Being Frank: One small stream could mean better water quality statewide

By Billy Frank, Jr., Chairman, Northwest Indian Fisheries Commission

OLYMPIA – A little creek in eastern Washington was at the center of an important water quality ruling recently by the Washington State Supreme Court, reaffirming the state’s right to regulate nonpoint sources of pollution in streams. Nonpoint pollution takes many forms, such as higher water temperatures, sediment, stormwater runoff, fecal coliform bacteria from failing septic systems and agricultural practices.

For 10 years the state Department of Ecology (DOE) tried to work with rancher Joseph Lemire to keep his 29 head of cattle out of Pataha Creek, a small stream that runs through his property near Dayton. Lemire’s cattle had unrestricted access to the creek, leading to manure in the stream, eroded streambanks and increased sediment in the creek.

When DOE finally ordered Lemire to stop polluting by fencing cows out of the creek, the rancher appealed, claiming that a fence would restrict use of his land and therefore was an unlawful “taking” of his property. The state Supreme Court disagreed in an 8-1 ruling.

The fact that it took nearly a decade to get one rancher to do the right thing is made even more disturbing because Pataha Creek was selected as a model watershed in 1993 by the Bonneville Power Administration. BPA and other agencies have spent hundreds of thousands of dollars working with ranchers and farmers to provide everything from streamside fencing to tree and shrub planting to help improve the creek.

Twenty years of voluntary efforts haven’t turned the tide of nonpoint pollution in many Washington watersheds. As the Lemire example shows, sometimes it takes more than money and voluntary efforts to protect our resources. And sometimes, all it takes to jeopardize our work is one landowner who’s not willing to do the right thing.

Thankfully, the state has the authority to control these sources of pollution, and was willing to take the case to the state Supreme Court to defend it. That’s encouraging, because the ruling wasn’t anything new. It’s just a matter of the state having the will to use its authority to regulate nonpoint source pollution. We shouldn’t have to look to the courts for leadership.

Let’s hope the court’s ruling will translate into better water quality protection on this side of the mountains, too. Our treaty rights depend on it.

Our treaties guaranteed us the continued right to fish and gather shellfish, which depends on good water quality to ensure healthy salmon habitat and shellfish that are safe to eat. Nonpoint sources of water pollution constantly threaten our natural resources. When a shellfish harvest area is closed because of pollution, or salmon runs are reduced because of poor water quality, our treaty rights are denied altogether.

We all live downstream – every one of us. We need to keep that in mind and work together to restore and protect water quality in this state.

Time to Move Forward on Fish Consumption Rate

By Billy Frank, Jr., Chairman, Northwest Indian Fisheries Commission

OLYMPIA – The Washington state legislature deserves thanks for not caving in to demands from Boeing and others to require yet another study of fish consumption rates in Washington to tell us what we already know: Our rate is too low and does not protect most of us who live here.

It wasn’t easy. A Senate measure requiring another study before beginning rulemaking on a new rate was tied to passage of the state budget, and nearly led to a government shutdown. Boeing and others have been trying to stop or delay development of a new rate because they say it would increase their cost of doing business.

The fish consumption rate is part of the human health standards used by state government to determine how much pollution is allowed to be put in our waters. The 20-year-old rate of 6.5 grams per day – about one eight-ounce seafood meal per month – is supposed to protect us from more than 100 toxins that can cause illness or death.

It’s a sad fact that Washington has one of the highest seafood-eating populations, but uses one of the lowest fish consumption rates in the country to regulate water pollution and protect human health. Another study could have delayed development of a new rate for three years or more.

Tribes have been reaching out to business and industry to discuss implementation of a new fish consumption rate. We are sensitive to possible economic impacts of a higher rate, and we want to continue working together to create a meaningful path forward. But those efforts have largely been ignored, and that’s too bad, because we have solved bigger issues than this by working together.

We are encouraged, however, by the actions of Dennis McLerran, regional Environmental Protection Agency administrator. He has stepped forward to express his agency’s commitment to protecting water quality and human health in Washington.

In a recent letter to Maia Bellon, director of the state Department of Ecology, McLerran pledged to support the state in developing a more accurate fish consumption rate. He made it clear, however, that if the state can’t or won’t get the job done, he will use his authority to establish a new rate. “The EPA believes there are scientifically sound regional and local data in Washington that are sufficient for Ecology to move forward in choosing a protective and accurate fish consumption rate at this time,” McLerran wrote.

Ecology director Bellon has said that we could have a more accurate fish consumption rate adopted by late 2014, and we intend to hold her to that. Oregon has increased its fish consumption rate to a more realistic 175 grams per day; we think Washington residents deserve at least that much protection.

