For Tulalips, protecting treaty rights means restoring habitat

From a research boat on Oct. 12, Tulalip Tribes treaty rights commissioner Terry Williams points out a steep hillside near Mission Beach that has been gradually eroding for years. (Ian Terry / The Herald)

From a research boat on Oct. 12, Tulalip Tribes treaty rights commissioner Terry Williams points out a steep hillside near Mission Beach that has been gradually eroding for years. (Ian Terry / The Herald)

 

 

By Chris Winters, The Herald, Oct 22, 2016

 

TULALIP — From the deck of a 30-foot research boat owned by the Tulalip Tribes, Terry Williams pointed out the remnants of a bulkhead along Mission Beach where not long ago there was a string of beach houses.

In 2013, the leases on the tribal property weren’t renewed and the homes were removed. The main concern was erosion of the beach and the bluffs overhead damaging the fragile marine environment below.

Williams, who is the Tulalips’ treaty rights commissioner, said increased rainfall and stronger windstorms would saturate the sandy bluffs and cause them to slide down onto the houses below.

“It gets to the consistency of a milkshake and tends to fall,” Williams said.

On a bright fall day, several parts of the bluff showed clear evidence of slides. Houses were visible above.

Coastal landslides tend to silt up the nearshore environment, which is considered a critical piece of the salmon ecosystem.

“Those areas are really important for forage fish for threatened and endangered salmon,” said Joshua Meidav, the Tulalip Tribes’ conservation science program manager.

The beaches were created and rejuvenated over millennia by the gradual erosion of the bluffs. Development along the shore, including bulkheads, docks and clifftop homes, interrupted that natural process.

Now when the bluff slides, it tends to come down all at once, Williams said.

“The reality is that this is all changing,” he said.

An issue of rights 

Climate change is a concern to Williams and the Tulalips in ways that go well beyond the usual worries about flooding and slides. It’s an issue of treaty rights.

While treaty rights are most commonly understood in the context of dividing the salmon harvest, their reach extends beyond the fishing grounds to tribal relationships with local, state and federal governments, said Ray Fryberg Sr., the Tulalips’ Executive Director of Natural Resources.

Most commonly that manifests in cooperative work with federal, state and local governments, and even private landowners, on many kinds of projects designed to restore salmon habitat.

On other occasions, the tribes have sought redress in the federal courts when they felt government wasn’t living up to its obligations.

“We’re like the last vanguard,” Fryberg said. “They have policies and procedures but there’s no enforcement.”

Most recently, that manifested in the “culverts case.”

In 2001, 21 tribes argued successfully that Washington state violated their treaty rights because culverts that carried streams under roads harmed salmon runs.

The 9th U.S. Circuit Court of Appeals upheld that decision in June, and ordered the state Department of Transportation to replace or fix 818 culverts at an estimated cost of $2.4 billion over the next 17 years.

It was a significant advancement of treaty rights into the realm of habitat restoration.

“The culvert case is the case that says there has to be a restoration so that ongoing harm doesn’t continue,” said Robert Anderson, a law professor and the director of the Native American Law Center at the University of Washington.

In this case, the state of Washington was found to have damaged habitat for salmon, and was ordered to make repairs.

Habitat protection and restoration were key elements in the second phase of a landmark decision by U.S. District Court Judge George Boldt.

In 1974, the first phase of the Boldt decision provided the basis for the co-management system, in which tribal and non-tribal fishermen divide the salmon harvest each year. The second phase, decided in 1984, focused on the habitat for the salmon.

“Phase II said that there’s not going to be a treaty resource of the salmon unless the environment is protected,” Fryberg said. “We get a certain amount of say-so in that.”

The part of the Phase II Boldt decision that obligated the federal government to restore habitat was overturned on appeal. However, the federal appeals court still said that the state of Washington and the tribes needed to take steps to protect and enhance the fisheries.

What those steps should be was left unstated.

“It’s difficult to argue that the federal government has an obligation to restore the ecosystem to, say, pre-treaty conditions, or treaty-time conditions,” Anderson said.

Some of the damage to habitat had already been done by that time, he said. Also, it’s a lot harder to assess the damage done by small changes, such as a single tide gate on private land, compared with the cumulative effects of the state’s culvert construction.

Momentum for restoration work can be created, however, when treaty rights are considered in tandem with the Endangered Species Act’s listing of various populations of salmon and steelhead.

