MARBLEMOUNT, Skagit County — The glacial flows of the Cascade River twisted and churned with whirlpool-like force as it met the wide rolling waters of the Skagit River on a late January day.
The water sustains life here, in spawning grounds and rearing habitat for native salmon and steelhead. But some 20 miles upstream, the Skagit is quiet.
It’s been replaced by the soft crackle and hum of high-tension power lines carrying one-fifth of Seattle’s electricity generated by three century-old dams. Almost 40% of the river is locked up for cheap, carbon-neutral hydropower.
Now, as a fight over the river’s future simmers, a question about the value of life itself is being revisited: Does this river have inherent civil rights?
Seattle City Light is moving to extend its use of the dams for another three to five decades, and tribes and other environmental groups have been pushing the utility to do more for salmon. The Sauk-Suiattle Tribe, one of the smallest and poorest in the region, and its one-person legal team asked its own courts to recognize the rights of the salmon. A tribal court struck down the request over jurisdictional concerns, but it brought attention to the way governments, utilities, the legal system and landowners perceive their nonhuman neighbors.
Months later, two Washington cities moved to recognize the rights of the endangered southern resident orcas, advancing this quiet movement to reframe how humans in power see the rights of the ecosystems they take from.
The “Rights of Nature” movement stems from traditional Indigenous knowledge that recognizes the interconnectedness of all living beings. It could eventually spur legal protection for water, animals and ecosystems, but would require a remaking of the United States’ legal system.
While some of the most recent municipal and court actions may be good symbolic first steps, law professor Noah Sachs said, they haven’t yet led to any meaningful enforcement or protection of nature in the U.S.
A river impounded
The 19-acre Sauk-Suiattle reservation is nestled in the foothills of the North Cascades. It’s bound by mature-growth forests, the logging town of Darrington, Snohomish County, and the Sauk and Suiattle rivers. The Suiattle feeds the Sauk with cool glacial melt, and the Sauk supplies the Skagit with the same.
Some reservations have successful casinos planted along the Interstate 5 corridor that fund tribes’ investments in salmon recovery and other environmental projects. But there are no dinging slot machines or blackjack calls within miles of Sauk-Suiattle.
“This is where nature is,” said Jack Fiander, a member of the Yakama Nation, and longtime legal counsel for the Sauk-Suiattle tribe. “Where we’re at is sort of like the Amazon is to South America. We’ve got to constantly watch and comment on when somebody wants to harvest timber or something, and it’s getting more and more difficult to protect it.”
When the dams went in the Skagit River, there was no consultation with the people who lived there for generations — the ancestors of the modern day Upper Skagit, Swinomish and Sauk-Suiattle tribes and Canadian First Nations, Fiander said.
And the tribes didn’t have the resources then to fight for fish passage.
As the city’s latest re-licensing process ramped up, the Upper Skagit tribe asked for fish passage at the Gorge Dam, the lowest of the three. The Sauk-Suiattle Tribe challenged the electric utility’s “green” power claims, and asked for salmon to have an equal shot at life in the Skagit and its tributaries.
Seattle City Light conducted more than 30 studies on the river, many related to fish passage. The utility is now exploring several options including a trap-and-haul program at the Gorge Dam, allowing adult salmon to be trucked above the dams to the upper watershed to spawn, said Chris Townsend, project manager for City Light’s Skagit River Project. And when the juvenile salmon hatch, there would be some kind of passage downstream.
“Historically, we know there were fish in the Gorge reservoir,” he said. “And so our proposal in the draft license application really seeks to remedy that situation.”
City Light has invested millions for habitat projects and studies for species at risk of extinction in the Skagit watershed. But only more recently did it begin examining fish passage at the dams.
It’s ultimately up to federal agencies with regulatory authority to determine what is needed to help the Endangered Species Act-listed salmon and steelhead that call the river home.
Providing salmon the right to flourish would in turn benefit the birds, bears, humans and southern resident orcas that rely on them for sustenance, said Nino Maltos II, chair of the Sauk-Suiattle Tribe.
“We’re all related,” he said.
“One species amongst millions owning everything”
In December, the Port Townsend and Gig Harbor city councils approved proclamations recognizing the rights of the southern residents.
Port Townsend Mayor David Faber was born and raised along the shores of the Salish Sea. Since he was a kid, he remembers the orcas being a part of his life.
They’re iconic, charismatic beings, Faber said.
Lately, he said, they’ve become an easy species to point to when talking about examples of environmental disruption and degradation. Images of orcas with bulbous heads and frail bodies tell us they’re starving. And nothing was more illuminating than seeing a grieving mother, Tahlequah, or J35, carry her dead calf for more than two weeks in 2018.
“The rights of the southern resident orcas include, but are not limited to, the right to life, autonomy, free and safe passage, adequate food supply from naturally occurring sources, and freedom from conditions causing physical, emotional, or mental harm, including a habitat degraded by noise, pollution, and contamination,” both proclamations say.
