Tag Archives: Culvert

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:

Culvert replacement costs loom as a budget problem for lawmakers

While funding for Washington’s “basic education” remains a potential budget-buster, some legislators are beginning to worry about a $2.4-billion financial pitfall involving culverts and salmon streams.

Culverts that block significant habitat are represented by dots on the map. Washington State Department of Transportation
Culverts blocking significant habitat are represented by dots on the map of Western Washington.
Washington State Department of Transportation

In 2013, a federal judge ordered Washington state to replace nearly 1,000 culverts that block or impede fish passage along Western Washington streams. The $2.4-billion cost, as estimated by the Washington State Department of Transportation, amounts to about $310 million per biennium until the deadline of 2030.

Nobody has even begun to figure out how to come up with that much money, although the WSDOT has pretty well spelled out the problem for lawmakers.

In the current two-year budget, the state is spending about $36 million to replace fish-passage barriers, according to Paul Wagner, manager of the department’s Biology Branch. That’s not including work on major highway projects.

WSDOT is asking to shift priorities around in its budget to provide $80 million per biennium for fixing culverts.

Meanwhile, Gov. Jay Inslee’s 12-year transportation plan calls for increasing revenues to provide money for various improvements throughout the state, including $360 million for culverts spread over the 12-year period.

BEFORE, where a 5-foot round culvert carried Twanoh Falls Creek under Highway 106. Washington Department of Transportation
BEFORE, a 5-foot round culvert carried Twanoh Falls Creek under Highway 106 into Hood Canal.
Photo: Washington State Department of Transportation

Even if all that funding comes to pass, the state would only make it about halfway to the goal set by the court when the 2030 deadline passes.

Although funding is a serious matter, the effect of fixing the culverts sooner rather than later could boost salmon habitat and help with salmon recovery, transportation officials acknowledge.

Out of 1,982 fish barriers identified in the state highway system, more than three-quarters are blocking “significant” habitat — defined as more than 200 meters (656 feet). That’s from a fact sheet called “Accelerating Fish Barrier Correction: New Requirements for WSDOT culverts” (PDF 4.6 mb).

AFTER, a 20-foot bottomless culvert allows stream to flow more naturally Washington State Department of Transportation
AFTER, a 20-foot bottomless culvert allows the stream to flow more naturally.
Photo: Washington State Department of Transportation

As of 2013, the agency had completed 282 fish-passage projects, improving access to nearly 1,000 miles of upstream habitat. Another 10 projects were added in 2014.

Because the lawsuit was brought by 21 Western Washington tribes, the court order applies to 989 Western Washington culverts, of which 825 involve significant habitat. The case is related to the Boldt decision (U.S. v Washington), which determined that tribes have a right to take fish, as defined by the treaties, and that the state must not undermine the resource.

The court adopted a design standard for culverts known as the “stream simulation” model, which requires that the culvert or bridge be wider than the stream under most conditions and be sloped like the natural channel.

In an effort to gear up for culvert work, the Department of Transportation established four design teams to prepare plans for 34 fish-passage projects for the next biennium and scope out another 75 projects. State officials hope that by having teams to focus on culverts and bridges, design work will become more efficient. Agencies also are working together to streamline the permitting process.

In Kitsap County, the Highway 3 culvert over Chico Creek presents a real challenge for the department, Paul Wagner told me. Everyone recognizes the importance of Chico Creek, the most productive salmon stream on the Kitsap Peninsula. But replacing the undersized culvert with a new bridge would cost more than $40 million — more than the entire budget for culverts in the current biennium.

A culvert under Kittyhawk Drive was removed last summer next to the Highway 3 culvert. Kitsap Sun photo by Larry Steagall
A culvert on Kittyhawk Drive was removed last summer next to the Highway 3 culvert, which continues to affect the flow of Chico Creek.
Kitsap Sun photo by Larry Steagall

“There are a lot of culverts,” Wagner said, “and our challenge is that those on the state highway system are more complicated and involved.”

Not only are the state highways the largest, he said, but they usually cannot be shut down during construction. State highways typically have more complicated utilities and drainage systems, and work may require buying new right of way.

Those are all issues for Chico Creek, which was rerouted when the highway was built in the 1960s. The stream was directed into a new channel parallel to the highway, crossing under the roadway at a 90-degree angle.

The new design would restore the original channel, crossing under the road at a steep angle that makes for a longer bridge. The new route also could involve changing the interchange at Chico Way.

“That project is definitely one we need to get at,” Wagner said, “but it eats up a lot of the money we need for other projects.”

Removal of a county culvert under Kittyhawk Drive has increased interest in removal of the state highway culvert, which lies immediately upstream of the newly opened channel where the county culvert was removed. See Kitsap Sun (subscription), Aug. 26, 2014.

The Legislature will determine how much money will be allocated to culverts and to some extent which ones get replaced first. New taxes could be part of the equation for the entire transportation budget, a major subject of debate this session.

Deadline to fix culverts that block salmon: 17 years

UPDATE, MAY 29, 2013
State officials have decided to appeal the Martinez decision, according to a statement from Attorney General Bob Ferguson’s office. (See Associated Press story.)

“The state remains committed to doing more to address fish passage barriers and will continue to do so as resources permit,” Ferguson said in the statement. “The implications of the case, however, stretch beyond culverts. Issues of this magnitude deserve full and thoughtful appellate review.”

The long-, long-, long-awaited court ruling in the so-called culvert case has finally been issued. The bottom line is that the Washington Department of Transportation has been given 17 years to upgrade all state culverts to accepted standards to allow fish passage.

