The Culvert Case

Supreme Court will consider states rights versus treaty rights

Wednesday, April 4, 2018

Culverts are heading back to court, and this time to the highest court in the land.

Washington state has more than 800 culverts that block more than 1,000 miles of streams. Biologists say after a culvert is fixed, salmon can return to upstream habitat in numbers within weeks. Fixing culverts is essential to the restoration of salmon. It’s also a tremendous expense to retrofit watercourses.

Seventeen years ago, 21 tribes sued the state of Washington to fix those culverts.

In 2013, the District Court for the Western District of Washington ruled for the federal government and the tribes, ordering Washington to replace by 2030 hundreds of culverts under state highways, at a cost of billions of dollars. The state appealed. In 2016, the Ninth Circuit upheld the district court’s order.

On April 18, the U.S. Supreme Court is scheduled to take on the case.

The question is whether or not state taxpayers are on the hook for billions of dollars to dig up roads so salmon can get through. Other states seek a limiting principle on the outlay of public money, and limits on the extent of treaty fishing claims versus other economic activity.

One way or the other, the court’s decision will have repercussions for states and tribes across the West.

Eleven states from around the country, led by Idaho, filed a brief with the U.S. Supreme Court in March challenging the decision and supporting Washington’s appeal of the court order to replace the structures, many of them in place for decades.

The states cite dams, irrigation canals, logging and grazing among land uses that could be tested under the 9th U.S. Circuit Court of Appeals’ reasoning on culverts. Nine dissenting judges of the Ninth Circuit noted the ruling could open the door to attack a host of land-use practices that affect fish habitat, from farming to logging to construction.

“The Ninth Circuit’s decision forces the state to expend significant resources on fixing culverts that will not benefit salmon,” Washington Attorney General Bob Ferguson observed in a press statement. “The decision also requires Washington taxpayers to shoulder the entire financial burden for problems largely created by the federal government when it specified the design for the state’s old highway culverts. That’s not fair.

The case is entitled United States v. Washington, and in many ways it mirrors another earlier decision that bears the same name, better known locally as the 1974 Boldt decision. The main question presented to the court is whether treaties signed in 1854 and 1855 guaranteed there would be enough fish to provide Western Washington tribes with a “moderate living.”

The 9th Circuit Court said yes, firmly; and the court has consistently continued to agree that without abundant fish stocks an unimpaired right to fish is without meaning. Supply is the flip side to the right of demand.

The federal court ruled Washington violated the treaties by building roads across salmon-bearing streams and putting in culverts that allowed water to pass but blocked fish.

Critics of the decision, however, said the court failed to establish a legal principle that might limit litigation. Idaho and the other states argue in their briefs that the absence of a limiting principle could undermine their constitutional right to ensure that the interests of all their residents are protected.

Ferguson, a Democrat, says he is bound to defend the interests of Washington state.

“We have worked hard to reach a resolution in this case outside of court,” Ferguson said in a press statement. “To that end, I have personally met with tribal leaders three times in an effort to reach agreement. While we made progress, we have not reached a mutually acceptable resolution.

“I have a duty on behalf of the taxpayers of Washington state to present our case to the U.S. Supreme Court.”

The case has created strange bedfellows.

The states that have filed joint briefs are conservative states, with Republican governors and legislatures. Many oppose Washington on issues of environmental protection and habitat restoration. Ferguson’s allies in the culvert case include 10 Republican attorneys general, plus Maine’s attorney general, Janet Mills, a Democrat.

“Salmon are vital to our way of life here in Washington,” Ferguson said. “Regardless of the outcome of this case, the state must do more to restore salmon habitat. The Legislature should not need a court order to fix culverts that are blocking salmon runs.

“Filing this appeal does not in any way limit the state’s ability to replace culverts,” Ferguson said, “and the state should increase the pace of culvert replacement. But I do not get to decide how much the state spends on fixing culverts or set priorities for state agencies that regulate or build culverts. I will support any proposal from the legislature, the governor or other public officials who control land use and spending decisions that would accelerate the pace of culvert replacements. The state should not need a court order to restore salmon habitat.”

“We’re trying to increase the numbers of the salmon by giving them the access that they’ve always had to the tributaries that had been choked off by the state of Washington,” Brian Cladoosby, chairman of he Swinomish Tribe, said.

“Tribal treaty rights are vitally important,” Ferguson said. “I appreciate and share the goal of restoring salmon habitat, but the state has strong legal arguments that the Ninth Circuit decision is overbroad.”

A decision from the Supreme Court could arrive before the end of the year.

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