Fixing Barrier Culverts Aim of Treaty Tribes’ Suit

Treaty Indian tribes in western Washington filed suit in federal district court against the State of Washington to compel the state to fix and maintain culverts under state roads in western Washington that illegally prevent wild salmon from reaching spawning and rearing habitat. The suit was filed as a sub-proceeding of United States v. Washington (the Boldt Decision), the landmark 1974 case that reaffirmed the tribes’ treaty-reserved fishing rights.

The suit challenges only barrier culverts under state roads that affect salmon m s passing through the tribes’ usual and accustomed fishing areas, as defined in United States vs. Washington, said Billy Frank Jr., chairman of the Northwest Indian Fisheries Commission. Well over half of the barrier culverts needing repair can be found in western Washington. In fact, 50 of the 75 culverts listed as having the greatest impact on habitat can be found in the United States YS. Washington case area, which encompasses a portion of western Washington that runs roughly from the Cascades to the Pacific Coast, and from Grays Harbor to the Canadian border.

“Despite huge reductions in the harvest of fish guaranteed to US by treaty, wild salmon runs have continued to decline. It is clear that habitat loss and degradation are the root of the problem.”

Tribes have voluntarily reduced their treaty-protected share of salmon harvest by about 90 percent over the past two decades, largely because of needs to protect weall wild salmon stocks.

According to a 1997 report by the Washington State Department of Transportation (WDOT) and Washington Department of Fish and Wildlife (WDFW), barriers to fish passage at road culverts axe “one of the most recurrent and correctable obstacles to healthy salmonid populations in Washington.” The report identifies 363 culverts under state roads in Washington that need correction. The agency closely surveyed 193 of those culverts, and 177 were identified as offering a significant amount of habitat gain above the blockage. The I77 culverts block 249 linear miles of salmon spawning and rearing habitat, according to the report. Even if only half of the fish-blocking culverts under state roads were repaired, 200,000 more adult wild salmon could be produced annually, the report says. The agency admits that all of its estimates of lost habitat and production are conservatively low.

According to the report, fixing the barrier culverts statewide would result in an economic benefit far exceeding the repair costs.

“Everyone, both Indian and non-Indian, would benefit from fixing these culverts, not to mention the salmon resource itself,” said Frank. “We are simply asking that these culverts be fixed. We are not seeking compensation for past damages.”

“The treaty tribes have been patient, prefer to cooperate, rather than litigate, to achieve salmon recovery,” said Wm. Ron Allen, chairman of the Jamestown S’Klallam Tribe. “While there have been some successes, and while we will continue to collaborate on serious efforts to recover wild salmon, the tribes can no longer stand by and watch the salmon resource be destroyed along with their treaty rights,” Allen said.

Tribal officials noted that state government has made some effort to address the problem of barrier culverts, including a special appropriation by the State Legislature. However, the WDOT/WDFW report estimates that it would take 20-30 years to fix the barrier culverts statewide through specially funded projects and as part of work on other road projects. If special funding alone were used, the report estimates that it would take 100 years.

“The state simply must fix these barrier culverts more quickly. We cannot afford to wait for another ESA listing or until there are no more fish left,” said Merle Jefferson, natural resources director for the Lummi Nation. “This is just one piece of the salmon recovery puzzle, but it is an important piece, and an easy piece to put into place. The cost is relatively small, compared to the benefits,” he said.

“Twenty-five years after the Boldt Decision, the tribes are today harvesting about the same number of fish as they were before the ruling in that case,” Frank said. “If we are going to achieve our shared goal of salmon recovery, we must begin to meaningfully address the main cause of the salmon’s decline, which is loss and degradation of spawning and rearing habitat. This court action is a step in that direction.”