move out from protection into restoration, it's out of this
relationship that we can lay firm sub-basin plans and a good
understanding for what we need to do to achieve recovery.
Third, the tribes bring a long term perspective that
embraces comprehensive restoration and not just a quick fix.
That's important, because at times we will be focused on the
crisis of the moment and having a longer perspective is
invaluable.
And finally, as the Committee no doubt has heard before,
Mr. Chairman, the tribes bring a wealth of traditional
knowledge, which can give good guidance even in those places
where science has nothing to say. And I am grateful for that
guidance.
So Mr. Chairman, that concludes my prepared testimony.
Thank you again for this opportunity to appear.
[Prepared statement of Mr. Lohn appears in appendix.]
Senator Inouye. I thank you very much, Mr. Lohn. Now may I
recognize Mr. Robinson.
STATEMENT OF MARK ROBINSON, DIRECTOR, OFFICE OF ENERGY
PROJECTS, FEDERAL ENERGY REGULATORY COMMISSION
Mr. Robinson. My name is Mark Robinson, Mr. Chairman, and
I'm the director of the Office of Energy Projects at the
Federal Energy Regulatory Commission. Our office certificates
interstate natural gas pipelines, authorizes liquid natural gas
facilities, and more importantly to this committee, it licenses
hydroelectric projects. Specifically, we're responsible for
about 1,600 hydroelectric projects across the country, not only
the licensing but also their administration and safety.
Personally, I've been involved with licensing hydroelectric
projects and their administration for over 25 years now. I've
watched the licensing process change through the years to
become more and more open, more and more collaborative. We
continue that process now.
I think what I'd like to do, as briefly as possible, given
I think I may be the last person to testify today, is to touch
on the licensing process and then spend just a couple of
minutes talking about section 511 of S. 14. First of all, the
tribal involvement in licensing is integral. We have it from
the very moment that a license is contemplated until the time
the license is issued. I'd like to just briefly run through how
the tribes are involved.
We start with pre-filing. That's prior to the application
being filed with the Commission. One of the first things that
happens is an information package is prepared and provided to
any tribe that would be affected by the licensing of that
project. This occurs in many instances around, I'd say about
five years prior to the license expiring if it's a relicense,
and about three years prior to an application being filed with
the Commission. Once that application package is available to
the tribes, the tribes can comment on it, give us any
impression of any concerns that they may have with that
project.
Then there's a meeting held with the tribe. Again, this is
all before an application comes into the Commission. That
meeting is to further explain what the project is about and
what relicensing is going on.
Then there's an opportunity for the tribes to request
studies that they would like to see performed to support the
license application, and reasonable studies that the tribes
request are in fact required by our regulations to be
performed. After that, we have a draft application that's
provided to the tribes. Then finally, comments on that draft
application, if they discern any type of disagreement between
the tribes and our applicant, there is a requirement that our
applicant try to resolve those issues with negotiations with
the tribes.
That all occurs prior to the application being filed, pre-
filing. Once the application is filed, tribal involvement
continues. We notice the tribe that the application has been
filed with us and we accept comments again, and we request
further requests for studies from the tribes if they see a need
for them. We continue that with an opportunity for the tribes
to be involved in the negotiations that occur pursuant to
section 10(j) of the Federal Power Act, where we try to resolve
issues concerning fish and wildlife mitigation. And the tribes
are welcome to participate in that as well.
Finally, we issue a draft environmental impact statement,
and the tribes are requested to comment on that, and their
comments are treated, then ultimately, hopefully the Commission
is in a position to issue a license.
All of those steps in that process occur in what we
consider our traditional licensing process. We have a second
process beyond that called the alternative licensing process,
which has all of those steps plus a requirement that the tribes
and everybody else approach licensing in a collaborative
fashion, so that there are multiple interactions among all
parties throughout the licensing process.
That's not good enough. We're coming up with a new process
now, in fact, in February the Commission issued a notice of
proposed rulemaking that would define a new process which has
been called the integrated licensing process. We are conducting
development of that rule in a very open forum, and in fact had,
I think, six forums across the country specifically with the
tribes to take their input on how this new licensing process
should be designed to best satisfy their needs.
