The Snake River, unplugged

Salmon-killing dams may amount to ‘takings’ of tribal fishing rights

  • The Snake River below Hells Canyon Dam

    Diane Fritz
 

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.

The author writes from Boulder, Colorado.

High Country News Classifieds
  • DEPUTY DIRECTOR
    Friends of Cedar Mesa is hiring a Deputy Director/COO who will have the overall responsibilities of general program management, staff management, financial & budget management,...
  • CUSTOMER SERVICE ASSISTANT - (PART-TIME)
    High Country News, an award-winning media organization covering the communities and environment of the Western United States, seeks a part-time Customer Service Assistant, based at...
  • RURAL ACREAGE OUTSIDE SILVER CITY, NM
    Country living just minutes from town! 20 acres with great views makes a perfect spot for your custom home. Nice oaks and juniper. Cassie Carver,...
  • COMMUNICATIONS AND OUTREACH ASSOCIATE
    Communications and Outreach Associate Position Opening: www.westernlaw.org/communications-outreach-associate ************************************************* Location: Western U.S., ideally in one of WELC's existing office locations (Santa Fe or Taos, NM, Helena,...
  • OFFICE ADMINISTRATOR AND BOOKKEEPER
    Posted: July 19, 2021 Application deadline: August 27 or until position is filled. Western Colorado Alliance for Community Action is seeking a fulltime Office Administrator...
  • COMMUNITY ORGANIZER
    Posted: July 15, 2021 Application deadline: August 21, 2021 or until position is filled Western Colorado Alliance for Community Action is seeking three full time...
  • A FIVE STAR FOREST SETTING WITH SECLUSION AND SEPARATENESS
    This home is for a discerning buyer in search of a forest setting of premier seclusion & separateness. Surrounded on all sides by USFS land...
  • CARPENTER WANTED
    CARPENTER WANTED. Come to Ketchikan and check out the Rainforest on the coast, HIke the shorelines, hug the big trees, watch deer in the muskeg...
  • AUDIENCE ENGAGEMENT EDITOR
    High Country News (HCN) seeks an audience editor to attract and acquire new audiences and deepen engagement with them - in our newsletters, on our...
  • COMMUNITY MARKETER
    High Country News (HCN) is looking for a Community Marketer to build and strengthen relationships between HCN and other organizations and individuals, with the aim...
  • FINANCE & OPERATIONS MANAGER
    Job Announcement: Finance and Operations Manager Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August...
  • DEVELOPMENT DIRECTOR
    Job Announcement: Development Director Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August 9, 2021...
  • HECHO POLICY AND ADVOCACY MANAGER
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • HECHO NEW MEXICO SENIOR FIELD COORDINATOR
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • IDAHO STATE DIRECTOR
    The Wilderness Society is seeking a full time Idaho State Director who will preferably be based in Boise, Idaho. This position is part of our...
  • CAUCASIAN OVCHARKA PUPPIES
    Strong loyal companions. Ready to protect your family and property. Proven against wolves and grizzlies. Imported bloodlines. Well socialized.
  • DEPUTY DIRECTOR
    The Nature Conservancy in Alaska is dedicated to saving the lands and waters on which all life depends. For more than 30 years, TNC has...
  • STAFF ATTORNEY, CLIMATE AND ENERGY PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-climate-energy-staff-attorney/ ************************************************** Position Title: Climate and Energy Program Staff Attorney Reports to: Climate and Energy Program Director Location: Helena, Montana; other...
  • STAFF ATTORNEY, WILDLANDS AND WILDLIFE PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-wildlands-staff-attorney/ ************************************************** Position Title: Wildlands and Wildlife Program Staff Attorney Reports to: Wildlands and Wildlife Program Director Location: Portland or Eugene,...
  • DISCOUNT SOLAR PANELS
    New w/25 year warranty. Shipped anywhere in the lower 48. Minimum order of 10 units. Call, text or email for current prices. .50-.80/ watt