Tag Archives: United States v. Washington

Culvert case could test extent of treaty rights

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 Poulsbo.
An old culvert on Johnson Creek carries water under Viking Way, a former state highway near Poulsbo.
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 culverts:

“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 streams.

After two years, the tribes decided to give up on negotiations and go back to court so that the judge could impose deadlines for culvert replacement.

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 vacation.)

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 case:

Culvert case remains unresolved after three years, Jan. 5, 2013

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, 2007

Tribes file lawsuit to force a culvert operation, Jan. 18, 2001

Watching Our Water Ways entries


Culvert case about treaty rights could be a new landmark,
Oct. 20, 2009

Fixing culverts is the next state-tribal legal battle, March 23, 2009