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U.S. Supreme Court to hear Washington culvert case

The U.S. Supreme Court has agreed to hear whether 19th century treaties promised tribes enough fish to make a moderate living.
Don Jenkins

Capital Press

Published on January 12, 2018 4:22PM

Last changed on January 12, 2018 4:24PM

Washington Attorney General Bob Ferguson speaks at a press event Jan. 4 in Olympia. The U.S. Supreme Court agreed Jan. 12 to hear Washington’s appeal of a federal court order to remove more than 800 culverts. Farm groups supported the appeal, warning the order to replace culverts could set a precedent for lawsuits to restrict farming, remove dams and reshuffle water rights.

Don Jenkins/Capital Press

Washington Attorney General Bob Ferguson speaks at a press event Jan. 4 in Olympia. The U.S. Supreme Court agreed Jan. 12 to hear Washington’s appeal of a federal court order to remove more than 800 culverts. Farm groups supported the appeal, warning the order to replace culverts could set a precedent for lawsuits to restrict farming, remove dams and reshuffle water rights.


The U.S. Supreme Court agreed Friday to hear Washington’s appeal of a federal court order to replace hundreds of fish-blocking culverts and decide whether 19th century treaties guaranteed Puget Sound tribes enough fish for a “moderate living.”

Attorney General Bob Ferguson said he still hopes to negotiate a settlement with the U.S. Justice Department and the 21 tribes that sued to remove the culverts.

“If we cannot reach a resolution, I have a duty on behalf of taxpayers of Washington state to present our case to the U.S. Supreme Court,” he said in a written statement.

Farm groups and some Western states joined Ferguson in asking the Supreme Court to take on the case. They argued the order by the 9th U.S. Circuit Court of Appeals sets a precedent for tribes in the West to sue to restrict farming, remove dams and reshuffle water rights.

A three-judge panel of the circuit court issued the order to remove more than 800 culverts passing under state roads. The panel rejected a motion to submit the case to the entire appeals court. A dissenting justice, Diarumuid O’Scannlain, accused his colleagues of being self-fashioned environmental regulators.

The high court has not set a date for oral arguments. Ferguson said he expected the hearing to take place in April.

He said replacing the culverts would not benefit salmon but would burden state taxpayers with removing culverts built to federal standards.

“If we do not reach a resolution that is agreeable to all parties, we hope the U.S. Supreme Court will address these concerns,” Ferguson said.

The state estimates removing the culverts would cost about $2 billion. The Supreme Court agreed to consider whether the federal government was evading responsibility for approving the culverts and mistreating Washington by forcing it to undertake an expensive and ineffective action.

In a statement briefly outlining the issues, the Supreme Court noted that it was undisputed that the federal government specified the design and granted the permits for the overwhelming majority of the culverts.

The court also noted it was undisputed that in many cases replacing the culverts won’t help salmon because other fish barriers will remain.

The court also agreed to review the circuit court’s finding that treaties the tribes signed in 1854 and 1855 promised enough fish for a “moderate living.”

Washington argues the ruling misinterpreted the Supreme Court’s 1979 Fishing Vessel decision, another case stemming from long-running litigation over Northwest treaty rights.

In that case, the court ruled Puget Sound tribes were entitled to 50 percent of the salmon, though the percentage could be revised downward if tribal membership dwindled, as long as the remaining members had enough for a moderate living.

The state argues that the ruling set a cap on the tribes’ share of the harvest, but didn’t guarantee that 50 percent would be enough for a moderate living.

The Justice Department and tribes deny the 9th Circuit Court’s ruling conflicts with the Fishing Vessel decision. They argue that the treaties would be meaningless without adequate fish runs.



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