Remarks from Attorney General Christine Gregoire
at the
1998 Greater Seattle Chamber of CommerceLeadership
Conference
Vancouver, B.C.
Friday, October 9,1998, 9:45 a.m.
Good morning. Its a pleasure to be here today to
discuss some of the legal issues relating to the listing of Puget Sound Chinook salmon as
a threatened species.
Ive spent many hours these past weeks dealing
with another set of complex issues having to do with the marketing and sale of tobacco
products. Shuttling back and forth between home and New York, catching meals on the run,
and negotiating with industry representatives long into the night have been constant
reminders to me of how difficult it can be to achieve solutions to complex issues.
All I know is that it helps immeasurably when parties
understand that progress often doesnt come without some hard work, dedication and
just plain doggedness.
In this part of the world, we are blessed with a great many assets worthy
of preserving. Not far from the city, wild salmon still swim up stream in a natural cycle
dating back eons. Streams and forests still provide essential habitat, not only for the
wild salmon, but for countless other plants and animals as well.
But there are other things that we want to promote and
preserve: A healthy economy capable of providing jobs for ourselves and our children;
affordable homes; ample opportunities for outdoor recreation; and the preservation of our
quality of life.
Being human, we sometimes forget that achieving one goal sometimes means
doing damage on other fronts. Where plant and animal species are concerned, the threat may
come less from a single devastating blow to the environment than from a thousand small,
seemingly innocuous actions that together can spell doom for a species.
Im reminded of a book in which Paul and Anne
Erlich compared our situation to that of a workman prying rivets from the wing of an
airplane. As one of the passengers boards the plane, she asks the workman why he is doing
it. "Were going to sell the rivets and use the money to fund expansion of the
airline," the workman replies. When the passenger questions the safety of that
practice, the workman replies simply, "Well, the wings havent fallen off
yet."
Now, while this analogy seems extreme in that it
contemplates an airplane crash, the loss of species may be slow and more subtle, but none
the less disastrous in the long run. So, I think the effort to preserve species is really
about keeping as many rivets as we possibly can.
As Aldo Leopold said, "the first rule of
intelligent tinkering is to keep all the pieces, every cog and wheel." And, while
some may question preserving a snail darter or a gnat catcher, the salmon is key to our
way of life in the pacific northwest and the purpose of the ESA is to protect the whole.
Salmon symbolize the natural heritage, culture and
beauty of the Pacific Northwest. As Ron Allen will be telling you in a few minutes, salmon
are especially important to the Indian Tribes of this state. These fish have always been
vital to the Indian diet, religious life, and economy. Yet despite the importance of these
fish to our way of life, they are in real trouble of not surviving.
The Endangered Species Act is not a salmon management
tool. Think of it as a crisis management tool.
Long term, salmon recovery and management will require
business and government to address their needs for wildlife protection and economic
development. The ultimate goal of the ESA is to return endangered species to the point
where they no longer need the statutes protections.
To do so, the ESA has three basic missions:
- To identify species needing protection;
- To prevent harm to listed species; and
- To prevent and punish the taking of listed species and destruction of
their habitats.
There are four sections of the ESA are important to mention today:
Section 4 contains the process for the initial
listing of endangered and threatened species, the designation of their critical habitat,
and the development of recovery plans. The Commerce Department must define a salmon run as
"endangered" if it determines that the run is "in imminent danger of
extinction throughout all or a significant portion of its range." A salmon run is
"threatened" if it is "likely to become endangered in the foreseeable
future."
In making any listing decision, the Commerce Department
must take into account state efforts to protect the salmon. But, as we saw in the recent
court case in Oregon, existing state efforts must be tangible, mandatory, and certain.
When Commerce decides to list a salmon run as
threatened or endangered, it is also supposed to designate critical habitat. Critical
habitat is the specific areas a species occupies at the time it is listed that contain
physical or biological features that are essential to the conservation of the species.
The Department is to use the best scientific data
available. It may consider economic factors when designating critical habitat, but not
when making the listing decision.
After listing a species, the Department must develop a
recovery plan for the conservation and survival of the species. Recovery plans must
include site-specific management proposals, objective criteria to measure the
species progress, and estimate of the time and money needed to achieve the
plans goal. Thats our challenge.
Section 7 requires that federal
"actions" not jeopardize the continued existence of listed salmon. Every federal
agency must do everything possible to protect a listed species. All of these agencies must
ensure that "federal actions" do not jeopardize listed species. Because federal
"actions" are broadly defined, Section 7 affects anyone seeking a federal
permit.
Under Section 10, the federal government may
issue a permit allowing the incidental take of a listed species when it approves a habitat
conservation plan. The plan must set forth actions designed to conserve the species. The
federal government can approve the plan and issue the permit if it judges that the taking
will not jeopardize the species by significantly reducing the likelihood of its survival
and recovery in the wild.
Section 9 prohibits the "taking" of
endangered species. You can "take" a species by killing an individual animal or
by destroying habitat. The "take " prohibitions of Section 9 perhaps best
illustrate the breadth of the ESA and how it may require us to change the way we do
things.
