SEATTLE — In a case that could have implications for dams and development in the Northwest, federal appeals judges heard arguments Friday about whether Washington state should have to spend billions of dollars to replace large pipes that allow streams to pass under roadways — but which also block salmon from migrating upstream to their spawning grounds.
The lawsuit is the latest twist in more than 40 years of litigation between Washington and Native American tribes over fishing rights since a federal court decision guaranteed the tribes the right to half of Northwest salmon harvest. Washington’s tribes, backed by the U.S. Justice Department, sued the state in 2001, trying to force the state to replace the culverts with bridges or other structures that better allow fish to pass.
The crux of their argument is that based on mid-19th century treaties, they don’t just have a right to fish, but for there to be fish to catch — something that doesn’t happen when culverts block the salmon from spawning. In 2007, U.S. District Judge Ricardo S. Martinez agreed, and in an order years later, he demanded that the state replace hundreds of culverts.
The state agrees that replacing the old culverts is one important part of restoring salmon runs and notes that is has spent hundreds of millions of dollars to fix fish habitat. But Martinez’s 2013 order is far too sweeping and expensive, and would force the state to focus on fixing culverts even when salmon-restoration dollars could be spent more effectively elsewhere, state Solicitor General Noah Purcell told the three-judge 9th U.S. Circuit Court of Appeals panel Friday.
The tribes do not have a treaty right to habitat restoration, Purcell said. If they did, he suggested, they could conceivably sue the state for virtually anything that impairs salmon, such as state or utility district-owned dams that block salmon passage — a topic the judges asked about repeatedly.
Those arguments were echoed in a friend-of-the-court brief submitted by the state of Oregon.
“It goes far beyond the treaty language,” Purcell said. “This case has been going on for 45 years. Under the district court’s ruling, it’s going to be going on for 45 more.”
The state Legislature this year approved a 16-year transportation bill that includes $300 million for fish passage — far more than in years past, but a far cry from the estimated $2 billion it would take to comply with Martinez’s order. The state has said it would need to fix 30 to 40 culverts each year until 2030, spending $155 million annually, to comply.
Some are beneath Interstate 5 and would require the highway’s closure to fix, Purcell said. Many of the culverts overseen by the state Department of Natural Resources or Fish and Wildlife have already been fixed.
But Martinez noted that at its current pace of replacing culverts, it would take more than a century to fix them all, which he considered unacceptable.
The pipes, which were mostly installed decades ago, can block salmon in several ways. Their downstream ends are frequently elevated above the level of the stream, making it impossible for salmon to swim up. They were sometimes placed at a grade that accelerated the rush of the water, making it more difficult for the fish to fight the current.
The tribes acknowledged that they typically work closely with the state to restore salmon, but the sides had unable to reach agreement on how quickly to fix the culverts.
