Indian tribes in western Washington have long been using our treaty rights to protect and restore the salmon resource to the benefit of everyone who lives here. A good recent example is the federal court’s March 29 ruling in the culvert case brought against the state by the tribes back in 2001.
The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty-reserved fishing rights, federal Judge Ricardo Martinez ruled in late March. The court found that more than 1,500 state culverts deny salmon access to hundreds of miles of good habitat in western Washington, harming salmon at every stage in their life cycle.
We didn’t want to file this litigation, but the salmon can’t wait. At the pace that the state has been repairing its blocking culverts, there would be few, if any, salmon left by the time all were fixed. Martinez’s ruling will result in hundreds of thousands more salmon returning to Washington waters each year. These salmon will be available for harvest by everyone who lives here, not just the tribes.
We could have avoided the suit if the state followed its own laws. One of Washington’s first laws on the books requires fish passage at any blockage in creeks and rivers.
Instead, the state chose to largely ignore the problem along with the tribes’ treaty rights, which depend on salmon being available for harvest. And once again, our treaty rights were upheld by the federal courts, just as they have been consistently since the 1974 Boldt decision that re-affirmed those rights and established the tribes as co-managers of the salmon resource.
This isn’t something new to the tribes. The state’s approach has long been to ignore treaty rights even if that means ignoring the best interests of all of its citizens.
State agencies told the Legislature in 1995 that fixing culverts was one of the most cost-effective strategies for restoring salmon habitat and increasing natural salmon production. The cost to benefit ratio goes up as the number of culverts repaired per year increases, they said. Two years later, state agencies said every dollar spent fixing culverts would generate four dollars’ worth of additional salmon production. Recent studies support that estimate.
Still, Judge Martinez had to issue a permanent injunction against the state’s continued operation of fish-blocking culverts under state roads. The reason is that the state has actually reduced culvert repair efforts in the past three years, which has led to a net increase in the number of barrier culverts. At the current pace, the state would never complete repairs, Martinez said, because more culverts were becoming barriers to salmon than were being fixed.
The federal court’s ruling will not bankrupt the state. Judge Martinez gave the state and its Department of Transportation (DOT) 17 years to complete repairs. Other state agencies were already planning to have their blocking culverts corrected within the next three years.
Culvert repair cost estimates being provided by the state are higher than the actual repair costs presented in court, Martinez ruled. The state claims that the average cost to replace a state DOT culvert is $2.3 million. But the evidence showed the actual cost of DOT culverts built to the best fish passage standards has been about $658,000.
It’s important to note that repairs will be funded through the state’s separate transportation budget and will not come at the expense of education or other social services. It’s also important to understand that state law already requires that culverts allow fish passage. The culvert case ruling directs the state to do nothing more than what is already required, except to correct DOT fish-blocking culverts at a faster rate.
The treaty Indian tribes bring much to the salmon management table. Salmon populations in western Washington would be in far worse shape without the salmon recovery efforts, fisheries management expertise, leadership, hatcheries, funding, and traditional knowledge the tribes provide. More habitat would be lost, fewer salmon would be available for harvest, and there would be far less funding for salmon recovery.
We prefer to cooperate rather than litigate to achieve salmon recovery. But if our treaty rights can be used to re-open these streams and enhance wild salmon populations, that’s a win-win for all of us.
Billy Frank Jr. is the chairman of the Northwest Indian Fisheries Commission.
For more information, contact: Tony Meyer or Emmett O’Connell, (360) 438-1181.