High stakes in fish barrier ruling

High stakes in fish barrier ruling
A case under review by the U.S. Supreme Court regarding a possible 1855 treaty violation could have significant financial and environmental regulatory implications for Washington state. Created by Nenilkime - Freepik.com

Under consideration by the U.S. Supreme Court is a case between Washington state and Native American tribes concerning treaty fishing rights and the removal of fish barriers that harm their habitat. Though few seem to question the benefit of fish barrier removal, the court’s ruling on the 17-year-long legal fight could have enormous fiscal implications for Washington taxpayers who could be forced to foot the bill for the projects.

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 warned that if the lower Ninth Circuit ruling is upheld, similar lawsuits could be filed against counties to have their culverts removed.

If that happened, “depending on county budget and culvert numbers, some would face the prospect of bankruptcy.”

The legal squabble stems from the 1855 Treaty of Point Elliott signed by the United States and Native American tribes in the Puget Sound area. The treaty had the tribes yield nearly all western Washington territory, but stipulated that they retain their traditional fishing rights.

In 2001, 21 tribes filed a lawsuit against the state, claiming that culverts in Washington were damaging fish habitats in violation of the treaty. In 2013, a permanent federal injunction was ordered requiring the removal by 2030 of barrier and passable culverts on salmon and steelhead streams within the Puget Sound and Olympic Peninsula drainage areas of western Washington. That same year, the state created the Fish Barrier Removal Board.

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

Among those supporting the tribes in their case is former Governor Daniel J. Evans, who submitted a brief requesting the Ninth Circuit ruling be upheld. “The State of Washington has a stewardship responsibility to its citizens – Indian and non-Indian alike –  to protect and conserve its natural resources for the benefit of future generations. There is no question under the facts of this case that the current condition of the State’s road culverts is causing serious harm to its salmon resources.”

The problem from the state’s perspective is cost, among other things. There are 35,000-40,000 fish barriers located in the state on both private and public lands. Almost a thousand are managed by the Washington State Department of Transportation (WSDOT). Of those, 844 affect “significant habitat,” and 475 require mitigation by 2030.

The state estimates the total bill for removing them is $2 billion. Keeping to the 2030 schedule would have the state spend $120 million per year on barrier removal.

Washington State Attorney General Bob Ferguson wrote in a news release that the lower court ruling “requires Washington taxpayers to shoulder the entire financial burden for problems largely created by the federal government when it specified the design for the state’s old highway culverts. That’s not fair.”

The state has also argued that the treaty obligations concern fishing rights, not ensuring salmon survival.

The fish barrier problem exists in part because the issue hasn’t been made a legislative funding priority, says Todd Myers. He is the environmental director at the Washington Policy Center. He told Lens that “Fish culvert removal works. My problem is we spend money on things that don’t make a difference.”

A similar criticism was leveled by WPC over a decade ago in a 2007 press release. “Over 16 years, DOT officials spent only $45 million to repair culverts.  By way of contrast, the legislature and county governments have committed hundreds of millions of dollars on politically popular initiatives like green buildings and hybrid buses, which will make only small improvements to environmental health far in the future.”

The statement adds that “few environmental projects…can bring such dramatic and immediate improvement to habitat for salmon” as fish barrier removal.

The 2017-19 state capital budget dedicates $19.7 million to 13 fish barrier projects; the 2018 supplemental increased it by $300,000.

According to a 2017 WSDOT Fish Passage Performance Report, since 1991 the agency in conjunction with the Washington Department of Fish and Wildlife (WDFW) has fixed 319 fish-passage barriers impacting 1,032 miles of potential upstream habitat. In 2016, 21 barrier corrections projects were completed for 92.5 miles of potential upstream habitat, all of them part of the Federal Court Injunction barrier culverts.

In 1999, the state’s Forests and Fish rules required Washington’s private forestland owners remove fish barriers on streams associated with forest road crossings. The state Department of Natural Resources’ Family Forest Fish Passage Program provides financial assistance. Since 2003, 283 private land owners have successfully fixed 385 fish barriers, reconnecting 910 miles of fish habitats.

The program also has economic benefits; DNR estimates that for every $100,000 invested in fish passage projects, 1.57 local jobs are created during the construction season.

But there are other implications the court case could have for land management. McKenna warns that it “could be interpreted to confer upon the Tribes a seemingly limitless veto power over any and all activities that impact the salmon supply in” the jurisdiction.

He writes further: “The range of potentially offending conduct is considerable: everything from dams and docks to levees and roads along streams and rivers, to treated wastewater discharge and private developments. Each of these projects is of considerable benefit to all Washingtonians, including the Tribes. They provide for flood control, irrigation for agriculture, hydroelectric power, jobs, mobility, and housing. But by prioritizing salmon supply over all other benefits, the Ninth Circuit opinion does not provide clear guidance and could be read to afford the Tribes the unilateral right to regulate each of these activities, and more.”

A similar argument was made in an amicus brief filed by the American Forest & Paper Association and National Mining Association. “The Ninth Circuit’s invention of a treaty right to a sustenance quantity of fish, not merely a fair share of the available quantity of harvestable fish, threatens to ratchet up Clean Water Act and other environmental and land use restrictions…. Guaranteeing a tribe the right to a quantity of harvestable fish sufficient to provide them with a ‘moderate living’ has resulted in far reaching, arbitrary and unjustified changes to Washington’s  proposed statewide water quality standards.”

However, the cost for Washington taxpayers may be borne at both a state and county level. WSAC estimates roughly 2,037 county-owner fish barriers within the case’s jurisdiction; using state’s estimated average cost for each barrier removal, the association puts the price tag for correcting them all at $4.68 billion. McKenna writes that if sued and forced to comply with the 2030 deadline as well, “they (counties) would have to find an additional $275 million…per year to meet such a deadline.”


  1. Post passage of the Indian Citizenship Act of 1924, all references to “Indians” in our Constitution were made null by the Constitution itself…they became U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. Our Constitution makes for no provisions for ‘treaties’ with constituency and here’s proof:
    The object of treaties is the regulation of intercourse with foreign nations, and is external.”
    An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
    [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

    Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.


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