By Billy Frank, Jr., Chairman, Northwest Indian Fisheries Commission
OLYMPIA – A little creek in eastern Washington was at the center of an important water quality ruling recently by the Washington State Supreme Court, reaffirming the state’s right to regulate nonpoint sources of pollution in streams. Nonpoint pollution takes many forms, such as higher water temperatures, sediment, stormwater runoff, fecal coliform bacteria from failing septic systems and agricultural practices.
For 10 years the state Department of Ecology (DOE) tried to work with rancher Joseph Lemire to keep his 29 head of cattle out of Pataha Creek, a small stream that runs through his property near Dayton. Lemire’s cattle had unrestricted access to the creek, leading to manure in the stream, eroded streambanks and increased sediment in the creek.
When DOE finally ordered Lemire to stop polluting by fencing cows out of the creek, the rancher appealed, claiming that a fence would restrict use of his land and therefore was an unlawful “taking” of his property. The state Supreme Court disagreed in an 8-1 ruling.
The fact that it took nearly a decade to get one rancher to do the right thing is made even more disturbing because Pataha Creek was selected as a model watershed in 1993 by the Bonneville Power Administration. BPA and other agencies have spent hundreds of thousands of dollars working with ranchers and farmers to provide everything from streamside fencing to tree and shrub planting to help improve the creek.
Twenty years of voluntary efforts haven’t turned the tide of nonpoint pollution in many Washington watersheds. As the Lemire example shows, sometimes it takes more than money and voluntary efforts to protect our resources. And sometimes, all it takes to jeopardize our work is one landowner who’s not willing to do the right thing.
Thankfully, the state has the authority to control these sources of pollution, and was willing to take the case to the state Supreme Court to defend it. That’s encouraging, because the ruling wasn’t anything new. It’s just a matter of the state having the will to use its authority to regulate nonpoint source pollution. We shouldn’t have to look to the courts for leadership.
Let’s hope the court’s ruling will translate into better water quality protection on this side of the mountains, too. Our treaty rights depend on it.
Our treaties guaranteed us the continued right to fish and gather shellfish, which depends on good water quality to ensure healthy salmon habitat and shellfish that are safe to eat. Nonpoint sources of water pollution constantly threaten our natural resources. When a shellfish harvest area is closed because of pollution, or salmon runs are reduced because of poor water quality, our treaty rights are denied altogether.
We all live downstream – every one of us. We need to keep that in mind and work together to restore and protect water quality in this state.
WASHINGTON – The California Tribal Business Alliance (CTBA) is voicing its opposition to the Southeast Arizona Land Exchange and Conservation Act of 2013, HR 687.
This House bill would authorize a land swap in Arizona between the federal government and the Resolution Copper mining company in order to facilitate the extraction of mineral resources from government lands.
California Tribal Business Alliance recognizes that there are a number of significant fiscal and public policy implications surrounding the legislation. The legislation and ultimate land swap will result in economic stimulus and the extraction and use of valuable ore. However, it does so at a cost. The legislation will also result in the loss of irreplaceable sites sacred to Native Americans.
It will remove protections for the environment.
Moreover, it does so without engaging the respective tribes in any meaningful government to government consultation in regard to their sacred cultural resources or surrounding environment.
This is in direct conflict with existing policies and laws, such as, the Memorandum of Understanding executed in December 2012 among various departments to coordinate and collaborate with tribal governments for the protection of Indian sacred sites. It also conflicts with the President’s Executive Order of June 2013 which establishes a national policy to ensure that the Federal Government engages in meaningful consultation with tribes on any policies affecting tribal nations. Moreover, the legislation establishes timeframes to complete the analysis of any historic or sacred sites in the exchange area that are inconsistent with the requirements of the Native American Graves Protection Act and the National Historic Preservation Act.
We are at a time in history when the Federal Government is moving in a direction to establish and strengthen policies for meaningful government to government consultation with tribal governments and to protect tribal sacred sites and resources. HR 687 would retard the current policy direction and place native peoples’ heritage and sacred resources at risk, and it does so without affording the tribes the benefit of any meaningful consultation. For these reasons, the California Tribal Business Alliance is opposed to HR 687.
The House finished their business for the day without having the final vote on the bill. They also only voted on two out of the three amendments offered, both of which failed. An amendment offered by Representative Ben Lujan, D-New Mexico, that will be considered on the floor that gives
“the Secretary unilateral authority to remove Native American sacred and cultural sites from the conveyance in consultation with affected Indian Tribes.”
