This was a research paper I wrote for an Intra-American Studies course at Shoreline Community College, where I studied the history of Native Americans in the Pacific Northwest. It was published in the Shoreline Historical Review, Volume 7, Spring 1995, a historical journal published by Shoreline Community College. It was one of three papers chosen for publication out of a pool of over one hundred submissions.

Contrasted with my earlier research paper on a similar topic, The Demise of the Northwest Forest, this one is quite a bit more concise and restrained in its environmental perspective. Though it still retains the pro-environment message of my earlier project, it is less a polemic and more a historical study. You'll notice a bit of self-plagarism in the sections on biodiversity and soil erosion, but the sections were so well written in the first paper that I couldn't think of a good reason why I should change them much for the second. Considering that my first paper was not published, I thought that a little self-plagarism couldn't hurt!

The paper is about the slow but steady decline of a Pacific Northwest icon, taken from the unique perspective of the Quinault Indian Nation, among other Indian Nations. Hopefully, it will make you think about what many of us tend to take for granted, and about the undeniable interplay between the many diverse ecosystems that sustain us.

The Seattle Times published a retrospective of the Boldt decision on February 7, 1999, during the week of the decision's 25th anniversary.  Titled 25 Years After the Boldt Decision: The Fish Tale That Changed History, it is an interesting revisit of the historic decision, and the changes it has wrought since its inception into law.

The Struggle of the Northwest Salmon

by Mike Kohary
February 2, 1995

Original version February 23. 1994
Intra-American Studies 256W
Professor LaFountaine

Copyright © 1995 Mike Kohary

The Olympic Peninsula of Washington State is defined by the Chehalis River to the south, the Pacific Ocean to the west, the Strait of Juan de Fuca to the north, and Puget Sound to the east. Within these boundaries are 6,437 square miles of unparalleled natural beauty, consisting of majestic mountain peaks and ancient forests that boast some of the largest plants on the face of the planet. The Olympic National Rain Forest, the heart of the peninsula, is the only remaining temperate rain forest in the continental United States. Much of it is well protected by Olympic National Park, a 980,720 acre sanctuary that takes up almost half of the mid-peninsula and sports the longest unspoiled stretch of wild coastline in America.

At one time, the entirety of the peninsula was in a virgin natural state. The land and sea were abundant and unabused, providing a host of resources that contributed to the survival and lifestyle of the Indian people who lived there (Capoeman 15). However, the eighteenth century brought with it settlers from the East, and the Indians were forced to share the land with an increasing population of people who did not think of nature in the same way that the Indian people did. With the dawn of the twentieth century, the shuffle of many competing interests could be heard, all with different ideas about how to handle the prolific resources of the land; eventually a crisis loomed as the destruction of the ecosystem threatened the livelihoods of the native peoples.

On August 27, 1973, the United States of America, representing the Quinault Indian Nation and thirteen other tribes, sued the State of Washington over their treaty fishing rights(Cohen 3). George H. Boldt, senior judge of the Federal District Court in Tacoma, Washington, divided the case into two phases. The first would question whether Indians had treaty rights to fish off their reservations. This issue was resolved in favor of the Indian tribes and will not be discussed here. Phase II would ask whether or not the Indian share included hatchery-bred fish and artificially propagated fish. It would also ask the question that created a heated controversy that lasts to this day: Do the treaties guarantee the continued protection of the salmon against destruction of its habitat (Cohen 6)? Since this question contained many implications beyond its immediate concern, the issue was felt strongly by the hearts of many, particularly by the Quinault. After all, they thought, tribal fishing rights were meaningless if there were no fish to catch (Cohen 137). The environmental aspect of Phase II provided a fascinating case history that would set legal precedence, have a lasting and far-reaching impact on environmental policy, and serve as a catalyst for a heated controversy that lasts to this day.

After Phase I was decided, Judge Boldt retired from the bench in 1979 and U.S. District Court Judge William Orrick took over the case; he began hearing arguments on April 10, 1980 (Cohen 137). Natural salmon runs were declining rapidly, and the blame was spread around generously. Fishermen, dam builders, loggers, farmers, industrialists, and developers were all suspected in sharing the responsibility for the decreasing population of wild fish (Cohen 138). Politics also played a role, as the tribes strained their relationship with the federal government by asking for environmental protection. The federal government, of course, was responsible for at least some of the environmental degradation by supplying the money to pay for many of the dams that made rivers inaccessible to fish. There are those who feel that the U.S. continued to support the tribes in their lawsuit only with the understanding that the tribes would not sue for damages caused by previous destructive environmental policies (Cohen 139). The Federation of Western Outdoor Clubs, a conglomerate of environmental institutions such as the Sierra Club and the Audubon Society, prepared an amicus curiae brief for the federal district court hearing Phase II. Among other things, it stated that Phase II was:

.....of concern not only to the Indian tribes but to non-Indian fishermen and conservationists on behalf of the general public's interest in the preservation of the environment.....it is contended that the State of Washington has inadequately enforced the environmental laws such as the Shorelands Management Act, the Forest Practices Act, the Hydraulic Act and others, which is its obligation under Indian treaties.....(there has been) little attention to major environmental sources of degradation such as logging, road-building, stream channelization, dams, agricultural practices, etc...... (Cohen 140).