The "take" prohibition of Section 9,
as one writer put it, is "simple, unambiguous, and breathtaking in its reach and
power." The ESA prohibits "persons" from "taking any endangered
species." A "person" can be just about any individual or collection of
human beings. It includes businesses, government agencies, officials of those
organizations, and, of course, individual private citizens.
The term "take" is defined broadly to
include every conceivable way in which a person can "take" or attempt to
"take" fish or wildlife. As an example, the angler who accidentally catches an
endangered salmon or steelhead commits a take. Section 9s take prohibitions can be
enforced either by federal agencies that administer the ESA or by private citizens.
Government agencies can be subject to the "take" prohibitions, by permitting or
authorizing others to act, or sometimes by failing to act.
Two recent court cases illustrate how this can happen.
A case in Massachusetts called Strahan v. Coxe concerned northern right whales, the
most endangered of large whales. Environmental groups claimed that Massachusetts fisheries
officials violated the ESA by issuing licenses and permits allowing gillnet and lobster
pot fishing, which entangled the whales. The issue was whether Massachusetts, merely by
licensing and permitting gillnet and lobster pot fishing, committed a "take."
Massachusetts argued that licensing fishing gear does
not cause a take any more than licensing drivers and cars causes crimes on the highways.
The court responded that these were different situations because the fishery agency had
licensed gillnets and lobster pots to be used specifically in a manner likely to result in
the violation of federal law.
The court concluded Massachusetts fishing
regulations probably were a "take" because the ESA prohibits third parties from
enabling someone else to "take" a listed animal. The Strahan case
clarifies that state and local governments may violate the ESA by permitting or otherwise
authorizing the acts of third parties that exact a "taking."
Another case involving endangered and threatened sea
turtles illustrates the other side of the coin. Governments may be liable not only for
permitting some activity, they may also be liable for failing to prohibit or regulate
activities where they have the authority to do so.
This story begins with female adult turtles who come ashore in the spring
to deposit their eggs. Months later, their little hatchlings break out of their shells and
make a midnight dash toward the brightest light on the horizon.
On undeveloped beaches, the brightest light is the
moons reflection off the water. On a developed beach, the brightest light can be
artificial and inland, pointing the baby turtles in the wrong direction.
The plaintiffs in this case alleged that their local
government violated the ESA by refusing to restrict inland artificial light. The court has
not yet decided the ultimate question of whether the county committed a take. But the
eleventh circuit court of appeals said under the ESA, the local government can be liable
for failing to regulate if the plaintiffs can prove harm to the turtles.
Other cases have also found that regulatory acts of
government agencies can cause "takes" of protected species. Examples include:
- In Texas, the forest services management of timber stands was
found to be a taking of a listed woodpecker. The plaintiff there was the Sierra Club.
- In a case from the federal court in Minnesota, EPAs registration
of pesticides containing strychnine was found to be a taking because endangered species
died from ingesting the poison bait and because the poison could be distributed only
pursuant to EPAs registration scheme. The plaintiff was the Defenders of Wildlife.
- Hawaiis practice of keeping wild goats and sheep in the habitat of
the endangered palila bird was a taking. And there, the plaintiff was an individual.
The prospect of "take" violations give
permitting agencies and officials reason to be more careful and circumspect in their
permitting and regulatory decision-making and that impacts all of us. Our Department of
Ecology regulates activities that affect water quality and quantity, which are very
important to salmon survival.
The Department issues several kinds of permits under
the federal Clean Water Act. With forest practices permits the Department of Natural
Resources authorizes logging activities, which can affect salmon by raising the
temperature and silt content of streams.
Washingtons cities and counties develop comprehensive land use plans
under the growth management act, and issue building, grading, shoreline, and many other
development-related permits. The list goes on and on.
The point is that listing will
affect permitting and regulatory decision-making , which in turn affects all of us in our
daily lives. Though the listing of Puget Sound Chinook will be one of the first to affect
a heavily urbanized area, it is by no means the first salmon listing in the Northwest.
In 1992, Chinook salmon from the Columbia River Basin
were listed. And we have since learned from our experiences on the Columbia that the reach
of the ESA is broad and complex. We have also learned that there is a complex relationship
between the ESA and the treaty fishing rights of Indian tribes.
Sometimes, treaty rights conflict with the ESA. Other
times they may complement the ESA.
For some historical perspective, salmon were so
important to the Indian way of life, that the continuation of tribal fishing was a central
issue of the so-called Sevens Treaties. In the mid- 1850s Issac Sevens was
dispatched by the federal government to negotiate treaties of cession with the Indians who
occupied the Pacific Northwest. The purpose was to clear title to Indian lands to make way
for settlement of the territory.
In the treaties, the tribes conveyed their lands to the
federal government, but reserved the "right of taking fish at all usual and
accustomed grounds
.in common with the citizens of the territory." At the time,
fish were plentiful and settlers were scarce. Nobody thought about threats to water
quantity or quality. And little thought was given to sharing a resource that with each new
season turned Pacific Northwest streams and rivers so black with salmon that you could
literally fish with your bare hands.