That’s basically what 21 Western Washington tribes asked for when they proposed a court order three years ago. Actually, the tribes asked for 20 years, but Judge Ricardo Martinez subtracted the three years that they waited for a final decision in the case, first filed in 2001. See my latest story in Saturday’s Kitsap Sun, or review the history in an article published in January.

How much effect this case will have on the state budget is hard to say. The state will likely appeal, because there’s so much at stake — including the tribes’ authority to affect how the state spends its money. As I see it, under Martinez’ ruling, treaty obligations are not much different than the constitutional obligations the state has to provide “basic education.” And we all have seen how the governor and Legislature are looking under rocks to find money for that purpose.

One estimate of the cost of fixing all the culverts is $1.9 billion, but that’s assuming the state has a complete inventory. It could be more. Martinez wants to see a complete inventory within six months. People concerned about salmon will probably make sure their least-favorite state culverts are on the list.

The latest “Fish Passage Barrier Inventory” (PDF 5 mb), completed last July, identifies about 1,500 culverts that block significant upstream habitat. That inventory and other information can be found on WDOT’s website “Fish Passage.”

If you’d like to read Martinez’ ruling — which includes information on the treaties, salmon habitat needs and culvert history — download the decision (PDF 111 kb) here and the injunction (PDF 45 kb) here.

Through all these years, WDOT has not been ignoring the problem. As I have reported, the state has been upgrading culverts while doing major road repairs and also increasing the budget for stand-alone culvert replacement.

But at the current pace, it could take between 50 and 75 years to get all the work done, maybe more. These are just guesses provided to me, based on the average cost of repairs, but every culvert is different.

Near the upper end of the scale, replacement of a culvert that carries Chico Creek under Highway 3 is estimated to cost between $20 million and $30 million alone. The project will require several bridges for the four-lane freeway north of Bremerton plus on- and off- ramps in that location.

State officials are very aware of this Chico Creek culvert, which lies at the mouth of what has been called the Kitsap Peninsula’s most productive salmon stream. Salmon are getting through the culvert, but it’s a struggle. The culvert is considered a high priority by all, but replacement will probably take a special appropriation from Congress or the Legislature, or both.

As I watch our state highways deteriorate, I keep thinking back to the 1960s and early ‘70s when Washington had some of the best roads in the country. It was a pleasure to drive back then, if my memory isn’t faulty. Although money is needed to repair roads today, I think a good argument can be made that salmon were here first and should have been considered when the roads were built. Failing that, many people consider it essential to make things right now.

I should point out that the ruling does not immediately affect county roads or other projects that block the passage of salmon or affect salmon habitat. However, for better or worse, the legal principles established by the 1974 Boldt decision and reinforced by this culvert case could open the door to other types of court-ordered repairs to salmon habitat.

New bridge could improve salmon viewing

It was great to see more than 100 people turn out Satuday to remove weeds at Salmon Viewing Park on Chico Way. Check out my story in Sunday’s Kitsap Sun.

Dan Mullen and his daughter Hailey, 7, remove brush last Saturday along Chico Creek. Kitsap Sun photo by Larry Steagall
Dan Mullen and his daughter Hailey, 7, remove brush last Saturday along Chico Creek in Salmon Viewing Park.
Kitsap Sun photo by Larry Steagall

Some people came out to do a little volunteer work and get some exercise. Others had a special connection to this undeveloped park property on Chico Creek. And others wanted to get in on the ground floor of an effort to transform this overgrown property into a splendid park.

It is too early to say how this park will look a few years from now, but most everyone wants to keep it natural. Trails, interpretive signs, a couple viewing platforms and some picnic tables are being considered. I discussed the plans briefly in a story on Jan. 27.

Did I mention that this park is one of the best places to view salmon on the Kitsap Peninsula? I list it prominently on my salmon-viewing map and encourage people to visit this spot throughout the salmon-spawning season.

The old culvert under Golf Club Road.
The old culvert under Golf Club Road.

One thing being discussed at Saturday’s outing was the likelihood that a corner of this park would be needed for a new bridge to replace a culvert under Golf Club Road. The culvert, which impedes the migration of adult salmon, serves the only road that goes up to Kitsap Golf and Country Club. The county will save money by building the new bridge before taking out the old culvert.

Planners tried hard to avoid construction of a bridge altogether. One idea was to build a road that connects with Chico Way on the south side of the Chico Way bridge. Such a road would eliminate the need for Golf Club Road and allow the culvert to be removed. But planners could not find a route for a new road that would work for local residents and not do extensive damage to wetlands in the creek’s floodplain.

The new bridge will cut off a corner of Salmon Viewing Park.
The new bridge will cut off a corner of Salmon Viewing Park.

Losing a portion of the park to build a new bridge sounded like a bad thing until I talked to Steve Heacock of the Kitsap County Department of Community Development. Steve told me that planners are working on a design that would allow a trail to be built from Salmon Viewing Park under the new bridge, providing access to a salmon viewing area on the north side.

Furthermore, the bridge itself could include a viewing platform to watch salmon from above.

To span the creek, designers have proposed an arch design using precast concrete pieces that span the creek with extra room for the stream to alter its channel and overflow into its floodplain, Steve told me. The arch design, called BEBO by the company that holds the trademark, is expected to keep the cost of the new bridge within reason. County officials are seeking grants to complete the design of the bridge and move on to construction.

The artist rendering below is just one idea provided by the engineers who did the preliminary design. The plan could be altered for a more natural look.

One possibility for the new bridge over Chico Creek on Golf Club Road.
One possibility for the new bridge over Chico Creek on Golf Club Road.

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