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“Go Fish”: State Told Not to Build Culverts That May Hinder Fish Passage

October 10, 2007

A federal court in Washington state has held that treaties preserving Indian fishing rights not only prohibit non-Indians from interfering with tribal members’ taking of fish, but impose a duty on the State of Washington to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest.”[1] The decision could cost the state tens of millions of dollars[2] to clean out, repair, or replace the thousands of culverts the tribes contend block fish access,[3] and impact local road construction and maintenance projects by conditioning state or federal transportation funding on culvert repair or replacement. The impact of the court’s ruling may also extend to private developers by imposing “fish-friendly culvert” conditions in permits for new private road construction projects.

Background

The decision is part of a long running dispute captioned United States v. Washington, originally filed in 1970, between Indian tribes and the State of Washington concerning Indian treaty rights. It is this case that spawned the historic Boldt[4] and Boldt II[5] decisions named for the federal district court judge who decided them, Judge George Boldt. The two Boldt decisions arose from a century-old conflict over fishing rights between the State of Washington and Indian tribes who were signatories of a series of treaties negotiated by Washington Governor Isaac Stevens with a number of Washington Indian tribes (the “Stevens Treaties”).

The Stevens Treaties

In the 1850’s, Isaac Stevens, the first Governor and the first Superintendent of Indian Affairs of the Washington Territory, negotiated treaties with tribes in the Washington Territory whereby the tribes relinquished their interest in their traditional lands in exchange for monetary payments, certain relatively small parcels of land set aside as reservations for their exclusive use, and guarantees including the protection of their “right of taking fish at usual and accustomed grounds and stations … in common with all citizens of the Territory.”[6]

The right to take fish, guaranteed to tribes in the Stevens Treaties, turned out more illusory than promised, however. Following major economic developments in canning and processing at the end of the 19th century, a significant non-Indian fishing industry developed and non-Indians began to dominate the fisheries. Eventually, through the adoption and enforcement of state laws, most Indians were excluded from harvesting the fish to which they were entitled under their treaties.[7] After World War II, the state stepped up its enforcement against tribal fishing outside reservation boundaries, and Indians were routinely arrested for attempting to fish in their “usual and accustomed” waters. In the 1930s, the state banned entirely some fishing practices employed by Indians, including gill-netting in rivers.[8] Indians continued to fish both on and off reservation in defiance of state law, and continued to get arrested for illegal fishing. By the early 1960s, a full-blown “fishing war,” often violent, had erupted between the tribes and the state as Indians and non-Indian supporters openly fished in defiance of state laws.[9]

The Boldt Decisions

In 1970 the United States entered the fray and filed suit, on its own behalf and as the tribes’ trustee, to enforce the tribes’ right under the Stevens Treaties to take fish in the treaty area. Because of the complexity of the case, Judge Boldt split the trial into phases. Phase I dealt with treaty interpretation and allocation of fish among tribes and non-tribal members. Phase II dealt with environmental issues, including the nature of the state’s obligation to protect fish habitat in order to preserve the tribes’ treaty rights.

The Phase I trial concluded with the 1974 Boldt decision holding that the fishing clause in six of the Stevens Treaties entitled the tribes to a specific allocation of the salmon and steelhead trout in the treaty area. The treaty area covered the state of Washington west of the Cascade Mountains, north of the Columbia River drainage area including the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas.

On appeal, the United States Supreme Court affirmed, holding that the tribes were entitled to the lesser of 50% of the “harvestable” fish or a sufficient quantity to provide them with a “moderate standard of living.”[10] “Both sides have a right, secured by treaty, to take a fair share of the available fish. ... [A]n equitable measure of the common right should initially divide the harvestable portion of each run that passes through a ‘usual and accustomed place’ into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount.”[11]

In the Phase II trial, held in 1980, the district court concluded that inherent in the tribes’ treaty right to fish was the right to have treaty fish protected from environmental degradation.[12] That inherent right, the court concluded, imposed a duty on the state to refrain from degrading fish habitat to an extent that would deprive the tribes of their moderate living needs.[13]

The Ninth Circuit vacated the opinion in 1983.[14] While it affirmed the district court’s conclusion that the state and tribes each had an obligation “to take reasonable steps commensurate with their resources and abilities to preserve and enhance the fishery when their projects threaten then-existing levels,”[15] the court nonetheless concluded that a declaratory judgment was not appropriate because it was not presented with a particular dispute – a specific act or omission of the state that was alleged to violate its duty of preservation and enhancement of the fishery – for which a remedy could be fashioned.[16]

Nearly two decades later, believing that they could finally present the court with such a “particular dispute,” the tribes initiated this proceeding, which came to be known as the Culvert Case.

