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Efforts of Tribes Pay Off in Historic Agreement on Snake River Dam Removals by Karina Brown The Oregonian, December 25, 2023

Trump administration issued a biological opinion in 2020 that was so flawed and rushed
that the tribes, states and environmental groups involved leapt back into action.

A historic federal plan that paves the way for the breaching of the four dams on the Lower Snake River came about because of planning and work led by the four Columbia River treaty tribes: Yakama Nation, Confederated Tribes of the Warm Springs, Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe.

In a series of commitments announced last week, the federal government agreed to fund green energy projects led by four Columbia River Native nations intended to replace the energy generated by the four dams in the Lower Snake River. The plan sets the stage for the breaching of the dams in the next decade: the timespan of about two generations of salmon. It's the latest development in a long-running lawsuit filed more than two decades ago over government operations of federal dams, which have pushed salmon and steelhead to the brink of extinction.

"It definitely gives us a pathway forward and really that's what we're looking for," said Nez Perce Chairman Shannon F. Wheeler. "The path we're on is going to bring the Pacific Northwest to a new era. And at the same time that the Pacific Northwest transforms into a much greater place, that we're also able to restore and recover salmon to levels we haven't seen for decades."

Dams are the main problem preventing recovery for 10 of the 16 salmon and steelhead populations in the Columbia River Basin, according to a 2022 report by the National Oceanic and Atmospheric Administration.

This year, the four Columbia River treaty tribes -- Yakama, Umatilla, Warm Springs and Nez Perce -- developed the Columbia Basin Restoration Initiative. It was a response to a long slog through mediation, where online meetings often included more than 200 representatives with dramatically differing views, struggling to make progress toward a viable plan. Then the tribes took the lead on inviting federal involvement in the plan they had created.

The tribes' restoration initiative, and the federal response to it, became the U.S. Government Commitments document filed in the case on Dec. 14.

If approved by the court, the plan outlined in that document would build on recommendations from Washington Gov. Jay Inslee and Sen. Patty Murray, calling for the breaching of the dams as a crucial part of salmon recovery. In their recommendations, Inslee and Murray noted that the energy generated by the dams, along with other services they provide, would need to be replaced before the breaching could actually occur. A viable plan to replace what the dams provide is also key to persuading Congress to approve breaching.

The Dec. 14 court filings provide just such a plan.

For the four Columbia River treaty tribes, the agreement has additional meaning.

"It honors the federal government's promise to us in the treaty of 1855," said Corinne Sams, an elected member of the board of trustees for the Confederated Tribes of the Umatilla Indian Reservation and chair of the Columbia River Inter-Tribal Fish Commission. "It allows our people to continue our way of life and we are salmon people."

The six sovereigns

Originally filed in 2001 by the National Wildlife Federation and an assortment of other environmental groups, the four Columbia River treaty tribes joined the lawsuit that same year. The plaintiffs in the case argued that the federal government was violating the Endangered Species Act by allowing federal dams on the Columbia and Snake rivers to decimate threatened and endangered salmon and steelhead populations.

Over 22 years of litigation, a succession of judges assigned to the case have tossed out four of the government's biological opinions -- essentially permits allowing the U.S. Army Corps of Engineers to operate federal dams on the Columbia and Lower Snake Rivers -- finding that the plans violated the Endangered Species Act.

The latest round of activity in the case began when the Trump administration issued a biological opinion in 2020. Along with an accompanying government study required under the National Environmental Policy Act, the opinion was so flawed and rushed that the tribes, states and environmental groups involved leapt back into action. The active plaintiffs at the time -- the state of Oregon, the National Wildlife Federation and the Nez Perce as amici, or friends of the court -- each filed new complaints.

The Umatilla and Warm Springs nations also resumed activity in the case, after standing down their claims in 2008. That was the year they negotiated the Columbia River Fish Accords, which essentially doubled funding for fish habitat restoration and other dam mitigation efforts. But because of the 2020 biological opinion, both nations negotiated an amendment to the agreements surrounding the fish accords, saying they had no obligation to support the government's new plan.

