Protecting the tribal harvest: The right to catch and consume fish

Journal of Environmental Law and Litigation

Volumn 22, Issue 1, 2007, Pages 131-151

  O'Neill, Catherine A ^a  

^a SEATTLE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BASIN MANAGEMENT; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL PROTECTION; WATER POLLUTION; WATER QUALITY;

COLUMBIA BASIN; NORTH AMERICA; OREGON; UNITED STATES;

EID: 34548809081     PISSN: 10490280     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (85)

1. See, e.g., U.S. ENVTL. PROT. AGENCY, COLUMBIA RIVER BASIN FISH CONTAMINANT SURVEY, at E-1 to -4 (1996-1998), available at http://yosemite.epa.gov/r10/oea.nsf/0703bc6b0c5525b088256bdc0076fc44/ c3a9164ed269353788256c09005d3667/$FILE/Fish%20Study.PDF.
2. I wish to credit Barbara Harper and Stuart Harris for the conceptual framework for this table.
3. Guidelines and Methodology Used in the Preparation of Health Effect Assessment Chapters of the Consent Decree Water Criteria Documents, 45 Fed. Reg. 79,318, 79,347, app. C (1980).
4. HAROLD JAVITZ, U.S. ENVTL. PROT. AGENCY, SEAFOOD CONSUMPTION DATA ANALYSIS (1980); see also, Catherine A. O'Neill, Variable Justice: Environmental Standards, Contaminated Fish, and "Acceptable" Risk to Native Peoples, 19 STAN. ENVTL. L. J. 3, 43-44 (2000) (discussing fish-consumption rates) ]hereinafter O'Neill, Variable Justice].
5. U.S. ENVTL. PROT. AGENCY, METHODOLOGY FOR DERIVING AMBIENT WATER QUALITY CRITERIA FOR THE PROTECTION OF HUMAN HEALTH, 4-24 to 4-29 (2000) available at www.epa.gov/waterscience/criteria/humanhealth/ method/complete.pdf [hereinafter AWQC METHODOLOGY].
6. Id. at 4-24 (referencing the U.S. Department of Agriculture 1994-1996 Continuing Survey of Food Intake by Individuals).
7. Amendments to the Water Quality Standards Regulation to Establish the Numeric Criteria for Priority Toxic Pollutants Necessary to Bring All States into Compliance with Section 303(c)(2)(B), 56 Fed. Reg. 58,420, 58,428 (Nov. 19, 1991) (to be codified at 40 C.F.R. pt. 131) (promulgating the "National Toxics Rule").
8. See generally, NAT'L ENVTL. JUSTICE ADVISORY COUNCIL, U.S. ENVTL. PROT. AGENCY, FISH CONSUMPTION AND ENVIRONMENTAL JUSTICE 24-42 (2002), available at http://www.epa.gov/compliance /resources/publications/ej/fish_consump_report_1102.pdf [hereinafter NEJAC FISH CONSUMPTION REPORT]; STUART G. HARRIS & BARBARA L. HARPER, CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, EXPOSURE SCENARIO FOR CTUIR TRADITIONAL SUBSISTENCE LIFEWAYS app. 3 (2004), available at http://www.hhs.oregonstate.edu/ph/tribal-grant /CTUIR-Scenario.doc [hereinafter CTUIR TRADITIONAL EXPOSURE SCENARIO].
9. NEJAC FISH CONSUMPTION REPORT, supra note 8, at 50-54; CTUIR TRADITIONAL EXPOSURE SCENARIO, supra note 8, app. 3, at 5-8, 11.
10. COLUMBIA RIVER INTER-TRIBAL FISH COMM'N, A FISH CONSUMPTION SURVEY OF THE UMATILLA, NEZ PERCE, YAKAMA, AND WARM SPRINGS TRIBES OF THE COLUMBIA RIVER BASIN, TECHNICAL REPORT 94-3 (1994), available at http://www.critfc.org/tech/94-3report.pdf.
