In a Brief Filed on Friday, Confederated Tribes of Warm Springs Says its Indigenous Rights & Knowledge Were Ignored in Decisions Related to Thornburgh Resort
- Tribe is a sovereign co-manager of the fish resources of the Deschutes Basin, which are protected by the 1855 Treaty
- The Brief explains how the Land Use Board of Appeals ignored six critical issues brought forward by the Tribe
- The Brief submitted to Oregon Appellate Court seeks to return January 12 decision to the Land Use Board of Appeals so that it can appropriately consider the sovereign issues raised by Tribe
What:
Last week, the Confederated Tribes of the Warm Springs Reservation of Oregon (the Tribe) filed a brief with the Court of Appeals of the State of Oregon asking it to send back the January 12 decision of the Land Use Board of Appeals to address issues that the Tribe has raised in connection with the proposed modification of Thornburgh Resort’s Fish and Wildlife Mitigation Plan. In its filing to the State Court, the Tribe asserts that its 1855 Treaty rights and Indigenous knowledge concerning its oversight of Deschutes Basin waters and treaty-protected native fisheries was overlooked and marginalized in the public process.
The brief further describes how the decision process was controlled by the Thornburgh Resort in a way that ensured the Board of Deschutes County Commissioners did not meaningfully engage with the Tribe’s expert information about the Deschutes Basin fish resources, which are protected by its 1855 Treaty. It also explains how the Land Use Board of Appeals followed suit by failing to recognize the Tribe’s scientific and indigenous expertise and to engage in any meaningful way with the Tribe’s evidence.
Why:
The Tribe and its members are a “salmon people” for whom fishing is “not much less necessary to [their]existence … than the atmosphere they breathe” (See United States v. Winans, 198 US 371, 381 (1905)). The 1855 Treaty is federal law and guarantees the Tribe the right to take fish throughout the Deschutes Basin. It also requires that states, including Oregon, ensure there is a harvestable population available to the Tribe. The land use planning process to approve the 2022 Fish & Wildlife Mitigation Plan wholly failed to consider whether the plan violates the fishing clause of the 1855 Treaty.
Additional Information:
In its brief submitted to the State Court on Friday, the Tribe explains how the Land Use Board of Appeals ignored six critical issues brought forward by the Tribe:
- The likely impairment of the Tribe’s treaty-protected fish resources caused by Thornburgh Resort’s proposed groundwater pumping as described in the 2022 Fish and Wildlife Mitigation Plan.
- The 2022 Fish and Wildlife Mitigation Plan’s potential damage to the Pelton Round Butte Hydroelectric Project’s Fish Passage Plan, which aims to fully utilize the available habitat and production capability in the Deschutes River and its tributaries.
- Whether it is possible to reconcile the anticipated impacts of the 2022 Fish and Wildlife Mitigation Plan groundwater pumping on the Crooked River. According to the Deschutes Basin Habitat Conservation Plan, the lower Crooked River is important to steelhead reintroduction and irrigation systems are a land use activity that can negatively affect summer steelhead by altering seasonal flows and increasing summer water temperature.
- According to the same Deschutes Basin Habitat Conservation Plan conclusion, whether it’s possible to address the irrigation season effects on the Crooked River that could delay or prevent salmon and steelhead reintroduction success and potentially result in reintroduction failure.
- The interrelationship between the proposed 2022 Fish and Wildlife Mitigation Plan and the Deschutes Basin Habitat Conservation Plan and how their respective conservation/mitigation measures ensure the protection fish resources in the Deschutes River, Whychus Creek, and the Crooked River.
- The Tribe’s concern about the Thornburgh’s water modeling assumptions, specifically its unease about the models being based on a 2016 water year, which is before the requirements of the Deschutes Basin Habitat Conservation Plan dramatically altered the surface water flows throughout the Deschutes Basin.
Quotes:
Robert A. Brunoe, Secretary Treasurer/CEO of the Confederated Tribes of Warm Springs, said:
“The Deschutes River and its tributaries are in our homelands, and we have lived and fished on these waters since time immemorial. The land and water impacted by the 2022 Fish and Wildlife Mitigation Plan lies within our ceded territory where we retain treaty-protected rights to take fish and to have fish to take. Our Tribal knowledge – both scientific and cultural – is essential to deliver a healthy fishery for our people. The Deschutes County Board of County Commissioners, and then the Land Use Board of Appeals, clearly overlooked that our expertise, voice and knowledge isn’t optional in their decision-making processes. We’re asking the State Court to correct those unfortunate decisions in order to respect our treaty rights, co-management responsibilities, and sovereign interests when it comes to the fish resources of the Deschute Basin.”
The Confederated Tribes of the Warm Springs Reservation of Oregon is a federally-recognized, sovereign Indian tribe occupying the Warm Springs Reservation, which was reserved for its exclusive benefit by an 1855 Treaty with the United States. The Reservation stretches from the summit of the Cascade Mountains to the cliffs of the Deschutes River in Central Oregon.
