Tribes have big role in implementing ESA

By MICHAEL P. O'CONNELL
Stoel Rives

The listing of Puget Sound chinook salmon as a threatened species under the Endangered Species Act affects business in many ways. Among these, Section 7 of the act changes the process for obtaining federal permits and funding for the development of new projects.

In addition, the National Marine Fisheries Service, the federal agency charged with lead responsibility for implementing the ESA in connection with Puget Sound chinook salmon, is preparing rules under Section 4(d) of the ESA that will affect the process for obtaining state and local development permits and the operation of some existing businesses as well.

During the 1850s, the United States entered treaties with many Indian tribes which opened the land and resources in Washington state to non-Indian settlement. In these treaties, the Indian tribes reserved and the United States promised to protect the right of the Indian tribes to take fish, including Puget Sound chinook salmon, both on reservation and at off-reservation in usual and accustomed fishing places for commercial, subsistence and ceremonial purposes. These treaties, like the ESA, constitute laws of the United States.

Indian tribes will play a crucial role in the implementation of Sections 4 and 7 of the ESA.

Section 7

Section 7 of the ESA requires federal agencies issuing permits, providing funding or taking other action to determine whether the proposed action "may" affect Puget Sound chinook salmon. If the proposed action "may" affect Puget Sound chinook salmon, including chinook habitat, the federal agency must prepare a biological assessment to determine whether the proposed action will "adversely" affect the fish.

The action agency must provide this assessment to NMFS. If the biological assessment concludes that the proposed action is "not likely to adversely affect" Puget Sound chinook salmon and NMFS agrees, NMFS may issue a letter concurring in that finding.

This process is known as informal consultation under Section 7. If it is not possible to conclude the consultation informally, then the federal action agency and NMFS must engage in formal consultation.

As its name suggests, this process takes longer. At the conclusion of formal consultation, NMFS ordinarily issues a biological opinion and incidental take statement. Except in rare cases, a federal agency will not issue a permit or other project authorization on terms inconsistent with the biological opinion and incidental take statement issued by NMFS.

Under the ESA, a federal action agency cannot validly issue a permit for a project which "may" affect a listed species until the consultation process is complete.

The secretaries of Commerce and Interior issued a Joint Secretarial Order in 1997 which directs NMFS and the U.S. Fish and Wildlife Service (FWS), the other agency with responsibility for enforcing the ESA, to carry-out their responsibilities in a manner that harmonizes the ESA with tribal rights.

The order directs NMFS and FWS to strive to ensure that tribes do not bear a disproportionate burden for conservation of species under the ESA.

To these ends, the Joint Secretarial Order directs NMFS to notify and consult with Indian tribes on a government-to-government basis whenever a proposed action may affect fish, wildlife or other resources which the federal government has a duty to protect in light of tribal interests (trust resources).

The Joint Secretarial Order also provides that whenever NMFS enters formal consultation on a proposed action that may affect tribal rights or trust resources that NMFS shall notify the affected tribe and give them an opportunity to participate in the consultation process.

And, the Joint Secretarial Order directs NMFS to apply conservation standards upheld in the treaty fishing cases if NMFS determines that conservation measures affecting tribal rights or trust resources are necessary in order to protect listed species. These standards provide that restrictions on Indian treaty fishing rights may not be applied unless they are reasonable and necessary for conservation of the species, cannot be achieved by reasonable regulation of non-Indian activities, is the least restrictive alternative necessary to achieve the conservation purpose, does not discriminate against Indians, and voluntary tribal measures are not adequate to achieve the necessary conservation purpose.

Virtually all federal agencies conducting Section 7 consultations relating to Puget Sound chinook salmon will be doing so on the basis of limited experience. None of these agencies have meaningful experience conducting formal consultations with NMFS and Indian tribes in connection with chinook in the Puget Sound Basin.

It is clear, however, that Indian tribes will play a critical role in Section 7 consultations and that tribal involvement will significantly affect the duration, content and outcome of many consultations. In many cases, the outcome of Section 7 consultations will be conservation obligations that would not have been imposed in the absence of the ESA. And in view of the Joint Secretarial Order, some of these conservation obligations are likely to be imposed to accommodate treaty rights.

Section 4(d) rules

The ESA's broad prohibitions against the "take" of endangered species, including "take" caused by harm to habitat, do not automatically apply to threatened species. NMFS is currently drafting Section 4(d) rules which are expected to extend the ESA's "take" prohibitions to Puget Sound chinook salmon.

Given the broad interpretation afforded by several cases, the ESA's "take" prohibition under a Section 4(d) rule could apply to project development impacts caused by actions authorized by state and local permits. Local and state governments themselves have been determined to be liable in some cases for actions authorized or allowed by such governments.

Under Section 4(d), NMFS can limit the effect of the "take" prohibition for actions authorized by state or local laws, ordinances, and programs that have "fish friendly" components. The Section 4(d) rules that NMFS is drafting for Puget Sound chinook salmon are expected to limit the effect of the "take" prohibition under such programs.

Anticipating such rules, King, Pierce and Snohomish counties, participating local governments, representatives of business and other groups have worked over the last year to identify "fish friendly" modifications to existing laws, ordinances and programs that would qualify for protection from "take" liability under one or more Section 4(d) rules.

The Joint Secretarial Order and President Clinton's May 14, 1998, Executive Order on Consultation and Coordination with Indian Tribal Governments, Executive Order 13084, envision close cooperation between NMFS and Indian tribes on development of Section 4(d) rules. Whatever else the proposed Section 4(d) rules provide, one can assume that tribal input will encourage, among other things, rules that provide exemptions from "take" liability for projects that provide habitat enhancements above the norm for project mitigation in the past. Obviously, someone must pay the cost for such enhancements, typically the project proponent.

The ESA will affect, very likely for decades to come, the substantive and procedural requirements for permitting related to project development in Western Washington.

Because treaties reserved to Indian tribes rights to harvest Puget Sound chinook salmon, federal agencies implementing the ESA will give careful consideration to recommendations of Indian tribes both during Section 7 consultations and in the development and implementation of Section 4(d) rules. Tribal input in these matters will affect how federal agencies implement their responsibilities under the ESA and this, in turn, will affect those seeking permits for project development.

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