11. Id. at 29.
12. CTUIR TRADITIONAL EXPOSURE SCENARIO, supra note 8, app. 3, at 5-15.
13. Stuart G. Harris & Barbara L. Harper, A Native American Exposure Scenario, 17 RISK ANALYSIS 789, 792 (1997).
14. See, e.g., CTUIR TRADITIONAL EXPOSURE SCENARIO, supra note 8, app. 3, at 1. For early documentation of the concept that contamination and depletion of aquatic environments and the fisheries they support may lead to an FCR artificially decreased or "suppressed" from an appropriate baseline for a given population, see PATRICK C. WEST ET AL., SCH. OF NATURAL RES., UNIV. OF MICH., ANN ARBOR, MICHIGAN SPORTS ANGLERS FISH CONSUMPTION SURVEY 91-102 (1989), available at http://www.epa.gov/ ncea/pdfs/efh/references/AB.PDF. For an elaboration of the evidence for and implications of suppression effects, see NEJAC FISH CONSUMPTION REPORT, supra note 8, at 43-49.
15. See, e.g., NEJAC FISH CONSUMPTION REPORT, supra note 8, at 44, 49 (citing Moses Squeochs, Director, Environmental Program, Fourteen Confederated Tribes and Bands of the Yakama Nation, for the point that, for the Yakama and other treaty tribes, 1855 constitutes the relevant baseline by which to assess tribal harvest and consumption practices).
16. CTUIR TRADITIONAL EXPOSURE SCENARIO, supra note 8, app. 3, at 2 tbl.1 (citing, respectively, United States v. Washington, 384 F. Supp. 312 n.151 (W.D. Wash. 1974); D.E. WALKER & LAWRENCE W. PRITCHARD, ESTIMATED RADIATION DOSES TO YAKAMA TRIBAL FISHERMEN (1999); and D.E. WALKER, THE KUTENAI FISHERY: A COMPARATIVE VIEW (1985), cited in ALLAN SCHOLTZ ET AL., E. WASH. UNIV., COMPILATION OF INFORMATION ON SALMON AND STEELHEAD TOTAL RUN SIZE, CATCH AND HYDROPOWER RELATED LOSSES IN THE UPPER COLUMBIA RIVER BASIN, ABOVE GRAND COULEE DAM (1985)).
17. See Catherine A. O'Neill, Risk Avoidance, Cultural Discrimination, and Environmental Justice for Indigenous Peoples, 30 ECOL. L. Q. 1, 2 (2003); Catherine A. O'Neill, No Mud Pies: Risk Avoidance as Risk Regulation, 31 VT. L. REV. 273, 276-77 (2007).
18. Proposed National Emissions Standards for Hazardous Air Pollutants, 69 Fed. Reg. 4652, 4709 (proposed Jan. 30, 2004).
19. Standards of Performance for New and Existing Sources: Electric Utility Steam' Generating Units, 70 Fed. Reg. 28,606, 28,642 (May 18, 2005) ("In response to potential risks of consuming fish containing elevated concentrations of [mercury], EPA and the [FDA] have issued a joint fish consumption advisory which provides recommended limits on consumption of certain fish species.⋯ This joint EPA and FDA advisory recommends that women who may become pregnant, pregnant women, nursing mothers, and young children avoid some types of fish ⋯ and check[ ] any local advisories that may exist for local rivers and streams.").
20. 1 U.S. ENVTL. PROT. AGENCY, COLUMBIA RIVER BASIN FISH CONTAMINANT SURVEY app. N, at 2-3, 6 fig.6-25.
21. EPA's reference dose (RID) for methlymercury is 0.1 gg/kg bodyweight/ day. U.S. Envtl. Prot. Agency, Integrated Risk Information System, Toxicological Profile for Methyl Mercury, CASRN 22967-92-6, http:// www.epa.gov/iris/subst/0073.htm (last visited March 14, 2007). This RfD represents the amount of methylmercury that EPA believes can be safely ingested each day over the course of a lifetime without adverse health effects. Id.
