Note: this is part 2 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1.
One of the key factors influencing environmental law and policy in the Pacific Northwest is the presence of and obligations owed to a number of tribes that are parties to treaties with the United States that extend back to the 1850s. The Federal Government has, historically, taken an active role in defining and enforcing those treaty rights on behalf of the tribes, and takes quite seriously its government-to-government obligations with respect to those tribes as sovereign entities (a good summary list, prepared in 2009 by the White House-Indian Affairs Executive Working Group is available here).
The most defining example of this role is the ongoing lawsuit in federal court against Washington over the scope and obligations owed to tribes under those treaties. The arc of that litigation traces back to the “Boldt” decision in 1974 that confirmed the rights of treaty tribes to half of the harvestable fish and shellfish found in those tribes usual and accustomed areas of fishing, and confirmed the role the tribes play as co-managers of the fisheries as a resource. In 1985, the Ninth Circuit ruled that the right to half of harvestable fish and shellfish extended to hatchery salmon too, but, at that time, declined to issue a declaratory judgment about Washington’s overarching responsibilities with respect to regulating natural resources and preserving those resources because of the tribal fishing rights.
More recently, Judge Martinez issued an injunction against Washington because of the impairment to fish passage associated with culverts running under roads in Washington State, and that injunction was then upheld on appeal by the Ninth Circuit. We’ve seen tribes increasingly assert treaty rights in opposition to fossil fuel projects, and take an active litigation role in opposing such projects. The actions of the Quinault tribe in litigating the crude oil export facilities proposed for Grays Harbor are a good example. And, outside of the courtroom, the Army Corps of Engineers denied an application for permits for the Gateway Pacific coal export terminal on the grounds that construction and operation of that terminal would have a more than de minimis impact on the Lummi’s treaty fishing rights.
The Boldt litigation shows how seriously the United States has taken its treaty obligations over the past 40 years, spanning many presidential administrations. Does that change during the Trump years? Some analysts point to Trump’s sharp and divisive statements about Native Americans in the past to support the proposition that the Trump Administration may back off the progress made in tribal self-governance and determination over the past 50 years. However, Trump’s transition team, which includes Markwayne Mullin, a Republican U.S. Representative from Oklahoma and member of the Cherokee tribe, has made statements that regulations related to oil extraction on tribal lands should be rolled back, a potential win for tribes that depend on such resource extraction. So, I think Trump’s policies may benefit some tribes and hurt others, depending on tribal priorities. The tension between resource extraction and natural resource protection is one that is present in Washington as well, with tribes like the Lummi opposing coal export projects, while tribes in the Powder River Basin that would benefit economically from those projects being supportive of them.
On balance, the signals from the Trump transition team is that it will come out on the side of resource extraction, and not natural resource protection. That may set up interesting conflicts with respect to tribal treaty rights in Washington–potentially causing a roll-back of the deference shown to tribal treaty rights by federal agencies like we saw with respect to the Army Corps of Engineer’s decision on the Gateway Pacific project. So, again, much to come. Tomorrow I’ll look at one of my favorite topics, remediation of contaminated sediment sites at large industrial areas in the Pacific Northwest.