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Citing Treaty Rights, Judge Orders Washington To Fix Culverts Blocking Salmon Access To Habitat
Posted on Friday, April 05, 2013 (PST)

A federal court judge in a March 29 injunction order put Washington and state agencies on a schedule to identify and fix any culverts in the “case area” that block access to 200 meters or more of salmon habitat.

The lawsuit's case area is focused in the Puget Sound and Washington coast, where resident tribes' signed treaties in the 1850s that ceded vast tracks of land to the federal government in exchange for assurances that they would have the right to take fish, forever.

Officially, “The case area is that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the off-shore waters adjacent to those areas.”

The “culvert case” is a sub-proceeding of the long-standing U.S. v Washington treaty fishing litigation.

The “Request for Determination, filed pursuant to the Permanent Injunction in this case,” was first filed in 2001 and asked the court to rule that the state has a treaty-based duty to preserve fish runs, and sought to compel Washington to repair or replace culverts that impede salmon migration to or from spawning grounds.”

The judge decided in favor of the tribes in 2007, saying treaty rights impose “a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest.”

A trial that spanned late 2009 and early 2010 was held in search of “remedies” for damage done. The court then delayed making a ruling in the hope that the parties would “resume their settlement negotiations, but it does not appear that has occurred.”

After taking more input, Martinez produced last week’s opinion and decision and injunction order.

The state’s reaction is being pondered.

“We’re still reviewing the decision and discussing it with our clients,” said Janelle Guthrie, a spokeswoman for the Washington Attorney General’s office. Those clients include the governor, the Legislature – which would have to approve funding for expedited implementation of the state’s culvert replacement program -- and the four state agencies, along with the state, named as defendants in the lawsuit.

Guthrie said the state could either accept the decision, or file an appeal. The state has 30 days from the date of Martinez’ decision file an appeal, if that’s the course it decides to take.

The lawsuit was originally filed by the Suquamish Indian Tribe, Jamestown S’Klallam, Lower Elwha Band of Klallam, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribe, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Bands and Tribes of the Yakama Indian Nation, Quileute Indian Tribe, Makah Nation, and Swinomish Tribal Community, and Muckleshoot Indian Tribe. The United States government joined in the request.

“This is a historic day,” said Billy Frank Jr., Nisqually tribal member and chairman of the Northwest Indian Fisheries Commission. “This ruling isn’t only good for the resource, but for all of us who live here. It will result in more salmon for everyone. This is a great victory for all who have worked so hard to recover wild salmon.”

“The Tribes have demonstrated… that they have suffered irreparable injury in that their Treaty-based right of taking fish has been impermissibly infringed,” wrote Judge Ricardo S. Martinez, U.S. District Court, Western District of Washington.

“The construction and operation of culverts that hinder free passage of fish has reduced the quantity and quality of salmon habitat, prevented access to spawning grounds, reduced salmon production in streams in the Case Area, and diminished the number of salmon available for harvest by Treaty fishermen,” Martinez said in his memorandum and decision granting the tribes injunction request. “The Tribes and their individual members have been harmed economically, socially, educationally, and culturally by the greatly reduced salmon harvests that have resulted from State-created or State-maintained fish passage barriers.”

“This injury is ongoing, as efforts by the State to correct the barrier culverts have been insufficient. Despite past State action, a great many barrier culverts still exist, large stretches of potential salmon habitat remain empty of fish, and harvests are still diminished,” Martinez wrote.

“An injunction is necessary to ensure that the State will act expeditiously in correcting the barrier culverts which violate the Treaty promises,” he said. ‘The reduced effort by the State over the past three years, resulting in a net increase in the number of barrier culverts in the Case Area, demonstrates that injunctive relief is required at this time to remedy Treaty violations.”

At the time of trial in 2009, Washington Department of Fish and Wildlife had identified 807 Washington State Department of Transportation barrier culverts that blocked more than 200 meters of salmon habitat upstream of the culvert. And fisheries scientists have identified approximately 1,000 miles of stream, comprising nearly 4.8 million square meters of stream habitat upstream of culvert blockages, the judge said.

“This habitat is unavailable to salmon moving upstream to spawn, the judge said.

“The State has the financial ability to accelerate the pace of barrier correction over the next several years and provide relief to the Tribes,” the judge said.

Martinez stressed that “The State’s duty to maintain, repair or replace culverts which block passage of anadromous fish does not arise from a broad environmental servitude against which the Ninth Circuit Court of Appeals cautioned.

“Instead, it is a narrow and specific treaty-based duty that attaches when the State elects to block rather than bridge a salmon-bearing stream with a roadbed. The roadbed crossing must be fitted with a culvert that allows not only water to flow, but which insures the free passage of salmon of all ages and life stages both upstream and down.”

In the judge’s March 29 injunction order, he required that:

-- Within six months of the date of this injunction, the defendants, in consultation with the plaintiff tribes and the United States, shall prepare a current list, or lists if different by agency, of all culverts under state-owned roads within the case area existing as of the date of this injunction, that are salmon barriers.

-- In addition to compiling the list, the defendants shall make ongoing efforts to assess and identify culverts under state-owned roads in the case area that become partial or full barriers to salmon passage after the entry of this injunction.

-- Any new culvert constructed by the defendants in the future on salmon waters within the case area and any future construction to provide fish passage at State barrier culverts on such waters shall be done in compliance with the standards set out in this injunction.

-- By Oct. 31, 2016, WDFW, Department of Natural Resources and Washington State Parks shall provide fish passage in accordance with the standards set out in this injunction at each barrier culvert on the list located on lands owned or managed by those agencies in the case area.

-- Within 17 years of the date of this injunction, WSDOT shall provide fish passage in accordance with the standards set out in this injunction at each barrier culvert on the list owned or managed by WSDOT if the barrier culvert has 200 lineal meters or more of salmon habitat upstream to the first natural passage barrier.

The injunction order signed by Martinez, as opposed to his opinion and decision issued the same day, was prepared by the plaintiffs.

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