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Ex-governor: State’s appeal of culvert order incites ‘social unrest’

Dan Evans, a three-term governor, knocks the state for seeking to overturn tribes’ court win
Don Jenkins

Capital Press

Published on April 4, 2018 9:15AM

Last changed on April 4, 2018 10:14AM

Former Washington Gov. Dan Evans sits in the state Senate chamber Jan. 14, 2015. In a brief submitted April 2 to the U.S. Supreme Court, the three-term governor accuses the state of fomenting social unrest by appealing a tribe-sought court order to remove fish-blocking culverts.

Rachel La Corte/The Associated Press

Former Washington Gov. Dan Evans sits in the state Senate chamber Jan. 14, 2015. In a brief submitted April 2 to the U.S. Supreme Court, the three-term governor accuses the state of fomenting social unrest by appealing a tribe-sought court order to remove fish-blocking culverts.


Former Washington Gov. Dan Evans accused the state in a court document Monday of stirring up social unrest by appealing an order to replace fish-blocking culverts.

Seattle lawyer Joe Mentor Jr. submitted a brief to the U.S. Supreme Court on behalf of the 92-year-old Evans. The brief supports 21 Western Washington Indian tribes that sued to remove the culverts and restore salmon habitat.

It claims Washington has a “long history of intransigence” on treaty rights and in the 1970s fomented resistance by non-Indians to enforcing treaties.

“This tension is an understandable result of conflict over a dwindling resource. But conflicts between these two groups lead to serious racial tension that the state should strive to avoid,” Evans stated.

Evans’ brief is one of nearly a dozen filed by third parties weighing in on a case that will further interpret treaties signed in 1854 and 1855. Farm groups are among those that argue forcing the state to replace culverts will bolster lawsuits to remove dams, restrict irrigation and challenge anything else potentially harmful to fish.

Attorney General Bob Ferguson, a Democrat, appealed the order by the 9th Circuit Court to upgrade more than 800 culverts by 2030 at a cost of nearly $2 billion. The Supreme Court will hear oral arguments April 18.

The attorney general’s office declined to comment on Evans’ brief.

The Washington Farm Bureau is among the organizations asking the Supreme Court to overturn the order. The group’s associate director of government relations, Evan Sheffels, called the accusation that the appeal was fomenting social unrest “a little over the top.”

“That’s clearly not the way we look at it. We look at it as trying to get clarity about what the treaties mean so we can move forward and work with sovereign nations on problems we share,” he said.

Evans was governor from 1965 to 1977 and U.S. senator from 1983 to 1989. As governor, according to the brief, he “experienced first-hand the tensions between Indian and non-Indian fishers.”

Although the treaties were between political groups, “racial tension is unavoidable since once group shares a racial characteristic that the other group does not,” according to Evans’ brief.

Mentor was Evans’ legislative counsel when Evans was in the Senate. Efforts to reach him for further comment were unsuccessful.

The appeal is the latest in a long chain of court cases stemming from a 1970 lawsuit filed by the tribes and the Justice Department against Washington. Previous decisions have allocated up to half the harvestable fish to the tribes. The case now before the Supreme Court asks whether the treaties obligate the state to ensure tribal members have enough fish to earn a “moderate” living.

Only eight justices will hear the case. Justice Anthony Kennedy recused himself, citing a 1985 decision on Washington tribal treaty rights that he participated in as a circuit court judge. If the court splits 4-4, the order to remove the culvert will stay in place, but may leave unclear whether tribes are guaranteed a moderate living from fishing.

Former Washington attorney general Rob McKenna, a Republican, submitted a brief last month on behalf of the Washington State Association of Counties and the Association of Washington Cities. The brief warns that letting the court order stand could lead to forcing local governments to undertake expensive measures to protect fish.



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