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. It’s 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.
    I’ve 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 doesn’t 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.
    I’m 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. "We’re 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 haven’t 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 statute’s protections.
    To do so, the ESA has three basic missions:

    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 plan’s goal. That’s 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 9’s 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 moon’s 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:

    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.
Washington’s 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 there’s 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 state’s appeal, the Ninth Circuit Court vacated Judge Orrick’s 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 don’t 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, we’ll need an active and comprehensive strategy.
 
    A broad range of interests will need to work together. We’ll 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. Don’t give to the courts what we know best how to solve. Thank you.