The Culvert Case

In 2001, the tribes filed a Request for Determination in a subproceeding of United States v. Washington, seeking a determination by the court that, by maintaining culverts that blocked or hindered fish passage which left the tribes unable to sustain themselves by fishing, the state was acting in violation of the Stevens Treaties.[17] The United States joined the proceeding, supporting the position of the tribes.

In response to this latest request for judicial intervention, then-Governor Gary Locke and then-Attorney General (now Governor) Chris Gregoire issued a joint press release expressing their disappointment with the lawsuit, in part because the state was undertaking action to replace and repair culverts that were impeding the passage of fish. The Governor noted that a ruling compelling the state to repair or replace the nearly 2400 culverts it had identified as necessary for improving fish passage on a schedule different from the state’s own plans could have significance beyond just culverts and “could impose a duty that may affect other public roadways, public facilities and lands and even the regulation of land use and water.”[18]

The state eventually responded to the lawsuit by filing a motion for summary judgment in August 2006 seeking the dismissal of the tribes’ and the United States’ claims.[19] The tribes filed a cross-motion, seeking a declaration that the state was prohibited from maintaining culverts that restricted salmon access and reduced the number of fish available for tribal harvest; and that the state’s culverts, as currently designed, built, and operated, violated the tribes’ right to fish as established by the Stevens Treaties.[20]

The state made three primary arguments. First, it argued that there was no evidence that blocked culverts diminished the number of fish that were available to the tribes. Second, the state argued that the tribes could not establish that the state must provide tribal members a moderate living by fishing as a treaty obligation, because the term “moderate living” is not contained in the treaties, and is therefore “inherently ambiguous” and unenforceable. Finally, the state argued that the tribes were seeking “an implied servitude” that would burden all property – public and private – with a prohibition against impairing the Tribes’ ability to earn a ‘moderate living’ from fishing,”[21] that had no basis in the express language of the Stevens Treaties, and previously had been rejected by the Ninth Circuit in the Boldt II appeal.

In addressing the state’s first argument, the court noted that the state’s own motion conceded that many of the culverts owned or maintained by the state block fish passage.[22] The court concluded that the tribes had “produced evidence of greatly diminished fish runs,” and while there may be other contributing causes, “the conclusion is inescapable … those blocked culverts are responsible for the diminishment.”[23] With regard to the state’s assertion that “moderate living” was an unenforceable measure of the state’s duty because it was not contained in the treaties, the court agreed that the term was not contained in the treaties, but held that it was a measure created by the courts, and to the extent the term required definition, it was for the court to define.[24]

The court determined that the single question before it was whether the tribes’ treaty-based right of taking fish imposed upon the state a duty to refrain from diminishing fish runs by constructing or maintaining culverts that block fish passage. The court answered that question in the affirmative, holding that the state currently owns and operates culverts that violate this duty. However, the court rejected the contention that imposing such a duty on the state created a broad equitable environmental servitude, or an affirmative obligation owed by the state to take all possible steps to protect fish runs. Instead, the court concluded, the duty is “a narrow directive to refrain from impeding fish in one specific manner” that “arises directly from the right of taking fish that was assured to the Tribes in the Treaties …”[25]

With respect to a specific remedy, the court found that further proceedings were required “to determine an appropriate remedy.”[26] The parties are now in settlement negotiations, and both sides have committed to try to reach an agreement by the spring of 2008, after the next legislative session tackles the issue of how the state will pay for culvert repairs.[27] On August 29, 2007 the court struck the trial date and all pending motions, to allow the parties to proceed with settlement negotiations.

Implications

The state took the position in the litigation that “[t]he Tribes’ claim, carried to its logical conclusion, [will] give them a right to … control all future land management decisions in the United States v. Washington case area.” [28] That may be somewhat dramatic. Nonetheless, it is inevitable that local governments and private landowners will eventually feel the impact of this decision. Counties are responsible for about 54,000 miles of roadway, and cities are responsible for an additional 16,000 miles.[29] Privately-owned roads with culverts may lie between upstream, state-owned culverts and the sea. Local governments may find themselves required to clean out, repair, or replace culverts that block fish access as a condition of state or federal transportation funding.[30] Proponents of new developments that require state or federal action in the form of permitting decisions may be forced to address fish passage to obtain permits. Finally, road design standards, enforced at the local level by building inspectors, could be modified to require fish-friendly culverts to prevent future fish passage issues.

