Washington State Appeals Ninth Circuit Decision to Require Removal of Culverts

The State of Washington has appealed a Ninth Circuit decision finding the state violated federal Indian treaties and requiring it to improve road culverts to allow for the passage of salmon. In United States v. Washington, 864 F.3d 1017 (2017), the Ninth Circuit held that Washington was required to remove and upgrade nearly 1000 barrier culverts at an estimated cost of $1.8 billion. Culverts were built in Washington following the rapid expansion of the federal highway program, and were built to federal standards with Army Corps of Engineer permits. Since the 1990s, Washington began upgrading the culverts from large metal pipes that allow water to pass under a roadway to culverts that simulate stream conditions, and spent $135 million to remove such barrier culverts. Despite the fact that the culverts were built to federal standards, in 2001 the federal government joined 21 Indian Tribes in suing the state, alleging that the culverts violated federal treaties signed in the 1850s because they block the passage of salmon.

The federal treaties provide for “[t]he right of taking fish, at all usual and accustomed grounds and stations…in common with all citizens.” The U.S. Supreme Court has held that this language guarantees the Tribes “a fair share of the available fish,” meaning fifty percent (50%) of each salmon run, revised downward “if tribal needs may be satisfied by a lesser amount.” Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 685 (1979) (Fishing Vessel). In the instant case, the Ninth Circuit relied on Fishing Vessel for the proposition that the Supreme Court recognized the Tribes’ treaty right to have enough salmon to feed themselves and, therefore, were promised a “moderate living.” The Court “held that the State violated the Treaties when it acted affirmatively to block salmon-bearing streams by building roads with culverts that protected the State’s roads but killed the Tribes’ salmon” and, therefore, diminished the Tribes’ ability to maintain a moderate living from salmon.

In Washington’s Petition for Writ of Certiorari to the Supreme Court, it argues that the Ninth Circuit’s holding could have far reaching and unintended consequences. The state argues that the ruling expands the Tribes’ authority to demand culvert removal on non-tribal land and that Tribes with similar treaty rights could demand removal of other barriers to fish passage on non-tribal land that reduce salmon populations, like dams, or changes to agricultural or development practices. The Ninth Circuit’s decision increases the Tribes’ influence on state land use practices and policies that affect salmon populations. The Supreme Court may choose to hear the appeal in the fall of 2018.

For additional information please contact Kristian Corby at kcorby@somachlaw.com.

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