The Snake River, unplugged
by Rachel Odell
Salmon-killing dams may amount to ‘takings’ of tribal fishing rights
In the late summer of 1958, the Snake River plunged through an
un-dammed Hells Canyon for the last time. The raging water slammed
against the bodies of enormous salmon as they sought their
ancestral breeding grounds. On the edge of the river stood a
14-year-old Nez Perce boy, accompanying his father and uncles as
they netted salmon on the Oregon-Idaho border.
"Us little
guys really weren’t allowed to dipnet the salmon, because
they would pull us into the river with them," says Elmer Crow, now
60. "Sometimes the men would tie us to the rock, if we bothered
them enough, and let us hold a net for just a second. But those
fish were strong, and they had somewhere to go, and I sure as hell
couldn’t hold on."
Neither, eventually, could the
salmon.
By 1959, Brownlee Dam had blocked the river about
25 miles southwest of Riggins, Idaho. In 1961, Oxbow Dam joined it,
followed by Hells Canyon Dam in 1967. The dams brought cheap
electricity, fueling the Idaho farming boom and creating jobs. They
also doomed the salmon runs in the Middle Snake River and its
tributaries.
Now, almost 50 years later, the salmon might
have a chance for a comeback. The license for all three dams
expires this year, and in a case that other Northwestern tribes are
watching closely, the Nez Perce Tribe is looking to a 150-year-old
treaty — and to the "takings" clause in the U.S. Constitution
— for help in the struggle to bring back the fish.
A price too high
Idaho Power, which owns the
dams, has submitted more than 100 environmental studies to the
Federal Energy Regulatory Commission as part of the license renewal
process. The company’s conclusion: Allowing salmon to pass
through Hells Canyon is simply too expensive.
In 2004,
Craig Jones, the company’s director of relicensing, estimated
that making the dams and the now-flooded canyon passable to fish
could cause power rates to spike 30 percent to 40 percent.
Even if the fish made it past the dams, the company says,
they wouldn’t reach their spawning grounds. The fish would
have trouble navigating the warm, slow-moving reservoir water,
according to the company’s studies. Some of the best spawning
grounds are submerged under the reservoirs, and the agriculture
upstream makes for such poor water quality that fish survival would
be almost impossible.
Instead, Idaho Power has proposed
spending $380 million in part to benefit fish downstream, between
the three Hells Canyon dams and the four lower Snake River dams,
where the company has built hatcheries. Among other things, the
company says it would purchase and restore 26,000 acres of habitat
and increase the levels of oxygen in reservoir water.
But
tribes and environmentalists say the federal government could force
the company to do more: The Federal Power Act allows the Interior
secretary to require protections for water quality, fish and
wildlife. The act also authorizes the National Oceanic Atmospheric
Administration Fisheries and the U.S. Fish and Wildlife Service to
require fish passage at dams.
Representatives of both
agencies say they are negotiating with Idaho Power, and can’t
say whether the license renewals will require fish passage. Frank
Wilson, an Interior Department attorney in Portland, says Secretary
Norton would require fish passage only if "substantial evidence"
showed that it would be successful. But given the Bush
administration’s dam-friendly salmon policies, such a move
seems unlikely.
Do dams amount to "takings"?
The Nez Perce believe they hold the key to
salmon restoration in Hells Canyon: The tribe’s 1855 treaty
with the U.S. government, which guaranteed the right to fish in
perpetuity at all "usual and accustomed places" (HCN, 12/20/99:
Unleashing the Snake).
The 1974 Boldt Decision confirmed
tribes’ right to harvest salmon in their traditional fishing
grounds, but didn’t specify whether they had any "property
right" to the fishery. But in 1980, Federal District Judge William
Orrick agreed with the tribes, saying that "the most fundamental
prerequisite to exercising the right to take fish is the existence
of fish to be taken." An appeals court vacated that decision on a
technicality, however, and the argument has never been heard by the
Supreme Court.
Under the Fifth Amendment, says Doug Nash,
a Nez Perce attorney, the tribe could argue that its property
— the fishery — has been "taken" illegally. But now may
not be the time for tribes to test this claim.
John
Echohawk, executive director of the Native American Rights Fund in
Boulder, Colo., says Supreme Court Justices Antonin Scalia, William
Rehnquist and Clarence Thomas have consistently voted against
American Indians on important cases. Since Rehnquist became chief
justice in 1986, the court has ruled against Indians about 80
percent of the time, Echohawk says.
"Generally speaking,
the Supreme Court is not a friend of ours, and we would be very,
very leery about when we would want a case to go before it,"
Echohawk says.
For now, the Nez Perce will likely let the
legal question hang in the air, using the treaty as leverage in
relicensing negotiations that will continue for several years.
Tribal officials won’t say whether they will settle for less
than allowing fish back through Hells Canyon. But if anything
indicates just how serious the tribe is, it’s this:
As part of a 1997 court settlement, Idaho Power offered the Nez
Perce $5 million to support the company’s new license. The
Nez Perce walked away from the money. Nash, who represented the
tribe at the time, says it was more important that it reserve the
right to challenge Idaho Power — and perhaps clear the way
for the salmon’s return.