BELLINGHAM - Local Indian tribes sought federal legal action to clarify critical Whatcom County water rights issues more than 18 months ago, but so far there has been no response.
That's what Jeremy Freimund, Lummi Nation's water resources manager, told a gathering of local officials Thursday, March 21.
When he was asked what would happen next, and when, Freimund replied, "I forgot my crystal ball."
During Thursday's meeting of the intricate water policy board known as WRIA 1, or Water Resource Inventory Area, Freimund outlined the Lummi view of the water rights issue, which is generally shared by the Nooksack Indian Tribe.
The tribes contend that their fishing rights, recognized by the federal courts based on the Point Elliott Treaty of 1855, also contain a guarantee of Nooksack River water that is abundant enough and clean enough to support the salmon that spawn in the river and the shellfish in the tidelands that can be harmed by pollution.
Local governments don't dispute that, but years of negotiations have failed to reach agreement on how much water must be left in the river and its many tributaries to maintain tribal fisheries.
In June of 2011, both the Lummis and the Nooksacks wrote letters to the U.S. Department of Interior asking that agency to file a lawsuit to seek a federal court determination of how much of the Nooksack River water supply is reserved for them.
It's a vital question. The city of Bellingham gets its water supply from the river by an indirect route, through a diversion pipe that carries water from the middle fork to Lake Whatcom. Other communities along the river also use it for drinking water. Farmers pull water from tributary creeks to irrigate berry fields and other crops - often without an established legal right to do so.
The determination of the tribal share also will determine how much water is left over for everyone else.
"It would be better for everyone if everyone knew what their water rights were," Freimund said.
Nooksack Chairman Bob Kelly agreed.
"We all agreed that the tribes would eventually have to get that question answered," Kelly said. "We don't have a crystal ball, but we like our chances" in a court proceeding.
The final resolution of water rights questions need not be adversarial, Kelly said, adding that the tribe doesn't want to put Whatcom County farmers out of business.
"Speaking for Nooksack, I want to see that farmland remain as farmland," Kelly said. "None of us want to lose the rural nature of this county."
Leroy Deardorff, a member of the Lummi Indian Business Council, said a lawsuit would have an uncertain outcome for all sides, with a settlement dictated by a judge. The threat of a bad outcome may be the only way to get everyone negotiating again.
"It's like a gun hanging over your head," Deardorff said. "Somebody's going to make a decision you're not going to like."
Merle Jefferson, Lummi Nation's natural resources director, said everyone seems to agree that water rights issues need to be resolved in order to protect and increase salmon stocks.
"We know that the habitat and the fishery is in trouble," Jefferson said. "That's why we're all around this table here."