The Treaty of 1855 does not give a tribal member the right to drive off-road on the Arid Lands Ecology Reserve within the Hanford Reach National Monument, a federal judge has ruled.
However, U.S. Judge Stanley Bastian took no stand on whether Delbert Loren Wheeler, a member of the Yakama Nation, had treaty rights to hunt on the ALE, which federal officials have said is closed to hunting.
Wheeler had argued that he was being denied treaty rights to hunt on the reserve, or ALE. He filed a motion in January to be acquitted of charges of disturbing plants and driving off-road on the ALE.
Bastian delayed ruling until after the end of a jury trial in the Richland federal courtroom. The jury found Wheeler guilty of driving off-road on the ALE but deadlocked on the charge of damaging plants.
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Wheeler was driving a pickup with three passengers in the cab and elk carcasses in the pickup bed when federal and state officers stopped him in fall 2011 on the ALE. The ALE, which is part of the national monument that is closed to the public, is west of Highway 240 as it cuts through Department of Energy land and includes the top of Rattlesnake Mountain.
Wheeler had permission under the Treaty of 1855 and the proclamation that created the national monument to be on the ALE as a tribal member, he argued in court documents. The treaty gives the tribe permission to gather and hunt on the ALE, which cannot be done without entering the land, he said.
The Department of Justice, representing the U.S. Department of Fish and Wildlife, said that the ALE is closed for the purpose of cultural and ecological resource preservation and for the security of the Hanford nuclear reservation, both of which are inconsistent with Wheeler’s actions.
The ALE is owned by the Department of Energy as part of Hanford’s security perimeter, but managed by Fish and Wildlife as part of the national monument.
Wheeler is entitled to the benefits of the Treaty of 1855, Bastian wrote in the ruling.
“The treaty does not, however, give Wheeler the right to operate a vehicle on non-designated routes within the National Wildlife Refuge System,” he wrote.
But whether the Yakamas have a right to access the ALE or Fish and Wildlife is required to accommodate that access is not an issue in the charges against Wheeler, Bastian wrote.
“There is nothing inherently irreconcilable with protecting ecologically sensitive lands and treaty rights,” he wrote.
The regulation prohibiting off-road driving is not unreasonable given that multiple government reports show that the ALE is an exceptionally biologically diverse and sensitive area, according to the judge. It has a fragile microbiotic crust that plays an important role in stabilizing soils and providing nutrients to plants, according to Fish and Wildlife.
Treaty rights may be regulated, the judge wrote.
“No argument was made as to how driving — let alone driving on non-designated routes — is part of the right to hunt,” he wrote.
Wheeler argued in court documents that the federal government did not prove that he drove his pickup on land marked with signs saying that driving was prohibited.
The judge found that all driving on a national refuge is prohibited unless signs or maps designate an area where driving is permitted. A Fish and Wildlife officer testified that Wheeler admitted driving off-road and pictures of his pickup off road were submitted as evidence.
The Department of Justice does not plan to retry Wheeler on the charge of damaging plants. Wheeler could be sentenced on the charge related to driving off-road in July.