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The Snake River, Unplugged by Rachel Odell Boise Weekly, September 7, 2005

Salmon-killing dams may amount to "takings" of tribal fishing rights

In the late summer of 1958, the Snake River plunged through an un-dammed Hells Canyon for the last time. The raging water slammed against the bodies of enormous salmon as they sought their ancestral breeding grounds. On the edge of the river stood a 14-year-old Nez Perce boy, accompanying his father and uncles as they netted salmon on the Oregon-Idaho border.

"Us little guys really weren't allowed to dipnet the salmon, because they would pull us into the river with them," says Elmer Crow, now 60. "Sometimes the men would tie us to the rock, if we bothered them enough, and let us hold a net for just a second. But those fish were strong, and they had somewhere to go, and I sure as hell couldn't hold on."

Neither, eventually, could the salmon.

By 1959, Brownlee Dam had blocked the river about 25 miles southwest of Riggins. In 1961, Oxbow Dam joined it, followed by Hells Canyon Dam in 1967. The dams brought cheap electricity, fueling the Idaho farming boom and creating jobs. They also doomed the salmon runs in the Middle Snake River and its tributaries.

Now, almost 50 years later, the salmon might have a chance for a comeback. The license for all three dams expires this year, and in a case that other Northwestern tribes are watching closely, the Nez Perce Tribe is looking to a 150-year-old treaty--and to the "takings" clause in the U.S. Constitution--for help in the struggle to bring back the fish.

A price too high

Idaho Power, which owns the dams, has submitted more than 100 environmental studies to the Federal Energy Regulatory Commission as part of the license renewal process. The company's conclusion: Allowing salmon to pass through Hells Canyon is simply too expensive.

In 2004, Craig Jones, the company's director of relicensing, estimated that making the dams and the now-flooded canyon passable to fish could cause power rates to spike 30 percent to 40 percent. Even if the fish made it past the dams, the company says, they wouldn't reach their spawning grounds. The fish would have trouble navigating the warm, slow-moving reservoir water, according to the company's studies. Some of the best spawning grounds are submerged under the reservoirs, and the agriculture upstream makes for such poor water quality that fish survival would be almost impossible.

Instead, Idaho Power has proposed spending $380 million, in part to benefit fish downstream, between the three Hells Canyon dams and the four lower Snake River dams, where the company has built hatcheries. Among other changes, the company says it would purchase and restore 26,000 acres of habitat and increase the levels of oxygen in reservoir water.

But tribes and environmentalists say the federal government could force the company to do more. The Federal Power Act allows the Interior secretary to require protections for water quality, fish and wildlife. The act also authorizes the National Oceanic Atmospheric Administration Fisheries and the U.S. Fish and Wildlife Service to require fish passage at dams.

Representatives of both agencies say they are negotiating with Idaho Power and can't say whether the license renewals will require fish passage. Frank Wilson, an Interior Department attorney in Portland, says Secretary Norton would require fish passage only if "substantial evidence" showed that it would be successful. But given the Bush administration's dam-friendly salmon policies, such a move seems unlikely.

Do dams amount to "takings"?

The Nez Perce believe they hold the key to salmon restoration in Hells Canyon: The tribe's 1855 treaty with the U.S. government, which guaranteed the right to fish in perpetuity at all "usual and accustomed places". The 1974 Boldt Decision confirmed tribes' right to harvest salmon in their traditional fishing grounds, but didn't specify whether they had any "property right" to the fishery. But in 1980, Federal District Judge William Orrick agreed with the tribes, saying, "the most fundamental prerequisite to exercising the right to take fish is the existence of fish to be taken." An appeals court vacated that decision on a technicality, however, and the Supreme Court has never heard the argument.

Under the Fifth Amendment, says Doug Nash, a Nez Perce attorney, the tribe could argue that its property--the fishery--has been "taken" illegally. But now may not be the time for tribes to test this claim.

John Echohawk, executive director of the Native American Rights Fund in Boulder, Colorado, says Supreme Court Justices Antonin Scalia, the late William Rehnquist and Clarence Thomas have consistently voted against American Indians on important cases. Since Rehnquist became chief justice in 1986, the court has ruled against Indians about 80 percent of the time, Echohawk says.

"Generally speaking, the Supreme Court is not a friend of ours, and we would be very, very leery about when we would want a case to go before it," Echohawk says.

For now, the Nez Perce will likely let the legal question hang in the air, using the treaty as leverage in relicensing negotiations that will continue for several years. Tribal officials won't say whether they will settle for less than allowing fish back through Hells Canyon. But if anything indicates just how serious the tribe is, it's this:

As part of a 1997 court settlement, Idaho Power offered the Nez Perce $5 million to support the company's new license. The Nez Perce walked away from the money. Nash, who represented the tribe at the time, says it was more important that it reserve the right to challenge Idaho Power--and perhaps clear the way for the salmon's return.