Tag Archives: Culvert lawsuit

U.S. Supreme Court justices raise questions about culvert damage

As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.

A coho salmon tries to leap into a culvert on Gorst Creek where water discharges from fish-rearing ponds. // Photo: Meegan M. Reid, Kitsap Sun

The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.

The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.

From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.

Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.

In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.

Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.

Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”

The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.

Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.

“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”

Asked Justice Elena Kagan, “I mean, do you have a number in your head?”

Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”

Purcell said he thought that half would obviously quality but not 5 percent.

“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”

“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”

Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.

“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.

Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.

“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”

Alito asked federal prosecutors in the case whether federal dams also violate the treaties.

Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.

Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.

Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.

Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.

“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.

Later, Justice Alito turned to Attorney William Jay, representing the tribes.

“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”

“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”

Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.

“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”

Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.

“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”

For further reading:

Culverts: Lawmakers face dilemma to fund improved fish passage

I’m certainly no highway engineer, but I’ve been thinking about the difference between building roads in Kansas, where I was born, and building roads in the Puget Sound region.

Kansas has its streams and wetlands to be sure, but nothing like the density of natural features that we find in the Puget Sound watershed, where land elevations change constantly and roadways must cross streams and wetlands at every turn.

For many years, road construction in the Puget Sound region involved filling wetlands and burying pipes just big enough to pass the water. It was assumed that salmon would make it through. But based on our current knowledge of salmon migration, we realize that these shortcuts took a major toll on the populations of salmon and other fish.

This week, the U.S. Ninth Circuit Court of Appeals upheld a lower court ruling requiring state agencies to correct decades of road-building mistakes that impaired salmon passage on state highways and on state forest roads. Check out Monday’s story in the Kitsap Sun.

Priority watersheds chosen by the Fish Barrier Removal Board. Puget Sound: Pilchuck Creek, Pysht River, Goldsborough Creek; Coast: Newaukum; Lower Columbia: Lower Cowlitz; Yakima River: Wilson/Cherry; Snake River: Grande Ronde Tribs, Snake River Tribs; Upper Columbia: Okanogan.
Priority watersheds chosen by the Fish Barrier Removal Board. Puget Sound: Pilchuck Creek, Pysht River, Goldsborough Creek; Coast: Newaukum; Lower Columbia: Lower Cowlitz; Yakima River: Wilson/Cherry; Snake River: Grande Ronde Tribs, Snake River Tribs; Upper Columbia: Okanogan.

The lawsuit, filed by 21 Indian tribes, was based on the idea that undersized and poorly functioning culverts severely affected the total salmon runs in violation of treaties signed in the 1850s, which promised Native Americans the right to fish forever in traditional locations.

The lawsuit did not address culverts owned by the federal government, local governments or private property owners, but the same principles apply. Steps are now being taken to improve salmon passage based on standards developed by the Washington Department of Fish and Wildlife.

Meanwhile, a state advisory committee, known as the Fish Barrier Removal Board, has been working to establish priorities with top-ranked projects providing the greatest improvement in salmon habitat.

Kitsap County Engineer Jon Brand, who serves on the board, described a two-pronged approach to set the priorities. One is to focus on priority watersheds, with the idea of making major improvements in a variety of streams in a given area. (See map above and board materials (PDF 50.4 mb), Oct. 20, 2015.) The second approach is to coordinate planning for top-priority streams, with the idea of working on entire stream systems at once. Obviously, it does not make sense to replace a culvert upstream if a downstream culvert continues to block salmon passage. Check out the list of top-30 ranked projects (PDF 57 kb).

The Fish Barrier Removal Board is putting together a funding package to be submitted to the Legislature. As Jon pointed out, some of the most effective projects for salmon passage are not in the Puget Sound region nor subject to the federal court ruling. The list also goes beyond state roadways and includes a mix of ownerships based on the watershed and stream priorities mentioned above.

State lawmakers face some difficult funding decisions. With the court order hanging over their heads, along with a 2030 deadline, they may choose to do only culvert-removal projects in the Puget Sound region, even though projects in other areas could get a greater bang for the buck. And will there be money left over to support local governments trying to improve salmon passage in their areas?

I asked Jon about the expediency of early road-builders who must have given little consideration to salmon when they filled wetlands, carved out drainage ditches and installed pipes to carry the flow of water. It was not always that way, Jon told me.

That method of road-building arrived with the invention of large earth-moving equipment, he said. In the 1800s and early 1900s, filling a stream and inserting a culvert was more difficult than building a bridge of logs, given the vast quantities of timber on the Kitsap Peninsula.

Those early log bridges no doubt caused fewer problems for salmon, but they did not last. Eventually, nearly every bridge was replaced, often by dumping fill across the stream and allowing a small culvert to carry the water.

As for my misguided notion that Kansas can ignore stream crossings because the state has no serious environmental problems, I found this language in “Kansas Fish Passage Guide” (PDF 2.3 mb), a document written for road-builders:

“In Kansas, fish passage issues caused by culverts were not recognized by road officials until about 2010, when … research indicated that culverts and low-water crossings were a significant cause of habitat fragmentation in the Kansas Flint Hills.

“Many of the threatened and endangered fish in Kansas are a type of minnow or minnow-size fish. Small fish typically are not strong swimmers, so waterfalls, water velocity and turbulence can be a barrier to passage upstream. Culverts are dark and have an atypical channel bottom that may also discourage fish passage. Lack of water depth through the culvert can restrict passage during low-flow seasons…

“Stream barriers reduce habitat range and can adversely affect fish populations upstream and downstream of the stream crossing. A severe event like a drought or oil spill in a stream segment can wipe out a species, and the species cannot repopulate the stream because of the barrier.”

Kansas has begun to prohibit blocking culverts and to address existing fish-passage issues. As the above-referenced publication states, “On the Great Plains, it’s usually easy to design and construct a stream crossing for a two-lane road to provide fish passage.”

If only that were the case in Western Washington.