Swinomish wins half of Supreme Court challenge

SWINOMISH (Sept. 13, 2007) – The Swinomish Indian Tribal Community today won half of its challenge to Skagit County’s critical area protection regime. The Washington State Supreme Court agreed with the Tribe and the Western Washington Growth Management Hearings Board that the heart of Skagit County’s ordinance to protect salmon streams was inadequate.

Rather than mandate scientifically-supported buffers along streams, Skagit County’s ordinance depends on a program of monitoring the impact of farming on fish habitat and responding to the monitoring data with new regulatory measures, as necessary (the so-called “adaptive management” program). The Supreme Court found that the program does not require data collection sufficient to determine farming’s impact on streams. The Court let stand the Board’s determination that the program was also deficient in failing to establish clear standards and goals.

The Supreme Court also observed that, despite the State’s identification of the Skagit River as the most significant watershed in Puget Sound for salmon recovery, State law is insufficiently clear to require that critical salmon habitat in the Skagit delta be protected and restored to a condition to support salmon recovery.

The Court noted that the Growth Management Act (“GMA”) requires local jurisdictions to protect commercial fisheries and critical areas and to maintain agricultural land, but was constrained by the Legislature’s failure to define what it means to “protect” critical areas. In light of the Legislature’s silence, the Court upheld the Growth Board’s support of a portion of Skagit County’s ordinance that allows continuation of some agricultural practices that damage salmon habitat.

“We’re not surprised, given the current make up of the State Supreme Court and the lack of clarity from the State Legislature, that the decision came down the way that it did,” said Swinomish Tribal Chairman Brian Cladoosby. “Of course, we had hoped that the Court’s decision would support the GMA’s dual goals of securing the future of both salmon and farmland, but the Court couldn’t overcome the conflicts in current law.”

“The Tribe does not believe that you protect the resource by abusing it and dooming it to a perpetually degraded condition,” continued Cladoosby. “The earth can heal from the damage of the past if we just let Nature take its course. The Court confused stopping on-going harm with an affirmative obligation to enhance.”

“The State of Washington is spending millions of dollars to recover salmon and yet the Legislature has not made certain that habitat critical to salmon recovery in agricultural areas will be available to support that recovery. The State’s schizophrenia is thwarting its own salmon recovery goals,” he observed.

Cladoosby reflected on the history of tribal efforts to protect fish and treaty rights: “For thirty-five years, tribes have been compelled to resort to the Federal courts to vindicate our treaty rights. We keep winning, but would prefer to work with the State. Sadly, whether it’s treaty fishing rights, shell fish harvesting, or culverts, the State has been unwilling to step up to our repeated requests to partner with us until the Federal courts require it to do so. We may have to go that route on these issues as well.”

“We’re at the beginning of a new process established by the Legislature to discuss these issues with the agricultural and environmental communities and with local governments. We’re optimistic that creative thinking and dedicated effort by all parties can produce guidance to the Legislature through which the tension the Court observed in the GMA goals can be resolved and both fish and farms can thrive,” concluded Cladoosby.

The Swinomish Indian Tribal Community is a federally recognized Indian Tribe with approximately 800 members. It 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.

For more information, contact: Marty Loesch, attorney for the Swinomish Tribe, (360) 840-9160, [email protected].