When President Joe Biden took office in 2021, his administration took a new approach, expressing a desire to find a more realistic and permanent solution to transforming the federal hydrosystem into a green energy system that supports fish. Since then, the parties have spent two years in confidential mediation, trying to hammer out an agreement that might finally protect salmon.

Progress was slow, according to people involved. Enormous and unwieldy mediation meetings were held online -- some with upwards of 200 participants representing parties with opposing views. In January, the four Columbia River treaty tribes decided to formulate their own strategy for comprehensive salmon and steelhead recovery. They aimed to develop a plan that accounted for everyone who currently benefits from the dams: people living in the Northwest who depend on the energy the dams generate, farmers who use irrigation from the reservoirs behind the dams and ship their crops via barges in the river, and small town economies that revolve around the recreation the dams provide.

"We did not want to make this a dams versus salmon approach," said Jeremy Takala, member of the Yakama Nation tribal council and vice chair of Inter-Tribal Fish Commission.

In just five months, the tribes developed the Columbia Basin Restoration Initiative. After the tribes started working on the plan, the states of Oregon and Washington joined them. Together, they formed a block now known as "the six sovereigns."

In March, the chairs of the four treaty tribes met in Washington D.C. with John Podesta, President Biden's senior advisor for clean energy innovation and implementation, according to people with knowledge of the events. They asked for his help and invited him to visit the Columbia River Basin. When he arrived in June, tribal leaders shared a traditional meal with Podesta and Department of Energy Deputy Secretary David Turk at the Yakama Nation longhouse.

And they presented him with their Columbia Basin Restoration Initiative.

A visit from a government official of Podesta's stature was "unprecedented," according to Sams, the Umatilla board member and Inter-Tribal Fish Commission chair.

"For us to be able to take him along to our village sites that were flooded by the dams, to take him to our fishing sites so he could see our continued connection to ceremony and to culture and salmon was really beneficial," Sams said. "Because we can say it a thousand times, but you really have to see how we pair our traditional ecological knowledge with Western knowledge to restore and to really maintain a healthy ecosystem for our salmon that are traveling to and from the ocean."

After over a year of mediation, the meeting with Podesta kicked off talks between the tribes, the states and the Biden administration. The result was a historic court filing last Thursday that paves the way for the breaching of the four dams in the Lower Snake River.

For Nez Perce Chairman Wheeler, the most important accomplishment of over 20 years of litigation is the way this case has forced the U.S. government to treat the tribes of the Columbia River Basin as sovereign nations.

"When an agreement was made in 1855 with the tribe, it was made under mutual agreement, for mutual benefit," Wheeler said. "These talks are just a continuation of that."

Although the case was filed and argued based on alleged violations of the Endangered Species Act, the involvement of tribes with treaty rights in the Columbia River Basin added an element of additional government responsibility to the claims.

"The leadership of the Columbia River treaty tribes really did impact the outcome Thursday," said Jonathan W. Smith Sr., chairman of the tribal council for the Confederated Tribes of the Warm Springs. "The treaty tribes have unique legal tools based on their treaty rights. Those treaty rights and the legal obligations the federal government has to honor -- those rights can only be brought to the table by the four treaty tribes, not by the environmental plaintiffs or the states."

'Crying out for a major overhaul'

The National Marine Fisheries Service -- the defendant in the lawsuit -- found in the mid-1990s that salmon were unlikely to escape extinction, without "major modifications to the Snake and Columbia River dams."

Two decades later, U.S. District Judge Michael H. Simon admonished the government for not yet taking that action, in a 2016 ruling rejecting NMFS' plan to operate the dams while preventing salmon extinction.

"More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System 'cries out for a major overhaul,'" Simon wrote. "Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four dams on the Lower Snake River... . The Federal Columbia River Power System remains a system that 'cries out' for a new approach and for new thinking if wild Pacific salmon and steelhead, which have been in these waters since well before the arrival of homo sapiens, are to have any reasonable chance of surviving their encounter with modern man."