“I think there’s a strong argument with the federal government to take steps to restore habitat,” Anderson said. “Maybe not a legal argument, but a treaty trust obligation to do it, and that they should do it.”

A seat at the table 

In practical terms, that means that the tribes have been aggressive in forming partnerships to pursue environmental projects.

Representatives from the Tulalips and the Suquamish Tribes were included in last week’s announcement of a new governmental task force to identify goals to protect Puget Sound.

Tribes also have broad leeway to take on projects of their own that help restore habitat, or at least halt the progress of degradation.

It’s not a blanket authority to do anything anywhere, but it means tribes have a seat at the table whenever a treaty trust resource is affected.

As a coordinating body among the 20 treaty tribes of Western Washington, the Northwest Indian Fisheries Commission has a role supporting restoration programs to have a greater impact.

A lot of the commission’s work focuses on the marine nearshore environment, said Fran Wilshusen, the NWIFC’s habitat services director. That also means studying how the marine environment interacts with estuaries, river systems and the upland watersheds.

“We’re trying to pull the lens back and look at how the whole system is connected,” Wilshusen said.

That includes small projects, such as the Tulalips’ 2013 pilot study to release beavers in the western Cascades, where their activity of building dams is expected to help return the upper reaches of streams to their natural state, which happens to be better spawning territory for salmon.

Larger efforts include the Tulalips’ restoration of the 400-acre Qwuloolt Estuary in Marysville. A similar project was restoration of the 762-acre estuary in the Nisqually National Wildlife Refuge outside Tacoma by the Nisqually Tribe.

The ongoing Nearshore Restoration Project focuses on restoring beaches and marine environments damaged by beach erosion. It’s a Snohomish County project, and local tribes have a place at the table, serving on the boards of several organizations that provided money for the project, including the county’s Marine Resource Committee and the Northwest Straits Commission.

One project under way is an agreement between the Tulalip Tribes and the U.S. Forest Service to maintain a 1,280-acre tract in the Mount Baker-Snoqualmie National Forest as a source of wild huckleberries.

There aren’t that many places left in the mountains that are accessible by road that still provide habitat for the berries, which are important to tribal culture, said Libby Halpin Nelson, a senior environmental policy analyst with the Tulalips.

“They are healthy and they are a traditional food that is always looked for in ceremonies,” Nelson said.

The project includes removing small conifers that could “shade-out” the berries. In essence, the tribe is mimicking the effect forest fires used to have before fire suppression became standard response, she said.

Rights at risk 

For all the work that’s been done to protect and restore salmon habitat, the fish runs continue to decline.

In spring, projections of low numbers of returning salmon, especially coho, led to a breakdown of negotiations between the tribes and the state. Tempers flared and fishermen protested when tribes were given permission to catch a small number of spring Chinook while the non-native sportsmen had to wait.

July report from the Northwest Indian Fisheries Commission’s “Treaty Rights at Risk” initiative pointed out just how dire the situation was for many watersheds, including the Snohomish and Stillaguamish rivers: Habitat was being lost faster than it could be replaced and nearly every single indicator of the health of salmon populations was trending downward.

The challenges looming on the horizon are even more formidable.

A poster on Fryberg’s office wall has a picture of the late Nisqually leader Billy Frank Jr. and his warning to all Native American tribes: “As the salmon disappear, so do our tribal cultures and treaty rights. We are at a crossroads, and we are running out of time.”

With each new study, it becomes clearer that changes are elapsing at an increasing speed.

“Ten, 15 years ago, what we said would happen in 50 years is already happening,” Fryberg said.

The Tulalip Tribes hosted two summits this year, one in April concerning rising sea levels, and another in September that looked at adapting to climate change in general. Fryberg said the tribe is planning a third focused on the state of salmon recovery.

“Collectively, we have to be making some effort,” Fryberg said. “We have a responsibility to the future to try and do something.”

The quote from Billy Frank was from an essay he wrote in 2012, and it’s the next sentence that points to what needs to be done: “That’s why we are asking the federal government to come to align its agencies and programs, and lead a more coordinated recovery effort.”

Williams’ entire career has been focused on building bridges between tribal, state and federal governments.

Shortly after the Boldt decision, he was involved in setting up the co-management regime in the state, and then negotiating the Pacific Salmon Treaty with Canada and its First Nations, backed by research developed by Tulalip staff scientists.