22. Id. tbl.2. These figures assume that the average woman weighs 65 kg.
23. E.g., Richard F. Gillum et al., The Relationship Between Fish Consumption and Stroke Incidence: The NHANES I Epidemiologic Follow-Up Study, 156 ARCHIVES OF INTERNAL MED. 537, 537 (1996); Hiroyasu Iso et al., Intake of Fish and Omega-3 Fatty Acids and Risk of Stroke in Women, 285 J. AM. MED. ASS'N 304, 309 (2001); S. O. Keli et al., Fish Consumption and Risk of Stroke: The Zutphen Study, 25 STROKE 328 (1994); and A. J. Orencia et al., Fish Consumption and Stroke in Men: 30-year Findings of the Chicago Western Electric Study, 27 STROKE 204, 204 (1996).
24. See Martha Clare Morris et al., Consumption of Fish and n-3 Fatty Acids and Risk of Incident Alzheimer Disease, 60 ARCHIVES OF NEUROLOGY 940 (2003).
25. Martha Clare Morris et al., Fish Consumption and Cognitive Decline with Age in a Large Community Study, 62 ARCHIVES OF NEUROLOGY 1849, 1849 (2005).
26. KARI MARIE NORGAARD, KARUK TRIBE OF CAL., DEP'T OF NATURAL RES., THE EFFECTS OF ALTERED DIET ON THE HEALTH OF THE KARUK PEOPLE: A PRELIMINARY REPORT 5 (Aug. 2004) (documenting the dramatic shift in diet of the Karuk people since European contact due to denied access to, and diminished quality and quantity of, a significant percentage of their traditional foods, including salmon, and noting the resulting high incidence of diabetes (at 12%, nearly twice the national average) and heart disease (at 39.6%, nearly three times the national average) among the Karuk. Id. at 1, 26.
27. Health Disparities Experienced by American Indians and Alaska Natives, MORBIDITY & MORTALITY WKLY. REP. (Ctrs. for Disease Control, Dep't of Health and Human Servs.), Aug. 1, 2003, at 1.
28. DAN LANDEEN & ALLEN PINKHAM, SALMON AND HIS PEOPLE: FISH & FISHING IN NEZ PERCE CULTURE 156 (1999).
29. See Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 ENVTL. L. 733, 735 (1995); Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471; Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 UTAH L. REV. 109. But see, Mary Christina Wood, Restoring the Abundant Trust: Tribal Litigation in Pacific Northwest Salmon Recovery, 36 ENVTL. L. REP. 10,163, 10,179-85 (2006) (discussing narrower interpretations of the trust responsibility offered by the Ninth and D.C. Circuits and pending litigation potentially clarifying agencies' obligations under the trust doctrine).
30. 33 U.S.C. &sec; 1313 (2006).
31. Id. &sec; 1342 (2006).
32. 42 U.S.C. &sec; 9621(d) (2006).
33. 33 U.S.C. &sec; 1313(c)(2)(A).
34. Id. &sec; 1313(c)(1).
35. Id. &sec; 1313(e)(3); EPA Water Programs, 40 C.F.R. &sec; 131.6 (2006).
36. AWQC Methodology, supra note 5, at 4-24 to 4-28.
37. Id.
38. Id.
39. Id. at 4-24 to 4-25.
40. Id. at 2-6.
41. Id. at 2-6 to 2-7.
42. OR. ADMIN. R. 340-041-0033 (2007).
43. See Martin S. Fitzpatrick, Changes in Oregon's Water Quality Standards for Toxics, 20 J. ENVTL. L. & LITIG. 71, 78 (2005) [hereinafter Fitzpatrick, Changes in Oregon's WQS].
44. MARTIN S. FITZPATRICK, OR. DEP'T OF ENVTL. QUALITY, TOXIC COMPOUNDS CRITERIA H-36, H-38 to H-41 (2004), http://www.deq.state.or.us /about/eqc/agendas/attachments/May2004/5.20.04.ItemB.AttchH.pdf.