As Judge Orrick heard the evidence, the stage was set for a dramatic series of events and decisions that would determine the future of the salmon.

Judge Orrick handed down his decision on September 26, 1980 . He ruled that the right to have the fishery habitat protected from man-made despoilation was implicit in the treaty fishing clause (Cohen 141). This decision was based on the accepted judicial canons of treaty interpretation, as the treaties themselves contained no language concerning environmental protection. According to these canons, Judge Orrick ruled that the treaties were contracts made between two parties with unequal bargaining power, and general legal doctrine stated that equivocations must favor the weaker (Cohen 141). In this case, the ambiguity arose from a question of implicitness. Judge Orrick clarified this question by stating, "The most fundamental prerequisite to exercising the right to take fish is the existence of fish to be taken" (Cohen 142). He went on to state that the explicit right to a share of fish was meaningless if the implicit right of habitat protection was not recognized. By 1980, natural runs of salmon along the peninsula had shrunk to less than half of their pre-treaty size, and the threat to the living needs of the Quinault had grown too large. Judge Orrick recognized this and ordered that the state must show that any degradation that it proposed would not impair the tribe's ability to secure their share of the salmon harvest. If the tribes could show evidence that state action would cause environmental degradation reducing the fish runs, the state would have to yield. The state realized the implications of this ruling with regard to themselves, and immediately appealed Judge Orrick's decision (Cohen 143).

The state was correct in their analysis of how the ruling would affect them, as the tribes targeted development projects one by one. With the powers of law and science behind them, the tribes scored a number of big victories. Seattle City Light dropped its plans for Copper Creek Dam in April 1981, as it would have inundated eleven miles of prime spawning grounds in the Skagit River (Cohen 144). On April 7, 1982, Governor John Spellman rejected the proposed Northern Tier Pipeline after a study commissioned by the National Marine Fisheries Service demonstrated the effects of oil spills on salmon fry (Cohen 144). The tribes also were able to strike a major blow to the timber industry by demonstrating the science involving watersheds and their importance to the salmon runs. The evidence showed that rainwater running out of forest clearcuts chokes streams with soil sediments from hillside soil erosion. As the soil erodes, it becomes less capable of absorbing water, and the rainfall simply runs downhill, taking more soil with it as it enters rivers and streams relatively quickly, overloading them with water. Due to settling sediment, the riverbed gets shallower, the river's capacity to drain the floodwaters is impaired, and the flooding along the banks becomes even worse (Gore 107). The sediments kill fish, especially young salmon fry and trout, and since there is little water flowing underground in the watershed to recharge rivers, streams, and springs, the rivers and streams run low when it doesn't rain. This means the waterways are heavy in fall and winter, and low in spring and summer when the water is most needed. This evidence struck a major blow to timber companies such as Weyerhauser and Georgia-Pacific, which made it a practice to clearcut large areas of forest near rivers’ edge. These companies and others with a stake, such as Burlington Northern Railroad and Puget Sound Power and Light, met with tribal representatives in the fall of 1981 and agreed not to side with the State in their appeal as a sign of good faith in promoting negotiations with the tribes (Cohen 145).

On November 3, 1982, the tide turned as three other judges from the federal circuit court rejected the Orrick decision (Cohen 147). Speaking for the circuit court, Judge Sneed argued that there is no duty on the part of the State to protect the fish from human destruction. He reasoned that since the Indians were entitled to a share of the available fish, they also must share equally the "losses arising out of reasonable development" (Cohen 147). He went on to state that such development would benefit Indians and non-Indians alike, and that Judge Orrick's decision had too many unforeseen consequences that could deter development. These opinions puzzled many who were involved in fishing rights litigation. It was well known that past development projects had very little to do with the welfare of reservation Indians, and the new ruling seemed to suggest that a state could do away with a treaty right, an unprecedented suggestion that alarmed the Indian nations greatly (Cohen 148). Now it was the tribes' turn for an appeal.

