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Culvert Ruling Backs Tribes

August 23, 2007

Linda Mabes, reporter, Seattle Times

"This could be very big," said Mason Morisset, an attorney representing tribes in the case. "If it stands, you will see tribes assert themselves on a broad range of activities to protect the habitat. Whether it's clearing wetlands or building roads and developments ... , if we can show you are going to have a net loss of habitat, that is a treaty rights violation."

In a landmark decision more than 30 years in the making, a federal judge Wednesday ruled the state can't build or maintain road culverts that hurt fish passage or diminish fish populations because that violates tribal treaty rights to fish.

The case has broad implications to spur the pace and increase the cost of state culvert repairs already under way around Western Washington. The ruling by U.S. District Judge Ricardo S. Martinez, expected to be appealed, could also lead tribes to seek other habitat protections.

The judge posed no remedy in the decision; that's a step that will begin next week. Fixing more culverts faster is sure to be on the table. And that is going to be expensive.

"I'm not going to use the 'B' word, but it's millions of dollars," said Fronda Woods, assistant attorney general for the state of Washington, the defendant in the case.

The case pertains to fish habitat everywhere north of the Columbia River and west of the Cascade crest, affecting the treaty rights of about 20 tribes that brought the suit.

No state agency faces a bigger potential bill than the Department of Transportation, with about 800 culverts in Western Washington to fix.

"I have great concern from a budget perspective," said Paula Hammond, interim transportation secretary.

The agency has already spent $40 million identifying and fixing problem culverts since 1991 and intends to spend $69 million more over the next 12 years. Now it looks like that won't be enough.

"It's likely hundreds of millions of dollars of corrections that would need to be made," Hammond said. "We don't have those kinds of funds, and you have to weigh this against the costs for maintaining and preserving our existing infrastructure."

The ruling didn't speak to culverts built and maintained by local governments, raising questions about broader implications of the decision.

"What's next?" Hammond asked. "Think about a stream as it crosses a city street and a county road and a state highway as it makes its way to Puget Sound.

It doesn't solve the problem unless you correct the whole corridor, and if we can't afford it at the state level, the local agencies certainly can't," Hammond said.

For tribes, the ruling was a long-awaited culmination of the original Boldt decision, U.S. vs. Washington. In that case, tribes sought not only affirmation of their treaty right to fish in their usual and accustomed places, but protection of habitat to ensure that fish would always be there to catch.

The first part of the case was decided in 1974, affirming tribes' treaty right to half the catch. But the habitat questions raised in the case have been wending their way through the courts ever since.

"Oh boy, this is a celebration day," said Billy Frank Jr., a Nisqually elder and chairman of the Northwest Indian Fisheries Commission, formed to implement the Boldt decision.

All of the things we had when we signed the treaty is slowly disappearing," Frank said. "If the fish aren't here, what is the treaty all about? What is the thing we signed in good faith, the peace treaty in 1854? What is the meaning of all that? In our time, and for our children and grandchildren and for their children yet unborn, this is what it means: that we have to have our fish here."

That doesn't mean turning the clock back: "I don't think anyone is saying they are going to close down I-5," Frank said. "In order for us all to live together, we are not turning the lights off.

"But we have to do a better job at what we are doing. We have to have the leadership and the guts to make it happen, and we haven't had the political will for salmon in this state," Frank said. "We need the political will to bring the salmon back and have a home when they get here."

Lynda V. Mapes: 206-464-2736