On July 6, 2006, the Muckleshoot Indian Tribe and the City of Seattle sign the Muckleshoot Settlement Agreement. The agreement resolves the issues raised in a 2003 lawsuit challenging the city's Cedar River Watershed Habitat Conservation Plan and other conflicts over the tribe's treaty rights. Filed after the National Marine Fisheries Service issued permits for the City of Seattle's water system and hydropower operations on the Cedar River, the tribe's lawsuit challenged the legality of allowing "incidental take" of endangered chinook salmon and the adequacy of the accompanying habitat-conservation plan for the Cedar River Watershed. The city and tribe entered negotiations in 2004 and eventually worked out a settlement addressing issues raised in the lawsuit and other longstanding disputes related to treaty rights. The city agreed to limit water taken from the Cedar, transfer some of its perfected water rights in the river to the State Water Trust, replace the Landsburg sockeye hatchery (or pay an equivalent amount for mitigation to enhance fish habitat), and allow tribal access to the long-closed watershed for hunting, gathering, and other traditional activities. In return, the tribe agreed to withdraw its objection to the incidental-take permit and the habitat-conservation plan.Diverting Water, Excluding People
The City of Seattle began diverting water from the Cedar River in 1901. At the Landsburg Diversion, below Cedar Falls, river water entered pipes that carried the water into town. The city could store water in Cedar Lake (later Chester Morse Lake) upstream of the diversion and, later, also in Lake Youngs (formerly Swan Lake) downstream from Landsburg. While this proved to be a brilliant solution to supplying Seattle's population with water, it had a tremendous impact on the Cedar River watershed.
The diversion of water to the city's pipes diminished the river's instream flow downstream from Landsburg. Also, to continuously operate electricity-generating turbines at the city's Cedar Falls hydropower plant and to ensure a regular flow of drinking water to the city, the water department released water from Chester Morse Lake at a steady flow. This contrasted significantly with the previous seasonal variation of instream flows resulting from heavy rains or the region's annual summer drought.
The city's diversion dam, which funneled water into the system's pipes, blocked salmon from 17 miles of the upper river, between the diversion and Cedar Falls. Their absence altered the ecosystem of that area by removing important sources of nutrients -- spawned-out salmon carcasses and young salmon. At the time it was built, in 1901, officials feared that allowing salmon above the intake would pollute or alter the taste of the city's drinking water, so no fish passage was built.
For the most part, humans were also excluded from the watershed above the diversion dam. While logging continued in the watershed for several decades, it was tightly controlled. The exclusion applied to the Muckleshoot, whose ancestors lived in and traveled through the watershed for thousands of years. The tribes that make up the Muckleshoot Indian Tribe today had lived along the rivers, creeks, and lakes and traveled over Yakima Pass to Eastern Washington to trade and to socialize with family and friends on the Columbia Plateau. They had also traditionally hunted, fished, and gathered a wide array of animal and plant species within the watershed.Regulatory Requirements
The City of Seattle operated the Cedar River water system for nearly a century to meet its residents' needs for drinking water and electric power. Forested areas in the watershed, after most of it had been cut over once, were closed to further logging to protect water quality. In 1998, the federal government listed chinook salmon under the Endangered Species Act. This triggered a series of regulatory requirements that would ultimately lead to the Muckleshoot Settlement Agreement in 2006.
Because operation of the water diversion at Landsburg resulted in the "take," or loss, of endangered chinook salmon, the city had to obtain an "incidental-take" permit from the National Marine Fisheries Service. And to obtain a permit, the city was required create a habitat-conservation plan for the Cedar River Watershed. The plan had to outline measures the city would take to reduce impact of the water system's operations on chinook salmon. The city worked with state and federal fisheries agencies and with the Muckleshoot Indian Tribe to develop the plan.
