In final written arguments before next week’s U.S. Supreme Court hearing, Washington focuses on a chief concern of farm groups: If fish-impeding culverts violate tribal fishing rights, what about dams?
The brief, filed Monday by the Attorney General’s Office, strikes back at Justice Department accusations that state culverts violate treaties by pointing to federally licensed dams.
“Today, these dams provide most of the electricity in Washington, Oregon and Idaho and irrigate thousands of farms in arid areas,” according to the brief.
The court will hear oral arguments April 18 on Washington’s appeal of an order by the 9th Circuit Court to replace more than 800 culverts to restore salmon habitat. The bigger question is whether the Stevens treaties of 1854 and 1855 guarantee 21 Western Washington tribes a moderate living by fishing.
The case could result in another landmark decision interpreting tribal fishing rights in the Northwest. A previous phase of this litigation led to the 1974 Boldt decision that allocated up to half the salmon harvest to tribes.
While tribes are entitled to half the fish, they weren’t promised a particular level, the state maintains.
The federal government and tribes say that tribes didn’t cede their land to dip nets into empty rivers.
The state, along with farm groups, argues the circuit court order makes any activity that potentially harms fish a treaty violation.
The fears are exaggerated, according to the Justice Department and tribes. The case involves only culverts that substantially degrade fish runs, they say.
Tribes would have understand the treaties to protect fish runs because territorial law prohibited blocking rivers, according to the Justice Department.
The Attorney General’s Office counters that the Justice Department, and tribes, are ignoring 20th century dams.
“Respondents now claim that the treaty parties understood that any obstruction that would substantially degrade a fishery would violate the Treaties. Yet for decades starting in the early 1900s, the federal government built or licensed dams across the Northwest that would have failed this test,” according to the state’s brief.
Justice Anthony Kennedy has recused himself from hearing the appeal because as a circuit court judge in 1985 he participated in a ruling interpreting the treaties. If the court splits 4-4, the order to replace the culverts will stand.
Eleven states, led by Idaho, filed a brief asking the Supreme Court to overturn the order.