Washington Ordered to Fix Fish-Blocking Culverts

     (CN) — Washington state must fix culverts that block spawning salmon, the Ninth Circuit ruled, in a win for tribal fishing rights.
     A three-judge panel on Monday affirmed a district court’s order directing the state to repair within 17 years culverts that run beneath state roads and damage salmon habitats.
     In 2013, U.S. District Judge Ricardo Martinez ruled in favor of 22 tribes, finding that treaties the tribes signed in 1854 and 1855 guaranteed fishing and the culverts prevented salmon from moving freely.
     Culverts allow water to flow under roads, but can become obstructed by debris and can prevent fish from swimming through.
     The tribes sued over the culverts in 2001 as part of long-running litigation over their fishing rights. They won the case on summary judgment in 2007 and an injunction was issued in 2013.
     Monday’s Ninth Circuit ruling affirms the 2013 order.
     “We conclude that in building and maintaining barrier culverts Washington has violated, and continues to violate, its obligation to the tribes under the fishing clause of the treaties,” Judge William Fletcher wrote for the panel, in a unanimous decision.
     The panel rejected the state’s request for the federal government to fix its culverts first, finding the request was barred by sovereign immunity.
     The state argued that there was “no treaty-based right or duty of fish habitat protection,” according to the ruling. But the panel countered that Washington has “a remarkably one-sided view of the treaties,” and an adequate supply of salmon should be assumed.
     The culverts in question block 1,000 miles of streams and if repaired, would allow passage of “several hundred thousand additional mature salmon,” the ruling states.
     Fawn Sharp, president of the Quinault Nation and the Affiliated Tribes of Northwest Indians, said the Ninth Circuit ruling was not just a victory for the tribes, but “a victory for everyone.”
     “This is a victory for tribal and non-tribal fishermen, and for non-fishers as well, because it will result in healthier ecosystems. It will help assure that salmon can reach their spawning grounds,” she said in a press release. “Our Northwest salmon are keystone species. They are critically important to the survival of other species, healthy habitat, and an overall healthy environment.”
     Peter Lavallee, communications director for the Washington State Attorney General’s Office, told the Seattle Times the state is still reviewing the decision to determine the next steps.

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