News from the Front #9:

A Christmas Present from Judge Wood:  1855 Treaties Give No In-Stream Water Rights to Tribe

Northwest news media routinely report claims by tribal lobbyists about the scope of tribal treaty rights to harvest, but seldom report the results when courts actually interpret the treaties.  Thus I did not until this week hear through the grapevine that on November 10, 1999, Judge Barry Wood, the Presiding Judge of the Snake River Basin Adjudication, had issued an opinion discrediting one of the more grandiose tribal claims:   that the Nez Perce Tribe had water rights requiring very large instream flows in the Snake River. 

The Nez Perce's amended instream claim for the lowermost point on the Snake River was for 105% of the average annual flow of the Snake, Clearwater and Salmon Rivers combined.  Such claims, backed by armies of federal conservation biologists preparing purportedly "scientific"  justifications for the specified flows, are increasingly common.  (Note the parallel to unachievable NMFS flow targets.)  Ranchers in Southern Oregon face the same overblown claims from the Klamath Tribe.

Judge Wood had no trouble disposing of the Nez Perce claim, declaring that "it is inconceivable that the United States would have intended or otherwise agreed to allow the Nez Perce to reserve instream flow off-reservation water rights appurtenant to lands intended to be developed and irrigated by non-Indian settlers".  (Opinion at 38)  Citing cases that have construed identical language in other 1855 tribal treaties, Judge Wood noted that "established precedent has defined the scope of the right.  The fishing right is non-exclusive and shared with non-Indians.  The right is essentially a right to a share of the fish harvest.   The right is not an absolute entitlement.  Nor does it guarantee a set amount of fish.  The right is subject to State regulation for purposes of conserving the species. . . .  Further, fishing rights are subject to changing circumstances incurred by settlement and development, which is what has occurred in this case." (Id. at 37) 

Both environmentalists and federal officials routinely invoke tribal fishing rights under the 1855 treaties as a reason to remove the Snake River Dams.  In their national ad campaign, the environmentalists assert that failure to remove the Dams would "expose U.S. taxpayers to a potential liability of billions of dollars for violation of court-tested treaty rights".  (Five years ago, Idaho Federal District Judge Ryan disposed of similar claims for monetary liability, explaining that "the Tribe does not own a property interest in the fish" and that "the 1855 treaty does not provide a guarantee that there will be no decline in the fish available to take".  Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 810 (D. Idaho 1994).)  And last week, Will Stelle, head of the National Marine Fisheries Service's Northwest Region, suggested to a group in Seattle that federal judges reviewing tribal claims might even order the dams removed, exercising sweeping powers akin to those used in the judicial war on segregation. 

Perhaps some judges (Clinton/Gore appointees?) do view irrigators and dam operators as standing on the same moral and legal plane as vicious racists.  But Judge Wood's decision, like the many other decisions he cites construing the 1855 treaties, follows a well-established, give-every-benefit-of-the-doubt-and-then-some approach to the interpretation of tribal treaties.  While his decision is subject to appeal to the Idaho Supreme Court, odds are that it will be affirmed.  Judge Wood's decision should give heart to those targeted by the Stelle/environmentalist scare tactics.  At the least, it gives those who rely upon use of natural resources in the Pacific Northwest one more reason to have a merry Christmas.

                    James Buchal, December 21, 1999

Links: Judge Wood's decision (requires Adobe Acrobat); Mr. Stelle's remarks

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