by Luisa Loi
In 2007, the U. S. District Court for the Western District of Washington determined that barriers to salmon passage contributed to greatly reduced salmon runs. Thus, these obstacles represented a violation of tribal fishing rights granted by the treaties negotiated in the 1850s between the United States and 21 Pacific Northwest tribes — including the Lummi Nation and the Nooksack Tribe (1).
There was a time when the Nooksack River watershed never knew concrete barriers or plastic tunnels — back when the Coast Salish people could rely on abundant, healthy salmon harvests for culture, subsistence and trade.
“We’re definitely not seeing people living off of fishing,” said Mike Maudlin, forest and fish specialist for the Nooksack Tribe. “We haven’t had a fishery bring back fresh Chinook in decades, so our tribal fishermen lost revenue.”
After many infrastructure changes, court cases and remediation efforts, the Nooksack Indian Tribe, the Lummi Nation, the City of Bellingham and the Washington Department of Fish and Wildlife (WDFW) came together in 2022 to sign a memorandum of agreement that formalized their commitment to improving fish passage and habitat in Bellingham’s estuarine areas (2).
Honoring Tribal Rights
Addressing barriers to salmon passage is an effective way to help salmon become more resilient to climate change, according to a grant proposal for implementation submitted to the National Oceanic and Atmospheric Administration (NOAA).
The signatories will help develop an implementation plan with an inventory of culverts owned by the city, a list of sites to prioritize, a schedule, and design and cost evaluations. The parties will also obtain regulatory permissions and funding, according to the memo (2).
This memorandum of agreement between the tribes, local government and the state is the first of its kind in Washington, according to an email from Bellingham’s Public Works Assistant Director Renee LaCroix and Habitat and Restoration Manager Analiese Burns.
“I hope this can be a model for other jurisdictions to work together on fish passage,” said Maudlin, who also specializes in restoration projects.
The idea, according to Maudlin, came in 2021 as the city dealt with a challenging remediation site. While discussing the project with staff from the Nooksack Tribe, the parties acknowledged the need to develop a partnership to improve salmon habitat, later reaching out to the Lummi Nation and WDFW.
“The Nooksack Tribe has really been pushing for the agreement,” Maudlin said.
The partnership will begin creating a ranking criterion later this year, Burns and LaCroix wrote.
The partners will then combine their new inventory with existing data from the WDFW fish passage database and the city’s 2022 Fish Barrier Prioritization — a document that the Public Works department was expected to release late last month, according to Amy Cloud, the city’s communication specialist.
The updated 2022 prioritization does not include sites that have been recently discovered, and it does not take into consideration how a site might have more cultural value than the other, Maudlin said.
“We want to make sure that when we do this new prioritization, it includes our tribal values and cultural resources as part of how we select our site priorities. Not just infrastructure, not just vulnerability to climate change, not just benefits to endangered species, but also things like our fisheries and cultural resources,” he said.
Projects that address fish barriers require extensive funding and coordination, LaCroix and Burns wrote in their email. Additionally, obtaining the funds can be challenging.
“A lot of salmon recovery funding doesn’t necessarily go to projects in the city limits or the near shore because those species are more affected by things that are happening up in the mountains,” Maudlin said.
However, thanks to Bellingham’s latest fish barrier prioritization, and the upcoming inventory and prioritization developed by the partnership, city projects will have better chances of obtaining additional funding, LaCroix and Burns wrote.
Grants will represent an important source of funds, such as the $425,206 grant from NOAA that the City of Bellingham and the Nooksack Tribe applied for, they said.
On Dec. 14, 2022, NOAA announced plans to award $39,819,704 to tribes, local governments and communities in Washington to fund 10 projects that address barriers to fish passage, and help restore salmon and orca populations (3).
The funding comes from the $2.855 billion that Sen. Maria Cantwell and Sen. Patty Murray secured in the Bipartisan Infrastructure Law, according to a press release from Cantwell’s website. Bellingham is among the nine cities where tribes are leading or collaborating in restoration efforts (3).
Another source of funds is Bellingham’s Surface and Stormwater Utility — which in the past has allowed the city to make faster progress than many other jurisdictions, LaCroix and Burns wrote.
Funding will also support staff at the Nooksack Tribe in developing a communications plan to keep Bellingham residents and tribal communities informed, according to Burns, LaCroix and the grant proposal to NOAA.
