Ruling Could Cost State Millions

            "I think it is a major addition to the treaty rights cases," Morisset said. "It is the other half of the treaty we said needs to be secured. Not only does the state have to allow the tribes to take their share of their fish, but the state cannot allow the fish runs to be destroyed if it affects the tribal share.

 

Published August 23, 2007

The Olympian

            A federal judge handed Northwest tribes another major legal victory Wednesday, upholding tribal claims that the state has a duty to avoid harming fish runs with culverts that it builds, owns or operates. The ruling could cost the state millions of dollars.

            The state Department of Transportation owns about 1,676 culverts that block fish runs. DOT officials have worked in recent years to remove 205 such barriers, which opened 480 miles of fish habitat, DOT spokesman Lloyd Brown said. Culverts are sewers or drains that cross under a road.

            Janelle Guthrie, spokeswoman for state Attorney General Rob McKenna, whose lawyers defended the state, said a hearing is set for next month to look into a remedy that satisfies Wednesday's ruling by U.S. District Judge Ricardo Martinez.

            Mason Morisset, a tribal-rights lawyer involved in fishing cases for decades, said the ruling is a breakthrough, comprising the second half of federal Judge George Boldt's original 1974 ruling that gave Northwest treaty tribes rights to half of the salmon harvests in Puget Sound.

            "I think it is a major addition to the treaty rights cases," Morisset said. "It is the other half of the treaty we said needs to be secured. Not only does the state have to allow the tribes to take their share of their fish, but the state cannot allow the fish runs to be destroyed if it affects the tribal share.

            On the question of the culvert repairs, he said, "I think we've been talking anywhere from $80 million to $100 million to fix them over time." Whether that estimate will hold up "when everybody gets out their sharp pencils, nobody knows."

            DOT spokesmen also did not know the potential cost to the state; state officials are struggling to pay for highway projects under schedules adopted by the Legislature in recent years.

            Martinez made his ruling as a partial summary judgment in favor of the tribes after rejecting a state motion to dismiss the claim. The 12-page ruling mentions that parties on both sides tried to negotiate a settlement outside court but failed.