Ninth Circuit Rules for Tribes & Salmon Over Washington State

SEATTLE (CN) – Affirming a ruling that cited Native American treaties, the Ninth Circuit declined to reconsider a decision requiring Washington state to remove culverts that block salmon from passing.

The state says the work will cost nearly $2 billion, but judges who voted not to revisit the case said in the Friday ruling that that estimate was “not supported by the evidence.”

Washington asked for an en banc, or full court, hearing after a three-judge panel affirmed a 2016 order 2016 giving the state 17 years to repair culverts below state roads that damage salmon habitats.

U.S. District Judge Ricardo Martinez in 2013 ruled in favor of 22 tribes, finding that treaties signed in 1854 and 1855 guaranteed fishing, and the culverts prevent salmon from moving freely.

Culverts allow water to flow under roads, but can become obstructed by debris and can prevent fish from swimming through.

Nine dissenting judges on Monday said the court made critical errors in declining to rehear the case.

“Given the significance of this case — both in terms of dollars and potential precedential effect — it seemed the ideal candidate for en banc review and, hopefully, correction on the merits. But rather than reining in a runaway decision, our court has chosen to do nothing — tacitly affirming the panel opinion’s erroneous reasoning,” according to the dissent.

The dissent says the ruling could be used as precedent to challenge activities that affect wildlife habitat in other states, which led Idaho and Montana to join Washington in asking for a rehearing.

The ruling also will uphold “an injunction that is overbroad — requiring the State to spend millions of dollars on repairs that will have no immediate effect on salmon habitat,” according to the dissent by Ninth Circuit Judge Diarmuid O’Scannlain. It was joined by Judges Alex Kozinski, Richard Tallman, Consuelo Callahan, Carlos Bea, Sandra Ikuta, N.R. Smith, Milan Smith and Jay Bybee.

The chairwoman of the Northwest Indian Fisheries Commission called the ruling “a win for salmon, treaty rights and everyone who lives here.”

“Fixing fish-blocking culverts under state roads will open up hundreds of miles of habitat and result in more salmon,” commissions Chairwoman Lorraine Loomis said.

Fawn Sharp, president of Washington’s Quinault Indian Nation and the Affiliated Tribes of Northwest Indians, said a timely fix for the culverts is needed.

“Although the state has been fixing (culverts), at its current pace, it would take a century to finish the job. The salmon can’t wait that long. Our tribes and everyone else needs those culverts to be fixed as soon as possible,” Sharp said in a statement.

A spokesman for the Washington attorney general said the state is considering its options.

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