Lummi, Nooksack dispute local water rights

Published on Wed, Mar 19, 2014 by Nathan Dalla Santa

Read More News

Litigation from local tribes could have serious consequences for farmers and many others in Whatcom County.

When the U.S. government signed its treaties with the Washington tribes in the mid-1800s, some of the finer details were left a bit ambiguous. In the past few decades, those tribes, along with state and federal governments, have been trying to sort it all out.

The first major decision had to do with native fishing rights. In 1974, the Boldt decision reaffirmed native fishing rights in 
Washington state. The courts looked at the original treaties and determined that natives had the right to catch 50 percent of the harvestable fish. It was a big victory for the tribes, who had been fighting with Washington state about their right to fish. However, more questions remain unanswered about native rights.

2014 marks the 40th anniversary of the Boldt decision, and Whatcom County is the arena for the most recent litigation. This time, it’s about water rights. 

In 2011, the Nooksack and Lummi tribes filed a petition with the U.S. Department of the Interior to seek a legal declaration of their water rights, a move that may have wide-ranging impacts both locally and throughout the region.

The Nooksack and Lummi tribes have rights to use water in the Nooksack River Basin – that much is undisputed, said Roger Brown, Birch Bay Water and Sewer District general manager. The hard part is figuring out exactly what those rights entail. As senior water right holders, the tribes’ water rights precede those of other, less senior users. Therefore, their water needs must be fully satisfied before other stakeholders can use the water.

The problem is, water needs are poorly defined. To sort it out, the courts evaluate the original purpose of the reservations. Whatever that original purpose was, their water rights would guarantee them enough water to fulfill those purposes.

So, the courts need to determine what the tribes’ needs are. The Lummi and Nooksack tribes are hoping for a “homeland” right, which would give them water to satisfy a broad, almost limitless range of possibilities, Brown said. The tribes also want to establish a non-consumptive right, which would affect the required in-stream flow – the amount of water that must be in the streams at all times in order to secure healthy fish populations.

In addition to quantified water rights and in-stream flow, the tribes are seeking a federal declaration that the state needs to uphold water rights and water permits, which essentially means they are asking the state to enforce existing laws.

Brown is concerned for local farmers, who don’t have a specifically adjudicated right to water in the area. If the state begins upholding the letter of the law, many farmers could be left without water for their crops.

Quantifying water rights for local tribes could have far-flung implications for tribes and citizens throughout the Puget Sound region as well. 

The Point Elliot Treaty, which governed the settlement agreement between Washington and the Whatcom County tribes, is one of four treaties signed in a five-week period in 1855. The treaties have similar aims and wording and together encompass most of the Puget Sound region. Because of this, the water rights established for the Lummi and Nooksack tribes could set a precedent and impact future water-rights decisions throughout the area, Brown said.

There is no timeline for the decision. The Department of the Interior hasn’t yet responded to the tribes’ requests and, ultimately, it isn’t certain if it ever will. The only certainty is that, in a case like this, the process will take a long time, Brown said. For an idea of how long this type of litigation can take, one need only look as far as Yakima County, where the Yakama tribe has been asking for a determination of its water rights in the Yakima River Basin for nearly 21 years.

“There’s no way to tell how this will play out,” Brown said. “But the tribes are smart and they know we’re unprepared, so we need to start seeking council and getting prepared.”