We also identified a tribal liaison to assist them in
working through this NOPR. The NOPR is out, the notice of
proposed rulemaking--the final rule will be out some time this
summer. But the NOPR proposes that we institutionalize the
tribal liaison so that not only are all those steps laid out
that the tribes can involve themselves and do involve
themselves in our process, but there would be a person at FERC
whose sole responsibility is to guide and help and assist those
tribes in taking advantage of that process.
So we're still trying to improve how we do our government-
to-government interactions with the tribes. But we've come a
long way over those 25 years, and I don't think anybody can say
at this point that there's not ample opportunity for the tribes
to be involved and through outreach be sought to participate in
the licensing process.
Moving quickly to S. 14, section 511, two things that that
language, that legislation does for us to improve the licensing
process. And I believe that particular legislation would
improve the licensing process. First, it provides consistency.
Of all the people who have the ability to dictate conditions in
a license, and that includes the Department of Commerce,
Agriculture, Interior, the State, and in some instances even
the tribes, where they have 401 responsibilities. But for those
first three agencies, Interior, Commerce and Ag, it provides a
Congress-mandated criteria similar to the congressionally
mandated criteria that exists for FERC in issuing licenses and
including conditions. That will give us consistency of criteria
across all Federal agencies for conditions included in license,
and that's important.
The second thing that that piece of legislation does is it
provides accountability. Currently those mandatory conditions
that come from those agencies, there is no recourse other than
their inclusion in the license by the Commission. This
legislation would allow for the agencies themselves, the
Secretary, to review those conditions should the license
applicant ask that that occur. Currently there is no
accountability for those in terms of them internally being
looked at in a formal process. This legislation would provide
that. Nothing sharpens the pencil of one of us folks who works
for the Federal Government more than knowing that somebody is
going to be looking at what we do. And that legislation does
that, just like it already occurs at the Commission.
Some of the things I heard today, I want to make sure
people are clear that do not occur because of that language in
the legislation. It does not in any way, shape or form limit
the ability of the tribes to participate in the licensing
process. All it does is to go to the process that develops
mandatory conditions from those Federal agencies. And in fact,
specifies that anyone, including tribes, can propose mitigative
measures in that language. So actually there's a little
additional step there for the tribes that does not currently
exist.
But all those things that we talked about, I talked about
earlier, would still be present, post-legislation with section
511. It doesn't in any way reduce the authorities of the
secretaries. The secretaries maintain the posture of deciding
which conditions go in. They have the ultimate say, nobody
changes that, and that's the way it exists today.
So in conclusion, I would just like to say that we have a
process that identifies at least 10 places for the tribes to be
involved in licensing. I don't believe that section 511 of S.
14 would affect that. Thank you.
[Prepared statement of Mr. Robinson appears in appendix.]
Senator Inouye. I thank you very much, Mr. Robinson. I have
just a couple of questions for both of you, and I would like to
submit the rest if I may.
Mr. Lohn, earlier this month, the District Court for the
District of Oregon declared the 2000 biological opinion to be
invalid. Assuming that this decision is not overturned, how do
you anticipate that the rejection of this opinion will protect
the fish stocks in the Columbia River basin?
Mr. Lohn. Senator, there is an important intermediate step,
which is whether or not, the protection and restoration
measures of the current opinion will stay in place or are in
place during this interregnum, if you will, between the current
biological opinion, which the court has indicated it will
remand for further action, and the future biological opinion
which will replace it. I believe, Senator, that if we continue
to keep the current biological opinion in place, as a set of
operating guidelines, I think that would offer the most
successful protection for fish during the meantime.
The court did not throw out the opinion on the grounds that
it was failing to deliver the benefits necessary to protect the
fish. The court's ruling was based upon determination that the
mitigation relied upon, future mitigation, did not fit certain
categories within a rule adopted under the Endangered Species
Act. The challenge that the court laid at our door step was to
see how that, if we are more specific, how that rule would
apply or would we want to write a different biological opinion
that would rely on different mitigation.
