The Gristle

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.”

Past Columns
As Below, So Above

October 10, 2018

A Civil Disagreement

October 3, 2018

Zombie Pipeline

September 26, 2018

Too Little, Too Late

September 19, 2018

Open Secret Disclosed

September 12, 2018

Consent of the Governed

September 5, 2018

Let the People Decide

August 29, 2018

3-in-1 Oil

August 22, 2018

A Deeper Dive

August 15, 2018

Blue Wave Stalls Offshore

August 8, 2018

Mountains of Our Efforts

August 1, 2018

Vote

July 25, 2018

Trust Is Reciprocal

July 18, 2018

Pressure in the Bottle

July 11, 2018

Sharing the Pain

July 4, 2018

A Supreme Shifting

June 27, 2018

The Costs of Failure

June 6, 2018

Thumb on the Scales

May 30, 2018

Bungle in the Jungle?

May 23, 2018

Events
Today
Mental Health First Aid Training

8:30am|East Whatcom Regional Resource Center

Anything Goes Arts and Crafts

10:30am|Sumas Library

Wheelchair Gangball

3:30pm|Bloedel Donovan

Ski and Snowboard Tuning Basics

6:00pm|REI

Washington Wines

6:30pm|Cordata Community Food Co-op

Sista in the Brotherhood

6:30pm|Bellingham Technical College

Vaudevillingham

7:00pm|Cirque Lab

Guffawingham

9:00pm|Firefly Lounge

Trove Web
Tomorrow
Rainbow Reads

3:00pm|Ferndale Library

Cook It and Book It

3:30pm|Lynden Library

All-Paces Run

6:00pm|Fairhaven Runners

War Through the Eyes of Women Book Club

6:00pm|Bellingham Vet Center

Peru Novoandina

6:30pm|Community Food Co-op

Mind-Body-Food Connection

6:30pm|Cordata Community Food Co-op

WAKE Meeting

6:30pm|Nooksack Salmon Enhancement Center

Beginning Square Dance Lessons

7:00pm|Ten Mile Grange

Skagit Folk Dancers

7:00pm|Bayview Civic Hall

Books on Tap

7:00pm|North Fork Brewery

Fancy Bingo

7:30pm|Boundary Bay Brewery

Comedy Open Mic

7:30pm|Shakedown

Cascadia Weekly Subscribe Ad 1 Village Books
Wednesday
Bellingham at Home Informational Meeting

1:00pm|Bellingham Senior Activity Center

Endangered Species Curator's Tour

1:30pm|Whatcom Museum's Lightcatcher Building

Sedro-Woolley Farmers Market

3:00pm|Hammer Heritage Square

Prosecutors race is a referendum on reform

6:00pm

Creekside Open Mic

6:30pm|South Whatcom Library

Where the sidewalk ends

7:00pm

Walking to the End of the World

7:00pm|Village Books

Brian Dean Trio

7:00pm|Sylvia Center for the Arts

Climate Change and Forests

7:00pm|Sustainable Living Center

Modified documentary and Panel Discussion

7:30pm|Pickford Film Center

see our complete calendar »

Trove Web Cascadia Weekly Subscribe Ad 1 Village Books Siro