Supreme Court sides with tribes in culvert ruling

Supreme Court sides with tribes in culvert ruling
In a split 4-4 decision, the United States Supreme Court upheld a lower Ninth Circuit court ruling requiring Washington state to remove thousands of fish barriers by 2030. Photo: World Wildlife Fund

In a split decision, the United States Supreme Court has upheld a lower court ruling ordering Washington state to remove fish barriers that local Native American tribes argued were harming the salmon population in violation of their treaty rights. However, the verdict’s full implications may not yet be known until another potential lawsuit allows a future court to elaborate on whether other state projects are also affected.

“It gives at least theoretically tribes a lot of control over policies that affect salmon,” Washington Policy Center Environmental Director Todd Myers said. “It’s unclear how broadly this could apply.”

In an amicus brief submitted to the court on behalf of the Washington State Association of Counties (WSAC) and Association of Washington Cities (AWC), former State Attorney General Rob McKenna painted a grim fiscal situation for regional and local governments if they’re forced to pay for the barrier removal.  He also warned that siding with the tribes would give them “a seemingly limitless veto power over any and all activities that impact the salmon supply.”

In response to the court ruling, State Attorney General Bob Ferguson wrote that “it is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design.”

However, he added that “the Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling. It’s also time for others to step up in order to make this a positive, meaningful ruling for salmon.”

A similar sentiment was voiced by Commissioner of Public Lands Hilary Franz, who had previously written a letter to Ferguson in support of the tribes’ lawsuit. In a tweet, she wrote: “It is time to stop fighting over who should do what. Instead, let us roll up our sleeves, stand shoulder to shoulder, and get to work saving our Pacific salmon for future generations. It’s time to do the right thing.”

The high court ruling represents a large victory for the 21 tribes who first filed a lawsuit in 2001 against the state, saying fish culverts were contributing to declining salmon populations. Throughout the 17-year legal fight, they’ve maintained that this violated their traditional fishing rights retained via the 1855 Treaty of Point Elliott.  In 2013, a permanent federal injunction required Washington to remove the barriers within the Puget Sound and Olympic Peninsula drainage areas of western Washington by 2030.

In 2016, Ninth Circuit Court Judge W. Fletcher upheld the federal injunction; the state then petitioned the U.S. Supreme Court for review.

In a statement, Northwest Indian Fisheries Commission Chair Lorraine Loomis wrote that the “ruling shows that our treaties are living documents. They are just as valid today as the day they were signed. It will open hundreds of miles of high quality salmon habitat that will produce hundreds of thousands more salmon annually for harvest by Indians and non-Indians.”

She added: “The Supreme Court has affirmed a common sense ruling that treaty rights requires there to be fish available for harvest… It affirms that the state can’t needlessly block streams and destroy salmon runs.”

However, the court’s succinct ruling that merely reaffirms a previous decision creates “huge regulatory uncertainty,” says Myers. “The nexus between culverts and salmon is fairly clear. How far they want to expand it elsewhere I think is unclear. What can the tribes demand as far as expenditures on other things?”

That question may require a follow-up lawsuit before it gets answered, he added. He said the situation might have been avoided had fish barrier removal been a higher funding priority. The issue of culverts are “fairly clearly something that impacts salmon. Among all the things that they can spend money on, culverts actually have a beneficial impact.”

However, in a blog post he elaborated further that “Private forest landowners, by way of contrast, have fixed virtually all of their culverts. Timber harvests provided a stream of revenue that could be used to make improvements. Politicians, on the other hand, had other priorities and didn’t make the necessary investments to fix culverts.”

He added: “One key lesson from this ruling should be that relying on politicians and judges to effectively guide salmon recovery is fraught and unpredictable. Working with local leaders and resource businesses is the best approach for taxpayers and the environment.”

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