I think that question is open. But meantime, much of the
work that's ongoing I think is important to protect fish. I'm
hoping it will continue.
Senator Inouye. How is NOAA fisheries going about the
review of Chinook management plans of both State and tribes,
including habitat assessment and restoration, to determine
whether they comply with the 1999 habitat agreement under the
Unites States-Canada treaty?
Mr. Lohn. Senator, that habitat agreement and its
implementation provisions are really an open question on which
we will be seeking guidance from the commission members as to
what steps the commission members from the United States, what
steps they feel are appropriate. I was not a party to that, I
was not at NOAA fisheries when that agreement was negotiated.
We'll follow the advice of the American members of the
commission as to what the understanding would be.
My sense is, my understanding is, that within the next
several months, that issue will be before the commission and
they will give us some guidance as to the extent to which there
needs to be a review. We'll conduct it according to those
guidelines.
Senator Inouye. Mr. Robinson, on section 511 of the Senate
Energy Bill, I gather you do not agree with Professor
Wilkinson's assessment.
Mr. Robinson. No, sir; I do not.
Senator Inouye. Now, under section 511, do State and tribes
have the right to participate in an on the record hearing for
alternative conditions proposed by the licensee?
Mr. Robinson. I think that would depend upon the
regulations that Interior, Ag, and Commerce may propose to run
those hearings. But I can't imagine, given the licensing
processes that exist, that they would do other than that.
Currently, there are no abilities for the tribes to participate
in the development of those conditions as it sits today. They
are strictly out of those agencies directly to the commission,
and there is no process for their discussion other than the
licensing process which would continue, as I said.
Senator Inouye. How do you go about assuring that the
licensees are complying with mandatory conditions?
Mr. Robinson. We, by statute, are required to inspect the
projects and ensure their compliance with all terms and
conditions, mandatory or otherwise. We have five regional
offices that are staffed with inspectors that go out. We also
rely on the good offices of the National Marine Fisheries
Service, Fish and Wildlife Service and others, and tribes, to
report any instances of non-compliance, in which case we
investigate and have the ability to fine, which we have done.
Senator Inouye. So it is your opinion that section 511 does
not in any way do jeopardy to the trust relationship that
exists between Indian nations and the United States Government?
Mr. Robinson. No, sir; I don't believe it does.
Senator Inouye. Senator Smith.
Senator Smith. Thank you, Mr. Chairman.
Mr. Robinson, thank you for your clarification on the
section 511 issue on relicensing. I think it's very important
that we know what the facts are and what rights are still in
place.
Bob Lohn, you heard me ask Steve Wright about the
percentage of returning salmon. I'm not sure it matters as to
species and what rivers and what-not, but do you have a rough
number?
Mr. Lohn. Senator, a rough number for the Columbia River
basin would be on the order of 70 to 80 percent, depending on
the year.
Senator Smith. And the 70 to 80 percent are?
Mr. Lohn. Hatchery fish.
Senator Smith. And is it the policy of the Administration
to support the tribal hatcheries?
Mr. Lohn. Senator Smith, it is very much the policy of the
Administration, or certainly of NOAA fisheries, to support both
the hatchery experiments, provided and run by the tribes, and
in general, the hatchery activities of the tribes.
Senator Smith. Are the hatchery fish being allowed to spawn
or are they being killed?
Mr. Lohn. Senator, it depends on which group of hatchery
fish. Where the science seems to be emerging, sir, is that
hatcheries that are using native brood stock are probably
producing fish that can spawn and inter-mix very successfully
with the stock in that river.
Senator Smith. Isn't it a fact that in every year when the
tribes take the brood stock they get it from last year's wild
fish?
Mr. Lohn. Senator, in the best run hatcheries, and that
includes many of the tribal hatcheries, that would be the case.
Senator Smith. It's hard to understand when the proximity,
the nexus between the wild and the hatchery is that close, that
immediate, that somehow they're genetically inferior.
