“Snake River in Idaho” by Becherka - Own work, Public Domain
By Eliana Miller
Introduction
The four hydroelectric dams on the lower Snake River have pushed salmon populations to the verge of extinction. Their depletion has spelled disaster for a native ecosystem of over 135 other flora and fauna, including killer whales, otters, and old-growth trees. Experts are unequivocal that the removal of the dams is the only way to save salmon. Yet after decades of failed lawsuits, federal decrees and court decisions the salmon population continues to drop at alarming rates. In this blog post, Earth Law Center argues for a rights-based legal approach to revitalize and restore salmon in the Snake River.
Environmental Background of the Snake River
The Snake River’s history is a case study in environmental damage and disregard for natural ecosystems. Once populous salmon populations have suffered at the hands of overzealous damming, of which there are now fifteen on the river, including four dams on the Lower Snake River alone. The four dams situated on the Lower Snake River have received notable opprobrium for their pernicious effect on native Salmon, with little economic or renewable energy benefit to justify their continued existence.
Advocates for the removal of the dams have cited high mortality rates of juvenile and adult salmon as they complete their migrations, with the USGS writing that Snake River Sockeye Salmon are “probably the most endangered salmon” and scientists predicting complete extinction of Columbia basin Salmon within the next two decades. A report released in 2019 revealed some of the lowest rates of salmons returning after their run, with only 15% of pre-dam returns for sockeye and chinook and only 3% for steelhead.
The disappearance of native salmon is also an existential threat to predator species including the Southern Resident Orcas. In late 2018, six leading killer whale scientists penned a letter to Governor Jay Inslee expressing an urgent need to “permanently restore the Snake River by removing the lower Snake River dams,” without which the continued survival of Orcas would be threatened. The parasitic eel-like Lamprey, a food source and symbiotic partner of the salmon, is also experiencing concerning drops in population.
The degradation of the Snake River has also had a disproportionate effect on tribes who live in the Columbia River Basin, including the Nez Perce, a federally recognized tribe located in north-central Idaho. As reported by the National Resource Defense Council, the current depletion of salmon threatens not only their access to nutrition – what John Sirois, committee coordinator for the Upper Columbia United Tribes has called a “food justice issue” – but also their cultural heritage, they cast lines in the same places that their ancestors fished. Julian Matthews, treasurer for Nimiipuu Protecting the Environment, a nonprofit organization led by Nez Perce tribal members, expressed concern that these traditions will not exist for future generations if the salmon populations fail to recover.
The four dams on lower Snake River © OpenStreetMap contributors
A Legal History of the Snake River ‘Salmon Wars’
The four dams on the Lower Snake River have been met with more than just decades of public consternation – they have also been the subject of legal response. The history of the ‘salmon wars’ can be traced back to 1855, when the United States government convened a series of sham treaty councils to coerce the Columbia Basin tribes, including the Nez Perce, to sign away millions of acres of land in the Pacific Northwest. Although both major treaties of 1855 and 1863 stipulated that ancestral tribal fishing rights would be left intact, in practice these treaties quashed what little was left of native sovereignty over the river.
In response to growing public outcry over the plight of the river, by Nez Perce tribe members and non-tribal members alike, Jimmy Carter signed the Pacific Northwest Electric Power Planning and Conservation Act into law in 1980. The law was drafted ostensibly with the purpose of balancing a public desire for energy with environmental conservation, but in reality, it would do little more than provide a governmental fiat for continued hydroelectric dam use at the expense of salmon populations.
In Steven Hawley’s book Recovering a Lost River: Removing Dams, Rewilding Salmon, Revitalizing Communities – the product of meticulous research and interviews with the hydropower industry – Hawley writes that the reforms that the law specifies, a coequal and mutually beneficial relationship between hydropower and salmon, failed to meet the bare minimum necessary to protect salmon populations. Over three decades after the Act was signed, there have barely been any changes to provide river flows and spills to facilitate salmon migration.
