High Court Tie in Salmon-Habitat Case Will Cost Washington

WASHINGTON (CN) – An unusual tie Monday at the Supreme Court has left intact an order expected to cost Washington billions of dollars after Native American tribes contested culvert work that blocked fish migration.

The top-left image in this composite shows a culvert that blocked fish passage at Gamble Creek, which flows into Port Gamble, Washington. The state Transportation Department replaced the barrier culvert in 2016 (right), restoring access to over 5 miles of habitat for chum and coho salmon (bottom), steelhead, sea run cutthroat and resident trout. (Images via WDOT and the city of Yakima)

Noting only that Justice Anthony Kennedy did not take part in the decision of the case, the order this morning does not otherwise reflect how the court voted.

The case stems from what are known as the Stevens Treaties, which the federal government inked in 1854 and 1855, allowing a group of tribes to reserve fishing rights on “all usual and accustomed grounds” in exchange for most of their lands.

Washington state has since installed a series of culverts that allow water from streams and rivers to flow under roads and highways. Because the culverts made it difficult in some instances for salmon to swim upstream, however, the state began replacing them in the 1990s.

Backing the tribes in 2001, the federal government went to court in Washington, contending that the culverts breached the old treaties because they cut back on the population of salmon in the water, restricting the tribes’ access to the fish they had been promised.

A federal judge agreed and granted an injunction that required the state to replace its culverts with more fish-friendly waterways. In March of last year, the Ninth Circuit went further, saying the Stevens Treaties implicitly guaranteed the tribes enough fish to give the tribes a reasonable living.

After taking up the case this past January, the Supreme Court heard oral arguments on the case three months later. A deadlock at the high court causes the last order to be upheld by default.

Washington Attorney General Bob Ferguson emphasized in a statement that it had not even designed the culverts at issue, and that comprehensive replacement may be of no ultimate hope to the salmon.

“Salmon cannot reach many state culverts because they are blocked by culverts owned by others,” Ferguson said in a statement. “For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state. These culverts will continue to block salmon from reaching the state’s culverts, regardless of the condition of the state’s culverts, unless those owners begin the work the state started in 1990 to replace barriers to fish.”
Calling on these other entities to do their part, Ferguson called it “unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design.”

“I look forward to working with tribal governments to advocate for the funding necessary to comply with this court order, and to ensure other culvert owners do their part to remove barriers to salmon passage,” Ferguson added.

The Suquamish Indian Tribe was represented by William Jay of Goodwin Proctor, while the Quileute Indian Tribe was represented by Lauren King of Foster Pepper in Seattle Neither attorney has returned emails seeking comment.

This story is developing…

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