[Congressional Record Volume 144, Number 134 (Wednesday, September 30, 1998)]
[Senate]
[Pages S11154-S11155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INDIAN TRIBES AND THE ENDANGERED SPECIES ACT

  Mr. GORTON. Mr. President, my constituents in the Pacific Northwest 
and the Members of this body know that I am not a fan of the current 
version of the Endangered Species Act, a law that has proven to be a 
failure not only for endangered species but also many rural communities 
and private property owners as well. In fact, I have spent much of my 
time as a U.S. Senator looking for ways to improve that law. The 
Endangered Species Act has inflicted grave harm on natural resource 
industries based in the Northwest with little to show in return, 
especially if we attempt to measure the law's success in bringing 
salmon back to Northwest rivers and streams.
  In fact, the Puget Sound region faces the possibility of more ESA 
listings over the next year. Local leaders in the Pacific Northwest 
looked to the Washington State congressional delegation during this 
year's appropriations process for funds to implement the salmon 
recovery plan personalized to respond to our unique needs in the Puget 
Sound region. I believe that we will be successful. The local 
scientists and leaders know that a creative plan that is supported by 
the communities surrounding the Puget Sound area will be the best 
chance we have to achieve success and avoid the heavy hand of the 
Endangered Species Act, a law implemented by D.C. bureaucrats with 
plans and standards that may not fit with the challenges and competing 
interests that must be balanced in the Northwest.
  As my constituents put all of their energies behind this last-ditch 
effort to avoid the crushing impact of yet another listing in the 
Pacific Northwest, another group has been using every tool at its 
disposal to avoid the implications of the Endangered Species Act on its 
activities.
  Puget Sound and Columbia River Indian tribes in Washington and Oregon 
are proclaiming themselves exempt from the constraints already imposed 
on their commercial fishing for salmon and steelhead by the Endangered 
Species Act. As a result of Clinton administration Executive and 
Secretarial orders, Pacific Northwest tribes believe they should be 
able to decide for themselves whether or not to restrain their 
commercial gillnetting activities, while at the same time nontribal 
commercial and sport fishers face the full impact of the Endangered 
Species Act in the form of extensive fishing closures.
  On June 5, 1997, the Secretaries of Commerce and Interior issued a 
joint Secretarial order declaring that Indian lands and activities are 
not subject to the same controls as Federal public lands and privately-
owned lands when it comes to enforcement of the ESA.
  This Secretarial order, signed by Commerce Secretary William Daley 
and Interior Secretary Bruce Babbitt, was the result of more than a 
year and a half of negotiations among Clinton administration, Federal 
Government agencies, and Indian tribes from across America. President 
Clinton's similar Executive order was signed on May 14, 1998.
  Mr. President, I am frustrated and dismayed. While I have identified 
many flaws in the D.C.-driven implementation of the Endangered Species 
Act, I also strongly believe this law will have no chance of success if 
the administration is allowed to decide certain segments of the 
population and certain interest groups are not bound by it. The Members 
of this body have heard me criticize the enormous amount of money spent 
without result by the Federal Government in an attempt to save species 
of Pacific Northwest salmon and steelhead. In fact, it is estimated 
that each endangered or threatened fish preserved in the Northwest may 
have cost tens of thousands of dollars, if we consider the amount of 
money spent on recovery efforts as compared with our level of success. 
We must get a better bang for our buck, and I don't see how we can 
improve the return from our investment unless everyone in the Northwest 
complies with the restrictions imposed by the Act.
  In response to the unilateral actions taken by the administration 
over the last 2 years, which I consider beyond the scope of Executive 
and bureaucratic authority, I included a provision in this and last 
year's Interior appropriations bills expressing the contrary intent of 
Congress. The Endangered Species Act, as written, should apply equally 
to all Americans.
  Before the negotiations that resulted in the Secretarial and 
Executive orders I mentioned, the Federal Government's position was 
that ``ESA applies to Indian Country, period.'' By the time 
negotiations were completed, however, the Clinton administration had 
capitulated to tribal demands that the tribes decide for themselves, on 
a case-by-case basis, whether or not to respond to the conservation 
principles of the ESA.
  How can the Endangered Species Act work unless tribal fisheries share 
equitably in the conservation burden?
  The Clinton administration is pursuing a policy of preferential 
treatment. Under this policy, the conservation burden falls mainly upon 
non-Indians. According to the orders released by the administration, 
restrictions on Indian harvest of endangered and threatened species, 
both on and off-reservation, can be considered only if ``the 
conservation purpose of the restriction cannot be achieved by 
reasonable regulation of non-Indian activities'' and ``voluntary tribal 
measures aren't adequate'' to achieve ESA goals
  It certainly wasn't Congress' intent when the Endangered Species Act 
was passed into law that any group of Americans would be exempted from 
its provisions or that one group should have to bear conservation 
burdens greater than another group. And Members of this body know that 
non-Indians certainly can't stave off the impact of the Endangered 
Species Act by pursuing ``voluntary'' recovery plans after a species 
has been declared threatened or endangered.
  The efforts of the administration to exempt tribes from the 
Endangered Species Act don't stop at Secretarial and Executive orders. 
The National Marine Fisheries Service recently issued a draft rule 
modifying existing tribal exemptions under the ESA. Not only will 
tribes be able to continue ``ceremonial and subsistence'' take of 
threatened or endangered species in tribal fisheries, the tribes also 
will be able to engage in ``commercial'' take of threatened species, 
such as chinook salmon and steelhead trout.
  Allowing a tribal commercial exemption from the ESA would 
dramatically reduce the likelihood of recovery for threatened or 
endangered salmon and

