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Farm groups: Washington culvert case not just about culverts

Farm groups and several states say the U.S. Supreme Court should review a lower-court order that could change who controls land and water in the West.
Don Jenkins

Capital Press

Published on October 6, 2017 9:20AM

Farm groups and several states are asking the U.S. Supreme Court to hear Washington’s appeal of a lower-court order that they say threatens to upend how the West manages land and water.

Courtesy USA.GOV

Farm groups and several states are asking the U.S. Supreme Court to hear Washington’s appeal of a lower-court order that they say threatens to upend how the West manages land and water.


The Washington, Oregon, Idaho and Montana farm bureaus are urging the U.S. Supreme Court to review a lower-court order that they say threatens to upend how the West manages land and water.

The 9th Circuit Court of Appeals’ command to replace more than 800 culverts in Washington sets a precedent for tribes in several states to challenge anything that could hurt fish, according to an amicus brief filed Sept. 20 by the farm groups and other business organizations.

“The court’s reasoning is not confined to culverts, but will affect land-use and water allocation decisions throughout the West,” the brief states.

A three-judge panel ruled last year that the state-owned culverts violate the treaty rights of tribes by harming their ability to earn a moderate living by fishing. The Supreme Court has yet to accept Washington’s appeal, but private groups and other Western states not directly involved in the lawsuit are already filing their reasons for the high court to decide the issue.

The tribes, represented by the federal government, are due to formally respond to Washington’s appeal later this month. Tribes have repeatedly urged Washington Attorney General Bob Ferguson to drop appeals. The tribes also prevailed in U.S. District Court.

The lawsuit is a direct descendant of the one that led to the 1974 Boldt decision, which allocated to the tribes 50 percent of the annual harvest in their historic fishing grounds.

The circuit court in 2016 ruled that treaties signed in 1854 and 1855 promised tribes an adequate supply of fish, not half of diminished runs. The deciding judges said their ruling was about just state-owned culverts in Washington and had “not opened the floodgates to a host of future lawsuits.”

Farm groups, joined by other business trade associations, dispute that. They contend the fallout from the ruling will be limited by only the creativity of tribes, judges and regulators. They warned that the decision could be used to shut out new water users and even take away existing water rights to preserve stream flows for fish.

Seven states, led by Idaho, also have filed an amicus brief asking the court to accept the appeal. The states say that tribes in Idaho, Oregon and Montana have similar treaty rights. The ruling could make state land-use laws subordinate to treaty rights, according to the states, who assured the court that their concerns weren’t overblown.

They argue the lawsuit already has influenced the Environmental Protection Agency’s regulation of water-quality standards in Washington and Maine.

Montana, Kansas, Louisiana, Maine, Nebraska and Wyoming joined Idaho in signing the brief. A spokeswoman for Oregon Attorney General Ellen Rosenblum said the office was following the case. “Oregon does have similar treaty rights. However, we have been working with the tribes on these issues, and we have a good working relationship,” the spokeswoman said in an email.

The Modoc Point Irrigation District and cattle ranchers in Klamath County, Ore., also filed a brief asking the Supreme Court to hear the appeal. The ranchers say that, like Washington, they are trapped in decades-long litigation over treaty and water rights.

Joining the state farm bureaus in their brief are the Association of Washington Business, the National Association of Home Builders, Building Industry Association of Washington, Montana Building Industry Association, Oregon Home Builders Associations, Master Builders of King and Snohomish Counties and Washington REALTORS.



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