Monday, June 11, 2018

SCOTUS decision puts Washington state on the hook for culverts in treaty rights case

Posted By on Mon, Jun 11, 2018 at 2:05 PM

click to enlarge SCOTUS decision puts Washington state on the hook for culverts in treaty rights case
Washington and Oregon Bureau of Land Management photo

In a 4-4 decision, the U.S. Supreme Court let a lower court ruling stand in Washington v. United States, meaning Washington still has to replace culverts that help water pass under roads around the state in order to protect salmon habitat.

The case, nearly two decades in the making, was started when several Northwest tribes and the federal government sued the state in 2001, arguing that treaty rights protected not only tribes' right to fish, but a right to healthy habitat and numbers of fish.

The 9th Circuit Court of Appeals agreed, holding that the agreements established "that the number of fish would always be sufficient to provide a 'moderate living' to the tribes."

In its request that the Supreme Court take up the case, the state argued that the 9th Circuit wrong in ordering the state to replace or repair 817 culverts within the treaty area at a cost of billions of dollars, because that didn't take into account whether there'd actually be a benefit to fish by doing so.

The state also argued that the culvert designs in question were provided by the federal government, so the state shouldn't be the sole bearer of the cost of replacement, and that the decision could be used in the future to argue for removal of dams or change other practices at state cost, and could apply to other states where similar treaty language was used.

Washington State Attorney General Bob Ferguson issued the following statement:

"Today’s ruling brings a resolution to a case that has gone on for nearly 20 years, defended by multiple attorneys general. It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design. The Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling. It’s also time for others to step up in order to make this a positive, meaningful ruling for salmon. Salmon cannot reach many state culverts because they are blocked by culverts owned by others. For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state. These culverts will continue to block salmon from reaching the state’s culverts, regardless of the condition of the state’s culverts, unless those owners begin the work the state started in 1990 to replace barriers to fish.

I look forward to working with tribal governments to advocate for the funding necessary to comply with this court order, and to ensure other culvert owners do their part to remove barriers to salmon passage."

Northwest Indian Fisheries Commission Chair Lorraine Loomis lauded the decision, and issued the following statement:

"Today is a great day for salmon, tribes, treaty rights and everyone who lives in western Washington. This Supreme Court ruling means more salmon for everyone.

It will open hundreds of miles of high-quality salmon habitat that will produce hundreds of thousands more salmon annually for harvest by Indians and non-Indians.

The Supreme Court has affirmed a common-sense ruling that treaty rights require there to be fish available for harvest. It affirms that the state can’t needlessly block streams and destroy salmon runs.

The main cause of the salmon’s decline is that we are losing habitat faster than it can be restored. The ruling will result in a net gain of habitat that salmon badly need.

Today’s ruling shows that our treaties are living documents. They are just as valid today as the day they were signed.

We honor the wisdom of our ancestors who signed the treaties, and those like Billy Frank Jr., who fought so hard for the survival of the salmon and for our treaty-reserved rights to be upheld.

This is the eighth time that the state and its allies have gone all the way to the Supreme Court to avoid living up to the treaties’ promise, and the eighth time they have lost. It is time to get the lawyers out of the way and do what is right.

The salmon resource is priceless. Fixing culverts and doing the other work needed to save that resource will require significant investment, but will pay off for generations to come.

We are eager to continue our efforts with our co-managers and others to protect and restore the salmon resource for future generations."

Hilary Franz, commissioner of public lands, issued this statement:

"Today’s decision affirms that it is our collective responsibility to ensure the survival of Pacific salmon. This decision is fair under the letter of the law, but it is also just. Protecting salmon is an issue not just of importance to Washington’s tribes, but to all of us.

The time is now to think boldly about how we move forward on many fronts, including culverts.

My agency, the Department of Natural Resources, stands ready to work with tribes, state agencies, counties, private landowners and federal partners to restore and protect our treasured salmon.

It is time to stop fighting over who should do what. Instead, let us roll up our sleeves, stand shoulder to shoulder, and get to work saving our Pacific salmon for future generations. It’s time to do the right thing."

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About The Author

Samantha Wohlfeil

Samantha Wohlfeil covers the environment, rural communities and cultural issues for the Inlander. Since joining the paper in 2017, she's reported how the weeks after getting out of prison can be deadly, how some terminally ill Eastern Washington patients have struggled to access lethal medication, and other sensitive...