45. Id. at H-76.
46. Id.
47. See Fitzpatrick, Changes in Oregon's WQS, supra note 43, at 71.
48. See Memorandum from Stephanie Hallock, Or. Dep't of Envtl. Quality; Ron Kreizenbeck, U.S. Envtl. Prot. Agency; and Antone Minthorn, Confederated Tribes of the Umatilla Indian Reservation to Or. Envtl. Quality Comm'n 1 (Oct. 2, 2006), available at http:// www.deq.state.or.us/about/eqc/agendas/attachments/2006oct/ B-FishConsumptionRate.pdf (discussing Oregon's revisions to Oregon Administrative Rules governing water quality criteria for toxics and noting EPA's inaction on the rule). Note that since this presentation was delivered, Oregon has agreed to hold a series of workshops to revisit and, potentially, revise upward the FCR incorporated in its water quality standards. Id. at 2; Or. Dep't of Envtl. Quality, Oregon Fish Consumption Rate Project, http://www.deq.state.or.us /wq/standards/toxics.htm (last visited March 17, 2007).
49. A complete, nuanced discussion of the legal obligations that flow from the relevant treaties, the Equal Protection Clause, civil rights statutes, and other sources of law is beyond the scope of this presentation. Even the brief sketch provided here, however, should suffice to raise issues important to state and federal agencies' work affecting tribal rights and resources.
50. Treaty Between the Cayuse, Umatilla & Walla Walla Tribes, Acting in Confederation, and the United States, art. 1, June 9, 1855, 12 Stat. 945 (1859).
51. United States v. Washington, 506 F. Supp. 187, 205 (W.D. Wash. 1980) (Phase II) vacated by United States v. Washington, 759 F.2d 1353 (9th Cir. 1985).
52. Id. at 203.
53. Washington, 759 F.2d at 1370.
54. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1426 (W.D. Wis. 1987) (finding that, by dint of the 1837 and 1842 treaties, the Chippewa were "guaranteed the right to make a moderate living off the land and from the waters in and abutting the ceded territory and throughout that territory by engaging in hunting, fishing, and gathering as they had in the past and by consuming the fruits of that hunting, fishing, and gathering, or by trading the fruits of that activity for goods they could use and consume in realizing that moderate living.") (emphasis added).
55. Id.
56. Id.
57. Note that, since this presentation was delivered, the Ninth Circuit heard oral argument on this question. Joint Status Report at 1, United States v. Washington, No. C70-9213, Subproceeding No. 01-1 (Culverts) (W.D. Wash. Mar. 14, 2007).
58. See, e.g., Cappaert v. United States, 426 U.S. 128, 138-39 (1976); United States v. Adair, 723 F.2d 1394, 1413 (9th Cir. 1983); Swim v. Bergland, 696 F.2d 712, 717-18 (9th Cir. 1983); New Mexico v. Aamodt, 537 F.2d 1102, 1113 (10th Cir. 1976). See also United States v. Michigan, 471 F. Supp. 192, 281 (D.C. Mich. 1979) ("IT]he right of the ⋯ tribes to fish in ceded waters of the Great Lakes is ⋯ distinct from the rights and privileges held by non-Indians and may not be qualified by any action of the state ⋯ except as authorized by Congress.").
59. See supra note 29 and accompanying text.
60. See supra notes 13-15 and accompanying text.
61. In an analogous context, the U.S. Supreme Court has emphasized that the obligations imposed by the treaties must be understood in light of the treaty-secured baseline and not an artificially suppressed or altered baseline: "The impact of illegal regulation and of illegal exclusionary tactics by non-Indians in large measure accounts for the decline of the Indian fisheries during this century and renders that decline irrelevant to a determination of the fishing rights the Indians ⋯ secur[ed] by initialing the treaties..." Wash. v. Wash. St. Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 669 n.14 (1979) (citations omitted).