In asking for a new hearing, the Indians argued that Judge Orrick's decision was correct because it did not promise a guaranteed number of fish, having foreseen the event of natural disasters such as floods or earthquakes that might deplete the runs. Rather, they said, the implicit right of the treaties prevented the state from authorizing an action that would deplete the runs (Cohen 149). On April 27, 1983, the Ninth Circuit Court of Appeals agreed to withdraw the Sneed decision and to rehear Phase II in its entirety. To this day, there has not been a final adjudication of the issues raised in Phase II (Capoeman 292). However, the controversy it created served as a catalyst for the events to follow.

Perhaps the most visible of these events was the "Northwest forest war" of the early 1990s. By the 1980s, the timber industry in the Pacific Northwest had cut 87% of the virgin forest (Norse 6). In 1990, it was estimated that if "current rates of logging (continue), all unprotected ancient forest in.....Washington and Oregon will be gone by the year 2023" (Norse 7). The evidence gathered by scientists in the 1980’s was alarming. It showed that as the forest watersheds are destroyed, they take with them large amounts of the nearby salmon runs. This cycle is vicious. The more a run is depleted, the less chance it has at survival due to the run's decreasing amount of biodiversity.

There are several concepts that need to be understood here. One is the Law of Tolerance, which states that the existence, abundance, and distribution of a species in an ecosystem is determined by whether the levels of one or more physical or chemical factors fall above or below the levels tolerated by the species (Miller 70). In other words, a plant that is killed by freezing temperatures will not be found in the far north, but rather will be distributed in an area with a more moderate climate. Another is the concept of a limiting factor, which is any factor such as temperature, light, water, or soil nutrients, that is found to be limiting the population growth of a species in an ecosystem (Miller 71). The two concepts fit together to form the Limiting Factor Principle: too much or too little of any abiotic factor can limit or prevent growth of a population of a species in an ecosystem even if all other factors are at or near the optimum range of tolerance for the species (Miller 71).

For example, think of salmon in a river and a limiting factor such as temperature. Even if everything else about the river is just right for the salmon, they will not survive if the temperature gets too low or too high, moving beyond their range of tolerance. But surely throughout the millennia of the planet's history, the temperature has done just that, and the salmon have somehow survived. The reason for this is simple and brings us finally to the concept of biodiversity: individual organisms within a large population of a species may have slightly different tolerance levels because of small differences in their genetic makeup, health, and age (Miller 70). In the past, when the temperature got too hot or cold, most of the salmon may have died, but a few of them survived. These survivors made up a new gene pool that was able to withstand the higher temperature, and the species evolved. A more likely scenario is that the temperature rose gradually over many years, and the tolerance range of the species evolved with the change as the salmon that couldn't live in the new temperature died and only the ones that lived propagated their species.

The key here is that biodiversity requires a large population to work properly. When a salmon run is depleted too quickly and the gene pool becomes too small, the chances of surviving a tolerance problem are severely decreased and the risk of extinction becomes relatively high. These assertions are easily born out by the facts; currently, there are over 210 salmon populations at risk of extinction. 175 of them struggle to survive in streams unaffected by dams but silted and destroyed by irresponsible logging and road building (Pissot A7).

The Quinault Nation feels that it has good reason to be worried for the future of the fish: most of the land surrounding the Quinault Reservation is forest land that is, with the exception of the Reservation, National Park, and Forest Service, owned by giant international and smaller local timber companies, including Weyerhauser, Simpson, ITT-Rayonier, St. Regis, Mayr Brothers, Anderson Middleton, and West Tacoma Newsprint (Capoeman 251). However, the Quinault are confident that they have at their helm a worldly and far-sighted leader in Joe DeLaCruz, President of the Quinault Indian Nation. In his introduction to Land of the Quinault, he states:

The land and all that is on it is our very existence. Without it, we would be nothing.....what we do to the land, we do to ourselves.....our long past is obscured. We have only fragments of knowledge of what life was like. It is much like our forest. Today only small fragments of our once great redcedar (sic) forest remain and the spirit of the forest is all but gone.....the changes made to the land affected all living things.....as we look at the past, we look forward. The past is a tool with which to fashion the future. We must also remember that we and the land are one. What we do to the land, we will do to ourselves (Capoeman 8).