Mr. Lohn. Yes, sir; in fact, the definitive work came out
within the month from the Hood River project in which there was
careful track kept of not only who the parents were but what
the success of the next generation was. Interesting numbers,
sir. The out of basin fish, mainly hatchery fish, had a success
rate that was 17 to 54 percent that of the in-basin fish. But
the hatchery fish from within basin, from the native brood
stock, had a success rate that varied from 84 to 109 percent of
the naturally spawning stock. In other words, they were
functionally identical.
Senator Smith. This is really good news, to have this many
fish coming back, and if you call them hatchery, they're one
generation or literally one year removed from wild fish.
Mr. Lohn. That's correct.
Senator Smith. My concern is to Senator Inouye's question
about Judge Redden's opinion, is that it will affect tribal
harvests. What does that mean for ocean harvests and in-river
harvests? What's the prospect on that?
Mr. Lohn. Senator, if the judge chooses to leave the
opinion in place on an interim basis while a new opinion is
being prepared to respond to his concerns, then I think the
effect will be little or none. If the current opinion is
removed, then the outcome would be speculative, sir, it really
would be speculative. The effects are very broad ranging on all
of our mitigation activities, as well as on the operation of
the hydro system. We're just now reviewing them.
Senator Smith. Well, it's a great concern for a lot of
different interests. Obviously, whether you're a ratepayer or a
tribal fisherman, this is an enormously consequential decision,
particularly in light of the economic distress of our region
and the enormous return of salmon to our rivers now. It's hard
to make sense of the decision.
But I wonder if you can't give me some assurance that if it
is, this opinion's thrown out or the biological opinion, does
it give the Bush administration an opportunity that does not
exist under the past Administration's biological opinion?
Mr. Lohn. Senator, that's correct. Our thought at this
point, sir, within the time the court has allowed us, which is
one year, to do as thorough a look at all of the science, all
of the improvement in the runs, and complete a biological
opinion that reflects that new information.
Senator Smith. Thank you, Senator. I know we only have 5
minutes on this vote and I apologize for taking so much time.
Senator Inouye. I would like to thank all of the witnesses
for their patience and good humor. This concludes our hearing
today and I thank all of you for your testimony. I will be
submitting written questions, if I may, and look forward to
your response.
[Whereupon, at 5:20 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Hon. Gordon Smith, U.S. Senator from Oregon
Mr. Chairman, I appreciate your convening this hearing to examine
the challenges facing tribal fish and wildlife management programs in
the Pacific Northwest.
I have long been a supporter of tribal efforts to restore naturally
spawning salmon populations in the Columbia River Basin. Close to my
home town of Pendleton, OR, the Confederated Tribes of the Umatilla
Reservation have conducted an extremely effective salmon restoration
program in the Umatilla basin.
Many of the treaty tribes have advocated the use of
supplementation, which is the selective use of hatchery fish to
reestablish naturally spawning runs, and I have always supported these
efforts. In addition, I have sought and will continue to advocate for
funds to be made available to tribes through the coastal salmon
recovery program.
The last several years have been challenging in the Columbia River
basin, where there are numerous salmon runs listed as threatened or
endangered under the Endangered Species Act.
In 2001, we had a severe drought that affected both flows in the
basin and BPA's revenues. For example, in April of 2001, the flow of
the Columbia River at The Dalles was 40 percent of the historic
average, taking storage into account.
In addition, in late 2000 and 2001 , we experienced extreme price
volatility for electricity on the West Coast. Prices in the Northwest
for spot power in April 2001 were 10 to 12 times their historic levels.
While prices have now stabilized, the effects are still being felt in
the Northwest.
BPA had to raise its rates over 40 percent last October, and has
proposed a further rate increase for next October. Meanwhile, Oregon
continues to suffer one of the highest unemployment rates in the
Nation.
Last year, in the face of a projected revenue shortfall of between
$800 and $900 million through 2006, BPA began to examine ways to cut
costs. This included cuts in its fish and wildlife program. During this
process, BPA sought input from the Northwest Power Planning Council on
how to proceed on making these cuts.
