Washington state is again appealing its responsibility to fix impassible culverts, this time to the U.S. Supreme Court. If you feel confused about our state’s priorities around salmon recovery, you are not alone. Last month Gov. Inslee approved funding for salmon and orca recovery. This month the state is objecting to a ruling that would open 1,000 miles of salmon spawning habitat.
While the state primarily objects to the cost and scope of the culvert ruling, the case is ultimately about tribal treaty rights. The 2007 case in question found that tribes not only have a right to fish for salmon, but have a right to sufficient salmon abundance. If the state is knowingly hindering salmon abundance, then tribes can object to that hindrance.
Any time a case centrally deals with treaty rights, there is potential for those rights to be strengthened or weakened. The treaty law implications of this appeal are too risky, especially given the benefits of productive salmon runs.
Like much treaty law in the Pacific Northwest, the culvert case stems from a ruling by Judge George Hugo Boldt. In 1974 Judge Boldt issued a court decision in favor of treaty-holding tribes of the Salish Sea. This ruling allocated 50 percent of the state salmon catch to tribal fishing fleets and affirmed that tribes have a right to fish in their “usual and accustomed” fishing grounds. Washington State unsuccessfully appealed that ruling twice. Since that time, the Boldt decision has been upheld and strengthened.
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The Boldt decision represents some of the most significant treaty law in the nation, however it is meaningless if there are too few fish to catch in the first place. Native fishing rights champion, Billy Frank Jr., once said “50 percent of zero fish is still zero fish.” This statement sums up the reason tribes went to court over culverts. In 2007, Judge Martinez sided with tribes on the culvert case. Under court order, the state began mediating some of the highest priority culverts.
The state’s rationale for the Supreme Court appeal is twofold. First, it’s about money. The cost to fix the culverts is estimated at around $2 billion. The governor would rather federal taxpayers pick up this tab because the state was following federal guidelines when the installing roads and culverts. I find this argument hollow. If the appeal is successful, the federal government will not be mandated to fix culverts. Furthermore, the state has already spent an untold sum of taxpayer money on fighting the initial case and appealing twice. Now we are spending more funds to fight this case a fourth time. I’m sure a bunch of culverts could have already been fixed with all those legal costs.
The second main argument for the appeal is that the Martinez decision provides a legal slippery slope for tribes to advocate for dam removal or reduction of logging in sensitive areas. This claim is problematic, because even if tribes did object, they would still have to enter into uncertain litigation proceedings. That process incurs substantial cost, time and is fraught with opportunity to see treaty rights weakened. Accordingly, tribes have been reticent to sue and instead choose mediation. For example, the Baker River Dam blocks salmon passage from the lower Skagit River. Local tribes have not sued for its removal, but instead have partnered with Puget Sound Energy to install fish passage systems. The state does not appear to be fighting tribal treaty rights directly in this appeal, but if the high court sides with the state, tribal treaty rights here and elsewhere are weakened.
As an elected official myself, I know the challenge of finding extra funds in tight budgets. However, in this case the benefits are significant. This investment would employ many people in the process and result in more productive salmon fishing seasons. Yes, the culvert fixes are expensive, but at least they are one-time costs with widely accepted benefits. Washington state is on the wrong side salmon recovery with this Supreme Court appeal. In the process they are not only squandering time and money, but also jeopardizing treaty rights.
Michael Alvarez Shepard has a doctorate in anthropology and works as a professor of practice for Goucher College. He is also an elected commissioner for the Port of Bellingham.