9th Circuit: Culverts must be fixed

The state of Washington must speed up repair of fish-blocking culverts in western Washington, according to a ruling this morning by the 9th Circuit Court of Appeals. The opinion reaffirms an earlier decision in the Culvert Case by Judge Ricardo Martinez.

Here is a short summary of what the court said. You can read the entire decision here.

Summary of the decision:

The panel affirmed the district court’s order issuing an injunction directing the State of Washington to correct culverts, which allow streams to flow underneath roads, because they violated, and continued to violate, the Stevens Treaties, which were entered in 1854–55 between Indian tribes in the Pacific Northwest and the Governor of Washington Territory.


As part of the Treaties, the Tribes relinquished large swaths of land, watersheds, and offshore waters adjacent to those areas (collectively, the “Case Area”), in what is now the State of Washington. In exchange, the Tribes were guaranteed a right to engage in off-reservation fishing. In 1970, the United States brought suit against the State of  Washington on behalf of the Tribes to resolve a persistent conflict over fishing rights; and in a 1974 decision, the district court authorized the parties to invoke its continuing jurisdiction to resolve continuing disputes.


The panel held that in building and maintaining barrier culverts within the Case Area, Washington violated, and was continuing to violate, its obligation to the Tribes under the Treaties. The panel also held that because treaty rights belong to the Tribes rather than the United States, it was not the prerogative of the United States to waive them.


Concerning the State of Washington’s cross-request seeking an injunction that would require the United States to fix its culverts before Washington repaired its culverts, the panel held that Washington’s cross-request was barred by sovereign immunity, and Washington did not have standing to assert any treaty rights belonging to the Tribes. Specifically, the panel held that Washington’s cross-request for an injunction did not qualify as a claim for recoupment.


The panel also held that the United States did not waive its own sovereign immunity by bringing suit on behalf of the Tribes. The panel further held that any violation of the Treaties by the United States violated rights held by the Tribes rather than the State, and the Tribes did not seek redress against the United States in this proceeding.


The panel held that the district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of their natural life or in the course of road construction project undertaken for independent reasons. The panel rejected Washington’s objections that the injunction was too broad, that the district court did not defer to the State’s expertise, that the court did not properly consider costs and equitable principles, that the injunction impermissibly intruded into state government operations, and that the injunction was inconsistent with federalism principles.

Culverts remain a big problem for salmon in western Washington. According to a soon-to-be-released report by the treaty tribes on habitat issues:

During the first two years of implementing the U.S. v. Washington Culvert Case Injunction, the state of Washington has corrected 76 fish-blocking culverts. At the current schedule, if additional support is not gained, the corrections of the remaining 800 culverts would be completed in 44 years or the year 2060.


Usable habitat for Puget Sound salmon is a fraction of what it once was, and our ability to recover the salmon populations directly depends on the recovery of habitat. “Impaired fish access is one of the more significant factors limiting salmonid productivity in many watersheds.”


The Puget Sound Salmon Recovery Plan states that “the loss of rearing habitat quantity and quality is the primary factor affecting population performance,” and that the status quo is unacceptable. Not only do physical barriers limit fish passage and available habitat, they can also damage water quality and disrupt sediment deposition.

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