Out of the classroom, up to the Elwha: Environmental law seminar sees river restoration work up close

October 31, 2014

"Our Tribe has lived along the Elwha River for countless generations. The River and the salmon are at the center of our way of life. At a site presently located under the Elwha Hydroelectric Project, the Creator made the S'Klallam people out of the river rock."
– Statement of Carla Elofson, Chairperson, Lower Elwha Klallam Tribe, Hearing Before the Senate Committee on Energy and Natural Resources on S.2527, the Elwha River Fisheries and Restoration Act (1992)

Professors O'Neill and Eberhard with Mr. Elofson and the Pendleton blanket the class presented to Mr. Elofson in recognition of his generous hospitality and his dedicated work on the restoration of the river for more than 25 years.

Professors O'Neill and Eberhard with Mr. Elofson and the Pendleton blanket the class presented to Mr. Elofson in recognition of his generous hospitality and his dedicated work on the restoration of the river for more than 25 years.

On a rainy Saturday in October, a group of students left their laptops at Sullivan Hall, donned boots and wool caps, and made their way out to the Olympic Peninsula to witness the historic restoration efforts underway on the Elwha River.

The students are learning about the restoration in a seminar called Advanced Environmental Law and Advanced Indian Law: Restoring the Elwha River, taught by Professors Catherine O'Neill and Eric Eberhard, Distinguished Indian Law Practitioner in Residence.

The group was hosted by Robert Elofson, director of the River Restoration Project for the Lower Elwha Klallam Tribe. He is a lifelong resident of the reservation and is from one of the most prominent families in the Tribe. The Elwha River was once home to magnificent salmon runs. It supported Chinook, Chum, Pink, Coho, Sockeye and Steelhead prior to the construction of the Elwha Dam in 1912 and the Glines Canyon Dam in 1926. The dams were built without the fish passage required by state law. They blocked the salmon from using the 70 miles of pristine habitat that had been provided by the river and its tributaries. The dams also interrupted the natural flow of sediments and other debris, starving riverine and estuarine habitat downstream.

By the early 1980s it had become clear that the salmon were in danger of extinction in the river and that the dams had outlasted their primary purpose of providing power to Port Angeles and its industries. In 1992, Congress enacted the Elwha River Ecosystem and Fisheries Restoration Act. The Act authorized the Secretary of the Interior to acquire the dams, provided an alternative source of power for the pulp mill in Port Angeles, ensured an adequate supply of water to Port Angeles, and sought to restore the river along with its storied salmon runs. The Elwha Restoration Act was the result of 90 years of work by the Lower Elwha Klallam Tribe and at least a decade of effort by environmental groups, federal agencies, private industry, and tribal, state and federal officials. It took another 20 years for the physical dam removal and river restoration to begin, but by August 2014, both dams had been removed and the restoration of the river and its salmon runs is now well underway.

Professors O'Neill and Eberhard designed a problem-based course that considers lawyers' roles in this historic restoration. Throughout the semester, students are placed in role as attorneys for the Lower Elwha Klallam Tribe at the time when the Tribe was navigating the issues of the future of the river, the fish — and, so, the future of the tribal people.

In order to evaluate the legal avenues available to the Tribe, students must understand several specialized areas of environmental and Indian law and must become familiar with judicial, legislative, and administrative processes. Students consider a complex web of laws including the Federal Power Act, the Endangered Species Act, the Treaty of Point-No-Point and other aspects of Federal Indian law, and the body of federal jurisprudence that has developed in these areas of the law.

Students are also exposed to the science necessary to comprehend the relevant ecosystem processes and how these might impact a lawyer's work. While the list of materials to be mastered is daunting — one student observed that the course required the most work he had willingly undertaken for a class in law school — the students appreciate that it is a realistic reflection of the task faced by tribal attorneys at the time, and of the task that attorneys working at the intersection of environmental law and Indian law face today.

Each year the class features a day-long field trip graciously hosted by Mr. Elofson, who has devoted himself to working on the Elwha restoration for more than 25 years. The trip includes stops at the Lower Elwha Klallam Tribe's government offices on the reservation; the Elwha River estuary; and various points along the river, including the site of the former Elwha dam and the former reservoir (Lake Aldwell) that had collected behind the lower dam.

The class explores the newly formed beach created by sediments from the free running river as it enters the Straits of Juan de Fuca.

The class explores the newly formed beach created by sediments from the free running river as it enters the Straits of Juan de Fuca

Mr. Elofson offers his time and expertise to acquaint the students with the restoration work that is underway on the river and the changes that have taken place since demolition of the dams began. This year, the class was able to walk on the beach that is re-forming as part of the natural restoration of the estuary as sediments that had collected behind the dams are being transported downstream and deposited at the mouth of the river as it enters the Straits of Juan de Fuca. As the waves sounded in the background, Mr. Elofson fielded students' questions and shared his vast knowledge with the group.

In recognition of Mr. Elofson and his work, the class presented him with a Pendleton blanket designed by internationally renowned artist Marvin Oliver titled "Our River's Ancestors." Oliver has been a professor in the American Indian Studies Program at the University of Washington for 40 years and is from the Quinault Indian Nation and the Pueblo of Isleta.

According to Professor Oliver: "This blanket is a tribute to our Native Peoples' ancestors, the Salmon. We honor and celebrate the Salmon's life cycle and return home to their riverbeds after the long and arduous journey at sea. The bottom of the blanket represents the Raven and the top border of the blanket depicts the Eagle (two important family crests). Viewing the blanket from the bottom to the top, the salmon are in the deep, cold depths of the ocean returning to their rivers. The salmon in the middle of the blanket are home in the river preparing their nest for the new generation, represented by the egg. The top band of salmon represents the new generation returning and maturing at sea to complete the vital cycle of life."

Students come away from the field trip and the course with a deeper understanding of the applicable law, and a true appreciation of the role that lawyers and the law play in achieving seemingly impossible goals. Students see the palpable results of work to resolve what appeared to be intractable problems; they learn how lawyers can help their clients bring people with very diverse interests together for a common purpose.

"No statute compares to feeling your boots sink into silt at the newly formed mouth of the river. No regulation compares to hearing the rush of rapids through the old dam site or the swirl of a new meander in the river and knowing that, once again, the Elwha is calling for its salmon to return," 3L Tyler Stewart said. "Mr. Elofson shared with us the tribe's passion for the river. He provided true meaning to the extensive legal process that is bringing life back to the Elwha. We were left hoping to experience this feeling over and over again."

The class gathers after walking the ground formerly inundated by Lake Aldwell.

The class gathers after walking the ground formerly inundated by Lake Aldwell.