The settlement arose out of a 2003 lawsuit in which Earthjustice attorney Patti Goldman represented the Tribe. The lawsuit challenged a 50-year habitat conservation plan for managing water withdrawals and flows in the Cedar River. The plan established minimum instream flows, but imposed no constraints on the city's ability to increase water withdrawals beyond recent historical levels.
The National Marine Fisheries Service (NMFS) approved the plan and gave the city a 50-year exemption from the Endangered Species Act for harm caused by low flows to Chinook salmon that are protected as threatened under the law.
The city has claimed the right to increase its water diversions to near double historic levels. The Seattle area is growing substantially and the city has entered into contracts to supply sprawling suburban areas with water from the Cedar River watershed. Future increases in withdrawals from the Cedar River would substitute a minimum flow regime for the natural fluctuations under which salmon evolved and would eliminate the higher flows that allow salmon to replenish their numbers in good water years.
In June 2004, Earthjustice filed a summary judgment motion on behalf of the Tribe. Within a week, the city's attorneys asked the Tribe to enter into mediation. After a concerted effort, the City agreed to cap its water withdrawals in perpetuity at a level approximating historic levels. The city will transfer the remainder of its claimed water right to a state water trust to be dedicated permanently for instream flows and it will include conservation commitments in all new wholesale water contracts. Once the parties resolved the flow issues, the mediation turned to other longstanding disputes in which Earthjustice was not involved.
The Tribe described the agreement as a "bellwether event portending a close and productive relationship between the city and the Tribe" that will provide "flows necessary to protect fishery resources" and allow the Tribe to rely on the Cedar River watershed "to sustain its society and culture and to provide sustenance for its people." The city and the Tribe will need to obtain final approval for the settlement from their respective governing councils over the next couple months.