CONGRESSIONAL HEARING

 

UNITED STATES SENATE

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER

 

Written Testimony of:

Nancy Murillo, Chairman

Shoshone-Bannock Tribes

 

 

Dirksen Senate Office Building, Washington D.C.

June 24, 2003

June 24, 2003

Chairman Michael D. Crapo

Subcommittee on Fisheries, Wildlife, and Water

239 Dirksen Senate Office Building Washington, D.C. 20510

Dear Chairman Crapo,

Mr. Chairman, Members of the Committee, on behalf of the Shoshone-Bannock Tribes, I appreciate the opportunity to submit these comments to you on the impacts on Fish and Wildlife Management Programs in the Pacific Northwest.

As Chairman of the Fort Hall Business Council, governing body of the Shoshone-Bannock Tribes, I provide the perspective of the Tribes regarding the impacts on Tribal Fish and Wildlife Management Programs in the Pacific Northwest. The Tribes’ testimony will focus on the Federal Columbia River Power System Biological Opinion (BiOp); the BiOp Implementation Plans; the Bonneville Power Administration funding of the Columbia River Basin Fish and Wildlife Program through the Pacific Northwest Power and Conservation Council under the Pacific Northwest Power Planning and Conservation Act; Federal Energy Regulatory Commission re-licensing; and the need for additional funding to fully analyze and participate in the numerous Federal and private forums surrounding the operation of the Columbia River Power System and its impact on anadromous fish and to implement the actions necessary to protect and restore the fish and wildlife resources of the Columbia River Basin.

 

In historic times, Idaho’s Shoshone and Bannock speaking peoples were located at the headwaters of four major river systems in the western United States.  They lived along, utilized, and traveled the rivers and tributaries of the Salmon and Snake, which feed the Columbia River system; but they also spent time on the rivers and tributaries leading to the Great Basin and the


Missouri, as well as, the Colorado Rivers.  The vast majority of people descended from these Idahoans now live on the Fort Hall Indian Reservation in southern Idaho as enrolled members of the Shoshone-Bannock Tribes. We hold entitlements to these river systems which were bequeathed to us not only by our ancestors historic patterns of use but also by the treaties and other legally-binding agreements made with the government of the United States (e.g., the Fort Bridger Treaty of 1868 (15 Stat. 673).  The Shoshone-Bannock Tribes have treaty rights on all unoccupied lands of the United States; and we manage our fisheries through our Treaty priority right in conjunction with our efforts in the federal case, U.S. v. Oregon.

 

The Shoshone-Bannock Tribes have been involved for many years in the numerous policy, production and management processes tied to the Columbia and Snake rivers.  We realize the importance of prioritization of the most important processes due to our limited staff and resources.  This includes active involvement in prioritizing the absolutely critical and threshold


projects needed to implement a balance between a reliable and inexpensive energy supply with the fish and wildlife needs that are impacted by the Columbia River Power System.  The Shoshone-Bannock Tribes are full supporters of the Columbia Basin Fish and Wildlife Authority as a coordinating body for much of these activities.

 

Endangered Species Act and the Columbia River Hydropower system:

 


One of the realities of Fisheries Management is the fact the Shoshone-Bannock Tribes can not do any management without being completely absorbed by the Federal Endangered Species Act. We spend so much time on the processes that exist, that little time or staffing is left for actual production and management efforts to promote recovery of the salmon.  However, the Shoshone-Bannock Tribes continue to prioritize on-the-ground implementation of actual production, hatchery reform, and harvest management activities despite the overwhelming burden of process.  Our production efforts are also accomplished through U.S. v Oregon management agreements, by ESA through National Marine Fisheries Service NOAA Fisheries (NMFS) processes, and often by unresolved scientific (i.e., genetic) uncertainty and political infighting of the various governance structures.