As more and more settlers came, demand exceeded the
supply, and salmon runs declined. Dams were built to power our factories and growing
communities. Trees were cut, roads were paved, habitats were drastically altered and more
and more they ultimately disappeared. Each year, fewer salmon were left alive to return to
their spawning grounds and replenish their stocks.
The tribes responded to the decline in salmon and state
efforts to regulate treaty fishing with a series of lawsuits. Among them was United
Sates v. Washington which resulted in the well known and commonly referred to
"Boldt decision."
Largely affirmed by the U.S. Supreme Court, the
Boldt decision declared that the state must allow the treaty tribes to catch up to 50
percent of the "harvestable" surplus of salmon that pass through their usual and
accustomed fishing grounds. In the simplest definition, "harvestable surplus" is
the number of returning fish in a given run, minus the number that are needed to return to
or "escape" to the spawning grounds to ensure perpetuation of the run. In the
simplest situation, the "harvestable" surplus is determined and divided between
treaty and non-treaty fishermen.
The ESA added a new dimension to treaty/non-treaty
harvest sharing because many tribes contend the ESA does not apply to treaty fishing
rights. They claim Congress did not clarify that intention when the ESA was enacted.
As a result, these tribes contend they are not
prohibited by the ESA from harvesting and selling threatened or endangered salmon. They
also argue they are entitled to take 50 percent of the strongest salmon runs that pass
through their usual and accustomed fishing places.
Recently, the Secretaries of Commerce and the Interior
adopted an order to address the conflict. The order suggests that tribal fisheries are
subject to the ESA, but should be restricted only after other activities that harm salmon
are curtailed. Meanwhile, the states and tribes are pursuing judicial and non-judicial
approaches to resolve these and other ESA issues.
The Boldt case is best known for its 50 percent harvest
sharing decision. But theres another, less well known part that warrants our review.
The Boldt case also involved tribal claims for
relief about alleged destruction or impairment of treaty right fishing due to logging,
industrial pollution, and damage to usual and accustomed fishing places. The parties
agreed to separate those claims for a later trial after they resolved the harvest sharing
claim.
In 1980, the tribes presented this issue to Judge
William Orrick. Judge Orrick ruled that the treaties promised the tribes enough fish to
provide them with a livelihood. If habitat damaging activities jeopardized this right, the
judge said those activities could be enjoined.
On the states appeal, the Ninth Circuit Court vacated Judge
Orricks decision because the question presented was too abstract. However, the court
left the door open for the tribes to come back later with a concrete set of facts the
court could analyze. Consequently, 28 years after the Boldt case was filed, we still
dont have a definitive ruling on this issue although other courts are beginning to
address it.
In Nez Perce Tribe v. Idaho Power Company, the
Tribe sought money damages for reductions in fish runs caused by the power company's dams
on the snake river. The federal court in Idaho rejected the claim for money damages, but
said the tribe may have a right to protection from degradation of fish runs caused by
discriminatory development that prevents fish from returning to the areas where Indians
catch them. The court said states must take "reasonable" steps to preserve fish
runs when development threatens them.
The recent shellfish case also gave us some additional guidance. The court
there ruled that the treaties specifically contemplated settlement, development of the
waterfronts, and corresponding loss of shellfish beds. Furthermore, the court held that
the shellfish right could not prevent private development of the waterfront.
In conclusion, I want to repeat the two principal
missions of the ESA. Number one: recover species to the point where they no longer need
the protections of the Act, and, number two, protect listed species from further harm
while recovery efforts are underway.
Satisfying these missions will not be easy or inexpensive. To restore our
salmon stocks to healthy, sustainable, harvestable levels, well need an active and
comprehensive strategy.
A broad range of interests will need to work together.
Well need cooperative solutions for critical issues such as providing ample clean
and cool water; a safe and productive environment for salmon to live in; and, providing
adequate funding to achieve long-term protection and restoration.
I have not focused on the extraordinary efforts that
will be required to develop and implement a recovery plan for Puget Sound Chinook. My
intent was to give you a greater appreciation for the reach of this aspect of the ESA and
a clear understanding that we will all have to make tough choices in the way we conduct
our lives.
As I said before, cooperation is the key. The
development of a plan for future success depends on our ability to cooperate between local
and state governments, state and federal agencies, state to state, nation to nation,
business and environmentalists, individuals and organized interests, and all of the above.
While we have different tasks ahead of us, we in
Seattle and Washington will fair well because we have: excellent leadership, a cooperative
spirit, and the common value of preserving our quality of life and wanting to pass it
along to future generations.
The long range benefits far outweigh the sacrifices. Salmon may be one of
our greatest natural treasures. They have survived for two million years enduring floods,
droughts, disease, volcanic eruptions and even ice ages. Nowhere is the circle of life
more apparent, tenacious, and poignant. And no where else would the loss of this life
cycle be so all encompassing, ecologically disastrous, and economically devastating.
The ESA can be an enemy or a friend. And litigation is
not the answer. It represents time lost, money lost, and thus salmon lost. Dont give
to the courts what we know best how to solve. Thank you.