Washington culvert case seen as Western water issue

Washington Attorney General Bob Ferguson has asked the U.S. Supreme Court to overturn a ruling that he says could lead to more than just requiring the state to replace culverts.
Don Jenkins

Capital Press

Published on August 18, 2017 5:14PM

Church Creek flows through a culvert under State Route 532 in Snohomish County, Wash., in 2013. Washington Attorney General Bob Ferguson has appealed a federal court order to remove more than 800 fish-blocking culverts.

Courtesy Washington State Department of Transportation

Church Creek flows through a culvert under State Route 532 in Snohomish County, Wash., in 2013. Washington Attorney General Bob Ferguson has appealed a federal court order to remove more than 800 fish-blocking culverts.


Washington Attorney General Bob Ferguson on Thursday asked the U.S. Supreme Court to overturn a ruling that he said goes beyond how quickly one state will replace salmon-blocking culverts.

The reasoning behind the 9th U.S. Circuit Court of Appeals’ order to take out more than 800 culverts in Western Washington could be applied to removing dams, restricting farming and altering century-old water rights in Western states, including Oregon and Idaho, where tribes have similar treaty rights, according to the attorney general.

“It could be the basis for all kinds of things,” Washington Farm Bureau associate director of government relations Evan Sheffels said. “If you just replace the word ‘culverts’ with ‘water rights,’ you get a sense of how big this case could be.”

Ferguson’s appeal was the latest step in a lawsuit brought in 2001 by the U.S. government and 21 Washington tribes. A three-judge panel ruled last year that the culverts diminish fish runs and therefore violate treaties the tribes signed in 1854 and 1855. The judges said Washington was insufficiently concerned about promises that tribes would always be able to make a moderate living by fishing.

The court said the state could build bridges over streams, reroute roads or modify culverts to allow fish to pass. Replacing the culverts could cost about $2 billion, though estimates vary.

The panel in May denied the state’s motion to have the case heard by the full circuit court. In a dissenting statement, Judge Diarmuid O’Scannlain said the decision was “an ideal candidate for review” because the ruling could be “used to attack a variety of development, construction and farming practices, not just in Washington but throughout the Pacific Northwest.”

“While such speculation may sound far-fetched, in actuality, it is already occurring,” wrote O’Scannlain, whose opinion was supported by eight other justices.

Ferguson, a Democrat, said in a statement that the state should speed-up replacing culverts and that he supports salmon restoration and respects treaty rights. But he said the circuit court’s ruling was too broad.

In its brief to the Supreme Court, Washington asks the high court to reconsider whether the treaties guaranteed tribes a moderate living from fishing. The state also argues that the federal government approved the culverts and should bear responsibility, and that even if the culverts are removed other fish barriers will remain.

The brief elaborates on points made by O’Scannlain. “As the dissent pointed out, the same reasoning could be used to demand any number of changes in longstanding governmental and private practices, from the ‘removal of dams’ to altering farming practices to the elimination of century-old water rights,” according to the attorney general’s office.

The tribes, in arguing against a rehearing by the circuit court, said the state was exaggerating the ramifications of the case and that the ruling was limited to state-owned culverts that block fish.

The tribes accused the state of taking the “radical position” that it has the authority to block streams.



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