A recorded vote was requested on the Lujan sacred sites amendment, but further action was postponed. We expect votes on both the amendment and the final bill to take place early next week.
The California Tribal Business Alliance urge you to join them by contacting your local member of Congress to articulate concerns about HR 687.
The United Nations has analyzed all the data, and in a new report states unequivocally that humans are the primary cause of climate change worldwide.
Compiling four potential scenarios based on varying amounts of greenhouse gas emissions and atmospheric concentrations, the Intergovernmental Panel on Climate Change announced its results and released a draft of its five-year report on the state of the global climate.
“It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century,” said the Intergovernmental Panel on Climate Change, which conducted the analysis, in a statement announcing the release of its report, Climate Change 2013: the Physical Science Basis. “The evidence for this has grown, thanks to more and better observations, an improved understanding of the climate system response and improved climate models.”
Among the most alarming findings are that the atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased to levels unprecedented in at least the last 800,000 years, the panel said, with carbon dioxide concentrations up by 40 percent since pre-industrial times—mainly from fossil fuel emissions, as well as from emissions due to changes in net land use. About 30 percent of the carbon dioxide has been absorbed by the oceans, where it contributes to ocean acidification, the panel said.
“Observations of changes in the climate system are based on multiple lines of independent evidence,” said Qin Dahe, Co-Chair of the panel’s main working group. “Our assessment of the science finds that the atmosphere and ocean have warmed, the amount of snow and ice has diminished, the global mean sea level has risen and the concentrations of greenhouse gases have increased.”
Out of four potential scenarios, the panel calculated that by the end of the 21st century, global surface temperatures may very well increase by 1.5 degrees Celsius or even 2 degrees Celsius beyond what they were from 1850 to 1900, said Thomas Stocker, the working group’s other co-chair.
“Heat waves are very likely to occur more frequently and last longer,” Stocker said in the statement. “As the Earth warms, we expect to see currently wet regions receiving more rainfall, and dry regions receiving less, although there will be exceptions.”
Changes in the climate system since 1950 “are unprecedented over decades to millennia,” the statement said, emphasizing that “warming in the climate system is unequivocal” and that “each of the last three decades has been successively warmer at the Earth’s surface than any preceding decade since 1850.”
Not only are these changes taking place, but they are also accelerating, the scientists cautioned.
“As the ocean warms, and glaciers and ice sheets reduce, global mean sea level will continue to rise, but at a faster rate than we have experienced over the past 40 years,” said Co-Chair Qin Dahe.
This is not news to the Indigenous Peoples of Turtle Island and beyond, of course. Already numerous indigenous communities face the effects of rising sea levels, melting permafrost and other environmental effects.
Rich Addicks for The New York Times U.S. Highway 12, which snakes along the Clearwater River in North Central Idaho, was the scene of a protest by the Nez Perce tribe in August. Click image for more Photos
LAPWAI, Idaho — In this remote corner of the Northwest, most people think of gas as something coming from a pump, not a well. But when it comes to energy, remote isn’t what it used to be.
The Nez Perce Indians, who have called these empty spaces and rushing rivers home for thousands of years, were drawn into the national brawl over the future of energy last month when they tried to stop a giant load of oil-processing equipment from coming through their lands.
The setting was U.S. Highway 12, a winding, mostly two-lane ribbon of blacktop that bisects the tribal homeland here in North Central Idaho.
That road, a hauling company said in getting a permit for transit last month from the state, is essential for transporting enormous loads of oil-processing equipment bound for the Canadian tar sands oil fields in Alberta.
When the hauler’s giant load arrived one night in early August, more than 200 feet long and escorted by the police under glaring lights, the tribe tried to halt the vehicle, with leaders and tribe members barricading the road, willingly facing arrest. Tribal lawyers argued that the river corridor, much of it beyond the reservation, was protected by federal law, and by old, rarely tested treaty rights.
And so the Nez Perce, who famously befriended Lewis and Clark in 1805, and were later chased across the West by the Army (“I will fight no more forever,” Chief Joseph said in surrender, in 1877), were once again drawn into questions with no neat answers: Where will energy come from, and who will be harmed or helped by the industry that supplies it?
Tribal leaders, in defending their actions, linked their protest of the shipments, known as megaload transports, to the fate of indigenous people everywhere, to climate change and — in terms that echo an Occupy Wall Street manifesto — to questions of economic power and powerlessness.
“The development of American corporate society has always been — and it’s true throughout the world — on the backs of those who are oppressed, repressed or depressed,” said Silas Whitman, the chairman of the tribal executive committee, in an interview.