In the 1990s he was tapped to open the Indian Office in the Environmental Protection Agency. But many efforts to restore salmon runs were coming up short.

“We were putting tremendous amount of money into restoration and we were losing ground,” Williams said.

He realized that many federal and state agencies operated in their own silos, and often they might set regulations that aren’t in line with each other or broader goals.

“It’s the authority of each individual agency, federal, state or local, that gives them the ability to create rules and standards,” Williams said. “Eleven agencies have independent programs and authorities in Puget Sound. Most are not geared toward Puget Sound recovery goals.”

At the climate change summit in September, Williams noted the decision by the U.S. Army Corps of Engineers and other federal agencies to temporarily halt work on the Dakota Access Pipeline after months of protests at the Standing Rock Sioux reservation. He said that was recognition that regulators were out of alignment with the Obama Administration’s agenda.

While a court has allowed some of that work to start up again, the government’s order came with an announcement that the federal government would consult with tribes on major infrastructure projects in the future.

The consultation process already existed since President Obama created a cabinet-level position to coordinate government-tribal relations, Anderson said.

“Here the Obama Administration seems to be signaling that, ‘Hey, maybe we ought to be doing more,’” he said.

That may lead simply to more federal agencies talking to each other and more often with tribal governments, which is still a step forward.

From the Tulalip research boat, Williams pointed out a section of Hermosa Point where he’s lived since the 1970s. Here too, the bluffs have slid, and some of the houses are perched on the edge, hanging over the lip.

“When I bought my house we were looking at getting closer to the bluff, but decided that wasn’t a good idea,” he said.

If stronger regulations are enacted, it would prevent some houses from being built, and that would translate into lower insurance costs for government. That would also help protect fragile ecosystems.

“The more we can understand it, the better we can prepare,” Williams said.

“What we’re seeing in climate impacts right now is just the beginning.”

 

An eroding hillside near Hermosa Point on the Tulalip Reservation. (Ian Terry / The Herald)

An eroding hillside near Hermosa Point on the Tulalip Reservation. (Ian Terry / The Herald)

 

Evidence of a recent slide along a hillside near Arcadia Road on the Tulalip Reservation on Oct. 12. (Ian Terry / The Herald)

Evidence of a recent slide along a hillside near Arcadia Road on the Tulalip Reservation on Oct. 12. (Ian Terry / The Herald)

 

Fishermen in Tulalip Bay with the Olympic Mountains looming in the background. (Ian Terry / The Herald)

Fishermen in Tulalip Bay with the Olympic Mountains looming in the background. (Ian Terry / The Herald)

 

Chris Winters: 425-374-4165; cwinters@heraldnet.com. Twitter: @Chris_At_Herald.

Changes in ocean put shellfish business in jeopardy

Penn Cove Shellfish workers on Wednesday harvest mussels, clams and oysters. Photo: Dan Bates, The Herald

Penn Cove Shellfish workers on Wednesday harvest mussels, clams and oysters. Photo: Dan Bates, The Herald

By Bill Sheets, Herald writer, http://www.heraldnet.com

EVERETT — Between 2005 and 2009, billions of oyster larvae began dying at hatcheries around the state before anyone knew what was going on or could do anything about it.The state’s $270 million shellfish industry, which employs about 3,200 people, is in danger.

One oyster farm, Goose Point Oysters in Willapa Bay, has begun raising oyster larvae in Hawaii because it can no longer grow them here.

The reason, scientists say, is ocean acidification.

“The problem’s not going away,” said Ian Jefferds, general manager and co-owner of Penn Cove Shellfish in Coupeville.

On top of pollution and loss of habitat, rising acidity in Washington waters is the latest hazard faced by marine life, including the lucrative shellfish and fishing industries.

Acidification of marine waters is caused primarily by the ocean’s absorption of carbon emissions, scientists say. Other human activities, such as agricultural runoff, contribute. The oceans are rapidly becoming more acidic after thousands of years of stability, scientists say.

The Northwest is particularly vulnerable to the problem because it receives naturally upwelling carbon-laden water from deep in the Pacific Ocean.

Terry Williams, commissioner of fisheries and natural resources for the Tulalip Tribes, was concerned enough about the phenomenon to be one of several people to approach former Gov. Chris Gregoire in 2011 to form a panel to study the problem.

The 28-member panel, called the Washington State Blue Ribbon Panel on Ocean Acidification, included scientists, representatives of environmental groups, tribes and the business community, and current and former government officials.