This has been a difficult time for BPA, and for all of the
stakeholders in the basin. Some weaknesses in the administration of the
fish and wildlife program were revealed, and Steve Wright, the BPA
Administrator, is working to address these issues.
I look forward to hearing from the witnesses today about the best
way that the region can move forward together to ensure that salmon
runs are recovered, and that treaty obligations to Northwest tribes are
fulfilled.
We face a number of challenges, but I am committed to working with
the tribes, the Northwest delegation and Governors, and the other
stakeholders in the basin to ensure that our economy and our salmon
runs can both recover.
______
Prepared Statement of Jim Anderson, Executive Director, Northwest
Indian Fisheries Commission
Mr. Chairman and members of the committee, my name is Jim Anderson,
and I am the executive director of the Northwest Indian Fisheries
Commission. With me today are Dave Herrera, Natural Resource Manager
for the Skokomish Tribe and Mel Moon, Natural Resource Manager for the
Quileute Tribe. I will provide some opening comments, and Dave and Mel
will follow with their perspectives. For the record, we have submitted
additional written testimony to the committee.
On behalf of the Commission and our 20 member tribes from western
Washington, I want to thank you for the opportunity to testify today on
t6e Impacts on Tribal Fish and Wildlife Management Programs in the
Pacific Northwest. I believe that the tribes have a lot to say about
the subject, and I think that you will soon agree.
Tribes and NWIFC
The Northwest Indian Fisheries Commission was formed in 1974 by our
member tribes immediately after the United States v. Washington (Boldt
Decision) case was decided in favor of the United States and the
intervening tribes. Each member Tribal Government has it's own Natural
Resource Program. Typical Tribal Programs have natural resource policy
managers, management biologists, enhancement professionals, enforcement
personnel, technical and administrative support staff. Tribes have law
codes, promulgate regulations and manage the fishery based on solid
science and tribal values. And each tribal program is supported by the
tribal court system. These professional programs are primarily funded
by Public Law 93-638 contracts and/or Self-Governance compacts, and
individual tribes often find complementary funding from other grant
sources, foundations or from their own limited resources.
Today, the Commission employs over 70 individuals, over three-
fourths of whom are professional resource managers. One-half of our
staff have advanced college degrees, and 6 have their doctorates in
such specialized fields as genetics, fish pathology, ecology,
statistics and silviculture. The Commission's role is to support our
Member Tribes with their efforts. We do that through technical
assistance, information sharing and policy coordination. The model the
Tribes have chosen to follow-tribes as primary managers, and the NWIFC
in a support role-works well because it allows for the individual
tribal uniqueness and particular vision, local geography and
circumstances, and is flexible. There is much more to say about how we
are structured, but what is particularly unique about the tribes is not
our ability to organize, but rather our ability to make things happen.
Co-Management
For thousands of years, Tribes have taken Pacific Salmon from the
rivers and coastal areas of the Pacific Northwest for subsistence,
ceremonial and commercial purposes. Great tribal cultures flourished in
our area, built substantially on and around the bounty of the salmon.
This changed in the latter one-half of the 1800's with the influx
of settlers and the growing involvement of non-Indian commercial
fisheries. These fishers moved off shore with increasingly
sophisticated technology, and Indian fishers found themselves at the
end of the line, allowed to harvest the few salmon that remained after
passing though the great wall of commercial fisheries. Increasingly,
after statehood in 1889, state managers curtailed and closed Indian
fisheries in apparent concern over the conservation of salmon runs. In
turn, tribes turned to the courts to uphold their rights to harvest,
and as I mentioned earlier, the court affirmed these rights in Western
Washington in the landmark Boldt Decision.
What Judge Boldt did, in effect, was to create a co-management
framework, where the tribes were responsible for managing their one-
half of the resource, and the state was responsible for managing it's
one-half of the resource. Over the course of the past three decades, we
have fine tuned this framework pretty well, and it serves as the
institutional basis for coordinating and allocating and managing the
salmon in Puget Sound and the Coast. Co-management has linked different
cultures, different watersheds, different ways of managing and thereby
provides a connection between the diverse scales of human and natural
systems.