We’re spending too much money, time and effort to clean up and protect Puget Sound and other waters to let business and industry continue to pollute those same waters. Right now we are paying for our state’s low fish consumption rate with the cost of our health, and that’s not right.

Developing a more accurate fish consumption rate isn’t about jobs versus the environment. It isn’t just an Indian issue. It’s a public health issue and needs to be treated that way. We can’t allow politics to trump common sense when it comes to protecting our own health and that of future generations.

If you want to learn more, visit the Keep Our Seafood Clean Coalition website at

Being Frank: Don’t let First Salmon become Last Salmon

By Billy Frank, Jr, Northwest Indian Fisheries Commission Chairman

Winter snows are melting up in the mountains and soon the only white stuff we’ll see floating in the air will be cottonwood fluff, a sign that the salmon are beginning to return and a reminder that it is time to celebrate the fish that sustains us as a people.

In gatherings large and small, tribes throughout western Washington will celebrate First Salmon ceremonies this spring and summer to welcome home the salmon.

It is an honor for a tribal fisherman to be asked to harvest the First Salmon, a scout for the Salmon People who live in a village under the sea. With drumming and singing the First Salmon is welcomed and shared. The First Salmon’s bones are then returned to the water to allow his spirit to go home. If the First Salmon was shown proper respect, he will tell the Salmon People how well he was treated, and lead them back to the tribe’s fishing area for harvest.

The return of the salmon means tribal fishermen will be returning to the water as well. As part of the First Salmon Ceremony, many tribes also include a Blessing of the Fleet for protection of tribal fishermen and their boats.

But it is getting harder every year to put our tribal fishermen on the water. While careful harvest management by the tribal and state co-managers is making a strong contribution to the recovery of wild salmon, the keys to rebuilding those runs have always been to protect and restore salmon habitat.

Yet day after day we see salmon habitat being lost and damaged, and little being done to stop or fix it. Our declining salmon populations and resulting lost fishing opportunity are mirrors that reflect the increasingly shrinking quality and quantity of salmon habitat in our region. Conservative fisheries are effective only when they go hand-in-hand with equally strong efforts to protect and restore salmon habitat.

The lack of action on protecting and restoring habitat has gotten to the point that we can no longer make up for declining salmon runs simply by reducing harvest. Those days are gone. Even if we stopped all salmon fishing everywhere in western Washington, most weak wild salmon stocks would still never recover. There simply isn’t enough good quality habitat to support them.

But despite everything that’s thrown against them – dams, pollution, predators and much more – the salmon never stop trying to make it home. We can’t stop either. We all need to work harder to make sure the salmon has a good home when he returns.

We don’t want to ever find ourselves contemplating a Last Salmon Ceremony.

Fixing the culverts is good for everyone

Bring Frank by Billy Frank Jr, the chairman of the Northwest Indian Fisheries Commission.

Indian tribes in western Washington have long been using our treaty rights to protect and restore the salmon resource to the benefit of everyone who lives here. A good recent example is the federal court’s March 29 ruling in the culvert case brought against the state by the tribes back in 2001.

The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty-reserved fishing rights, federal Judge Ricardo Martinez ruled in late March. The court found that more than 1,500 state culverts deny salmon access to hundreds of miles of good habitat in western Washington, harming salmon at every stage in their life cycle.

We didn’t want to file this litigation, but the salmon can’t wait. At the pace that the state has been repairing its blocking culverts, there would be few, if any, salmon left by the time all were fixed. Martinez’s ruling will result in hundreds of thousands more salmon returning to Washington waters each year. These salmon will be available for harvest by everyone who lives here, not just the tribes.

We could have avoided the suit if the state followed its own laws. One of Washington’s first laws on the books requires fish passage at any blockage in creeks and rivers.

Instead, the state chose to largely ignore the problem along with the tribes’ treaty rights, which depend on salmon being available for harvest. And once again, our treaty rights were upheld by the federal courts, just as they have been consistently since the 1974 Boldt decision that re-affirmed those rights and established the tribes as co-managers of the salmon resource.

This isn’t something new to the tribes. The state’s approach has long been to ignore treaty rights even if that means ignoring the best interests of all of its citizens.

State agencies told the Legislature in 1995 that fixing culverts was one of the most cost-effective strategies for restoring salmon habitat and increasing natural salmon production. The cost to benefit ratio goes up as the number of culverts repaired per year increases, they said. Two years later, state agencies said every dollar spent fixing culverts would generate four dollars’ worth of additional salmon production. Recent studies support that estimate.

