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Appeals court: Washington must fix salmon-blocking culverts

Julie Henning, right, of the Washington Deptartment of Fish and Wildlife ecosystem services division habitat program, and Melissa Erkel, left, a fish passage biologist, look at a wide passageway for the north fork of Newaukum Creek near Enumclaw on June 22, 2015. Federal appeals judges say the state of Washington has violated the treaty rights of tribes to fish by building and maintaining large pipes that allow streams to pass beneath roads but also block migrating salmon.
Julie Henning, right, of the Washington Deptartment of Fish and Wildlife ecosystem services division habitat program, and Melissa Erkel, left, a fish passage biologist, look at a wide passageway for the north fork of Newaukum Creek near Enumclaw on June 22, 2015. Federal appeals judges say the state of Washington has violated the treaty rights of tribes to fish by building and maintaining large pipes that allow streams to pass beneath roads but also block migrating salmon. AP

In a case that could have big implications for dams and other development in the Northwest, a federal appeals court panel said Monday that American Indian tribes have a right not only to fish for salmon, but for there to be salmon to catch – a ruling that affirms the duty of the United States to protect the habitat of the prized fish under treaties dating back more than 150 years.

Three judges from the 9th U.S. Circuit Court of Appeals reached their unanimous decision in a case involving culverts, large pipes that allow streams to flow under roads but which also can block migrating fish. They upheld a lower court’s 2013 ruling ordering Washington state to replace hundreds of the pipes with more fish-friendly structures, such as bridges that allow streams to flow naturally underneath them.

“The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” Judge William Fletcher wrote for the panel, adding that territorial Gov. Isaac Stevens “did not make … such a cynical and disingenuous promise.”

The ruling, praised by the tribes, was the second major court decision in as many months concerning salmon habitat in the Northwest. In May, a federal judge in Portland, Ore., ruled that a massive habitat restoration effort by the U.S. government doesn’t do nearly enough to improve Northwest salmon runs – and that federal law may require federal authorities to consider removing four huge dams on the lower Snake River in Eastern Washington.

“These are significant rulings from courts that are saying this business about protecting salmon is serious,” said Todd True, a lawyer with the environmental law firm Earthjustice, which is involved in both cases. “It’s going to require some real effort.”

Twenty-one Washington tribes sued the state over the culverts in 2001. The pipes can block fish in several ways, typically because the downstream end is elevated above the level of the stream, the angle is too steep for them to navigate, or because they become clogged with debris.

If the fish habitat is damaged or fish passage is impeded, our entire way of life is threatened.

Tim Ballew II, chairman, Lummi Indian Business Council

Seattle U.S. District Judge Ricardo S. Martinez ruled that culverts diminished salmon runs by blocking access to about 1,000 linear miles of suitable streams, and in 2013 he ordered the state to replace hundreds of the highest-priority culverts within 17 years.

The state appealed, arguing that its treaties with the tribes created no obligation to restore salmon habitat. During oral arguments last fall, a judge asked Washington Solicitor General Noah Purcell if the state had the right to dam every salmon-bearing stream that flows into Puget Sound. Purcell responded that while the state would never do that, nothing in the treaties would prevent it – an interpretation the appeals court rejected.

Washington agrees that replacing old culverts is one important part of restoring salmon runs and notes that is has spent hundreds of millions of dollars to fix fish habitat. But the state called Martinez’s 2013 order too sweeping and expensive, and said it would force the state to focus on fixing culverts even when salmon-restoration dollars could be spent more effectively elsewhere.

The state is reviewing the decision and did not have any immediate comment, a spokesman for the Attorney General’s Office said in an email.

Officials argued during the case that if the tribes had a right to habitat restoration, they could conceivably sue the state for virtually anything that impairs salmon, such as state or utility district-owned dams that block salmon passage.

Lummi Indian Business Council Chairman Tim Ballew II hailed the appellate ruling.

“If the fish habitat is damaged or fish passage is impeded, our entire way of life is threatened,” Ballew said in a press statement, noting the tribe has fought for this case since its start.

“Today’s court decision is about managing a healthy fishery for all of the community,” Ballew said. “And ultimately, our treaties demand a meaningful fishery – one where there is good habitat that allows us to put fish on our dinner table.”

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