A federal judge denied the Swinomish Indian tribe’s motion to help the Biden administration defend its claim that preserving Skagit County farmland could drive Puget Sound salmon and killer whales to extinction.

Judge Brian Tsuchida in Seattle ruled Thursday the tribe’s intervention would delay a lawsuit between the National Marine Fisheries Service and Skagit County Dike, Drainage and Irrigation District 12.

A delay could stop the district from replacing a storm-damaged tide gate next year, Tsuchida stated. The tide gate keeps saltwater from flooding about 200 acres of farmland in the Skagit Delta, about 75 miles north of Seattle.

NMFS is best positioned to defend its claim the 140-year-old tide gate jeopardizes the existence of salmon and killer whales in all of Puget Sound by preventing farmland from being restored to fish habitat, Tsuchida stated.

In moving to participate in the lawsuit, the tribe, represented by the environmental law firm Earthjustice, asserted it had an intense personal interest in salmon recovery and fishing opportunities.

The district’s attorneys, Jenna Mandell-Rice and Sophia Amberson, opposed the intervention, arguing the tribe’s motion came after the district and NMFS had set a briefing schedule. NMFS was neutral on the motion.

Tsuchida agreed the tribe’s motion came late and would set back the briefing schedule or force the district to respond simultaneously to NMFS and the tribe.

NMFS and tribe share the same position, and the tribe failed to show NMFS won’t adequately represent its interests, the judge ruled. Efforts to obtain comment from the tribe were unsuccessful.

The district needs a permit from the Army Corps of Engineers to replace the failing tide gate at the mouth of No Name Slough, which empties into Padilla Bay, an extension of Puget Sound.

In a biological opinion requested by the Corps, NMFS determined a new tide gate would block fish habitat for another 50 years, jeopardizing salmon and killer whales, which eat salmon.

The district alleges NMFS’s conclusion is unreasonable and is suing to force NMFS to redo the biological opinion.

A favorable ruling would not allow the district to immediately replace the tide gate and would not impact the tribe’s treaty rights, according to Tsuchida. “The only potential outcome if District 12 prevails is that the BiOp will be remanded to NMFS,” the judge stated.

Tsuchida has now twice ruled in the district’s favor in preliminary decisions. The judge last spring ordered NMFS to complete the biological opinion, noting it was long overdue. Tsuchida dismissed complaints from the agency that it was too busy with other biological opinions.

Meeting Tsuchida’s deadline, NMFS declared replacing the tide gate would imperil salmon and killer whales. District 12 could get a permit by spending millions of dollars on fish projects. The district says that’s not practical.

More than 100 tide gates protect Skagit Delta farmland. NMFS’s stance on the No Name Slough tide gate set a precedent for other tide gate repairs.