[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

                              ----------                              


                        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

                              ----------                              


              Additional Material Submitted for the Record

=======================================================================


   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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