It’s been 12 years since we started talking about highway
culverts and the potential for Indian treaties to significantly
affect the state’s budget. It’s possible that the Legislature could
soon face a new budget problem.
An old culvert on Johnson Creek
carries water under Viking Way, a former state highway near
Kitsap Sun file photo
I revived the long-running court story in
Sunday’s Kitsap Sun, where I reported that a legal assistant in
U.S. District Court suggested that the presiding judge could issue
a ruling in the early part of this year.
If you’ve been around the Northwest for long, you probably know
that the landmark Boldt decision upheld the right of tribal members
to fish “in common with” other citizens of the region. Boldt’s
decision, upheld by the U.S. Supreme Court, held that the fairest
way to share the limited fishery resource was to apportion the
harvest equally between tribal and nontribal fishers.
The ruling was later extended to shellfish, so now state and
tribal managers work in concert to establish seasons for fish and
shellfish, as they have for years.
But Boldt said something else in his ruling that has far greater
implications in today’s modern world. The federal judge said the
state has a duty to protect the natural resources within its
borders, so that fishing rights protected by the treaties would
have true value for the future.
The extent to which treaties may be used to protect the
environment has never been tested. But the so-called culvert case,
filed in 2001, was a first step in this direction.
From the beginning, the importance of the culvert case was
recognized by both sides. In a joint statement issued at the time
of the legal filing, Gov. Gary Locke and Attorney General Chris
Gregoire said the case could have impacts far beyond the issue of
“A favorable ruling for the tribes could impose a duty that may
affect other public roadways, public facilities and lands, and even
the regulation of land-use and water. We don’t believe the treaties
were intended to displace the state’s authority to plan, schedule
and carry out culvert repairs and replacements or any other such
natural resource management or regulatory action.”
It’s interesting now to read a story I wrote in
January of 2001 to see the fears expressed by state officials
at that time.
The state eventually lost the case, and the feared “duty” was
confirmed by U.S. District Judge Ricardo Martinez. He ruled that
the treaties require the state to “refrain from building or
operating culverts under state-maintained roads that hinder fish
passage and thereby diminish the number of fish that would
otherwise be available for tribal harvest.”
The state and tribes entered into negotiations, but they were
unable to come to terms on a time schedule for fixing the culverts.
Other issues surrounded construction standards to ensure that the
culverts were of adequate size and design for the affected
After two years, the tribes decided to give up on negotiations
and go back to court so that the judge could impose deadlines for
At that time, Jeff Koenings, former director of the Washington
Department of Fish and Wildlife, testified that spending much more
money on culverts could take away from more important restoration
efforts. (Tim Klass, reporter for the
Associated Press, covered the hearing while I was on
The last oral arguments were heard in June of 2010, and no
ruling has ever been issued.
I’ll post links to past stories and blog entries below if you’d
like to review the history of the culvert case. But it’s important
to consider that if the duty on the state is upheld, federal courts
could order the state to spend millions of dollars more to address
the culvert problem.
But why would things end there? The same duty would apply to
culverts owned by city and county governments and probably private
property owners. The same duty could have implications for all
forms of development throughout salmon country.
I know that treaty rights do not sit well with some people.
Every time I write anything about rights retained by the tribes for
more than 150 years, my stories collect reader comments about how
this treaty thing is unfair and does not comport with the American
Way. I get the feeling that some people wish treaty rights would
just go away or that somehow our state and local officials would
simply ignore the tribes.
Well, I can’t say that such change is likely, given the position
of our legal institutions, but there are two ways to make the issue
go away. First, the courts could reverse their stance by placing
certain limits on treaty rights.
Second, Congress could abrogate the treaties or simply pass new
laws ignoring them. But throughout history such attempts have
rarely been successful, because lawmakers are reminded that the
treaties were signed with the full faith and obligation of the
United States. Though the treaties were signed in another era,
Congress has maintained its obligation to a greater or lesser
extent through all these years.
Personally, I wish people would keep these issues in mind when
they write their comments, for their words can be hurtful. After
all, Native American people alive today are no more responsible for
the agreements made long-ago than any of us. As with any group,
some members have abused their rights and privileges — and we can
discuss those issues. But tribal members as a whole should never be
blamed for simply exercising their rights.
Previous stories regarding the culvert
Culvert case remains unresolved after three years, Jan. 5,
Tribes Ask Judge to Speed Up Repair of State’s Culverts, AP,
Oct. 13, 2009
Salmon and Culverts at Heart of Legal Battle Between Tribes,
Washington State, March 21,2009
Salmon Ruling Has State Pondering Highway Culverts, Aug. 27,
Tribes file lawsuit to force a culvert operation, Jan. 18,
Watching Our Water Ways entries
Culvert case about treaty rights could be a new landmark, Oct.
Fixing culverts is the next state-tribal legal battle, March
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