Supreme Court Leaves Culvert Fix Order In Place

UPDATED 1:30 P.M., JUNE 11, 2018, WITH COMMENTS FROM GOV. JAY INSLEE AND NWIFC CHAIR LORRAINE LOOMIS

Washington must continue to fix fish passage as a divided Supreme Court this morning left a lower court ruling stand.

SKAGIT COUNTY’S GRANSTROM CREEK FLOWS THROUGH A BOX CULVERT THAT REPLACED A PERCHED CULVERT. AT RIGHT IS A HABITAT RESTORATION PROJECT TO BENEFIT SALMON AND WILDLIFE. (ANDY WALGAMOTT)

The 4-4 decision by the nation’s highest arbiters came after the state Attorney General Bob Ferguson had appealed a 9th Circuit Court ruling that Washington needs to make hundreds of culverts more passable to salmon and steelhead across Pugetropolis.

“The judgment is affirmed by an equally divided Court,” justices relayed in a brief opinion.

The “anti-climactic” Supreme Court action is being billed as a win for Western Washington treaty tribes, and while it’s a essentially a continuation of 1974’s Boldt Decision, it saw some sport angler interests side with native fishermen.

“Friend of the court” arguments from the Northwest Sportfishing Industry Association, Association of Northwest Steelheaders, Pacific Coast Federation of Fishermen’s Associations and others urged the court to uphold the 9th’s 2016 ruling.

The culverts case was originally brought by the Suquamish Tribe, who were joined by other tribes in Western Washington, and the basic argument, per the Northwest Indian Fisheries Commission, is that “tribal treaty rights to harvest salmon include the right to have those salmon protected so they are available for harvest.”

Even as the state is already bringing culverts up to snuff, the overall cost of the fixes — estimated to be in the billions of dollars — and that some might not actually help fish led Ferguson to appeal the Ninth’s 2016 ruling “on behalf of the taxpayers.”

In a statement out this morning, Ferguson said it was “unfortunate” that Washington taxpayers would how have to bear the burden of “the federal government’s faulty culvert design” and said that state lawmakers now have “a big responsibility” to fund work bringing fish passage up to standards.

But he also said that other government agencies have their work cut out for them too.

“Salmon cannot reach many state culverts because they are blocked by culverts owned by others. For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state. These culverts will continue to block salmon from reaching the state’s culverts, regardless of the condition of the state’s culverts, unless those owners begin the work the state started in 1990 to replace barriers to fish,” Ferguson said.

King County Executive Dow Constantine also released a statement that reads in part:

“We must do whatever it takes to ensure the survival of our Chinook, kokanee, steelhead, and Coho for future generations. Under my direction, King County departments have already been developing a culvert strategy that inventories where county roads, trails, and other infrastructure block access to habitat, and we will work with tribal and state scientists to assess where fix them, beginning with those that bring the most benefit to salmon.”

Hilary Franz of the Department of Natural Resources was the first state leader to react to the Supreme Court, tweeting, “Today’s decision affirms that it is our collective responsibility to ensure the survival of Pacific salmon. This decision is fair under the letter of the law, but it is also just.”

By early afternoon Gov. Jay Inslee put out a statement on Facebook, saying that the justices’ action “offers the parties finality in this long-running case.”

“For some time now I’ve hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat. Ensuring adequate fish passage is crucial to our efforts to honor tribes’ rights to fish, sustain our orcas, and protect one of Washington’s most iconic species,” he said.

Inslee pointed out that Washington was working to fix 425 blockages by 2030.

According to Northwest Indian Fisheries Commission Chair Lorraine Loomis this is the eighth time the state has gone to the Supreme Court over treaties, and eighth loss.

“The salmon resource is priceless. Fixing culverts and doing the other work needed to save that resource will require significant investment, but will pay off for generations to come,” she said in a statement. “We are eager to continue our efforts with our co-managers and others to protect and restore the salmon resource for future generations.”

On Piscatorial Pursuits, a sportfishing forum, it was termed both  “another step backward” and a “huge step forward.”

Justice Anthony Kennedy, who served on the 9th Circuit Court and was involved in the case at an earlier stage, withdrew himself from hearing arguments from the state AGO, federal Department of Justice and Suquamish Tribe attorney this spring and today’s decision.

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