Tribes, State will return to court over salmon: "The tribes are trying to come up with a plan, but the state's idea is that they'll just continue at the current rate," he (Mason Morisset) said. "That's obviously not acceptable."


Everett, Wash.

Published: Monday, April 6, 2009

Tribes, state will return to court over salmon


The two sides were unable to agree on how quickly the state must repair culverts that impede salmon runs.


By Krista J. Kapralos

Herald Writer


Western Washington's American Indian tribes and state officials say they tried to settle the terms of a massive lawsuit over the past year and a half, but couldn't agree.


They're planning to meet in court in October to decide how fast the state should fix or replace culverts that block salmon from returning to their spawning grounds.


"The tribes had an expectation that this would go to trial because we weren't seeing the responses from the state like we thought we would," said Terry Williams of the Tulalip Tribes, which is leading Western Washington tribes in a joint lawsuit against the state.


The dispute over how the state should manage the culverts it owns emerged from a 1974 federal court ruling known as the Boldt Decision, in which Judge George Boldt decided that tribes who signed treaties with the federal government in the mid-1800s are entitled to half the region's fish harvest.


Since then, state and tribal leaders have sparred over what the decision means. The tribes in 2001 filed a lawsuit, technically a subproceeding of the Boldt Decision, over the thousands of broken culverts that block salmon. That lawsuit is known as the Culvert Case.


Federal Judge Ricardo Martinez in 2007 ruled that the state failed to fulfill its end of the treaties, including the 1855 Treaty of Point Elliott that covers tribes in Snohomish County. Federal agents negotiated those treaties with Indian leaders, but the state must act on its behalf by managing culverts and other state property.


In the treaties, the tribes agreed to exchange much of Western Washington for benefits including medical care and the right to continue living the way they always had. Tribal leaders argued in the Culvert Case that the state has an obligation to preserve the region's natural resources.


According to recent state reports, the state is responsible for about 3,000 culverts along more than 7,000 highway miles. About half of those crossings are barriers to fish.


Nearly 175 of those damaged culverts and other fish crossings are in Snohomish County.


According to estimates by tribal leaders, it would take the state 100 years to repair or replace damaged culverts at the rate they're doing the work now.


Since the 2007 decision, the states and the tribes have tried to agree on how fast the state should work. Those talks fizzled when lawyers for both sides couldn't agree, and when the issue was sidelined by an animated election season, said Mason Morisset, an attorney who represents the Tulalip Tribes.


"The tribes are trying to come up with a plan, but the state's idea is that they'll just continue at the current rate," he said. "That's obviously not acceptable."


The state plans to tell Martinez in October that it's already doing enough to protect salmon, state attorney Fronda Woods said.


"We don't agree with the tribes' position that (Martinez) said that every culvert violates the treaties," Woods said. "We think he was saying that this whole mess of culverts violates the treaties, but he didn't say that what we're already doing isn't an adequate remedy for that."


The state doesn't believe the tribes are entitled to anything more than they're already getting from state programs that protect salmon and other natural resources, Woods said. She added that the state doesn't necessarily believe the tribes are entitled to anything at all.


"The court doesn't need to order us to do anything more," she said.


Part of the problem is that non-Indians don't share the tribes' understanding of the region's natural history, Williams said. Tribal stories of thriving fish runs, healthy forests and vibrantly clean water are considered among Indians to be as reliable as scientific data.


Non-Indian knowledge of the region only extends as far back as the first white settlers, Williams said.


"They don't have any idea of what a natural forest looks like, and can much less imagine the fruits of it," he said.


Tribal traditions are so tied to fish, wildlife and water that when those natural resources flounder, the tribal way of life does, too, Williams said. If the state doesn't fix its culverts, he said, the Puget Sound's salmon might soon disappear.




Krista J. Kapralos: 425-339-3422,

2009The Daily Herald Co., Everett, WA