Reducing the effect of human activities is one place to start, the panel concluded. Carbon emissions represent a much broader and tougher challenge.

The problem of ocean acidification "is not going away," said Ian Jeffereds, general manager and co-owner of Penn Cove Shellfish.

The problem of ocean acidification “is not going away,” said Ian Jeffereds, general manager and co-owner of Penn Cove Shellfish.

Still, work has to begin now, experts say.

“Godzilla is still small. Let’s not wait until he’s big,” said Brad Warren, director of the Global Ocean Health Program, a Seattle-based group formed to address ocean acidification and its effect on fisheries.

Warren, a member of the state panel, spoke at an informational meeting on the topic in Everett last Thursday.

About 120 people attended. Panel members have been conducting the meetings around the state by request of local officials.

The committee made several recommendations, including reducing agricultural runoff into local waters; investigating water treatment methods to control the problem in targeted areas, and ultimately, finding ways to reduce carbon emissions from fossil fuels.

Rep. Norma Smith, R-Clinton, served on the state panel. She’s convinced ocean acidification is a legitimate threat and is concerned for Penn Cove shellfish.

Still, she would have liked more effort to involve the agricultural community before recommending that farm waste be reduced.

“You have to look at this holistically,” Smith said. “We need to recognize that we need both; we need aquaculture and we need agriculture.”

Smith said the panel’s call for stricter regulations on pollutants, while not yet specific, are getting ahead of the game.

“That’s backwards,” she said. “You build solid models, you create a solid scientific foundation, then you move forward with the regulatory practices that are warranted.”

Some people still look at ocean acidification with the same skeptical eye as they do at climate change, Warren said. While both conditions are caused by carbon emissions, they’re not the same thing, said Terrie Klinger, an associate professor in the school of marine and environmental affairs at the University of Washington, a member of the study panel who spoke at the Everett meeting.

Scientists are just scratching the surface about ocean acidification, but a few facts have been established, according to scientists on the panel.

About 30 percent of carbon emitted into the atmosphere from human activity is absorbed by the oceans, Klinger said.

High acidity reduces calcium carbonate levels in the water, preventing mollusks from properly forming their shells.

Acidification is known to affect pteropods — tiny, plankton-size snails — along with krill and some types of prawns that are staple foods for fish, whales and other sea life.

“These species are known to be sensitive to acidity and they’re a large part of local food webs,” said Shallin Busch, a research ecologist for the National Oceanic and Atmospheric Administration in Seattle. She’s also a member of the study panel.

The ocean’s surface pH level — which measures the acidity or alkalinity of an environment — was about 8.1 for millennia, as far back as carbon dating tells us, Klinger said. The lower the number, the greater the acidity.

Just since 1850 it’s fallen to 8.0, and at the current rate will hit 7.8 by 2094, she said.

When it comes to acidity in the water, one-tenth of a point is a big difference, Klinger said.

“It’s dropping like a rock,” she said.

In measurements taken at Tatoosh Island on the Washington coast in 2000, the level was 7.5, Klinger said.

There are some unknowns as well. Some species, such as the Suminoe oyster native to Asia, are comparatively immune to the effects of acidification, Busch said.

In inland marine waters such as those in Western Washington, it’s difficult to measure acidity with consistent accuracy because of the influx of river water and substances in runoff, experts say.

“We need more sophisticated instruments,” Klinger said.

Penn Cove Shellfish grows mussels near Coupeville and at another site on the Hood Canal.

“We’ve seen some incidents in our Quilcene Bay site and at Penn Cove that we don’t have an explanation for,” Jefferds said.

Specifically, some of the mussels have been having trouble clinging to the mesh socks on which they’re grown. The company has enlisted NOAA to study the problem.

Tulalip tribal fishermen have been noticing a decline in fish and shellfish populations for more than a decade, Williams said.

It’s hard to tell, though, how much of the decline is caused by pollution and loss of habitat and how much it might be because of ocean acidification.

That’s why the tribes plan to hire scientists to do detailed studies of local waterways to try to learn more, Williams said.

One thing everyone seems to agree on is that getting started working on solutions is important.

“This is the first state in the country to launch a comprehensive attack on this problem,” Warren said.

Learn more

Washington State Blue Ribbon Panel on Ocean Acidification: http://tinyurl.com/78vejjk

NOAA Ocean Acidification Program: www.oceanacidification.noaa.gov