Mr. Whitman called a special meeting of the committee as the transport convoy approached, and announced that he would obstruct it and face arrest. Every other board member present, he and other tribe members said, immediately followed his lead.
“We couldn’t turn the cheek anymore,” said Mr. Whitman, 72.
The dispute spilled into Federal District Court in Boise, where the Nez Perce, working alongside an environmental group, Idaho Rivers United, carried the day. Chief Judge B. Lynn Winmill, in a decision this month, halted further transports until the tribe, working in consultation with the United States Forest Service, could study their potential effect on the environment and the tribe’s culture.
The pattern, energy and lands experts said, is clear even if the final outcome here is not: What happens in oil country no longer stays in oil country.
“For the longest time in North America, you had very defined, specific areas where you had oil and gas production,” said Bobby McEnaney, a senior lands analyst at the Natural Resources Defense Council. A band stretching up from the Gulf of Mexico into the Rocky Mountains was about all there was.
But now, Mr. McEnaney said, the infrastructure of transport and industrial-scale production, not to mention the development of hydraulic fracturing energy recovery techniques, and the proposed Keystone XL pipeline from Canada, are affecting more and more places.
The Nez Perce’s stand, in a way, makes Mr. McEnaney’s point. The tribe’s fight, and the galvanizing decision by its leaders to step in front of the transport, drew in people who had not been involved before.
“Our history is conservative. You don’t go to court, you don’t fight,” said Julian Matthews, another tribe member. The fighting stance by tribal leadership, he said, was partly driven by pressure from members like him, already pledged to opposition.
Others described the board’s decision as a thunderbolt. After the special meeting where leaders agreed they would face arrest together, the news blazed through social media on and off the reservation.
“Everybody knew it in an hour,” said Angela Picard, who came during the four nights of protest when the load was still on tribal lands, and was one of 28 tribe members arrested.
Pat Rathmann, a soft-spoken Unitarian Universalist church member in Moscow, Idaho, heard the new tone coming from the reservation. A debate over conservation and local environmental impact, she said, had suddenly become a discussion about the future of the planet.
“The least I could do was drive 30 miles to stand at their side,” said Ms. Rathmann, whose church has declared climate change to be a moral issue, and recently sponsored a benefit concert in Moscow to raise money for the tribal defense fund.
The equipment manufacturer, a unit of General Electric, asked the judge last week to reconsider his injunction, partly because of environmental impacts of not delivering the loads. Millions of gallons of fresh water risk being wasted if the large cargo — water purification equipment that is used in oil processing — cannot be installed before winter, the company said.
“Although this case involves business interests, underlying this litigation are also public interests surrounding the transportation of equipment produced in the U.S. for utilization in wastewater recycling that benefits the environment,” the company said.
The risks to the Nez Perce are also significant in the months ahead. Staking a legal case on treaty rights, though victorious so far in Judge Winmill’s court, means taking the chance, tribal leaders said, that a higher court, perhaps in appeal of the judge’s decision, will find those rights even more limited than before.
But for tribe members like Paulette Smith, the summer nights of protest are already being transformed by the power of tribe members feeling united around a cause.
“It was magic,” said Ms. Smith, 44, who was among those arrested. Her 3-year-old grandson was there with her — too young to remember, she said, but the many videos made that night to document the event will one day help him understand.
A version of this article appears in print on September 26, 2013, on page A17 of the New York edition with the headline: Fight Over Energy Finds A New Front in a Corner of Idaho.
OLYMPIA — Three months after a dispute over how much fish Washington state residents eat nearly derailed the state budget, a panel of lawmakers revisited the controversial subject Monday in a more peaceful fashion.
But that doesn’t mean the fighting is over.
Members of the Senate Energy, Environment and Telecommunications Committee got a progress report on revising the state’s water quality standards, a process that ties the amount of fish each resident eats with the levels of contaminants allowed in water discharged from industrial facilities.
This matter ignited a political tiff in the second special session in June when Senate Republicans insisted a comprehensive study of individual fish-eating habits be done before serious work began on rewriting the rules.
They were acting at the behest of the Boeing Co., which is concerned an increase in the consumption rate could lead to stricter discharge rules. That could require the company to spend millions of dollars in renovations at its facilities, and some Republicans contend it will convince Boeing to undertake its 777X program in another state.
Senate Republicans, who ultimately conceded on the study, organized Monday’s hearing partly to send a message to the Department of Ecology, which is writing the rules.