In 1989, Washington State implemented the Timber/Fish/Wildlife Agreement, which created a central entity under the Northwest Renewable Resources Center and a board of directors to oversee its objectives (Capoeman 266). The TFWA stressed the protection and enhancement of the environment as it restored fish and wildlife habitats, and DeLaCruz was a major player in bringing the agreement to fruition in the absence of a definitive and authoritative decision on Phase II. Though it remains to be seen whether the TFWA will have any lasting impact on the health of the Pacific Northwest's salmon runs (as well as numerous other aspects of the environment), DeLaCruz has at least demonstrated excellent leadership skills, virtually guaranteeing that the voice of the Quinault will be heard.

In 1991, mostly due to a brilliant legal campaign waged by the Sierra Club Legal Defense Fund with the full support of virtually every environmental group and Indian nation in Western Washington, the timber industry suffered a devastating loss in federal court that has all but guaranteed the end of what has been known as the era of "rape and run" timber management. Judge William Dwyer ruled in federal court that the Forest Service had engaged in "deliberate and systematic refusal.....to comply with the laws protecting wildlife" (Hayes E1). He awarded protection for the endangered Northern Spotted Owl by putting a moratorium on timber sales on all federally owned old-growth forest. Thus began the "forest wars," perhaps the largest and most heart-felt controversy to fall upon the Pacific Northwest in decades. With the election in 1992 of Democratic President Bill Clinton and Vice President Al Gore, a noted environmental activist, the tide turned clearly in favor of saving the old-growth forest. In the spring of 1993, President Clinton and Vice President Gore held a "Forest Summit" in Portland in an effort to devise a plan that would re-think western forest policy. This was excellent news for the tribes and the Quinault in particular, because the connection between the health of the forest and the health of the salmon was by this time inescapable. Currently, President Clinton's plan is still being debated, but it is becoming clear that whatever the outcome, things will certainly be different than they have been in the past.

It is clear that Phase II of US v Washington has greatly altered the course of environmental history in the Pacific Northwest; much of that history has had a great impact on many people's lives, particularly the Quinault Indian nation. Like all other Indians, their lives depend on the land, and their reverence for Mother Nature is something that everyone could learn from. Clarence Pickernell perhaps said it best with his 1978 work, "This is My Land":

This is my land.
From the time of the first moon,
Till the Time of the last sun. It was given to my people.
Wha-neh- Wha-neh, the great giver of life,
Made me out of the earth of this land.
He said, "You are the land, and the land is you."
I take good care of this land,
For I am part of it.
I take good care of the animals,
For they are my brothers and sisters.
I take care of the streams and rivers,
For they clean my land.
I honor Ocean as my father,
For he gives me food and a means of travel.
Ocean knows everything, for he is everywhere.
Ocean is wise, for he is old.
Listen to Ocean, for he speaks wisdom
He sees much, and knows more.
He says, "Take care of my sister Earth,"
She is young and has little wisdom, but much kindness."
"When she smiles, it is springtime."
"Scar not her beauty, for she is beautiful beyond all things."
"Her face looks eternally upward to the beauty of sky and stars, Where once she lived with her father, Sky."
I am forever grateful for this beautiful and bountiful earth.
God gave it to me.
This is my land.
(Quoted in Capoeman 274)

At the very least, Phase II had a hand in serving as a catalyst for a new way of thinking about how humans treat the land and the resources it provides. In 1973, environmentalist thought was in its infancy and not widespread; now, nearly everyone is aware of at least the existence of environmental philosophy. It would seem that Phase II accelerated this process by bringing an issue that few had thought about to the forefront of public policy. Though the issues in Phase II have not been resolved, and perhaps never will be, they was followed by several policies and plans that were intended to address them. It may still be too late to save the salmon that the Indian people depend on, but then again, perhaps it is not. If that is the case, then Phase II may go down in history as the most sweeping and effective environmental legal challenge to see a courtroom in the Pacific Northwest, as well as the savior of the Indian way of life.

Works Cited

Capoeman, Pauline K. Land Of The Quinault. Seattle: Quinault Indian Nation, 1990

Cohen, Fay G. Treaties On Trial. Seattle: University of Washington Press, 1986

Gore, Senator Al. Earth In The Balance. New York: Houghton Mifflin Company, 1992

Hayes, Denis. "On Behalf Of Our Forests." Seattle Post-Intelligencer. 20 Feb. 1994: E1

Miller, G. Tyler. Environmental Science: Sustaining The Earth. 3rd Ed. Belmont: Wadsworth Publishing Company, 1991

Norse, Elliot A. Ancient Forests Of The Pacific Northwest. Island Press, 1990

Pissot, Jim. "Forest Service Must First Obey The Law." Seattle Post-Intelligencer. 12 Feb. 1994: A7

The Shoreline Historical Review can be contacted at:
Shoreline Community College
16101 Greenwood Avenue North
Seattle, WA 98133

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