In the 1990s, after petitions from conservation groups, Columbia River Basin salmon were added to the Endangered Species Act (ESA); however, much like the Northwest Power Act, this development would offer only a false assurance that conditions on the river would change. Despite the introduction of multiple biological opinions (BiOps) during the Clinton, Bush, and Obama eras that were purported to lay out a plan for revitalizing the river, and despite a 2001 lawsuit that alleged that gross federal mismanagement was driving Snake River salmon to extinction, the Columbia Basin remains disproportionately in the hands of the hydroelectric industry.
Illustration by Karen Holt from page 210 of Columbia River Basin Fish and Wildlife Program Salmon Recovery Hearing before the U.S. Senate (1996)
Recent Legal Efforts to Restore the Snake River
The salmon wars continued into the 21st century. The brinkmanship continues to follow a tiresome pattern of lawsuits and judicial rulings lobbed back and forth between industry and environmental advocates. To illustrate this point: in 2017, conservation groups filed a lawsuit demanding more spills or releases of water over the dams that aid Salmon in their migration. Federal District Court Judge Michael Simon responded affirmatively and ordered to increase spills on the river. The National Marine Fisheries Service, the United States federal agency responsible for the stewardship of national marine resources, along with two other federal agencies appealed this ruling to the chagrin of environmental advocates and the courts. In 2018, the Ninth Circuit U.S. Court of Appeals responded by affirming Judge Simon’s original ruling.
However, advocates have repeatedly stressed any judicial attempts to mediate or mandate over the dams is an inferior strategy to removing them. Many conservationists are unequivocal: the dams have to go. In 2020, after an almost thirty-year battle over the existential rights of Snake River salmon, the outcome is still uncertain.
Proposed Solutions to Save the Snake River
In 2011, journalist Steven Hawley wrote that the early history of the salmon wars was marred by “a skillfully directed symphony of public-relations scams, filthy politics, and crooked science.” This argument holds weight today. The federal government’s symbiotic relationship with industry, an impotent court system, and bad science weaponized by hydropower all help illustrate why previous legislative efforts have failed.
However, such failures could never have occurred if our legal system didn’t treat Nature as expendable property, only stepping in to protect it when resources or animal populations are near extinction. In this way our environmental legal system is unsound and incoherent. It is nearly impossible to exploit a resource without destroying it, nor is such a strategy sustainable. It is akin to tight-rope walking while your rope burns at one end. The salmon of the Snake River are a perfect illustration of this point, as their existence hangs on the brink, we have to contend with the fact that much of the damage already done is irreversible, and the efforts to undo what we can will be far more arduous then they needed to be, had we not gotten to this point.
The idea that Nature is property also proves problematic when it silences one side of the legal battle. The salmon wars have never been a fair fight. Since the River and the salmon are presumed to be mere property and resources, the voices of hydropower hold primacy. This happened even as decades of public, scientific and judicial oversight argued the opposite – that our collective right to exist within Nature had a stronger argument than the hydropower industry. The decimation of salmon populations in the Snake River is a strong case study for why our environmental legal framework will need to radically change before we will be able to pass law that provides full and lasting protection for Nature.
Ice Harbor Dam on Lower Snake River, Public Domain
Advocacy to Gain Legal Rights for the Snake River
A better way to conceptualize environmental justice comes courtesy of the Nez Perce, who have lived alongside the Snake River for over ten millennia. Their longevity in the area has recently been confirmed by archeological evidence dating back 16,000 years, which would place the Nez Perce as one of the earliest, if not the earliest, aboriginal group to settle on the North American mainland. The tribe’s storied history alongside the river, and their subsequent disenfranchisement as their ancestral lands, fishing sites and cultural traditions have been stripped away by U.S. policy, has given them an intimate connection to the plight of the river –yet, throughout this the Nez Perce have professed a progressive environmental justice framework.