 

The National Marine Fisheries Services (NMFS) and the U.S. Fish and Wildlife Service (USFWS) issued Biological Opinions (BiOps) in December 2000 for the operation and maintenance of the Federal Columbia River Power System (FCRPS). This complex of dams and reservoirs is operated by the U.S. Army Corps of Engineers (Corps), the U.S. Bureau of Reclamation (Reclamation) and the Bonneville Power Administration (BPA), referred to

collectively as the Action Agencies. The Action Agencies first implementation plan (The ESA Implementation Plan 2002-2006) was published as a draft in July 2001 and circulated for review; the 2002-2006 5-year plan was followed by the release of the first annual implementation plan. The NMFS BiOp also calls for annual progress reports as well as comprehensive check-ins in 2003, 2005, and 2008.

 

The Shoshone-Bannock Tribes are concerned with the continuing modifications of past plans before they are implemented.  We have been involved with decades of planning that have not yet been implemented.  Once again, the 2002, implementation plans for the 2000 BiOp have remained unsatisfactory to the needs of the endangered species and the Shoshone-Bannock Tribes.  Less than 30% of the measures required to be completed by 2002 were accomplished; yet, water temperatures continue to increase, water flows continue to decrease, and funding allocations remain inadequate to correct these major deficiencies. For example:

 

1) Hydro system - the Shoshone-Bannock Tribes have recognized for many years that the Columbia River Power System of dams and reservoirs impede salmon migration and return to over 900 miles of river system, and requires major system configuration modifications.  The Shoshone-Bannock Tribes have long advocated breaching the four lower Snake River dams (Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams), not only for the benefits to anadromous fish, wildlife and clean water, but also for the major economic benefits that will result from more efficient alternative energy sources, additional recreation opportunities, preservation of tribal cultural resources, and associated long-term savings in fish and wildlife mitigation.   The Shoshone-Bannock Tribes have long maintained that the hundreds of millions of dollars being spent on "fixing” these dams is a great waste, and that the expenditures would be significantly less if instead the investment were to fix the river by mothballing the dams.

 

2) Habitat restoration - the Shoshone-Bannock Tribes have tried to acquire land as conservation easements to return fragmented habit for fish and wildlife connectivity.  The Shoshone-Bannock Tribes have continuously attempted to put and keep clean, cold water into the streams, without the migration barriers associated with irrigation diversions, dewatering, and toxicity from mine effluent. 

 

3) Hatchery-reform - the Shoshone-Bannock Tribes have been leaders in using low technology and inexpensive artificial propagation techniques that attempt to use hatchery-origin fish to rebuild wild, naturally spawning populations of anadromous fish.  These efforts include side-stream egg incubators, and adult and smolt outplants of hatchery fish into wild fish areas.  However, the ambiguous genetic theories of modern science continuously impede these efforts, even after several of the Pacific Northwest tribes have shown major success stories of these hatchery reform techniques. 

 

4) Harvest – the mixed stock interception fisheries are inequitable to the salmon resource and the Shoshone-Bannock Tribes.  Selective fisheries should be initiated based on fishing area rather than gear restrictions.  Releasing harvested salmon after being caught does not aide salmon recovery.  The Shoshone-Bannock Tribes harvest fish in areas and at levels the populations of salmon can support – and encourage all other entities to do the same.

 

Simply put, the Shoshone-Bannock Tribes are trying to put water into the creeks, and fish in the water.  The Shoshone-Bannock Tribes attempt to carry out the purposes of our Tribal Policies and the Treaty commitments made in the 1868 Fort Bridger Treaty by being actively involved in the numerous forums that are designed to implement the ESA.  It is our position that the ESA must be implemented in accordance with our Treaty.