Still, Judge Martinez had to issue a permanent injunction against the state’s continued operation of fish-blocking culverts under state roads. The reason is that the state has actually reduced culvert repair efforts in the past three years, which has led to a net increase in the number of barrier culverts. At the current pace, the state would never complete repairs, Martinez said, because more culverts were becoming barriers to salmon than were being fixed.

The federal court’s ruling will not bankrupt the state. Judge Martinez gave the state and its Department of Transportation (DOT) 17 years to complete repairs. Other state agencies were already planning to have their blocking culverts corrected within the next three years.

Culvert repair cost estimates being provided by the state are higher than the actual repair costs presented in court, Martinez ruled. The state claims that the average cost to replace a state DOT culvert is $2.3 million. But the evidence showed the actual cost of DOT culverts built to the best fish passage standards has been about $658,000.

It’s important to note that repairs will be funded through the state’s separate transportation budget and will not come at the expense of education or other social services. It’s also important to understand that state law already requires that culverts allow fish passage. The culvert case ruling directs the state to do nothing more than what is already required, except to correct DOT fish-blocking culverts at a faster rate.

The treaty Indian tribes bring much to the salmon management table. Salmon populations in western Washington would be in far worse shape without the salmon recovery efforts, fisheries management expertise, leadership, hatcheries, funding, and traditional knowledge the tribes provide. More habitat would be lost, fewer salmon would be available for harvest, and there would be far less funding for salmon recovery.

We prefer to cooperate rather than litigate to achieve salmon recovery. But if our treaty rights can be used to re-open these streams and enhance wild salmon populations, that’s a win-win for all of us.

Federal Court Upholds Tribal Treaty Rights in Culvert Case

Billy Frank
Billy Frank

Source: Northwest Indian Fisheries Commission,

OLYMPIA – The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty rights, federal Judge Ricardo Martinez ruled on Friday, March 29.

“This is a historic day,” said Billy Frank Jr., Nisqually tribal member and chairman of the Northwest Indian Fisheries Commission. “This ruling isn’t only good for the resource, but for all of us who live here. It will result in more salmon for everyone. This is a great victory for all who have worked so hard to recover wild salmon.”

Martinez issued a permanent injunction requiring the state to repair more than 600 state-owned fish-blocking culverts over the next 17 years to “ensure that the State will act expeditiously in correcting the barrier culverts which violate treaty promises.” Treaty Indian tribes filed the initial culvert case litigation in 2001. The tribes, the United States and the state spent several years trying to settle the case, but were unable to reach agreement.

Tribes reserved the right to harvest salmon in treaties with the United States government more than 150 years ago. That right was upheld in U.S. v. Washington, the 1974 ruling that recognized the tribal right to half of the harvestable salmon returning to state waters and established the tribes as co-managers of the resource with the state.

The injunction was necessary, Martinez ruled, because the state has reduced repair efforts in the past three years, resulting in a net increase of fish blocking culverts. At the current rate, repairs would never be completed, he ruled, because more culverts were becoming barriers to salmon than were being fixed.

“The salmon needs our help now,” Frank said. “Salmon habitat throughout the region continues to be damaged and destroyed faster than we can repair it, and the trend is not improving. This ruling is a step in the right direction.”

Blocking culverts deny salmon access to hundreds of miles of good habitat in western Washington streams, affecting the fish in all stages of their life cycle. State agencies told the Legislature in 1995 that fixing culverts was one of the most cost-effective strategies for restoring salmon habitat and increasing natural salmon production. In 1997 state agencies estimated that every dollar spent fixing culverts would generate four dollars worth of additional salmon production. Recent studies support the state’s findings.

In the ruling Martinez wrote that the state’s duty to fix the culverts does not arise from a “broad environmental servitude” by the state to the treaty tribes, but rather a “narrow and specific treaty-based duty that attaches when the state elects to block rather than bridge a salmon-bearing stream. . .”

“Judge Martinez’s ruling was clear,” Frank said. “Our treaty-reserved right to harvest salmon also includes the right to have those salmon protected so that they are available for harvest, not only by the tribes, but by everyone who lives here.”

Cost estimates provided by the state are higher than the actual repair costs shown in court, Martinez held. He noted that repairs would be funded through the state’s separate transportation budget and would not come at the expense of education or other social services. Costs will be spread out over a 17-year correction program. As highway projects go, the corrections are mostly small.

“The cost will be a small sliver of the State’s two-year $7 billion transportation budget,” Frank said.

The March 29 ruling follows an August 2007 summary judgment issued by Martinez in favor of the tribes, but did not include a remedy to fix the culverts. He encouraged the tribes and state to continue to try and resolve the issue outside of court, but those efforts were unsuccessful.

