Swinomish Tribe Wins Historic Case Against Dike District

SWINOMISH RESERVATION(Sept. 5, 2008) – A Federal District court judge in Seattle has ruled in favor of the Swinomish Indian Tribal Community in a case involving a diking and drainage district’s failure to comply with the Clean Water Act and Endangered Species Act when replacing tidegates in its jurisdiction. The Tribe brought the lawsuit against Skagit County Dike District No. 22 after several years of efforts to reach an out-of-court solution.

“Every court decision in our favor is bitter sweet,” said Swinomish Tribal Chairman Brian Cladoosby. “We tried for years to work out something with the District to help it get into compliance with Federal law, but sometimes people need a court to clarify their legal obligations before you can make progress. Hopefully, this decision will provide District 22 and others with the guidance they need to work with us to find a solution that works for both fish and farms.”

The Tribe brought this case because Dike District 22 violated the federal Clean Water Act when it replaced three tidegates in the Skagit delta without the required permits from the U.S. Army Corps of Engineers. The District also violated the Endangered Species Act because those tidegates resulted in significant “take” of protected juvenile chinook salmon by blocking their access to necessary rearing habitat. Under both statutes, provisions are available that would allow the District to continue maintaining drainage infrastructure while ensuring that those activities don’t jeopardize salmon populations on which the Tribe relies.

Although salmon fishing is at the heart of the Tribe’s economy and culture, the Tribe’s fishing has been sharply curtailed due to the collapse of many Puget Sound salmon populations. The Tribe’s harvest of chinook has dropped 94% since 1975, and it has not conducted a full fishing season for many decades. Chinook salmon in Puget Sound have been listed as “threatened” under the Endangered Species Act since 1999.

The shortage of tidal estuarine habitat, the shallow and productive transition zone where the Skagit River meets Puget Sound, is a primary obstacle to the recovery of chinook salmon in the Skagit River. Juvenile chinook rely on estuarine habitat to rear and grow to adulthood. Decades ago, most of the tidal estuary, including numerous natural watercourses, was diked and drained for agriculture. Altered natural watercourses, drainage ditches and a series of tidegates–essentially, culverts with a one-way flap —
support this system. The tidegates allow excess water from drainage ditches to pass from the fields to Skagit Bay, but prevent salt water from entering the ditches during each tidal cycle.

The Court held that the District’s failure to obtain required permits from the Army Corps of Engineers prior to replacing three culverts, going back to 2002, violated the Clean Water Act and Endangered Species Act. At the Tribe’s request, the Court did not penalize the District or otherwise specify a remedy, but ordered the parties to work together to attempt to negotiate a solution that was satisfactory to everyone before October 17, 2008.

“While the Court could have required the District to comply with the laws it violated immediately, as well as to pay our attorney’s fees and substantial penalties, we have asked the Court to delay imposing a remedy so that we can come back to the table to try to work out a mutually-agreeable solution,” explained Cladoosby. “We believe that there are opportunities available to us that can help the Tribe and State meet their salmon recovery goals without undermining agriculture in the Skagit, if only the Dike District will work with us.”

The Swinomish Indian Tribal Community is a federally recognized Indian Tribe with approximately 800 members. Swinomish is a signatory to the 1855 Treaty of Point Elliott and is the legal successor in interest to the Samish, Kikialus, Lower Skagit and Swinomish aboriginal bands. Its 10,000 acre reservation is located 65 miles North of Seattle, Washington on Fidalgo Island and includes approximately 3000 acres of tidelands.

Read the decision here.

For more information, contact: Marty Loesch, (360) 840-9160, [email protected]