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Feds, tribes say farm groups overreacting to culvert case

The U.S. Justice Department and Puget Sound tribes are asking the U.S. Supreme Court to let stand an order that alarms farm groups in the West.
Don Jenkins

Capital Press

Published on November 29, 2017 8:32AM

The U.S. Department of Justice and Puget Sound tribes filed briefs Nov. 27 asking the U.S. Supreme Court to not hear Washington state’s appeal of a court order to remove more than 800 fish-blocking culverts. Farms groups are urging the court to hear the appeal, arguing the order sets a precedent for restricting farming, removing dams and reordering water rights.

U.S. Supreme Court

The U.S. Department of Justice and Puget Sound tribes filed briefs Nov. 27 asking the U.S. Supreme Court to not hear Washington state’s appeal of a court order to remove more than 800 fish-blocking culverts. Farms groups are urging the court to hear the appeal, arguing the order sets a precedent for restricting farming, removing dams and reordering water rights.


Lawyers for the U.S. Department of Justice and Puget Sound tribes say Western farm groups are mistaken to think a court order directing Washington to replace fish-blocking culverts foreshadows trouble for agriculture.

The department and tribes, in briefs filed Monday, asked the U.S. Supreme Court to let stand the order by the 9th U.S. Circuit of Appeals, arguing that the directive isn’t a forerunner to restricting farming, removing dams or reordering water rights.

“The court held only that the state cannot maintain culverts that block fish passage, a decision that has no implications for land use,” according to the brief filed on behalf of 20 tribes.

The briefs respond to an appeal filed by Washington Attorney General Bob Ferguson, challenging an order to replace more than 800 culverts under state roads. The appeals court ruled the culverts reduce fish runs and violate treaty rights. The Supreme Court has yet to decide whether to take on the case.

The state estimates fixing the culverts will cost nearly $2 billion, but the bigger issue is whether the order sets a precedent for tribes to challenge other structures or practices that could harm fish.

The Washington, Oregon, Idaho and Montana Farm Bureaus filed briefs in September asking the Supreme Court to hear the appeal, as did seven states, led by Idaho. The farm groups and states argue the case has far-reaching implications, particularly in Western states with treaty tribes, and should be decided by the Supreme Court.

The Justice Department and tribes downplayed the case’s importance and asked the Supreme Court to reject the appeal without a hearing.

The tribes and Justice Department sought to rebut Appeals Court Judge Diarumuid O’Scannlain, who accused the court of discovering new rights in 19th century treaties and “fashioning itself a 21st century environmental regulator.”

The order was based on “concrete facts” related to culverts, and wasn’t a broad demand to protect fish habitat, according to the Justice Department. “Hence, Judge O’Scannlain’s assertion that any activity that negatively affects fish habitat could be an ‘automatic treaty violation’ is wrong.”

The pending case is rooted in a lawsuit initiated in 1970 against Washington by the U.S. government on behalf of the tribes. Previous court rulings guaranteed tribes up to 50 percent of the fish harvest, but litigation related to the supply of fish continues.

Another point of contention is whether the order to remove culverts conflicts with the U.S. Supreme Court’s Fishing Vessel ruling in 1979. The court in that case ruled that Puget Sound tribes were entitled to half the catch, unless a tribe dwindled to “just a few members.” Then, according to the court, a 50 percent share would be “manifestly inappropriate” and could be reduced, as long as the share was enough for tribal members to make a “moderate living.”

The state argues the appeals court misinterpreted the decision as a guarantee that there would be enough fish for a moderate living.

The tribes argue the Fishing Vessel ruling was about sharing the fish and that the pending case is about whether the state can build roads across streams and destroy fish runs.



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