Tribal fishing rights a thorny issue

By Tim Reid

"I thought the Supreme Court is supposed to protect our rights," said 63-year-old, life-long Bellingham resident and fisher, George Grant. "Now the tribes have got more rights than property owners. It just don't make sense."

Grant expressed his outrage about the April 5, 1999 decision of the U.S. Supreme Court to uphold tribal rights to harvest shellfish on state and privately owned tidelands. But Grant only speaks for one side of the issue.

"I think the tribes gained and lost some ground with the Supreme Court's decision," said Randy Kinley, chairman, Lummi Nation Natural Resource Commission. "We haven't gained any extra rights ... just the ones granted to us through treaty."

Economically, Kinley said the tribes' ability to harvest shellfish from more tideland areas would contribute millions of dollars of needed revenue to various local tribes.

The Supreme Court's ruling concludes, for now, an issue appealed after Los Angeles U.S. District Judge Edward Rafeedie's Dec. 24, 1994 ruling in favor of the tribes. The ruling has been characterized as the shellfish version of the 1974 Boldt decision.

In the earlier Boldt decision, Washington tribes were granted 50 percent of the annual salmon harvest as a part of the tribal treaty rights negotiated in the late 1800s.

Rafeedie's 1994 decision gave 19 Washington tribes the same 50 percent harvest rights to shellfish on both state and private tidelands. The ruling covered all shellfish, to include: oysters, clams, shrimp, crab and geoducks, found in Puget Sound, Hood Canal, Strait of Juan de Fuca and Strait of Georgia.

"I am certainly in favor of the tribe's getting everything they are entitled to," said Richard Poole, president of Lummis Shellfish Hatchery. "I'm not a tribal member," Poole said. "But I have watched them (the Lummi tribe) fight for rights they were guaranteed by treaty. It's about time."

Almost immediately after the Rafeedie decision, interest groups representing private landowners and commercial shellfish growers as well as the State of Washington appealed the court's decision.

"Immediately, nearly everyone thought we were going to rape and pillage the tidelands," Kinley said. "Or start tromping across people's property. It's just not true."

"I really thought they were going to get the right to cross private property whenever they (the tribes) wanted," said Phil Howdelin, a long time Bellingham resident and avid recreational angler. "I'm not the only one. People got real angry and I don't think they've calmed down much."

With the Supreme Court's April ruling to uphold Rafeedie's decision, local tribes are anxious to get to harvesting but are required to plan out the harvest first.

Kinley said when the tribes want to harvest on private or state tidelands they first have to give notice to the land owner and perform a resource assessment of the shellfish population to determine how many clams there are so that a harvest plan can be developed. The harvest plan is required to limit the harvesters to a point of sustainable harvest.

The term sustainable harvest means a shellfish harvesting level which permits harvesting clams in numbers low enough to ensure constant breeding populations are maintained. For the tribes, this roughly equals half of the total annual permitted harvest.

"We can't just take them (clams) all," Kinley said. "It's in our best interests to make sure the beds are taken care of and that the clams will be there for our future."

When the tribes want to harvest on state and private tidelands, they have to develop a plan. But when it comes to commercial shellfish operations, the court requires the commercial growers to do all the work developing a plan.

Diane Cooper, marine biologist and environmental manager for Taylor Resources Inc., operators of Taylor Shellfish Farms on Chuckanut Drive, explained that while the Rafeedie ruling does protect artificial beds, the major problem is determining exactly where the artificial beds are and how many clams the tribes have rights to.

"The Rafeedie ruling requires all commercial growers to go back in time and determine just how many clams were in our beds prior to commercial farming," Cooper said. "In some cases that's nearly impossible. Some of our beds have been commercially harvested for over 100 years."

Taylor Resource is only one of over 240 commercial shellfish growers in the state. Taylor currently manages, improves and harvests more than 8,400 acres of tideland beds and has eight state leases for over 200 additional acres. Developing a plan for that many acres of tidelands will be a daunting task.

"We have to determine early clam density levels (the numbers and types of clams in a given area), even in our oyster beds, so that we will know how many clams the tribes have the right to harvest," Cooper said. "Most of the records for the older beds only go back 40 to 50 years. We just don't have documentation."

Seeking to put commercial growers at ease, Kinley said the Lummi have a different plan for commercial growers.

"Over 25 percent of harvest able Puget Sound tidelands are on tribal lands. We don't plan on harvesting from commercial growing operations," Kinley said.

"It is not feasible for us to go through the process of determining what (shellfish) we have rights to in commercial beds," Kinley said. "Our plan is to simply access other area tidelands for our harvesting operations."

Yet, even with assurances from the tribes, not everyone is convinced the tribes will keep their end of the bargain.

"I'm afraid that no matter what they (tribes) say, they're going to take way more than they are supposed to," said Steve Osberg, a retire commercial crabber.

But, some do think the tribes will follow the court's ruling closely.

"I think they (tribes) are just doing what they have to get by," said Poole, president of Lummis Shellfish Hatchery. "I think the tribes are trying real hard to monitor their harvesters."

Kinley said the tribes are responsible to ensure that tribal harvesters only harvest in areas designated by the tribes for harvest. Each harvester is responsible to report how many pounds of shellfish are harvested, at what beaches, and at what times. Anyone who harvests without tribal permission is subject to stiff penalties.

"We have laws and regulations controlling our commercial harvesters," Kinley said. We don't want a freelancer ruining the beds. We have our own enforcement people."

"If someone sees tribal members harvesting in areas that haven't been authorized they should report them immediately," Kinley said. "We will fine the freelancers in tribal court and ensure they don't harvest for a while."

"Every time a tribal member harvests from unauthorized beaches they make it that much harder for us to improve relations with non-tribe people," Kinley said.

No matter what reassurances the tribes give, some residents don't feel it is fair for the tribes to have access to all tidal areas.

"I don't think they have the right to harvest anything from private lands (tidelands)," said Osberg. "I never could drop my pots on private tidelands and neither should they."

While commercial growers and private landowners vow to appeal the decision yet again, tribal representatives have confidence that everything will work out for the best and that eventually tribal and non tribal citizens will reach a common ground.

"People are no more upset now than they were with the Boldt decision," Kinley said. "We're just going through the same kinds of growing pains we (have) experienced before."