SEATTLE — In a case that could have big implications for dams and other development in the Northwest, a federal appeals court panel said Monday that Native American tribes have a right not only to fish for salmon, but for there to be salmon to catch — a ruling that affirms the duty of the United States to protect the habitat of the prized fish under treaties dating back more than 150 years.
Three judges from the 9th U.S. Circuit Court of Appeals reached their unanimous decision in a case involving culverts, large pipes that allow streams to flow under roads but which also can block migrating fish. They upheld a lower court’s 2013 ruling ordering Washington state to replace hundreds of the pipes with more fish-friendly structures, such as bridges that allow streams to flow naturally underneath them.
“The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” Judge William Fletcher wrote for the panel, adding that territorial Gov. Isaac Stevens “did not make … such a cynical and disingenuous promise.”
The ruling, praised by the tribes, was the second major court decision in as many months concerning salmon habitat in the Northwest. In May, a federal judge in Portland ruled that a massive habitat restoration effort by the U.S. government doesn’t do nearly enough to improve Northwest salmon runs — and that federal law may require federal authorities to consider removing four huge dams on the lower Snake River in Eastern Washington.
Local Angle
Clark County does not lie in the geographical area that was part of the case decided by the federal appeals court on Monday, but there are many culverts in Southwest Washington that potentially block salmon passage.
Earlier this year, the Washington State Department of Transportation had a list of almost 40 uncorrected culverts in Clark County, and 30 more just across the Cowlitz County line on tributaries of the Lewis River.
Those figures don’t take into account dozens of culverts owned by local governments or private parties. A 2014 WSDOT report found an average of two non-WSDOT barriers downstream and five upstream of a typical WSDOT barrier.
Despite the court’s ruling, it’s highly unlikely every problematic culvert in the state, or even in Clark County, will be replaced. For example, at Milepost 35 on Interstate 205, a small steel culvert buried far below the freeway pours water about 2 feet down into LaLonde Creek. Restoring fish passage on the tiny creek would require a major reconstruction of the freeway in that area.
“These are significant rulings from courts that are saying this business about protecting salmon is serious,” said Todd True, a lawyer with the environmental law firm Earthjustice, which is involved in both cases. “It’s going to require some real effort.”
Twenty-one Washington tribes sued the state over the culverts in 2001. The pipes can block fish in several ways, typically because the downstream end is elevated above the level of the stream, the angle is too steep for them to navigate, or because they become clogged with debris.
Seattle U.S. District Judge Ricardo S. Martinez ruled that culverts diminished salmon runs by blocking access to about 1,000 linear miles of suitable streams, and in 2013 he ordered the state to replace hundreds of the highest-priority culverts within 17 years.
The state appealed, arguing that its treaties with the tribes created no obligation to restore salmon habitat. During oral arguments last fall, a judge asked Washington Solicitor General Noah Purcell if the state had the right to dam every salmon-bearing stream that flows into Puget Sound. Purcell responded that while the state would never do that, nothing in the treaties would prevent it — an interpretation the appeals court rejected.
Washington agrees that replacing 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 the state called Martinez’s 2013 order too sweeping and expensive, and said it would force the state to focus on fixing culverts even when salmon-restoration dollars could be spent more effectively elsewhere.
The state is reviewing the decision and did not have immediate comment, an Attorney General’s Office spokesman said in an email.
Officials argued during the case that if the tribes had a right to habitat restoration, they could conceivably sue the state for virtually anything that impairs salmon, such as state or utility district-owned dams that block salmon passage.
Fawn Sharp, president of Quinault Indian Nation on the Olympic Peninsula, agreed that the court’s logic could apply to dams or other development that diminishes fish runs. She said she expected the ruling to bolster the tribe’s arguments against a state proposal to dam the Chehalis River to help with flood control.
