The Ninth Circuit Court of Appeals recently
issued a ruling that affirms a lower court decision that directed the state of
Washington to repair hundreds of road culverts to improve salmonid fish
The court held that fish-blocking culverts
continue to violate Stevens Treaties that guarantee Columbia Basin tribes a
right to harvest fish.
The state’s appeal was argued in court last
October and the Ninth Circuit’s ruling was issued June 27.
In 1854 and 1855, Pacific Northwest tribes
entered a series of treaties that were negotiated by Isaac Stevens, the
Superintendent of Indian Affairs and the governor of Washington.
“In sum, we conclude that in building and
maintaining barrier culverts Washington has violated and continues to violate
its obligation to the tribes under the fishing clause of the treaties,” the
appellate court wrote. “The United States has not waived the rights of the
tribes under the treaties and has not waived its own sovereign immunity by
bringing suit on behalf of the tribes.”
The ruling goes on to say that the “district
court did not abuse its discretion in enjoining Washington to correct most of
its high-priority barrier culverts within 17 years, and to correct the
remainder at the end of their natural life or in the course of a road
construction project undertaken for independent reasons.”
Culverts intended to curb road erosion can
develop into impassable barriers for migrating fish. In other parts of the
Columbia Basin, alternatives have been put to use, such as “bottomless”
culverts that are designed to allow fish passage and curb erosion.
“This is a big win for the tribes and anyone
who cares about river flows and salmon restoration,” pronounced The Center for
Environmental Law and Policy.
The ruling is expected to provide more clarity
to litigation that spanned 45 years, starting with a federal court decision that
guaranteed the tribes the right to half the salmon harvest in the Pacific
Subsequently, the tribes have contended that
not only are they entitled to that harvest, but they should have guarantees
there will be fish to catch, and culverts present obstacles to successful
In 2007, U.S. Judge Ricardo Martinez ruled in
the tribes’ favor, and in 2013, he issued an order for the state to remove
culverts that impede fish passage in spawning streams.
The state appealed, and the Oct. 16 oral
arguments set the stage for a new milestone when the court of appeals comes
back with a ruling.
Washington State Solicitor General Noah
Purcell essentially argued that the outcome of the Martinez ruling would be
“extraordinarily wasteful and over broad,” entailing decades of efforts at a
cost of billions of dollars. But he mainly contended the ruling was wrong in
creating a new treaty right.
“The right the district declared here goes far
beyond previously recognized treaty rights,” Purcell said. “There’s no need
here for this court to declare a broad new right that is assured to (lead to)
endless future litigation.”
went on to say that the state has already undertaken priority replacement
projects for culverts that were designed and approved by the federal
government, and that the “state is being punished in a way for the deeds it’s
Attorneys representing the U.S. and tribes
involved in the case cited case precedents including the so-called Boldt
decision of 1974, which, according to one of the attorneys, found that “neither
side may destroy the resources that are the subject of these treaties.”
-- CBB, Oct. 30, 2015, “Ninth Circuit Hears
Orals On Removing Culverts Preventing Salmon Passage; Treaty Rights Key Issue” http://www.cbbulletin.com/435428.aspx