Washington treaty Indian tribes are confident that their treaty fishing rights will be upheld in light of today’s announcement that the U.S. Supreme Court will hear an appeal by the state of Washington in the culvert case.
Federal courts have so far held that tribal treaty fishing rights require the state to allow salmon passage under state roads. The courts have also ruled that treaty-reserved fishing rights include the right to have salmon protected so that they are available for harvest.
“Instead of continuing to appeal the culvert case, tribes believe the state should use the momentum it has gained over the past four years to finish the job of fixing fish-blocking culverts, and focus on our shared goal of salmon recovery,” said Lorraine Loomis, chair of the Northwest Indian Fisheries Commission. “The state’s decision to further appeal the case only serves to delay salmon recovery and divert attention from protecting and restoring salmon habitat.”
By the end of the year, 393 culverts will be left to repair. The state is required under existing state law to fix the culverts, but argues that the treaties don’t say anything about preventing streams from being blocked.
When the case was filed by the United States and 21 treaty tribes in 2001, more than 1,000 culverts under state roads blocked salmon access to more than 1,600 miles of good habitat, harming salmon at every stage of their life cycle. At the state’s rate of repair, it would take more than 100 years to finish the job. By then few salmon might be left.
The case is a sub-proceeding of the U.S. v. Washington litigation that led to a landmark decision in 1974 by Judge George Boldt. The ruling upheld tribal treaty-reserved rights and established the tribes as co-managers of the salmon resource.
In 2013 federal court Judge Ricardo Martinez ruled that tribal treaty rights to harvest salmon include the right to have those salmon protected so they are available for harvest. The court gave the state 17 years to reopen about 450 of its 800 most significant barrier culverts in western Washington. Since then the state has appealed the case and lost, then lost again when it asked the court to reconsider.
Meanwhile, state agencies such as fish and wildlife, parks, and natural resources have stayed on schedule to fix nearly all of the culverts for which they are responsible. The Department of Transportation has committed additional resources to the effort and is steadily addressing requirements. More funding may be needed, but if DOT maintains its recent pace, it would come close to meeting the court’s mandate.
“Opening up habitat is one of the most important and cost-effective actions we can take toward salmon recovery. We are losing the battle for salmon recovery because we are losing salmon habitat faster than it can be restored. The culvert case offers a rare opportunity to achieve a net gain in habitat that salmon desperately need,” Loomis said.
“The culvert case could be a win-win opportunity for salmon and all of us who live here. We believe that our treaty rights will prevail, and we remain committed to working with the state to protect and restore the salmon resource.”