Last Ditch Effort Ditched
Wednesday, June 13, 2018
LAST DITCH EFFORT DITCHED: A divided U.S Supreme Court issued a 4-4 decision this week in Washington state’s culvert case, leaving in place the Ninth Circuit’s decision that the state has an obligation under federal treaties to correct certain road culverts for fish passage and habitat.
The state had sought, at a minimum, to be relieved of the full cost burden for replacing barrier culverts that had been designed according to federal standards, and to regain some control over timing and priority of a massive infrastructure replacement. But the state found its own passage blocked.
Justice Anthony Kennedy recused himself from the latest chapter of Washington v. United States, resulting in the deadlock and split decision. As a result of that impasse, the Court issued no public opinions on the matter, leaving uncertainty about the precise issues that divided justices.
“The Supreme Court debated the scope of tribal fishing rights under 19th century treaties between the United States and northwest Indian tribes,” administrative law scholar Miriam Seifter noted in her analysis. “In particular, were the lower courts correct that hundreds of the state of Washington’s under-road culverts, which obstruct salmon passage to some extent, violate the treaties? The dispute is a long-running one—so much so that it dates back to Justice Kennedy’s service on the U.S. Court of Appeals for the Ninth Circuit, prompting his recusal from the case.”
Tribal members hailed the decision as continuing the Ninth Circuit’s strong tradition of upholding treaty fishing rights.
“Lummi Nation and leaders across Indian Country have fought hard to protect our treaty rights. We’re grateful to everyone who works hard every day to protect our homelands and natural resources,” Lummi Chairman Jay Julius said in a statement.
“Today’s Supreme Court decision is a win for treaty rights, river rights and the rights of the salmon. By their decision, they leave in place the Ninth Circuit’s decision that affirmed that the state has an obligation to look at salmon passage and habitat,” Julius said. “You can’t separate salmon from who we are as Lummi people and our entire way of life. The health of the salmon will determine the wellbeing of our people now and for future generations. When the salmon are healthy, we are healthy, but when they suffer, so do we. This is not just about tribes’ treaty right to fish, but also the inherent right to harvest from a plentiful, healthy supply of salmon,” the chairman said.
“Today’s ruling brings a resolution to a case that has gone on for nearly 20 years,” Washington Attorney General Bob Ferguson said. “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,” Ferguson said. “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.”
“For some time now I’ve hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat,” Governor Jay Inslee said in a statement. “Ensuring adequate fish passage is crucial to our efforts to honor tribes’ rights to fish, sustain our orcas, and protect one of Washington’s most iconic species.
“We launched an effort in 2013 to fix about 425 barriers by 2030,” Inslee noted, “and I look forward to working with tribes and the Legislature to ensure the necessary support to continue this fight.”
Other states—primarily conservative states in the central portion of the country—had joined Washington in submitting briefs for the Court’s review. Their interest was the establishment of a limiting principle to consider future and additional treaty claims that might require the rollback of commerce or infrastructure—“a catch-all environmental statute that will regulate every significant activity in the Northwest,” the state’s Solicitor General Noah Purcell argued in front of justices. They didn’t get it; and Washington was reluctant in its arguments to even try to quantify impacts to salmon and habitat.
“For a case in which the briefing raised potentially far-reaching questions about treaty interpretation, federalism and equitable remedies, this oral argument was remarkably in the weeds,” Seifter observed. “Both sides spent significant energy parsing the district court injunction that is under review and debating its accuracy—but as Justice Stephen Breyer and others pointed out during the argument, the Supreme Court is unlikely to devote its opinion to correcting factual findings.”
“We believe the Supreme Court’s decision to uphold the lower court’s ruling will lead to a healthier community and Salish Sea,” Julius affirmed. “We hope this begins a new era of policy that better protects our critical natural resources and that the State of Washington commits to being a true partner with tribes in managing our natural resources.”
Washington’s Commissioner of Public Lands Hilary Franz agreed.
“Protecting salmon is an issue not just of importance to Washington’s tribes, but to all of us,” she said. “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.”