And government scientists reached a similar conclusion in 2022, when the National Oceanic and Atmospheric Administration (NOAA) found that dams are the main problem preventing recovery of salmon and steelhead populations in the Columbia River Basin.

According to the U.S. government commitments document filed last week: "The NOAA report clarified the urgency of the situation, stating that, given the current status of salmon populations, the science robustly supports riverscape-scale process-based stream habitat restoration, dam removal (breaching), and ecosystem-based management and overwhelmingly supports acting and acting now."

Simon will decide whether to approve the plan early in 2024, after hearing arguments in opposition. Four parties have not yet filed motions and may oppose the agreement: the State of Montana, State of Idaho, The Public Power Council and Inland Ports and Navigation Group.

Earlier this year, efforts in the same case by three Upper Columbia River tribes -- the Coeur d'Alene Tribe, the Confederated Tribes of the Colville Reservation and the Spokane Tribe of Indians -- resulted in government commitments to fund the tribes' salmon restoration efforts above the Chief Joseph and Grand Coulee dams. As a result, Judge Simon granted the three tribes' motions to stay their complaints in intervention in September.

If Judge Simon approves the agreement filed last week, the tribes and environmental groups that initially filed the lawsuit in 2001 would agree to pause litigation for five years, and for an additional five after that, as long as the agreement is still in operation.

"The overarching goal when we approached this is, as long as we can fulfill the obligations we have when it comes to the big law -- the unwritten law that says we have to take care of our food and it takes care of us -- as long as we can make sure this agreement does that, we'd like to see it continue," Warm Springs Chairman Smith said.

'The fish have given everything'

The plan details federally funded actions that would restore native fish and lead the way to the breaching of the four dams in the Lower Snake River. The agreement also includes plans for a U.S. Department of the Interior analysis of the historic, cumulative and ongoing impacts of federal dams on tribes in the Columbia River Basin that will inform future mitigation actions.

That is intended to make up for the harm caused by the government's 2020 environmental impact statement (EIS), analyzing the dams' impacts on Native nations. Despite Native nations contributing an enormous volume of information on that subject, the information in the EIS was scant. For the tribes, an accurate analysis of the dams' impact on their cultures, food systems and treaty rights was "one of the absolute must haves" to approach settling the lawsuit, according to Sams.

"The overarching idea is, they don't always really include the tribes' perspective," Smith said. "They kind of leave us out of the loop."

A U.S. Department of Energy analysis will help revamp the ways regional energy needs are met, while specifically identifying as "necessary" the breaching of the Lower Snake River dams. Federal grants and forgivable loans will be directed to tribally owned clean energy projects that aim to produce "at least one to three gigawatts" of clean energy over the next decade.

"It provides for a regional energy needs study to help us chart a course for the future, and then provides focused efforts to help the region meet those needs and includes tribes in that effort," Smith said.

The plan also sets out U.S. Department of Transportation projects in partnership with tribes to upgrade roads, railways and culverts. And it will update aging hatchery facilities and pay for long-needed repairs.

"Staff have worked day and night to upgrade infrastructure and keep them running," Takala said of Yakama Nation Fisheries' over 250-member staff.

Nez Perce Chairman Wheeler said the agreement represents a "great opportunity" to move toward breaching the Snake River dams. But he also lamented some aspects of the plan that he said would harm fish, such as reductions in the amount of water the U.S. Army Corps of Engineers will spill over the dams during the dry summer months to help fish migrate.

"It's a bittersweet pill," Wheeler said. "The fish have given everything and when we take things from them that help them, they're giving even more. The fish are the ones paying the ultimate price."

Related Sites:
Leaked Document of 11/2/23 and letter to President by Rep. Cathy McMorris Rodgers
Left in the Dark: Examining the Biden Administration's Efforts to Eliminate the Pacific Northwest's Clean Energy Production House Committee on Natural Resources, 12/13/23