The salmon ecosystem encompasses both terrestrial and aquatic
habitats, and extends from inland watersheds to ocean basins. Salmon
know no boundaries and jurisdictions. They pass through many different
property and governance regimes during their migrations.
It is important to understand that some impacts to the salmon and
habitat occur as side effects of other activities, such as logging,
farming, urban development and hydropower. This raises questions of how
well management institutions can deal with issues outside their
purview. An effective salmon management regime must consider the full
extent of the migratory ran, as well as the full suite of impacts to
the resource, not merely fishing mortality.
Tribes and the state have taken steps to address this clash between
the needs of the ecosystem, and the prevailing management jurisdictions
by refining and institutionalizing our co-management relationship. This
institutional change, supported by the treaties and affirmed by the
courts, and even sometimes written into state and Federal law, has
greatly improved resource management.
In effect, the tribes and the co-management authorities and
process, has become the glue for making things work in the Northwest.
Co-management is the integrator and the strategic systems thinking that
must be in place for effective resource management.
We spend many hours and days, weeks on end, in too numerous to
mention processes and efforts, all with the intent to better manage the
salmon resource. From the Pacific Salmon Treaty, to the Pacific
Fisheries Management Council to the Shared Salmon Strategy in Western
Washington, it should be fully understood that the Tribes are not
merely involved-they often times have equal places at the table. When
this occurs, like the PST or the Shared Salmon Strategy, Tribes' views
must be taken into account. Where Tribes are only marginally accorded
respect, such as the PFMC, the process does not work as well.
We try to make co-management work for species other than salmon
too, including shellfish and groundfish. For all, we bring leadership
and a vision to the table, something that is often lacking in the non-
Indian world. Sure there are exceptions, but as a rule, people in the
know will tell you that ``but for the tribes'' nothing would have
happened.
Tribes want to be part and parcel to all the efforts that affect
salmon. and other species for which they have rights. Tribes? want to
be full governmental partners-not stakeholders or afterthoughts. Tribes
have the capability and technical capacity, and when combined with
their policy perspective, vision and leadership, they are formidable
players.
But, while our message is generally positive, not all is warm and
fuzzy. In any situation where authorities are shared-in this case with
the State, Canada, Federal entities (NOAA-Fisheries and Fish and
Wildlife Service) and through the International Pacific Salmon Treaty,
we find that there are bumps along the way.
We feel compelled to discuss these to highlight some of our
concerns and to suggest some improvements.
ESA Sector Equity/Biological Opinion/Recovery
Without a doubt, one of the most awkward situations is with the
Endangered Species Act. The ESA has been described as a ``pit bull''--
you never know if it is going to be your best friend, or turn around
and bite you. Right now, three species of salmon are listed in our
area--Puget Sound Chinook, Hood Canal/Strait of Juan de Fuca Chum and
Lake Ozette Sockeye. By far, the most difficult one for us is the
Chinook. This listing in 1999, has placed new and onerous requirements
on the tribal harvest and hatchery programs.
Tribes often resent how NOAA-Fisheries will come down hard on
tribal and State harvest and hatchery programs, while not being tough
enough in the habitat arena. We call this Sector Equity, or better,
Inequity.
NOAA Fisheries will say that the ESA is overrated as a habitat
protection tool, but there are methods they can use to ensure that the
playing field is more level. They should be required to do necessary
consultations on key habitat actions, and they can carefully use the
Section 9 enforcement provision as a tool to help persuade reluctant
landowners to come to the table we have set for recovery planning.
Without an aggressive strategy to help lead the salmon recovery
process, we will not see the key landowners deal in good faith. This
situation is very apparent in the Skagit Rivers basin, where all people
acknowledge that recovery will only occur if the Skagit River stocks
are healthy.
