Tribe files 60-day notice of intent, but still hopes negotiations can ward off a suit
LACONNER (September 11, 2003) — Seeking to protect Skagit chinook salmon, the Swinomish Tribe today notified a Skagit County Diking District of their intent to file a lawsuit under the federal Endangered Species Act and Clean Water Act. After years of attempting to find mutually acceptable solutions locally, the tribe is turning to the federal courts. “We have tried to work cooperatively with the farming community, the Governor, the county and the state, and in every instance they have turned us away,” said Brian Cladoosby, chairman of the Swinomish Indian Tribal Community.
Recent state legislation has paved the way for policies and practices that are devastating to federally-protected Puget Sound chinook. At the urging of Skagit County farmers and County Commissioners, the state legislature passed a bill last spring that exempted tide gate construction from environmental requirements, including fish passage. Tide gates, used by farmers to drain excess waters from their lands, often block access to critical estuaries. Juvenile salmon, in particular juvenile chinook, depend on estuaries to feed and grow strong before entering the ocean. Without that crucial time in the estuary, scientific studies show that salmon are less likely to survive their ocean journey and return home to spawn.
The lawsuit will target a tide gate on Dry Slough constructed and operated by Dike District 22 on Fir Island. The tide gate prevents Skagit chinook from accessing and using estuary areas vital to their survival and reproduction. “If state laws don’t protect fish, our only choice is to turn to federal law,” said Cladoosby. “Still, we hope that negotiations will produce a solution so that the lawsuit becomes unnecessary. We’re committed to sitting down with the dike district and trying to find a solution that works for all of us.”
Because the tide gate on Dry Slough harms Chinook salmon, it constitutes an illegal “take” of the threatened species under the Endangered Species Act. Under that act, the tribe must declare its intent to sue 60 days prior to filing the lawsuit. During that time, the tribe hopes to be able to reach an acceptable solution, one that works for both farmers and salmon. “Fish and farmers can coexist: each is part of the fabric of the Skagit Valley,” said Cladoosby. “Farmers were our first neighbors here, and we want them to be a vital part of our future. We hope they feel the same about salmon, and about the tribal communities that depend upon the salmon.”
Lack of estuaries is one of the largest impediments to Skagit chinook recovery. Many estuaries were lost when dikes were installed to create farmland in the Skagit Delta. The operation, maintenance, and replacement of tide gates block salmon access to the remaining waterways. Multiple scientific studies show that an absence of estuarine habitat puts a cap on the number of fish the Skagit River System can produce. “The only way to protect and recover Skagit Chinook is to ensure access to these estuaries,” said Lorraine Loomis, fisheries manager with the Swinomish Tribe.
The resulting loss of fish has come at great cultural, spiritual and economic cost to tribal members, who have fished Skagit waters long before settlers arrived in the area. “In the interest of protecting the fishery resource, we have voluntarily reduced our fisheries a great deal. By reducing our harvest, and virtually eliminating our harvest of chinook, the tribe has done its part,” said Loomis. Fisheries data show that since 1985 the Swinomish Tribe has reduced its chinook harvest by 95 percent. “But reducing harvest is not enough to recover salmon,” Loomis explained. “Now, we have to address the problems resulting from poor habitat.”
The tribe believes that there are solutions that will ensure that both agriculture and fish survive. “Farmers can have their tide gates and still allow fish passage: all it takes is creativity and a commitment to the salmon,” said Cladoosby.
Prior to the bill’s passage, the tribe had cautioned that exempting tide gates from the state’s fish passage requirements would result in a lawsuit. “Decisions made by the Governor, the legislature, and the local communities have forced this decision on the tribe,” said Billy Frank Jr., chairman of the Northwest Indian Fisheries Commission. “People need to recognize that the tribes are not going away, and that we’ll take whatever actions are necessary to make sure that fish will be available for our children and grandchildren.”