From CPRBlog, h/t to Seattle Law’s Cases and Controversies Blog:

[An excerpt]

EPA is to be commended for declining to let the polluters call the shots at the Portland Harbor site. Their response to the LWG risk assessment sets an appropriate tone. And it gives reason for hope that the agency will continue to take seriously its responsibilities to oversee this and other cleanups.

There is, however, a long way to go in the process and many issues yet to be addressed. For example, there is the point – not directly addressed in EPA’s comments – that it is not only contemporary tribal consumption rates that are relevant to cleanup at the Portland Harbor site but also historical tribal consumption rates and practices. The fishing tribes in the Columbia River Basin and elsewhere have rights – secured, in many instances, by treaty – to take and eat fish as they did prior to the arrival of European settlers to this region. These rights have not always been honored by the United States and its citizens, however. As a result, contemporary tribal fish consumption rates can be said to be artificially “suppressed” from historical rates – due to denial of access to fishing places; inundation of tribal fishing places; tribal members being arrested and their gear confiscated; and depletion and contamination of the fishery resource, often at the hands of non-Indians. Cleanup at places such as Portland Harbor, where tribes and their rights are affected, ought not be gauged against what tribal members today consume, but by what tribal members would consume, were the fishery resource not depleted and contaminated, and were they able to exercise fully their rights to take and eat fish.

The United States today has an obligation to ensure that tribes’ fishing rights are honored. Among other things, the federal government has the duty to see that these rights are not undermined by environmental degradation. A right to take and eat fish is obviously made hollow if the fish are permitted to be too contaminated for human consumption. As it seeks now to clean up that contamination, the United States, through its EPA, needs to keep its treaty promises in mind. This means that EPA needs to redouble its efforts to work with the tribes, on a government-to-government basis, to determine the relevant measures of risk and goals for remediation at the Portland Harbor site. Ultimately, this means that EPA needs to assure restoration that will support tribes’ rights to fish as they once did – and as they seek to do in the future.