NOAA-Fisheries has also issued an ESA Biological Opinion on the
1999 PST Agreement, but what we are finding is that NOAA-Fisheries has
independently defined exploitation rates for several of the systems
(Nooksack, Skagit, Stillaguamish) after the negotiated agreement was
reached, and as Canadian and Alaskan harvests have increased, they have
attempted to use these rates to manage the tribal fisheries down to
ensure ``conservation'', despite written agreements to the contrary. In
most cases, Tribes have not had a directed fishery on these populations
for over 20 years, yet NOAA-Fisheries wants farther reductions to other
tribal fisheries to further reduced impacts. This smacks of the same
kind of restrictions placed on tribes prior to the Boldt Decision,
trying to manage conservation at the end of the run, rather than where
the impact occurs. This was wrong then, and it is wrong now!
NEPA
Another area related to the ESA listing and recovery issue is the
application of NEPA. Tribes feel extremely vulnerable to third party
lawsuits, a fact supported by recent litigation from an organization
called Washington Trout. In a series of lawsuits against NOAA-Fisheries
and the State of Washington on harvest and hatchery resource plans,
Washington Trout's action, if successful, could entirely shut down the
state and tribal fisheries and hatchery operations.
If not for the tribes, we believe that NOAA-Fisheries and the State
of Washington would not have adequately addressed NEPA
responsibilities, which would have undermined tribal treaty rights.
With the help of the BIA funding, tribes have been leaders in
developing necessary NEPA processes and documents, serving as a co-lead
agency with NOAA-Fisheries to help guide our way through the ESA-NEPA
quagmire.
Section 10/HCP
We also are very concerned about how the Federal agencies choose to
implement Section 10 of the ESA. This is the provision that allows
entities to develop conservation plans and upon approval, receive long
term ESA protection (up to 50 years). We have seen these negotiations
conducted behind closed doors with tribes excluded. This places the
tribes in the difficult position, where they were not involved and
don't believe the science that was used to justify decisions. NOAA-
Fisheries and the FWS must make more diligent efforts to involve the
tribes in the process. Moreover, they must stay with the HCP's and make
sure that their agreements are being followed. Without this monitoring,
they are being used! A good case in point is the state of Washington
Department of Natural Resources HCP for 1.5 million acres of
forestland. Tribes were talked out of litigation by Federal entities
(Congress and the Administration) saying that this HCP was so good, how
could we object. Now DNR is undermining their plan without the tribes
and without NOAA-Fisheries and FWS oversight. What gives?
Whaling
Another area where we have grave concerns centers on the recent 9th
Circuit Court case on Makah Whaling. Whatever you may think about whale
hunting, it is absolutely clear in the treaties that Makah has a
legally reserved right to hunt for whales. NOAA-Fisheries has been a
strong partner with the tribe, and has shown great resolve in
supporting the tribal right. They recommended, and Justice supported an
en banc hearing at the 9th Circuit. Unfortunately, the same cannot be
said for the Fish and Wildlife Service, which choose not to support the
rehearing. The court ruling fails the tribe in that it said the Marine
Mammal Protection Act effectively trumped treaty rights. This case
reverses almost 200 years of Supreme Court precedence, and threatens
all tribal treaty rights. It could undermine all of our co-management
efforts. The committee should be aware of precedent setting court cases
like this, and work to ensure that treaty rights are affirmed through
legislative action.
Funding
Finally, we are very concerned about the continuity of tribal
funding. I speak generally about the DOI budget, and am not addressing
BPA. Our Member Tribes and the Commission are not associated with BPA
funding. Having said that, tribes have been the beneficiary of Federal
funding, but every year, the BIA fails to request some of our base
moneys--such as Unresolved Hunting and Fishing Rights, Shellfish and
Forest and Fish. They have justified this as saying their limited
moneys would be better placed in other areas, like trust reform. I ask
you, what better trust use is there than natural resource management.
If we spend all of our effort just trying to get out of the hole, how
can new, unfounded mandates like shellfish and groundfish ever be
successful?
This concludes my testimony. I will be happy to answer any
questions at the end of the panel.
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