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Ninth Circuit Upholds Lower Court Ruling That Washington Must Fix Culverts To Improve Fish Passage
Posted on Friday, July 01, 2016 (PST)

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 passage.


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 Northwest.


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 salmon reproduction.


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.”


 Purcell 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 already undertaken.”


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.”


Also see:


-- CBB, Oct. 30, 2015, “Ninth Circuit Hears Orals On Removing Culverts Preventing Salmon Passage; Treaty Rights Key Issue”


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