Swinomish Tribal Community Provides Notice of Intent to Sue Corps of Engineers

As Skagit Chinook salmon populations and the Southern Resident Killer Whales dependent upon them continue to dwindle, today the Swinomish Indian Tribal Community (“Swinomish” or “Tribe”) sent a 60-day notice of intent to sue the U.S. Army Corps of Engineers (“Corps”) for failing to uphold the Endangered Species Act (ESA). The Corps has granted construction permits to dike districts in the Skagit Delta under the Tidegate Fish Initiative Agreement (TFI) for five years without requiring that the agreed-upon hundreds of acres of estuary habitat be restored as mitigation for harm caused to salmon. This breach and the failure of the Corps to reinitiate consultation with the National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) to protect threatened Chinook salmon violates the ESA.

“We are gravely concerned about the current state of the Skagit River estuary, which is critical for Chinook recovery in the Puget Sound,” said Swinomish Tribal Chairman Steve Edwards. “Swinomish are the People of the Salmon, and these fish are integral to the Tribe’s sustenance, culture, identity, and economy, yet we no longer have enough to feed our families. We are very frustrated that the Army Corps and NOAA Fisheries have completely failed to ensure that the fundamental premise of the TFI program was met — that estuary habitat is restored prior to issuing construction permits for tidegate replacements or repairs.”

The Tribe estimates that over the past five years, this failure of NOAA Fisheries and the Army Corps to hold the dike districts to the TFI agreement they made in 2010 has resulted in at least 660 acres of estuary habitat that should have been restored but was not. TFI was set up to ensure that estuary habitat was restored in exchange for valuable ESA coverage for the dike districts’ tidegate replacements and repairs. The Tribe has watched as its salmon harvest has declined by over 80% in recent decades, even as no other industry has suffered similar losses.

“It’s unacceptable that the Army Corps and NOAA Fisheries have failed to protect Chinook salmon populations as required under the ESA, and that these federal agencies have done so little to protect the Tribe’s treaty rights and the ability for the next 7 generations of our Tribe to fish. There are tribal members that can’t feed their families because our salmon are hurting and can’t recover without more estuary habitat,” said Chairman Edwards.

“It is terribly unfair that the Tribe’s federal trustees have allowed the dike districts to repeatedly violate the ESA, to cheat the Tribe’s salmon recovery efforts, and to undermine its Treaty rights by not restoring hundreds of estuary habitat acres that they agreed to restore under the 2010 TFI program. The Army Corps and NOAA Fisheries must right this wrong, must hold the districts accountable, and must comply with the law to recover ESA-listed Skagit Chinook and steelhead,” said Senator Tandy Wilbur, the Tribe’s Acting Fisheries Manager.

The Skagit River Delta has been radically altered by the historic draining of estuary habitat lands for intensive agriculture with the use of tidegates. The 2005 Skagit Chinook Recovery Plan approved by NOAA Fisheries identified degraded estuary habitat as one of the primary causes of imperiled Chinook salmon populations in the Skagit River, which are a primary food source for endangered Southern Resident orcas. In 2008, a federal court found that tidegates, along with their repair and replacement, harmed and continued to harm Chinook salmon in violation of the ESA.

“The Swinomish people’s way of life and livelihoods as well as protected Treaty rights have been disrespected and disregarded while these federal agencies look the other way, and it is time for that to stop. The dike districts have received the valuable benefit of ESA coverage but the estuary habitat they agreed to restore has not been restored, and NOAA Fisheries and the Army Corps have done nothing about it, choosing instead to allow the dike districts to violate the ESA over and over. The TFI program is broken and we’re telling our federal trustees that they must fix it,” said Swinomish Chairman Edwards.

The Swinomish Indian Tribal Community is a signatory to the 1855 Treaty of Point Elliott and relinquished vast areas of land in exchange for its reservation at the mouth of the Skagit and to preserve fishing, hunting, and cultural rights over the entirety of the Skagit River watershed and beyond. Its 10,000-acre reservation is located 65 miles north of Seattle, Washington, on Fidalgo Island and includes approximately 3,000 acres of tidelands.