Ruling Could Give More Say to State Tribes

 

The tribes signed the treaty with assurances that they would be able to continue to rely on natural resources, including vast forests and streams teeming with salmon, said Mason Morisset, a Tulalip Tribes attorney.

 

The Tulalips and others may now have a strengthened hand in environmental issues.

 

By Krista J. Kapralos, Herald Writer

Published: Friday, August 24, 2007

 

American Indian tribes might soon hold more power over Washington's environment than the state itself, now that a federal court ruling forces the state to preserve healthy salmon runs promised in a historic treaty.

Tribes say they now hope to gain control over how streams are managed, where homes and roads are built and even where hunters are allowed to find game.

The landmark ruling handed down Wednesday in favor of the tribes' treaty claims brings these possibilities a step closer.

"We're guardedly optimistic that this is a giant step toward protection of the environment," Tulalip Tribal Chairman Mel Sheldon said.

Complying with Federal District Court Judge Ricardo Martinez's ruling could cost the state millions to clear out thousands of culverts that are keeping salmon from their spawning areas.

The ruling brings more focus to a decades-old decision that upheld rights to fish at "usual and accustomed grounds and stations." The promise was first spelled out to dozens of tribes in the 1855 Treaty of Point Elliott, which gave the U.S. government about a fifth of what is now Washington state.

The Tulalip Tribes, as one of the more powerful of the treaty tribes, are leading the current legal battle to ensure the rights they secured 152 years ago incorporate modern issues.

The tribes signed the treaty with assurances that they would be able to continue to rely on natural resources, including vast forests and streams teeming with salmon, said Mason Morisset, a Tulalip Tribes attorney.

Their lawsuit, which they call the Culvert Case, is part of the tribes' strategy to implement a decision made more than 30 years ago by Federal District Court Judge George Boldt.

In 1974, Boldt ruled that the tribes have a treaty right to half of all fish harvests.

The case before Martinez was designed to clarify the meaning of Boldt's ruling, Morisset said.

Culverts, which channel storm water, streams and creeks under roads, are just one cause of environmental damage, he said. The tribes could have chosen any number of environmental issues to focus on.

"These assurances (in the treaty) would only be meaningful if they carried the implied promise that neither the negotiators nor their successors would take actions that would significantly degrade the resources," Martinez wrote in his ruling.

Yet to be decided is how, exactly, Martinez will hold the state accountable.

The judge is scheduled to hear arguments as the next phase of the trial begins Sept. 24 in his Seattle courtroom. He could determine that the state already is doing enough, or set a timetable that could cost millions of dollars to meet.

State attorneys also could bring an appeal before the 9th Circuit Court of Appeals in San Francisco, which would keep the issue in legal limbo until further rulings.

"We're also aware that this will probably be fought, so hopefully we'll be able to work together with the state to find innovative ways to be in compliance," the Tulalips' Sheldon said.

The state long ago recognized the problems with culverts, and is in the midst of repairing or replacing hundreds, said Melanie Coon, a state Department of Transportation spokeswoman.

The department is responsible for about 3,000 culverts along more than 7,000 highway miles, according to a state report released this year. About half of those crossings are barriers to fish, the report states.

Taxpayers have spent more than $45 million to repair or replace them since 1991, long before the tribes filed their claim, Coon said. Another $69 million is to be spent over the next 12 years for repairs and replacements, not including money spent on repairs made during road projects, she said.

"We feel we have a really healthy program," she said.

The state has no idea when it will get every last culvert repaired.

In the ruling, Martinez wrote that the state is obligated to "refrain from building or maintaining culverts in such a manner as to block the passage of fish."

That implies that the state should repair the culverts at a faster rate, Morisset said. He hopes the judge orders the state to get the work done in no more than 15 years.

"Their schedule will get them all fixed in 100 years or something," Morisset said.

Even if the state were to repair every one of its damaged culverts, salmon would still be blocked at crossings maintained by counties and cities, Coon said.

Counties are responsible for about 54,000 miles of roadway, while cities are responsible for about 16,000 miles, according to state figures.

"A creek goes under a city street, it goes under a state highway and it goes under a county road," Coon said. "The state can fix its culverts, but then you still have a problem, because, did the county or city fix their culverts? To realize the full benefit, you have to look at the creek as a whole."

The tribes intend to do just that.

Tribal leaders view Wednesday's ruling as a legal tool they can use to advance their claim over both local and state environmental policies.

Fronda Woods, an attorney with the state Attorney General's Office, said Martinez was careful to limit his ruling to culverts.

That would make it more difficult to apply to other situations.

"I don't know what the tribes are going to do," she said. "We haven't gotten any definitive word from them that they'll file another lawsuit."

Even so, the Tulalip Tribes say pushing their legal case is part of their long-range strategy.

In 1855, tribal leaders negotiated to keep their culture and all that sustained it, said Terry Williams, director of the Tulalip Tribes' natural resources department.

That includes healthy plant life, abundant wildlife and thriving fish runs, he said.

 

"We never gave those to the United States," he said. "That's what we've been arguing, and now a judge has said, 'Yes, that's correct.'

"This is really the foundation."

Reporter Krista J. Kapralos: 425-339-3422 or kkapralos@heraldnet.com.

2007The Daily Herald Co., Everett, WA