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18 Ocean L. Memo 1 (1980)

handle is hein.journals/ocoaslme18 and id is 1 raw text is: Ocean and Coastal Law Center * School of Law * University of Oregon - EugenaJL97404980 Ocean Law Memo Issue 18 June 1, 1980 Treaty Fishing Rights and the Salmon Resource or Why All Fishermen Should Support Treaty Rights In 1970, when United States v. Washing- ton was filed with Federal District Judge George Boldt, two arguments were presented on behalf of fourteen Indian tribes. First, the government argued that Indian fisher- men were entitled to share equally in the salmon runs which traditionally migrated past the Indians' upriver fishing places. Second, the government argued that Indian treaty rights protected the runs from de- pletion caused by activities such as dam construction, stream dredging, and logging. Judge Boldt, anticipating the complexities of both contentions, wisely decided to split the case into two parts. Phase I would address the equal share argument and Phase II would address the environ- mental issue. Although the dust may not yet have settled on Phase I, the funda- mental legal battle is over. In 1974, Judge Boldt announced that the Indians were entitled to their fair share of the fish. His decision was affirmed by the Ninth Circuit Court of Appeals in 1976 and the fair share doctrine was upheld by the United States Supreme Court in 1979. In the meantime, a timetable for Phase II, the environmental issue, was set in motion and the case is currently before the federal district court in western Washington. The battle over the environ- mental aspects of Indian fishing rights is just beginning. THE PROBLEM The vulnerability of salmon to environ- mental changes is well demonstrated in western Washington, the case area of United States v. Washington. The United States Fish and Wildlife Service and the Washing- ton Department of Fisheries have concluded that the urban, residential, industrial, and agricultural development of western Washington have adversely affected all of the salmon's environmental needs. The effect of environmental degradation is reflected in an 80 per cent decline in salmon landings in the Puget Sound region between 1913 and 1967 (from over 15 mil- lion fish to less than 3 million). Al- though overfishing has played a significant role in this decline, environmental de- gradation has been at least equally sig- nificant. The Washington Department of Fisheries concludes that the main cause of salmon depletion can be traced directly to the environmental changes that have taken place since the advent of civiliza- tion in the Pacific Northwest. Salmon have five basic environmental requirements: (1) free access to and from the sea; (2) an adequate supply of clean water; (3) a sufficient amount of spawning gravel; (4) an ample supply of food; and (5) sufficient shelter. Alteration of any one of these requirements will affect the production potential of the species. Consequently, a salmon's life cycle makes it vulnerable to a wide range of environ- mental change. The pattern of economic development in western Washington has had severe im- pacts on each of the salmon's five environ- mental requirements. The salmons' access to and from the sea has been impeded or completely blocked by over 141 dams (with- out adequate fish passages). Water quality has been degraded by direct ef- fluent discharge from agricultural, in- dustrial, and sewage disposal sources to the point where it is deleterious to fish. Certain logging and irrigation practices have reduced streamside veaeta- tion and withdrawn sufficient water such that summer water temperatures often become intolerable to salmon. Suitable spawning gravel has been adversely af- fected by both direct gravel removal opera- tions and by logging practices which in- crease sedimentation levels in the river. The general aquatic ecosystem on which young salmon depend for food has been degraded by logging, poor road building practices, and industrial pollution. Finally, the pool-riffle character of I~J Oistributed by: OSU Extension Service' Sea Grant Marine Advisory Program, Corvallis, OR 97331 6!!!!id Distributed by: OSU Extension Service' Sea June 1, 1980 Grant Marine Advisory Program, Corvallis, OR 97331 Issue 18

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