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Washington AG: State not overreacting to culvert order

The Washington Attorney General’s Office says a federal order to remove culverts leads to ‘ill-defined burdens’.
Don Jenkins

Capital Press

Published on December 14, 2017 8:17AM

The Washington Attorney General’s Office says a federal order to remove culverts leads to ‘ill-defined burdens’.

Courtesy USA.GOV

The Washington Attorney General’s Office says a federal order to remove culverts leads to ‘ill-defined burdens’.

Puget Sound tribes and the U.S. Justice Department are wrong to downplay the significance of ordering Washington to remove hundreds of fish-blocking culverts, according to the Washington Attorney General’s Office.

The attorney general, in a brief filed Dec. 11, again urged the U.S. Supreme Court to review a circuit court’s ruling that the culverts violate treaty rights. Washington said it doesn’t object to not “destroying” fish runs, but the order tees up more lawsuits holding the state responsible for providing enough fish for tribes to earn a “moderate living.”

The 9th Circuit Court’s opinion, the brief states, “imposes ill-defined burdens on the state of Washington.”

Northwest farm groups are closely watching the case. The Washington, Oregon, Idaho and Montana farm bureaus joined in a separate brief in October asking the high court to hear the state’s appeal. The farm groups echoed Washington’s argument that if left standing, the order to remove culverts could be cited as precedent in challenging other land uses seen as harming fish, including agriculture.

Washington’s petition was placed Wednesday on the Supreme Court’s Jan. 5 conference calendar. The calendar includes dozens of appeals. At least four of the nine justices must agree to take up a case.

The tribes and the U.S. Justice Department argue that the case isn’t important enough for the Supreme Court to bother with. The circuit court’s ruling only concerned state-owned culverts and doesn’t have broader implications, according to the tribes and Justice Department.

Washington responded to that argument in Monday’s brief filed.

“The Ninth Circuit opinion is not a narrow restriction on ‘destroying’ salmon runs. If it were, Washington would not have sought” review, the brief states. “In reality, the panel held that the treaties make a promise beyond the state’s control: ‘that the number of fish would always to be sufficient to provide a moderate living to the tribe.’ “

The state argues the circuit court opinion conflicts with the U.S. Supreme Court’s Fishing Vessel decision in 1979. In that case, the court said Puget Sound tribes were entitled to up to half the available fish, though the percentage could be reduced if tribe membership dwindled, as long as the remaining members were allowed to catch enough fish for a moderate living.

Washington claims the circuit court misinterpreted Fishing Vessel to impose a duty to provide a certain quantity of fish. Tribes say Fishing Vessel was about sharing fish and that the pending case is simply about whether the state can build roads across streams and destroy fish runs.


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