The U.S. Supreme Court should provide clarification of a lower-court ruling involving culverts throughout Washington.
That is the request of state Attorney General Bob Ferguson, who has urged the court to weigh in on a case that has implications extending beyond the billions of dollars needed to improve fish passages. The case could cost the state nearly $2 billion while also setting a dangerous precedent for tribal authority on nontribal lands.
Last year, a three-judge panel from the 9th U.S. Circuit Court of Appeals upheld a 2013 lower-court ruling ordering the state to fix or replace hundreds of culverts. The culverts are large pipes that allow streams to pass beneath roads, but litigants argued that they block migrating salmon. The case dates to 2001, when tribes, backed by the U.S. Justice Department, sued Washington to force the state to replace the culverts with structures that better allow fish to pass. The foundation for the ruling was a finding that the culverts violate treaties signed during the 1850s guaranteeing that tribes can always make a moderate living by fishing.
Governments should, indeed, be beholden to historic agreements made with Native Americans. But the culvert ruling extends beyond those agreements while simultaneously defying common sense.
As Ferguson writes in his filing, the Supreme Court “has held that Indian treaties ‘cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.’ ” The ruling finds that tribes “silently retained a right to control land-use decisions and state policies in the ceded territory that could affect salmon.”
In other words, if the ruling is allowed to stand, it would expand tribal authority to an unreasonable extent. As The Seattle Times wrote editorially, “If tribes can demand culvert removal on nontribal land, they could follow up with lawsuits demanding the removal of dams or cessation of farming and development activities.” Evan Sheffels of the Washington Farm Bureau said: “It could be the basis for all kinds of things. If you just replace the word ‘culverts’ with ‘water rights,’ you get a sense of how big this case could be.”
Rob McKenna, Ferguson’s predecessor as state attorney general, told The Seattle Times that the issue leads to a question of sovereignty more than simply salmon restoration: “If overnight the tribes became sovereign over lands and waters of the state, the people of the state would notice in a hurry. It would mean the government elected by the people would no longer be sovereign.”
That helps to explain the broad reach of the decision, but the ruling also fails on the simple test of accountability. The culverts were built mostly with federal money while adhering to federal standards. If those culverts must be replaced, the federal government should not be allowed to abdicate its responsibility and pass the buck to the state.
Adequate culverts that allow for the passage of salmon are essential for restoring native salmon runs, and Washington has spent decades and hundreds of millions of dollars on improvements. If the ruling in question were limited to that issue, there would be room for robust debate. Instead, it involves land use and water rights and questions about which government has control over those issues.
Ferguson is to be commended for urging the U.S. Supreme Court to weigh in on those questions. The justices should agree to hear the case and provide some clarity to a far-reaching issue.