 

It is difficult for Indian people to understand why the Northwest doesn’t recognize what the native people have long known; fish need clean natural rivers to survive, just as the human being needs clean water to replenish our bodies. The Federal Action Agencies implementation plan does not promote clean, cool water for anadromous fish.  Storage reservoirs have not been refilled, salmon flow targets have not been meet, Potlatch continues to discharge 90 plus degree water and tributary habitat continues to be degraded.  Likewise, the Treaty commitments and Trust Responsibility that has been statutorily assigned to the Federal family has not been upheld.  The Shoshone-Bannock Tribes along with other tribes in the Region must constantly analyze the federal actions to make sure that the Tribal goals and policies have been incorporated in the Action Agencies plan(s). In addition, we are constantly involved with the scientific, technical and policy forums to protect our Tribal Treaty commitments.  Both the process and the modern science results in a huge financial burden being placed on the Tribes and a huge staffing need to protect our concerns.

 

Bonneville Power Administration Fish and Wildlife Funding:

The Shoshone-Bannock Tribes have received funding for Fish and Wildlife projects pursuant to the Pacific Northwest Power and Conservation Council’s (Council) processes for several years. We are very concerned with the political influences that impact Bonneville Power Administration (Bonneville) funding of the Columbia River Basin Fish and Wildlife Program.  The Shoshone-Bannock Tribes have been sponsors of several fish and wildlife project proposals that ranked higher in both the fish and wildlife managers' and the Independent Scientific Review Panel review and prioritization based on scientific validity, only to get bumped out of the process by lower scientifically ranked proposals, due to recommendations made by governor-appointed Council members.  For example, in the East Fork Salmon River, the Shoshone-Bannock Tribes proposed to use Bonneville funds to purchase land that included fish acclimation ponds and prime fish and wildlife habitat as a conservation easement, including the suspension of irrigation to allow more water to remain in the stream and tributaries.  This proposal ranked very high and was recommended for Bonneville funding in both scientific reviews, yet the Council did not recommend funding to Bonneville. The Idaho Governors Office of Species Conservation sponsored a similar proposal further up the East Fork Salmon River, for a similar amount of land but that did not include fish acclimation ponds and did not suspend irrigation.  The Governor's Office proposal ranked low and was not recommended for funding in either of the scientific reviews, yet moved forward from the Council with a recommendation to fund.  To the best of our knowledge, now, two years later, the acquisition of the property the Governor's office sponsored has fallen through because the landowner cannot maintain his private-only use of the property as was proposed and as is not allowed with federal funds.  This is from the Shoshone-Bannock Tribes view as well as the expertise of independent scientific peers, is but one of many examples of the politically-driven funding decisions that are not critical for fish and wildlife recovery, and that resemble fraudulent waste of federal funds.

Bureau of Indian Affairs Fish and Wildlife Funding

The Shoshone-Bannock Tribes received a $100,000 add-on to the base Fish and Wildlife Program Management and Development fund in 1992.  Despite repeated requests for at least $550,000 annually to meaningfully participate in the myriad of process and implementation activities related to anadromous fish management, the Shoshone-Bannock Tribes have received no additional funding for over a decade.  Inadequate funding prevents the Shoshone-Bannock Tribes from meaningfully participating in ocean harvest forums (Pacific Fisheries Management Council and U.S. - Canada Treaty); Pacific Northwest Power and Conservation Council activities; Columbia River Power System forums and processes (Fish Passage Advisory Committee, Fish Passage Center Oversight Board, System Configuration Team, Technical Management Team, Implementation Team, Executive Committee, Water Quality Team), Action Agency forums, and FERC relicensing.

The Shoshone-Bannock Tribes policy is to treat the Snake and Columbia rivers as one river system that emphasizes the natural riverine ecosystem, rather than upriver (storage reservoirs, resident fish species) versus downriver (riverine, anadromous fish species) conflicts.  The Shoshone-Bannock Tribes were major participants in the Watershed Equity Team that drafted a way to operate and configure the Columbia River Power System to meet both the upriver and downriver biological objectives.  The Tribes also were leaders in working with the 13 federally-recognized Columbia Basin Indian Tribes to develop a draft Unified Tribal Vision Paper on the Columbia River fish and wildlife resources and how to achieve that vision; and a Red Paper on river governance that afforded the technical, policy and legal authorities and responsibilities to the three sovereigns (tribal, state and federal).  These past activities were supported by the BIA funding, which now is severely constricted due to the significant increase in process for the Columbia River basin fish and wildlife management and recovery.

