By Kari Mar
La Conner Community News

The Swinomish Indian Tribal Community and Squaxin Island Tribe filed a lawsuit in federal court Tuesday to stop a Trump administration rollback of Endangered Species Act protections, arguing the change threatens Chinook salmon, Southern Resident killer whales and the treaty rights that have sustained Coast Salish tribes for generations.

The lawsuit, filed in U.S. District Court for the Western District of Washington, seeks to block a new federal rule rescinding the Endangered Species Act’s long-standing definition of “harm,” which has treated significant habitat destruction as an illegal “take” of endangered species, requiring developers and federal agencies to avoid or mitigate damage to critical habitat. The U.S. Departments of the Interior and Commerce announced the new rule on Friday, which changes “harm” to include habitat destruction only if it directly injures or kills a protected animal.

“Our federal trustees have proposed a tragic and radical policy reversal that will cause devastating impacts to Swinomish’s cultural lifeways, economic interests, and the Tribe’s fish guaranteed by the Treaty of Point Elliott,” Swinomish Tribal Chairman Steve Edwards said in a written statement Tuesday.

Central to the tribe’s concern is the Chinook salmon populations in the Skagit River, which were listed as threatened under the Endangered Species Act in 1999. Despite ongoing habitat protection and restoration efforts, Chinook salmon here remain at approximately 20% of their recovery levels.

“We cannot save the ESA-listed Chinook salmon that are a pillar of our Treaty rights and our cultural lifeways when the habitat they need to spawn, rear and grow is under attack,” he said. “This new rule is anti-science and will result in fewer salmon to feed our families, cause drastic setbacks in our efforts to recover ESA-listed salmon, starve Orcas, and ultimately impose serious injury to the Swinomish Tribal Community members.”

Rule change meant to benefit developers

The Trump administration said the rule restores the law to its original intent and follows last year’s U.S. Supreme Court decision in Loper Bright v. Raimondo, which limited federal agencies’ ability to broadly interpret statutes.

“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Interior Secretary Doug Burgum said in his announcement of the rule.

The administration said the change will reduce permitting delays and compliance costs while preserving protections against directly killing or injuring endangered wildlife.

A ‘direct attack on the Endangered Species Act’

Conservation groups and tribes argue the change strikes at the heart of the Endangered Species Act.

Ben Greuel, wildlife campaign manager at the Sierra Club, issued the following statement Friday: “The Trump administration’s attempt to strip away long-standing habitat protections is a direct attack on the foundation of the Endangered Species Act. For more than four decades, the definition of ‘harm’ recognized a simple truth: if you destroy the places wildlife need to survive, you are putting species on a path to extinction. This rule ignores that reality in an unlawful attempt to open the door for corporate polluters to degrade vitally important habitats, wildlife be damned.”

Greuel went on to say the Endangered Species Act is a “bedrock law” and vowed to fight the rule.

Big impacts in Skagit County

The issue carries particular significance in Skagit County, where decades of salmon recovery work, estuary restoration and shoreline permitting have relied on habitat protections under the Endangered Species Act.

Tim Manns, conservation manager for the Skagit chapter of the Audubon Society, wrote this in a letter to the Interior Department when it announced the changes:

“The ‘quality of the human environment’ for Skagit Audubon members is most definitely affected by the presence — or absence — of listed and other species of birds and other wildlife. It means a great deal to us that we can go to Washington Park in Anacortes, look out across Rosario Strait, and still see the federally-listed marbled murrelet. Just knowing that other declining species are hanging on because their habitat is protected is essential to our own sense of well-being.”

Potential local impacts

The rule could affect numerous types of projects common in Skagit County, where federal agencies routinely evaluate habitat impacts under the Endangered Species Act.

Among the examples cited by Swinomish are:

• replacement or repair of tidegates in the Skagit delta;
• shoreline armoring such as bulkheads and seawalls;
• floodplain development;
• wetlands alteration; and
• other projects requiring federal permits.

The tribe argues those reviews have often required habitat mitigation because habitat destruction itself has been considered a form of harm to endangered species.

The comments specifically reference the recent No Name Slough tidegate litigation in Skagit County, in which federal fisheries officials concluded replacing a tidegate would jeopardize threatened Chinook salmon and Southern Resident killer whales without significant mitigation. Earlier this year, a federal judge upheld NOAA Fisheries’ biological opinion requiring those protections.

Treaty rights concerns

Swinomish argues the rule extends beyond environmental regulation into treaty rights.

The tribe says approximately 1 in 5 tribal members participates in treaty fisheries, and that commercial, ceremonial and subsistence fishing supports both the local economy and cultural identity.

Removing habitat protections, the tribe argues, threatens not only endangered species but also the rights reserved under the 1855 Treaty of Point Elliott.

Kari Mar is the editor and publisher of La Conner Community News.