[[Page S11155]]

steelhead species. Non-tribal commercial and sport fisheries for 
chinook and coho salmon have been significantly curtailed in Puget 
Sound and on the Columbia River, and it is likely that chinook 
harvesting could be shut down entirely by next year. Yet the tribes and 
administration proclaim the tribes have a treaty right to continue to 
fish as they always have, regardless of the conservation needs of the 
fish.
  This is very unfair and contrary to Supreme Court decisions. The 
tribes should bear an equal share of the conservation burden, just as 
they enjoy a 50-percent share of the harvest when fish numbers are 
plentiful and healthy.
  Harvest restrictions necessary under the terms of the ESA must be 
applied in an equitable manner that is fair and consistent for all user 
groups, tribal and nontribal, if we are to meet conservation goals and 
see recovery of endangered salmon and steelhead in our lifetimes.
  Just a few weeks ago, the tribes, with the support of the 
administration, attempted to take their circumvention of the Endangered 
Species Act one step further. Fortunately, U.S. District Judge, Malcom 
Marsh, in Portland, OR, denied the request of the Federal Government 
and five Pacific Northwest tribes to reopen the tribes' commercial 
harvest season for fall chinook salmon. This opening for the tribes, 
requested by the Clinton administration, would have taken place while 
all types of nontribal fisheries were closed.
  The States of Washington, Oregon, and Idaho opposed the tribal 
fishery, noting that the Federal Government had issued no biological 
opinion on what effect the tribal fishery might have on ``threatened'' 
Snake River and Columbia steelhead. Judge Marsh agreed with the States' 
contention that National Marine Fisheries Service had failed to issue a 
biological opinion showing tribal gillnet fishing wouldn't harm 
steelhead stocks protected under the ESA.
  Judge Marsh made the following statement in his ruling: ``While I am 
highly sensitive to the importance of the tribes' treaty fishing 
rights, I am also mindful of the fact that no one will be fishing if 
the resource is depleted to the point of extinction.''
  Instead of being concerned primarily with the long-term preservation 
of the listed steelhead, the Judge stated, ``The Federal Government 
appears to be more concerned with what the tribes are willing to accept 
as reductions to their fall commercial harvest than they are with the 
needs of the listed species.''
  Judge Marsh concluded, in his ruling against the tribes and Federal 
Government: ``Federal agencies may not circumvent the unambiguous 
statutory mandate of the ESA simply to avoid more difficult issues or 
to appease one interested party at the expense of the others. 
Regardless of the result, the process must comply with the law and I 
fine the proposal submitted to me [by the Clinton administration and 
the tribes] . . . fails in that respect.''
  Yet, the tribes contend that, despite Judge Marsh's ruling, they can 
keep fishing. All that State governments can do is ask the public not 
to buy the fish the tribes catch, since technically they would be 
fishing under the ``ceremonial and subsistence'' exemptions to ESA.
  As a practical matter, however, in this technological age of flash 
freezing and vacuum-packaging, it is impossible for the States 
meaningfully to enforce this prohibition on the commercial sale of 
endangered wild fish netted by the tribes in their ``ceremonial and 
subsistence'' fisheries.
  The National Marine Fisheries Service and the Clinton administration 
have embarked upon a policy doomed to produce more strife and fewer 
fish for future generations of Indians and non-Indians alike.
  The solution to this problem is to pass legislation I introduced in 
July: the Tribal Environmental Accountability Act (S. 2301). This bill 
prohibits a tribe from claiming sovereign immunity as a defense if a 
tribe is a defendant in a case brought to enforce a Federal 
environmental law, such as the ESA. This much-needed legislation would 
allow tribes to be sued to mandate compliance with Federal 
environmental laws to the same extent that State governments or private 
entities can be sued. If the administration is unwilling equally to 
enforce the mandates contained in the Endangered Species Act across all 
user groups, then other interest groups must have the opportunity to 
pursue enforcement of this law, no matter how flawed it may be, in the 
courts of the United States.
  Mr. President, I suggest the absence of a quorum.
  the PRESIDING OFFICER (Mr. Enzi). the clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so 
ordered.

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