“We want to let them know we’re paying attention,” said Sen. Doug Ericksen, R-Ferndale, who led Monday’s 90-minute work session. “I think the people of South Carolina are paying attention to this rule, too.”
He said he may push again for a comprehensive study in the 2014 legislative session.
“My feeling is we’re going to work with the department because we have to,” he said, adding that he wants another update in November. “We’ll take a look and see what’s happened.
Environmental groups are watching closely, too, though none was allowed to speak to the committee during Monday’s work sesssion.
Two months ago, a coalition filed a notice of its intent to sue the federal Environmental Protection Agency to force the state to enact more stringent standards.
Kelly Sussewind, water quality program manager for the state Department of Ecology, said the threat of a lawsuit “keeps the pressure on us” to stick to the timeline for making a decision.
Under the timeline, the department would propose changes early next year, hold hearings and adopt changes at the end of the year.
The standards are to ensure rivers and major bodies of water are clean enough to support fish that are safe for humans to eat, Sussewind explained. Whatever is adopted needs to be approved by the federal government.
Since 1992, the state has assumed the average amount of fish eaten each day is 6.5 grams, which works out to about a quarter of an ounce per day or 5.2 pounds per year
Regulators are considering an increase to at least 17.5 grams a day, or about 14 pounds a year, to be in line with current federal guidelines.
Sussewind told lawmakers the state is not required to do anything, but the federal government might not approve the new rules without a higher rate.
A Seattle attorney who did testify Monday said the state is going to have to do a good job explaining itself.
“There is a lot of emotion around this issue,” said attorney James Tupper, who said he represents firms which would be affected by the changes. “I think Ecology and the state have some really difficult policy choices to make. “The question is how will they come down on them?”
Skokomish Tribe habitat biologist Shannon Kirby takes note of the types of vegetation found in the Skokomish Estuary.
Source: Northwest Indian Fisheries Commiussion
Kneeling in a thicket of vegetation in the Skokomish estuary, Shannon Kirby combs her hands through the tall green grasses in front of her, calling out codes that identify them by size, type and abundance.
The habitat biologist for the Skokomish Tribe is studying the native freshwater and saltwater vegetation that is taking over the Skokomish estuary, which was diked and dredged for 100 years until recently.
“The response in vegetation is very promising, as is the diversity that’s out here,” Kirby said. “Estuarine plants are a huge source of food for animals, and double as a water filtration system, neutralizing pollutants and providing nutrients for plant growth. We’re right on target for where an estuary should be.”
The tribe is finding pickleweed, salt grass, sedges, rushes, sea arrow grass and Puget Sound gumweed.
Since 2010, every August, when vegetation is in full bloom, tribal staff visit 75 sites throughout the 1,000-acre estuary, looking at plant types, sizes, growth and soil composition.
These observations coincide with the tribe’s insect studies, which include conducting lavages on juvenile salmon to determine the insects they are eating.
“The quality of salmon habitat is determined by the plants that are out here and the insect food source,” Kirby said.
The tribe has been restoring the estuary at the mouth of the Skokomish River since 2007, through dike and culvert removal, large woody debris installation and native plant revegetation. Through three phases so far, the tribe has restored up to 1,000 acres of habitat for salmon and wildlife.
Bees pollinate a third of our food supply — they don’t just make honey! — but colonies have been disappearing at alarming rates in many parts of the world due to the accumulated effects of parasitic mites, viral and bacterial diseases, and exposure to pesticides and herbicides. Marla Spivak, University of Minnesota professor of entomology and 2010 MacArthur Fellow, tries as much as possible to think like bees in her work to protect them. They’re “highly social and complex” creatures, she says, which fuels her interest and her research.
Spivak has developed a strain of bees, the Minnesota Hygienic line, that can detect when pupae are infected and kick them out of the nest, saving the rest of the hive. Now, Spivak is studying how bees collect propolis, or tree resins, in their hives to keep out dirt and microbes. She is also analyzing how flowers’ decline due to herbicides, pesticides and crop monoculture affect bees’ numbers and diversity. Spivak has been stung by thousands of bees in the course of her work.
View PDF’s that have lists of local native plants that are friendly for honey bees
On September 12, an Idaho federal district court stopped massive industrial equipment headed for the Alberta Tar Sands — now commonly known as the Megaloads — from traversing Nez Perce Treaty-protected ceded lands. The federal court’s decision affirms the power of Indian Treaties and the intrinsic consultation requirements of those sacred pacts.
