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Washington's Culverts Violated Tribal Fishing Rights, 9th Finds

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By Casey C. Sullivan, Esq. on June 29, 2016 6:57 AM

Culverts can be tricky things, especially if you're a fish. Culverts, those tunnels and pipes that carry creeks and streams under roadways, are an easy way to allow traffic to cross small waterways. But some of them also choke off fish entirely, becoming obstacles for salmon swimming from their upstream breeding grounds to sea. The problem is particularly pronounced when culverts are aging or in disrepair. And plenty of Washington State's culverts are aging and in disrepair.

Twenty-one of the state's Native American tribes, joined by the federal government, sued over the state of Washington's culverts, arguing that they impeded salmon runs and violated the tribes' treaty rights to catch fish. Those tribes were successful in the Ninth Circuit on Monday, with the court upholding a district court order that requires Washington to fix more than 800 derelict culverts.

The Stevens Treaties and Washington Salmon Runs

Thousands of culverts dot Washington's countryside, passing over seasonal streams and large rivers both. Hundreds of these are so-called "barrier culverts," culverts through which fish runs cannot pass. Because the Northwest's salmon and trout are anadromous fish, or fish that are born and spawn in fresh water while living the rest of their lives in the sea, barrier culverts can prevent their ability to breed, reducing fish populations.

And a large percentage of those fish populations are reserved to Washington's native tribes. When the tribes turned over their lands to the federal government in the 1850s, they entered into a series of treaties known as the Stevens Treaties. Those treaties guaranteed tribes "the right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory."

In 1970, the United States sued Washington on behalf of the tribes, alleging that the state was violating their treaty rights. The result was 1974's landmark Boldt decision. There, U.S. District Judge George H. Boldt determined that the Stevens Treaties fishing clause entitled the tribes to half of the state's fish, at a minimum, and granted the tribes a right to have their fish runs "protected from man-made despoliation."

In the Case of Culverts v. Salmon, Salmon Win

Three decades later, the tribes called on the court's continued jurisdiction stemming from that dispute, alleging that the state was in violation of the ruling and the treaty by constructing culverts that deteriorated salmon and other fish runs.

The district court agreed and, in 2013, issued a permanent injunction ordering the state to remove or correct more than 800 barrier culverts, at a cost the state claimed could rise to over $2 billion.

The Ninth Circuit upheld that injunction on Monday. Washington had claimed it had no duty under the Stevens Treaties not to block salmon runs, going so far as to claim that they could block every salmon stream in the Puget Sound, without offending the tribes' treaty rights. The Ninth Circuit was not impressed.

Noting that courts construe treaties between the United States and Indian tribes "in favor of the Indians," it condemned Washington's "remarkably one-sided view of the treaties," which posited that the purpose of the treaties was the opening of the Northwest to settlement. The court, in an opinion penned by Judge William A. Fletcher, wrote:

Opening up the Northwest for white settlement was indeed the principal purpose of the United States. But it was most certainly not the principal purpose of the Indians. Their principal purpose was to secure a means of supporting themselves once the Treaties took effect.

Reading the treaties to give effect to that purpose, the court found that, while Washington did not act with the express objective of reducing salmon runs, it had reduced the tribes' ability to obtain a "moderate living" from fishing. As such, the state was in violation of the treaty.

Washington will now have to begin removing or repairing hundreds of culverts, blocking over 1,000 miles of salmon habitat. The removal or modification of the culverts is expected to increase the state's salmon runs by several* hundred thousand more mature salmon a year.

Editor's Note, June 29th, 2016: This post originally misstated how many adult salmon the repair of culverts is expected to produce. It is several hundred thousand, not seven hundred thousand.

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