The 9th Circuit Court of Appeals earlier today refused to hear the state of Washington’s most recent appeal of the culvert case. The decision could bring to a halt more than 15 years of litigation on whether the state of Washington has a duty under federal treaty to protect salmon habitat.
“This is a win for salmon, treaty rights and everyone who lives here,” said Lorraine Loomis, chair of the Northwest Indian Fisheries Commission. “Fixing fish-blocking culverts under state roads will open up hundreds of miles of habitat and result in more salmon. That means more fishing, more jobs and healthier economies for all of us.”
The appeal stems from Judge Ricardo Martinez’s 2013 ruling that failed state culverts violate tribal treaty rights because they reduce the number of salmon available for tribal harvest. Judge Martinez ruled that tribal treaty-reserved rights to harvest salmon include the right to have those salmon protected so they are available for harvest.
He also ruled that the state’s duty to fix its culverts does not arise from a “broad environmental servitude,” but rather a “narrow and specific treaty-based duty that attaches when the state elects to block rather than bridge a salmon-bearing stream.”
Judge Martinez gave the state 15 years to reopen 90 percent of the habitat blocked by its culverts in western Washington. More than 800 state culverts block salmon access to more than 1,000 miles of good habitat and harm salmon at every stage of their life cycle. The state has been fixing them so slowly it would have needed more than 100 years to finish the job.
The U.S. government filed the case in 2001 on behalf of the tribes. It is a sub-proceeding of the U.S. v. Washington litigation that led to the landmark 1974 ruling by Judge George Boldt. His decision upheld tribal treaty-reserved rights and established the tribes as co-managers of the resource with the state of Washington.
“Reserving the right to fish so that we can feed our families and preserve our culture was one of the tribes’ few conditions when we agreed to give up nearly all of the land that is today western Washington,” Loomis said. “The treaties our ancestors signed have no expiration date and no escape clauses.”
More information on the current state of culvert repair work can be found at the treaty tribes’ State of Our Watersheds Report.