62. NEJAC FISH CONSUMPTION REPORT, supra note 8 at 43-49.
63. See generally JOSEPH C. DUPRIS ET AL., THE SI'LAILO WAY: INDIANS, SALMON AND LAW ON THE COLUMBIA RIVER (2006).
64. See supra notes 44-46 and accompanying text.
65. Thus, the analysis that follows cannot be understood apart from the unique histories and circumstances relevant to tribes and their members. See, e.g., Charles F. Wilkinson, To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 WIS. L. REV. 375, 378 (1991). As Professor Wilkinson explains, "Indian issues veer away from other questions of race. The most cherished civil rights of Indian people are not based on equality of treatment under the Constitution and the general civil rights laws. These special Indian rights derive from different sources and take on different definitions." Id. These rights stem, among other things, from treaties recognizing special tribal prerogatives, including fishing and other rights; from a unique trust relationship with the United States; and from the principle of tribal sovereignty. Id. "One barrier that American Indians have long faced, then, is that public understanding of their distinctive issues comes slowly. Their special rights are complex and history-based..." Id.
66. S. James Anaya, On Justifying Special Ethnic Group Rights: Comments on Pogge, in ETHNICITY AND GROUP RIGHTS 227-29 (Ian Shapiro & Will Kymlicka eds., 1997).
67. Id. at 227.
68. Id.
69. Id. at 228-29.
70. Id.
71. U.S. CONST., amend. XIV, &sec; 1. Although the Fourteenth Amendment applies specifically to state governmental action, the Due Process Clause of the Fifth Amendment is understood to extend this prohibition to federal governmental action as well. See Washington v. Davis, 426 U.S. 229 (1976).
72. Vill. of Arlington Heights v. Metro. Hous. Dev. Co., 429 U.S. 252, 270 (1977).
73. Id. at 266-68.
74. Telephone Interview with Michael Daniel, attorney for the plaintiffs in Miller v. City of Dallas and Lopez v. City of Dallas (July 2006). See discussion infra note 77 and accompanying text.
75. Vill. of Arlington Heights, 429 U.S. at 266-68 (enumerating a non-exhaustive list of factors to be considered by courts).
76. See, e.g., Michael Daniel, Urging the Fourteenth Amendment to Improve Environmental Justice, 30 HUMAN RIGHTS 15 (Fall 2003), available at http://www.abanet.org/irr/hr/fall03/ fourtheenthamendment.html (discussing Miller v. City of Dallas, Tex., 2002 WL 230834, at 4-6 (N.D. Tex. 2002), in which plaintiffs survived summary judgment following the district court's analysis of the Arlington Heights factors); see also Lopez v. City of Dallas, 2006 WL 1450520, at 8 (N.D. Tex. 2006).
77. Civil Rights Act of 1964 &sec; 601, 42 U.S.C. &sec; 2000d (2006); 40 C.F.R. &sec; 7.25 (2006) (EPA regulations enumerating the groups to which Title VI's prohibition applies).
78. 42 U.S.C. &sec; 2000d.
79. See Alexander v. Sandoval, 532 U.S. 275,293 (2001) (finding no private right of action to enforce Title VI's implementing regulations prohibiting disparate impact).
80. 40 C.F.R. &sec; 7.35(b) (2006).
81. The Confederated Tribes of the Umatilla Indian Reservation brought just such a complaint, challenging ODEQ's water quality standards. Office of Civil Rights, U.S. Envtl. Prot. Agency, Title VI Complaints Listing 2, http://www.epa.gov/ocr/docs/t6csmar07.pdf (rejecting Complaint No. 05R-05-R10 as "[u]ntimely") (last visited Apr. 4, 2007).
82. See, e.g., Clifford Rechtschaffen, Using California's Anti-Discrimination Law to Remedy Environmental Injustice, 2003 A.B.A. SEC. OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES, available at http://www.abanet.org/irr/committees/environmental/newsletter/ dec03/Civilrights.html (observing that "[a]dministrative complaints filed to enforce Title VI have languished for years at EPA").
83. Supra note 44, at H-75.
84. The reference to "lower yet adequate" protection here is to the Ninth Circuit's formulation in Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1524 (9th Cir. 1995). For an extensive critique of this decision, see O'Neill, Variable Justice, supra note 4.
85. AWQC Methodology supra note 5, at 2-6 to 2-7.