For more information on salmon and other endangered species issues, contact Jessica Ferrell.

[1] Order on Cross Motions for Summary Judgment, Case No. CV 9213RSM, Document No. 388 (8/22/07) (“SJ Order”), at 12, as amended by Document No. 392 (8/23/07), available at http://static.scribd.com/docs/jn98scwyp5l81.swf

[2] Mason Morisset, an attorney for the Tulalip Tribes, estimates that the cost to fix the culverts over time could range “from $80 million to $100 million.” “Ruling Could Cost State Millions,” The Olympian (8/23/07), available at http://www.theolympian.com/news/v-print/story/197662.html.

[3] SJ Order at 4.

[4] United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974), affirmed, 520 F.2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976).

[5] United States v. Washington, 506 F. Supp. 187 (W.D. Wash. 1980), aff’d in part, rev’d in part, 694 F.2d 1374 (9th Cir. 1983).

[6] Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055 (1979) (“Fishing Vessel”).

[7] Fishing Vessel, 443 U.S. at 668 – 69.

[8] 150th Anniversary Edition, The Olympian (7/19/00), available at http://news.theolympian.com/150th/96249.shtml.

[9] Alex Tizon, “25 Years After the Boldt Decision: The Fish Tale that Changed History.” The Seattle Times (2/7/99), available at http://kohary.com/env/bill_020799.html.

[10] Boldt II, 506 F. Supp. 187 at 191.

[11] Fishing Vessel, 443 U.S. at 684-85.

[12] Boldt II, 506 F. Supp. 187, 202 – 203.

[13] Id. at 208.

[14] Boldt II, 694 F.2d 1374.

[15] Boldt II at 1389.

[16] Id. “The detailed enforcement of the right to reasonable mitigation measures is not at issue here and must await resolution by the district court in the event that specific litigation is brought.”

[17] Case No. CV 9213RSM, Document No. 1 (1/12/01); Plaintiff Tribes’ Motion and memorandum in Support of Motion for Partial Summary Judgment, Case No. CV 9213RSM, Document No. 295-1 (8/14/06) (“Tribes’ MSJ”), at 2.

[18] News Release, “Joint Statement from Gov. Gary Locke and Attorney General Gregoire – Response to Filing of Boldt Phase II Lawsuit” (1/16/01), available at http://www.digitalarchives.wa.gov/GovernorLocke/press/press-view.asp?pressRelease=231&newsType=1.

[19] Washington’s Motion for Summary Judgment, and Argument in Support, Case No. CV 9213RSM, Document No. 287-1 (8/14/06) (“State MSJ”), at 2.

[20] Tribes’ MSJ at 4.

[21] State MSJ at 1-2. In responding to the tribes’ motion, the state also asserted that “[t]he potential scope of the right sought by the Tribes cannot be underestimated” and that “[i]f, as they apparently contend, their treaties are violated by any habitat degradation that reduces the number of available fish, the right would allow them to prevent or eliminate any fish habitat degradation in the United States v. Washington case area and beyond. Nearly all past, present, and future human activities in Western Washington affect anadromous fish habitat and this could be targeted by the Tribes.” Washington’s Opposition to Plaintiff Tribes’ Motion for Partial Summary Judgment at 19.

[22] SJ Order at 5.

[23] Id.

[24] Id. at 8.

[25] Id. at 7.

[26] Id. at 12.

[27] See August 29, 2007 Minute Order striking the September 24, 2007 trial date and all pending motions in limine and pre-trial motions; see, also, Lynda V. Mapes, “Culverts: State, Tribes to Negotiate,” Seattle Times (8/30/07), available at http://seattletimes.nwsource.com/html/localnews/2003859983_culvert30m.html.

[28] Washington’s Opposition to Plaintiff Tribes’ Motion for Partial Summary Judgment at 18.

[29] Krista J. Krapalos, “Ruling Could Give More Say to State Tribes,” Everett Herald HeraldNet (8/24/07), available at http://www.heraldnet.com/apps/pbcs.dll/article?AID=/20070824/NEWS01/108240077/0/BIZ&template=printart.

[30] For a discussion of this issue in the context of the Salmon Recovery Act and the recent Cowlitz County v. Martin case that addressed whether counties, cities, and tribal governments may use eminent domain power to condemn private property in order to repair and improve culverts to facilitate salmon passage, see Local and Tribal Governments May Not Condemn Private Property to Protect Salmon, http://www.martenlaw.com/news/?20070926-salmon-protection.

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