Article III of the Treaty with the Nez Perces of 1855 reserved for Nez Perce Indians the “right of taking fish at all usual and accustomed places” and “the privilege of hunting . . . upon open and unclaimed land.” As the court explained: “Although the Nez Perce ceded the lands now encompassing the Nez Perce Clearwater National Forests to the United States, ‘they did not relinquish rights to hunt, fish, and gather, or to practice traditional religious and cultural ceremonies on these ancestral homelands.’”
Critically, even though Article III of the Nez Perce Treaty does not mention the word “consultation,” the federal court ruled that: The duty of the Forest Service to conduct a consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by Treaty rights” – “there is no discretion to refuse consultation.” And “[w]hen the duty to consult runs to a Tribe, the federal agency generally must consult with the Tribe before taking the action at issue.” Indeed, “meaningful consultation takes place “typically before undertaking a course of action” (emphasis in original).
The Nez Perce Megaloads decision is at least the second recent decision from the federal courts, affirming Treaty-based consultation requirements over ceded or off-reservation lands, even though the Treaty Articles at issue do not mention the word “consultation.” In 2010, a Washington State federal court enjoined the United States from allowing a private garbage contractor from importing municipal waste from the Hawaiian Islands into the Yakama Nation’s ceded lands and fishing, hunting and gathering areas. That court ruled that there were “serious questions about whether Defendants adequately consulted with the Yakama Nation as required by [Article III] of the Yakama Treaty of 1855,” even though that Treaty Article, too, does not expressly require consultation.
Under international legal norms, “the treaty obligation to consult that is intrinsic in any bilateral agreement between nations.” G. Galanda, “The Federal Indian Consultation Right: No Paper Tiger,” Indian Country Today; see Restatement (Third) Foreign Relations Law of the United States §§ 325, 337 (1986). When will the United States begin to truly honor this norm? Indeed, Nez Perce v. Megaloads, like the Yakama Hawaiian garbage case and the Quechan solar power case, illustrate how even the “pro-tribal” Obama Administration will flout federal Indian consultation rights in order to cut red tape for, and otherwise fast-track, pet projects like Tar Sands.
In fact, when the political and economic stakes are high, and the choice must be made between siding with either mega-corporations, or Indians, the United States and its President will always — ALWAYS –– side with almighty corporate interests, and ignore guaranteed Indian rights. That paradigm is nothing new to Indian Country; it has been happening for centuries. What is new is the United States talking out of both sides of its mouth about tribal consultation.
Gabriel “Gabe” Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com.
– See more at: http://www.galandabroadman.com/2013/09/nez-perce-v-megaloads-another-treaty-based-consultation-victory/#sthash.jW1VLQKa.dpuf
WASHINGTON — Linking global warming to public health, disease and extreme weather, the Obama administration pressed ahead Friday with tough requirements to limit carbon pollution from new power plants, despite protests from industry and from Republicans that it would mean a dim future for coal.
The proposal, which sets the first national limits on heat-trapping pollution from future power plants, would help reshape where Americans get electricity, moving from a coal-dependent past into a future fired by cleaner sources of energy. It’s also a key step in President Barack Obama’s global warming plans, because it would help end what he called “the limitless dumping of carbon pollution” from power plants.
Environmental Protection Agency administrator Gina McCarthy said in a speech Friday morning to announce the proposal that, rather than damage an industry, the proposed regulations would help the industry to grow.
McCarthy pressed her case by linking global warming to a suite of environmental problems, from severe weather to disease to worsening other types of air pollution.
“We know this is not just about melting glaciers,” McCarthy said. “Climate change – caused by carbon pollution – is one of the most significant public health threats of our time. That’s why EPA has been called to action.”
However, since the proposal deals with only new power plants it will have a limited effect on global emissions of heat-trapping pollution. A separate standard for the existing fleet of power plants, the largest source of carbon pollution, is due next summer.
Despite some tweaks, the rule packs the same punch as one announced last year, which was widely criticized by industry and by Republicans as effectively banning any new coal-fired power plants.
That’s because to meet the standard, new coal-fired power plants would need to install expensive technology to capture carbon dioxide and bury it underground. No coal-fired power plant has done that yet, in large part because of the cost.
Coal, which is already struggling to compete with cheap natural gas, accounts for 40 percent of U.S. electricity, a share that was already shrinking. And natural gas would need no additional pollution controls to comply.
“It is clear that the EPA is continuing to move forward with a strategy that will write off our huge, secure, affordable coal resources by essentially outlawing the construction of new coal plants,” said Bruce Josten, the vice president for government affairs at the U.S. Chamber of Commerce.
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