Since its first fish passage improvement program in 2003, Bellingham has worked independently, as well as with other entities, in inventorying and removing barriers, and updating lists of priority sites and completed projects.
“Both the Lummi Nation and the Nooksack Tribe have supported the city’s efforts to remove fish passage barriers at multiple locations with technical expertise and cultural guidance, and have advocated for improving fish passage whenever possible,” Burns and LaCroix wrote.
These projects include the removal of the Middle Fork dam ($24 million), the rerouting — or “daylighting” — of a section of Padden Creek from a tunnel ($4 million), and the rerouting of Squalicum Creek ($4.4 million), according to Burns.
“The diversion dam in the Middle Fork was our highest priority salmon project in our whole watershed, and the city was able to find funding for that, to come up with a solution that allowed them to maintain their ability to divert water and provide fish passage,” Maudlin said. “I think that was a really great example of doing a really important project and working together with tribes to make that happen.”
The city has collaborated with the Washington Department of Transportation on more than six projects — including the installation of a culvert on Squalicum Creek under Interstate 5 in 2015 (4). The city is also part of the Water Resource Inventory Area 1 (WRIA 1) culvert coordination effort that includes the Nooksack Tribe, the Lummi Nation, WSDOT, WDFW, the Nooksack Salmon Enhancement Association, the Whatcom Land Trust and the Whatcom Conservation District, and is advanced by Whatcom County.
Every year, according to the grant proposal to NOAA, these stakeholders meet to coordinate barrier projects. These efforts will complement one another, Burns and LaCroix wrote.
Following the memorandum of agreement, the tribe is now trying to work with the county, Lummi Nation and WDFW to develop a similar agreement, Maudlin said.
“We’ve been encouraging the county to increase the pace of their fish passage work and are excited to see the recent support from the County Council for working with the tribes on fish passage,” he wrote in an email to Whatcom Watch.
As of April 2, the county agreement was in draft form and was being reviewed by the county, state and both tribes. They expect to complete the memorandum this year, Maudlin wrote.
Long Legal Struggle
Between 1854 and 1855, many tribes in Washington Territory agreed, under the pressure of U.S. settlers, to sell their land and move onto reservations. These treaties granted these tribes “the right of taking fish, at all usual and accustomed grounds and stations […] in common with all citizens of the Territory,” an expression whose meaning caused many legal battles between the state and indigenous people for decades (1).
In 1905, United States v. Winans established that the treaties protected tribal fishing rights (5).
In 1974, after years of conflicts between commercial fishers and indigenous people, the Boldt Decision established that the tribes that signed the treaties had the right to half the fish catch and that they would manage fisheries with the state (5).
In 1979, the Supreme Court confirmed the right of both settlers and tribes to take their share of fish, and, in 1983, the Ninth Circuit interpreted the treaty language as a requirement that both Washington and the tribes had to address threats to fish populations caused by their projects (1).
In 2001, the tribes and the United States asked the U.S. District Court for the Western District of Washington to declare that Washington couldn’t build highway culverts that blocked fish passage as part of the treaty requirements (1).
In 2007, the district court ordered the state to repair or replace the culverts, finding evidence of reduced fish runs as a result of these structures, as such work would meet the treaty’s requirement to protect salmon and ensure the subsistence of tribes (1).
In 2013, the district court ordered WDFW and the Washington State Department of Transportation (WSDOT) to open 90 percent of the habitat blocked by state-owned barriers by 2030, according to the 2019 City of Bellingham Fish Barrier Prioritization Update. The document stated that WSDOT prioritized the removal of 415 out of 992 barriers under state highways (6).
Although the injunction applied to state-owned culverts, 16,185 additional culverts owned by cities, counties and private landowners were identified. Many of these owners have contributed to restoration efforts with local and state funding (7).
In the 2016 Washington v. United States court case, the U.S. Court of Appeals for the Ninth Circuit found Washington State responsible for violating tribal treaty fishing rights and required the remediation of state-built culverts that obstructed salmon passage, a decision that the Supreme Court affirmed in 2018 (1).
Luisa Loi is a freelance reporter based in Bellingham with an interest in covering local environmental issues. You can learn more about Luisa through her LinkedIn (Luisa Loi), or by reaching out to luisaloi.pnw@ gmail.com.