Lummi Nation and the Nooksack Indian Tribe are seeking federal court intervention to settle Nooksack River water rights issues that affect both the city of Bellingham's water supply and the availability of irrigation water in parts of Whatcom County.
Six years of negotiations between the tribes and other water users have failed to reach full agreement.
Both tribes have sent letters to the U.S. Department of the Interior asking the federal agency to file a lawsuit against the state of Washington. The tribes want a federal judge to spell out the extent of their water rights.
The tribes contend that their right to catch salmon, recognized in 19th-century treaties, is dependent upon maintaining a sufficient flow of water in the Nooksack River and its tributaries to support healthy salmon populations.
"The state's administration of water rights has abrogated tribal treaty rights and threatens to extirpate the fishery resources upon which the (Lummi) Nation relies," Lummi Indian Business Council Chairman Clifford Cultee said in a letter to the Interior Department.
Cultee's letter asks Interior to file a lawsuit seeking a court order that "enjoins (prohibits) the issuance of, or reliance upon, state water permits that would impair these rights."
Doug Allen, a water resources specialist with the Washington Department of Ecology, said it was too soon to speculate about what might happen.
He said it was not immediately clear whether the Department of Interior would grant the tribes' request and file a lawsuit. Interior could choose to order the tribes and other water users back to the negotiating table, Allen said. Even if a lawsuit were filed, a federal judge also could order another round of negotiations.
And even if a judge agreed to put a number on the quantity of water that belongs to the tribes by treaty, there is no guarantee the judge would accept the tribes' view of their rights.
But Allen acknowledged that at some point, the actual quantity of water attached to tribal treaty rights would have to be determined. When that happens, it will become clear how much water is left over for everyone else.
State and local officials had hoped they could reach agreement with the tribes on those matters themselves, and then submit the agreement to federal officials for review.
All sides say some issues have been settled, but the failure to resolve remaining issues led the tribes to seek federal involvement.
The water supply for the city of Bellingham is potentially affected. While the city draws its water supply from Lake Whatcom, the city replenishes the lake with water drawn from the middle fork of the Nooksack River.
Clare Fogelsong, environmental resources manager with the city's Public Works Department, said the city's withdrawals from the river are far less than they were before 2001, when Georgia-Pacific Corp. shut down its pulp mill. The mill used more than double the amount of water consumed by the rest of the city.
The city also takes account of the needs of salmon when it takes river water, Fogelsong said.
"We have been doing our part to make sure we're not interfering with the salmon life cycle," he said.
But Cultee's letter to Interior notes that a Utah State University analysis of Nooksack River basin stream flows provided a scientific estimate of the levels of water needed to maintain top-quality fish habitat and the treaty fishing rights that depend on that habitat. The water flows now established under state regulations fall short of those levels.
In the city's view, the Utah analysis was an estimate of optimum water levels for salmon, but actual water levels are often less than that due to weather conditions, Fogelsong said. City negotiators expected the academic analysis to serve as a basis for a settlement, in which optimum fishery conditions would be balanced with other water users' needs.
Both Fogelsong and Ecology's Allen said all parties have agreed to maintain confidentiality about the content of past negotiations, and they were not at liberty to be specific about the sticking points that prevented the tribes and other water users from reaching a deal to take to federal officials for final approval.
In a joint press release issued by the state and the tribes, Nooksack Chairman Bob Kelly seemed to downplay the significance of the federal lawsuit request.
"There is no surprise here," his statement said. "We all knew that federal court action would be needed to establish the Indian water rights. We made a lot of progress together, and if the parties continue to cooperate, this can be non-controversial."
Lummi National Resources Department Director Merle Jefferson also expressed a desire for cooperation with other water users.
"Treaty-reserved water rights are outside the state system, and the only way that the tribes can have documented and clearly-defined water rights is through a quantification judgment," Jefferson's statement said. "We encourage others to support our request to resolve this longstanding issue so that we can all have certainty and can plan accordingly."
Kelly and Jefferson were not immediately available for additional comment Tuesday, Jan. 11.