However, the plan proposed by the city was criticized by environmental groups and the Muckleshoot Indian Tribe. They believed that the minimum instream flows allowed by the plan would cause excessive harm to fish populations. Also, they felt the plan allowed the city to take more water from the river than needed. As Charlie Raines of the Sierra Club told The Seattle Times, "We want to know the water is going to a worthwhile purpose and not just to water big lawns" ("Panel OKs New Habitat Plan ...").Resolving the Issues
In early 2000, the National Marine Fisheries Service approved the habitat-conservation plan and issued an incidental-take permit, along with other permits needed by the city to carry out water-system operations. That September, the Muckleshoot Indian Tribe filed a notice that it would seek to have the permit reviewed in federal court if specified legal issues were not addressed. Those issues were not addressed to the satisfaction of the tribe and a suit was filed against the National Marine Fisheries Service challenging the habitat-conservation plan and incidental-take permit in December 2003.
The City of Seattle intervened in the case in March 2004 and the city and the tribe entered into settlement discussions. During the meetings, the city and tribe agreed to expand the issues on the table to include other treaty-related disputes regarding the Cedar River Watershed. These included the tribe's claim that hunting, gathering, and other traditional cultural activities should be allowed in the watershed because, when they signed the Treaty of Point Elliott in 1855, the tribes had reserved rights to "hunting and gathering roots and berries on open and unclaimed lands" ("Treaty of Point Elliott, 1855").
By early 2006, the city and tribe had worked out a settlement agreement. The plan addressed instream-flow levels, salmon-hatchery operations, tribal access to the watershed, compensation for the tribe, and a framework for cooperation between the city and the tribe. The city's announcement of the agreement stated that it "provides certainty for the region's water quality and quantity and a cooperative relationship between the city and the tribe" ("City of Seattle, Muckleshoot Tribe Reach ...").Settlement Provisions
The city agreed to limits on the maximum average annual amount of water it could divert and to transfer the portion of its perfected water-right claim that was more than 124 million gallons per day, averaged annually, to the State Water Trust. That water could then be used to maintain instream flow in the Cedar River. This allowed the city to avoid abandoning that portion of the water right, which would have affected its entire perfected water-right claim.
The agreement called for the transfer of more than 1,300 acres of land to the tribe. The acreage included a parcel near Yakima Pass, one on the North Fork of the Green River, one on MacDonald Mountain, and another along the White River.
Tribal members gained access to the watershed for hunting, gathering, and other traditional cultural activities. The tribe and city agreed to work together to manage wildlife, with the tribe to ensure that its members' activities did not harm water quality or forest health. The settlement called for the tribe and city to carry out a 10-year wildlife study to gather information about wildlife populations and how they function within the watershed. The agreement included a handful of provisions related to operation of an interim hatchery at Landsburg and construction of a permanent hatchery and its operation or funds in lieu of its construction and operation. The city and the tribe agreed that the tribe should become a party to the Landsburg Mitigation Agreement, which specifically addressed fish populations in the upper river.
Implementing the Agreement
The agreement established the Joint City Tribal Policy Commission, made up of the director of Seattle Public Utilities and the director of the Muckleshoot Tribal Fisheries Commission. The agreement mandated that the commission meet once per year to assess the operations outlined in the agreement, and allowed the commission to address other issues that might arise regarding the watershed. The treaty of Point Elliott had established a government-to-government relationship between the tribes and the federal government. Other levels of government, such as the state, counties, and cities, did not have a similar legal relationship with tribes. The State of Washington had declared its intention to work with tribes on a government-to-government basis with the signing of the Centennial Accord in 1989, and reaffirmed it with the Millennium Agreement, signed in 1999. The Muckleshoot Settlement Agreement provided an opportunity to develop a similar model for Seattle.
When the public reviewed the Muckleshoot Settlement Agreement, a number of concerns were raised. Some objections involved misunderstandings related to the tribe's role in the watershed. Commenters feared that the tribe would carry out full-scale logging, but the agreement limited its timber removal to downed wood and a "limited amount of live wood for traditional uses by Tribal members" (Muckleshoot Settlement Agreement, 26). Some public commenters expressed concerns about the hatchery and how hatchery fish affect wild fish stocks. Others challenged the watershed access granted to the tribe, arguing that the public good realized by strict protection of the water supply from human influences outweighed the tribe's treaty rights.
The city council and tribal government approved the agreement and it was signed on July 6, 2006. The city, state, and tribe began the collaborative process of implementing its provisions. A fish passage at Landsburg had been completed in 2003 and salmon were again using the upper river for spawning. The called-for wildlife studies progressed and tribal members had access to the watershed for the first time in more than a century.