FERC Re-licensing and the Federal Energy Bill:

The proposed Energy Bill, Title V, Federal Power Act Amendments - The proposed changes would affect some tribes directly: those with dams on their Reservations. This includes the American Falls Reservoir and its impacts on the Fort Hall Indian Reservation and also down river flows for salmon  . The bill would amend in two ways Sections 4(e) and 18 of the Federal Power Act as they relate to mandatory conditions imposed on licensed projects to protect Indian Reservations and fish passage. First, additional procedural protections would be granted to hydro licensees. Second, licensees would have equal status as governmental agencies to propose conditions for the protection of Indian Reservations and fish. Section 4(e) requires that the Federal Energy Regulatory Commission (FERC) take measures to protect Indian Reservations when hydro projects are located within and, affect those Reservations. It provides that the FERC can impose mandatory conditions on the license as recommended by the Secretary of the Interior:

 

            Provided, that licenses shall be issued within any reservation only after a finding by

the Commission that the license will not interfere or be inconsistent with the purpose

for which such reservation was created or acquired, and shall be subject to and contain

such conditions as the Secretary of the department under whose supervision such

reservation falls shall deem necessary for the adequate protection and utilization of

such reservation.”

 

Clearly, when viewed alone this proposed section is designed to arm hydro developers with further procedural mechanisms to challenge conditions imposed to protect Indian people and fish. This will further delay and frustrate the implementation of measures to protect Tribal interests. However, when viewed together with additional rights hydro developers would have under this bill, their rights would become even more oppressive.  What is remarkable is proposed Section 33 of the bill. It would allow licensees the opportunity to recommend their own proposed protective measures under Sections 4(e) and 18. The criteria for acceptance of the developers’ proposals will include cost reduction and improved electricity production. This bill would give licensees greater rights than sovereign nations and would reduce consideration of Tribal interests considerably. Disputes on whether to accept the developers’ proposals would be referred to the FERC’s Dispute Resolution Service. The non-binding advisory of the Dispute Resolution Service would go to Secretary of the Interior for acceptance or rejection, which is then submitted into the FERC record. At that point, the procedural protections discussed above would apply. This bill would significantly dilute Tribal interests and would defer the protection of federal trust obligations to private parties.  Only congress can abrogate protections of tribal trust resources – which must be done expressly and specifically.  This bill sets a dangerous precedent.

 

FERC is considering new regulations that propose to establish a new Consultation Policy that sets forth how FERC will complete Government-to-Government consultation with Indian Tribal governments.  This is a step in the right direction since the present process does not allow for any meaningful involvement by Tribal governments and there is no mandate for consultation with any Tribe. We would urge this Committee to oversee this process and possibly conduct hearings on Tribal involvement.

 

In summary, the Shoshone-Bannock Tribes emphasize the Columbia and Snake river systems as one river system.  The Tribes promote the natural riverine ecosystem as a High Significance to the Shoshone and Bannock people and culture.  We appreciate the opportunity to provide this testimony to the United States Senate Committee on Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water. 

 

The Shoshone-Bannock Tribes are situated high at the headwaters of the longest-traveled anadromous fish species in the world, and provide unique and proactive advice and techniques for the recovery and protection of these animals. We invite the Senate Committee and staff to travel to the Fort Hall Indian Reservation and to the off-Reservation management areas to learn more about our subsistence practices, and the management of our production, habitat, and harvest programs. 

 

 

 

Sincerely,

Nancy E. Murillo

Nancy E. Murillo

Chairman, Fort Hall Business Council

The Shoshone-Bannock Tribes

 

cc:  Fort Hall Business Council

      Fish and Wildlife Programs

      Tribal Attorneys

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