How will treaty rights influence environmental restoration?

Treaties signed 160 years ago guarantee Native Americans the right to take fish from Puget Sound for all time. A case now before the courts will help determine whether those same treaty rights place limits on how property is developed in the state of Washington.

Specifically, the Ninth Circuit Court of Appeals last week heard arguments about whether the state of Washington violated the treaties by building culverts that block or restrict the passage of salmon. (Check out the video for the oral arguments.) If the appeals court upholds a ruling by U.S. District Judge Ricardo Martinez, the state could be obligated to fix about 1,000 culverts within 17 years at an estimated cost of $1.9 billion, according to state officials. That’s 1.9 billion with a “b.”

In landmark rulings in 1975 and 1976, U.S. District Judge George Boldt focused on treaty language that called for Indians and non-Indians to fish “in common” with each other. Boldt determined those words to mean that the two groups must share the “harvestable” amount of fish equally. He recognized that a portion of the fish must survive the gauntlet of fisheries to spawn and produce more fish.

Boldt also acknowledged that this perpetual fishing right would have no meaning for the tribes if state actions, such as ongoing development activities, caused the salmon to go extinct. The question that must be determined for now and into the future is what specific “duty” the treaty has imposed on federal, state and local governments to protect the environment in their ongoing settlement of the Northwest.

As the tribes argue in their brief before the appeals court:

“The parties intended the treaties to secure the tribes’ ability to forever sustain themselves by fishing…. Today, empty streams and empty nets belie that promise. Salmon runs have plummeted; many are locally extirpated or completely extinct. Tribes cannot meet their needs for fish.

“Despite ancient tribal and Anglo-American traditions barring obstructions to fish passage, more than 1,100 state culverts block salmon from 1,000 miles of case-area streams. Above those culverts lie almost 5 million square meters of salmon habitat, capable of producing hundreds of thousands more harvestable adult fish each year….

“The (district) court could only decide as it did: State culverts that seal salmon out of the streams they need to survive and multiply are inconsistent with the purpose and promise of the treaties. This decision is but one small step further on a century-long path of Supreme Court and Ninth Circuit cases holding that the ‘right of taking fish’ prohibits all manner of obstacles to the exercise of that right, without requiring that each obstacle be enumerated in treaty text.”

In Friday’s hearing, state Solicitor General Noah Purcell argued strongly on behalf of the state that the lower court ruling, if upheld, essentially creates a new treaty right to control development on nontribal land. If the appeals court fails to overturn the district court’s findings, he said, there would be no limit to future litigation. The tribes could assert a treaty right to remove any obstruction that hinders salmon migration — including dams — and to block any future development that could impede salmon runs.

“On its face,” Purcell argues in his brief, “the right of taking fish in common with all citizens does not include a right to prevent the state from making land-use decisions that could incidentally impact fish. Rather, such an interpretation is contrary to the treaties’ principal purpose of opening up the region to settlement.”

The state does not deny that culverts have affected salmon runs, Purcell said. In fact, the state has spent millions of dollars on salmon restoration, with special consideration for culverts. But allowing a judge to require the state to spend money on culvert removal has powerful legal implications.

The state currently is involved in a major restoration of the Puget Sound ecosystem, including an enormous effort to restore salmon streams. Directing money toward culvert removal could displace projects with greater promise for salmon restoration, he said.

Martinez was not ignorant of the salmon-restoration efforts but said the current pace of culvert-removal was too slow. Experts in his courtroom convinced the judge that it would take more than 100 years to solve the problem at the state’s pace of culvert replacement. After his ruling, the state picked up the pace of culvert replacement, and the Department of Transportation has dedicated special funding to get the work done. But meeting the court’s deadline remains a big challenge.

It seems a little ironic that the U.S. government, which signed the treaties with the tribes, has built many dams and roads of its own that block salmon passage. Yet the U.S. government is a party, alongside the tribes, in the case against Washington state. The U.S. role in this case is simply as a trustee for the tribes, attorneys say, and the tribes still have the right to sue the federal government as well.

Purcell argued that if the court does decide that the tribes have a treaty right that forces the state to remove the culverts, then the federal government should be required to help pay those costs. After all, most of the culverts were installed according to designs approved by the Federal Highway Administration, he noted.

The three-judge panel did not appear receptive to the state’s counter-suit against the U.S. government in this case. That issue might be more suitable for the Court of Federal Claims, one judge said.

John Sledd, attorney for the tribes, pointed out that state and federal laws have long prohibited anyone from blocking streams. One can build the road system as needed for development without blocking the passage of fish, he said.

One member of the three-judge panel was Judge David Ezra, who has presided over lawsuits involving federal dams on the Snake River. Ezra asked pointed questions about how far the legal principles might go in correcting environmental mistakes of the past.

According to Sledd, the notion that Martinez’ decision could lead to all sorts of mandated restoration efforts or restrictions on future development has been overstated.

“This is the first injunction that has come up through this theory in 45 years that it has been pending in U.S. v. Washington,” he said. “I don’t think the tribes are jumping to leap on every little problem out there. This is a major problem. It’s described by the biologists as the number-one priority after protecting adequate habitat.”

Still, the case is raising concerns from the state of Oregon as well as the Washington State Association of Counties. In a friend-of-the-court brief, WSAC said the litigation may not only be costly to the state, “but, if upheld, the tribes could next sue the counties, which could result in Washington taxpayers having to provide another billion dollars or more to fix county culverts.”

Other publications:

Associated Press story by reporter Gene Johnson

Clear Passage: The Culvert Case Decision as a Foundation for Habitat Protection and Preservation by Mason D. Morisset and Carly A. Summers, Seattle Journal of Environmental Law and Policy (PDF 3.2 mb).

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