“We prefer to collaborate with the state to restore and protect salmon and their habitat,” Frank said. “However, the state’s unwillingness to work together and solve the problems of these salmon-blocking culverts in a timely manner left us with no alternative except the courts.”

“Being Frank” Fish Consumption Rate Unjust

By Billy Frank, Jr., Chairman, Northwest Indian Fisheries Commission

OLYMPIA – Medical experts say eating a Mediterranean diet that’s high in fruits, vegetables, nuts, olive oil and fish is one of the best things we can do to reduce our risk of heart attack and stroke. Eating more fish and other seafood is a healthy choice as long as those foods don’t come from polluted waters. We think the state of Washington needs to make sure our waters stay clean.

Washington uses one of the lowest fish consumption rates in the country – about 6.5 grams a day, or one 8-ounce fish meal a month – to set rules for how much pollution that industry can put in our waters. That rate is supposed to protect us from more than 100 toxins that can make us sick or kill us, but it was set more than 20 years ago. Even the state Department of Ecology recognizes that the inaccurate rate does not protect most of us who live in Washington, a state with one of the largest populations of seafood consumers in the country.

We should not face an increased risk of illness from toxic chemicals when we try to improve our health by eating seafood.  Washington’s fish consumption rate should be at least as protective as Oregon’s, which has been raised to 175 grams, or about one fish meal per day. Plenty of scientific evidence supports an increase to that amount or more.

Treaty tribes have been trying for years to get Ecology to update the fish consumption rate. Our health and our treaty rights depend on our food being safe to eat.

Work to raise the rate finally began last year, but about halfway through the process Ecology did an about-face and progress skidded to a halt. The cause? A phone call from industry representatives who said revising the rate would be bad for our economy because it would increase the cost of doing business.

We’re trying to get the process back on track, and remain hopeful that Gov. Inslee and new Ecology Director Maia Bellon can help make it happen. We’re also working with the U.S. Environmental Protection Agency to form a Government Leadership Group to move forward.

It’s not going to be easy, though. We’re up against some powerful interests.

Opponents claim federal water quality standards in place here already protect all of us. But how can that be, if we already know the fish consumption rate is wrong? Their answer is that existing rules can include a larger fish consumption rate as long as those who eat more fish accept a higher risk of getting cancer.

Imagine that. What they’re saying is that most people in Washington would be protected by a rate of risk that one in one million people will get cancer from toxins in water. But for anybody who eats more than one seafood meal per month, including Indians, Asians and Pacific Islanders, that risk rate can be as high as one in 10,000. That’s unacceptable. Current state law requires cancer risk rates to protect everyone at the rate of one in a million. That standard should remain unchanged.

There’s no question that seafood is good for us, but it won’t be that way for long if pollution is allowed to contaminate the waters it comes from. It is unjust for Indian people and others who consume a lot of seafood to be at greater risk for getting cancer than everyone else.

Developing a more realistic fish consumption rate and keeping risk standards in place to protect our health is a matter of justice – social justice and environmental justice – for everyone who lives here. None of us deserves anything less.


For updates on the fish consumption rate debate, go to


Statement by Billy Frank Jr. on selection of Sally Jewell as Interior Secretary

Source: Northwest Indian Fisheries Commission

“We are excited about President Obama’s selection of Sally Jewell for Secretary of the Interior,” says Chairman Billy Frank of the Northwest Indian Fisheries Commission. “We think she’s a great choice.”

Jewell, the former chief executive officer for outdoor gear giant REI, grew up in Washington state and knows the issues important to Indian tribes, Frank said. “She’s one of us, and we couldn’t be more pleased that she will be leading the Department of Interior for the next four years,” he said.

Frank said that Jewell brings a strong blend of business sense and a natural resources conservation ethic to the agency. “A healthy environment and a healthy economy can go hand-in-hand,” Frank said. “We can have both, and I think Sally Jewell will help make that happen.”

Frank praised Jewell’s knowledge of tribes and tribal issues, and respect for tribal sovereignty and treaty rights. “We are facing big challenges such as achieving salmon recovery, protecting water quality and adapting to climate change,” Frank said. “Our cultures, economies and treaty rights depend on a healthy environment and healthy natural resources.”

Because the Department of Interior also includes the Bureau of Indian Affairs, Jewell’s understanding and respect for tribal governments are critical to a good working relationship between the tribes and the agency, he said.

“I believe Sally is the right person, in the right place, at the right time,” Frank said. “We look forward to working with her, and thank President Obama for his wise choice.”