The language largely comes from the Earth Law Center, which in 2018 began looking for ways to re-center nature in policymaking and the legal system. In Western legal constructs, recognizing rights is the first step toward enforcing and protecting those rights, said Elizabeth Dunne, director of legal advocacy at the center.
Dunne, who’s based in Port Angeles, said she saw orcas as a means of introducing the region to ecocentric governance. There was a growing sense of urgency and concern in the general public around the health of the southern residents, she said.
Only 73 southern residents remain, according to the latest census from the Center for Whale Research. Generally, the southern residents are struggling to survive in the face of at least three threats: lack of Chinook salmon in their foraging range, pollution and underwater noise that makes it harder for them to hunt.
Within the existing legal framework, Dunne said, the questions have been: How much can we pollute? How much can we extract? How far can we go?
The rights-of-nature framework asserts that the process shouldn’t be centered on human needs — but rather that of the entire ecosystem. Rather than seeing nature as something to exploit, the framework recognizes humans’ place within the ecosystem, and suggests it’s something to protect.
“It seeks to compensate for the utter failure of environmental law to do what it was supposed to do,” said Mary Wood, director of the University of Oregon’s Environmental and Natural Resources Law Center. “Environmental law was to protect species, protect pristine rivers, and we wouldn’t be facing the multiple converging crises that we now face, had it worked.”
The framework is a response to the modern-day categorization of nature as a form of property, said David Boyd, a Canadian environmental lawyer and professor at the University of British Columbia. It’s both a cultural movement and a legal movement to reinstate Indigenous law and change the way people relate to the natural world.
“Every square inch of Canada and the United States is owned by human beings,” Boyd said. “Step back and look at that: one species amongst millions owning everything is quite an act of hubris.”
The local proclamations are doing the heavy lift: changing the culture, and society’s perception of its relationship with nature, Boyd said. What has to come next is change at the state and federal levels.
The movement is gaining popularity in the public, Wood said, but it doesn’t come from American jurisprudence, and courts say they would have trouble determining when a right of nature would be violated.
But even in Ecuador, where the rights of nature are now written into the constitution, oil drilling is ramping up in the Amazon rainforest. The government sees drilling as its best way out of debt.
In the U.S., the closest means of protecting the rights of nature today is through the public-trust principle, Wood said, which tasks a government with protecting resources of critical concern.
Had the rights been recognized when colonizers arrived, there wouldn’t be “industrial sacrifice zones,” Boyd said. “And both people and nature — I believe we’d be better off.”
A salmon nearly lost
The Nez Perce Tribe General Council in 2020 recognized the Snake River, the largest tributary of the Columbia, as a living entity that has rights, including the right to exist, flourish, evolve, flow and regenerate.
Since the treaties were signed, rivers have been tamed for hydropower and transportation. Fish have been severed from their historic habitat. Boat traffic has made it hard for killer whales to hear each other.
In exchange for their traditional homelands, the treaties were supposed to maintain tribes’ right of taking fish at usual and accustomed grounds. It was supposed to secure tribal sovereignty and guarantee rights to traditional ways of life, education and health care.
Much of that, instead, was left up to interpretation. Today, tribal leaders often end up fighting for these rights before government officials and in court. Meanwhile, they have also led the charge in recovering critical salmon habitat from years of human degradation and abuse.
“We were supposed to do this,” said Elliott Moffett, co-founder of the nonprofit Nimíipuu Protecting the Environment. “We’re supposed to look out for our relationship with Mother Earth.”
For thousands of years, the Nez Perce, or the Nimíipuu, lived throughout what is now central Idaho, southeast Washington and northeast Oregon. They traveled and ate with the seasons, hunting bison in present-day Montana and fishing for salmon on the main stem of the Columbia.
Before the Treaty of 1855, up to 16 million salmon were estimated to have returned to the Columbia every year, including as many as 2 million that swam all the way to the Snake, once the producer of more than 40% of the Chinook in the Columbia Basin.
Only about 13,000 wild spring and summer Chinook are expected to return to the Snake in 2023. Research says the dams are to blame, and other anthropogenic factors are at play.
“We hope to express that there is this relationship that we have with our Mother Earth, and it’s a reciprocal relationship,” Moffett said. “She takes care of us just like we take care of her.”
For thousands of years, that happened. But in the last 200 years, much of that has gone by the wayside, Moffett said.
Some Indigenous people may keep their culture closed off to protect it, said Fiander, the Sauk-Suiattle attorney. But Moffett’s resolution to recognize the river, and Sauk-Suiattle’s lawsuit on behalf of salmon, is a means of putting traditional ideology on the public record.
“The rights-of-nature cases might not prevail because people aren’t ready for it,” Fiander said. “But a couple generations from now, it’s probably going to be mainstream.”