The Nez Perce environmental advocacy organization Nimiipuu Protecting the Environment in particular have been key advocates for a traditional ecological knowledge theory which co-founder and president Elliott Moffett describes as a belief that “all things are connected and sacred.” Moffett compounds on this by speaking about the way in which the Nimiipuu approach poverty eradication, a critical subject considering that the loss of Nimiipuu fishing sites has had a substantial impact on the livelihood of tribal members.
Contrary to certain historic assumptions that environmental conservation is a competing issue to economic concerns, the Nimiipuu argue that poverty eradication and environmental sustainability are inextricable – with human survival and prosperity being predicated on the existence of a healthy natural landscape. As a result, the Nimiipuu have made ecological conservation a part of their poverty eradication program. Furthermore, Nimiipuu Protecting the Environment believes that the best way to achieve these aims is to recognize legal rights for the Snake River. Moffett reiterates his group’s goal as, “prepared to help lead [the] effort to recognize the Rights of the Snake River to exist.”
As a practical application of Moffett’s philosophy, each year his environmental group holds the Nimiipuu River Rendezvous. This event, formally known as "Free the Snake" Flotilla is a mass camp-out on the banks of the Snake River and manages to be simultaneously political protest, community building, environmental advocacy and a public conversation between tribal members, anglers, orca lovers, Idaho residents and Rights of Nature advocates, who all share a goal of restoring the River. As reported by Earth Law Center volunteer Katy Scott, who had the opportunity to attend the event as a featured presenter in 2019, the event was replete with discussions led by tribal members and volunteers about the effect of dams on the River, and what it would take to advance an effective Rights of Nature initiative.
“Free The Snake Flotilla” from Nimiipuu Protecting The Environment
If given legal rights, the Snake River would not be the first in the United States. Earlier this year, the Yurok Tribal Council passed a resolution recognizing Rights of the Klamath River, as a major part of the plan for the largest dam removal and river restoration in the country. Other tribes have recognized the Rights of Nature, as well, including the Ponca Nation (which passed a Rights of Nature statute), the Ho-Chunk Nation (which is advancing a Rights of Nature amendment to its tribal constitution) and the White Earth Nation (who gave legal rights to wild rice). These examples demonstrate the leadership capacity of tribes in advancing Rights of Nature as well as a greater national awareness of alternative systems for conceptualizing environmental law. This feeds into the growing trend internationally for indigenous peoples (along with other frontline communities) to serve as legal guardians of Nature, a role for which they have unmatched legal, cultural, and ethical standing.
The Nez Perce and other tribes have used their environmental justice framework, that humans and the environment must exist symbiotically, to advocate for the revitalization of Nature and more crucially to divest from our current legal conception of Nature as mere property. Earth Law Center believes in this principle, that Nature should be given equal rights, as our existence depends on the existence of our environment.
To that end, Earth Law Center proposes, through working with and supporting tribal leaders, that we adopt alternative solutions to address the salmon wars. Alongside groups such as Nimiipuu Protecting the Environment, we agree that the species that live in and depend on Snake River should be given a voice in the political process. We believe that they have a right to be represented by a legal guardian in decisions and disputes that affect their rights and health, and to be afforded the same fundamental right we give to all humans, including the right to exist and thrive.
Furthermore, these proposals suggest rights for the Snake River itself. Conceptualizing the issue as one of ‘River Rights’ serves to reinforce and remind us that the River is an interdependent ecosystem. The rights of humans, salmon and orcas can only exist if we have rights for the river as a whole. This idea is not new, rights have already been granted for numerous rivers already, including the Whanganui River in New Zealand, the Atrato River and seven others in Colombia, the Vilcabamba River in Ecuador, and all rivers in Bangladesh. Following on these successes, Earth Law Center plans will include The Snake River in future initiatives with the hope that it, too, may secure its basic rights.
Such a policy will heighten the status of the Nature, solidify its rights to existence as a first principle, and thus lead to environmental law policy that will be in the greater interest of the whole, not just the few.
Learn more about the campaign by emailing Grant Wilson at gwilson@earthlaw.org.