Court: State Must Replace Salmon-Blocking Culverts

The 9th Circuit Court of Appeals declined to consider an appeal of a ruling that it must replace culverts that block or hinder salmon migration.

The 9th Circuit Court of Appeals declined May 19 to consider the state of Washington’s appeal of a ruling that it must replace culverts that block or hinder fish migration.

The state attempted to challenge a 2013 ruling by U.S. District Court Judge Ricardo Martinez that culverts comprise a violation of treaty rights. In treaties signed with the U.S. in the 1850s, the treaty tribes of western Washington reserved the right to fish in their usual areas. Without fish, the treaty is violated, and Article VI of the U.S. Constitution states that treaties are the supreme law of the land.

Martinez gave the state 15 years to reopen 90 percent of the habitat blocked by its culverts in western Washington. The state has said replacing its culverts will cost at least $2 billion. Between 2013-15, the state corrected 76 fish-blocking culverts. At the current schedule, replacing the remaining 800 culverts would be completed by 2060 – 30 years past the deadline, according to the Northwest Indian Fisheries Commission.


“The salmon can’t wait that long. Our tribes and everyone else needs those culverts to be fixed as soon as possible,” Quinault Nation President Fawn Sharp said in a statement issued by her office after the 9th Circuit Court’s decision.

Sharp, a lawyer, is also president of the Affiliated Tribes of Northwest Indians and vice president of the National Congress of American Indians.

“For 15 years, we have been trying to get the state to live up to its responsibility in restoring and protecting our great Northwest salmon resource by fixing or removing the culverts that keep the fish from completing their migration. Salmon swim thousands of miles in the ocean before they return to their rivers of origin. They fight hard to get back to their spawning grounds. Impassable culverts cut their journey short.”

Salmon habitat in western Washington has taken a beating from shoreline modification, loss of forest and wetlands, groundwater withdrawals that affect stream flows, increase in impervious surfaces, and culverts that block migration.

Non-tribal commercial and recreational fisheries harvested 3 million coho and 1 million chinook, or king, salmon in 1976; those numbers dropped to 500,000 each in 2014, according to a recent report by the governor’s office.

“Many tribal fisheries have declined up to 80 percent, some have disappeared altogether,” according to the Northwest Indian Fisheries Commission. “Even the most severe fisheries restrictions, such as allowing no fisheries, have failed to restore wild salmon runs because habitat degradation is occurring faster than we can reduce or eliminate fisheries.”

Tribes release around 40 million salmon from hatcheries each year that contribute to sport, commercial and tribal fisheries. But, the NWIFC warns, “Hatchery production mitigating lost natural production cannot be reduced unless there is a commensurate increase in sustainable natural production, and habitat recovery is required for that.”

As is access to that habitat.

“Fixing fish-blocking culverts under state roads will open up hundreds of miles of habitat and result in more salmon,” Northwest Indian Fisheries Commission Chairwoman Lorraine Loomis said in a statement issued after the 9th Circuit Court’s ruling. “That means more fishing, more jobs and healthier economies for all of us.”

Lawsuit filed in 2001

The U.S. government sued the State of Washington in 2001 on behalf of the treaty tribes, as a sub-proceeding of U.S. v. Washington, which was decided by District Court Judge George Boldt in 1974 and confirmed by the U.S. Supreme Court in 1978. Boldt’s decision upheld the treaty tribes’ reserved right to fish in their usual and accustomed areas and established the treaty tribes as co-managers of the state’s salmon population.

Martinez’s ruled in 2013 that state culverts that block fish migration violate the tribes’ treaty rights because they reduce the number of salmon available for the tribes’ harvest. Martinez ruled that the tribes’ treaty-reserved rights to harvest salmon include the right to have those salmon protected so they are available for harvest.

As a co-manager of the state’s salmon population, treaty tribes are actively engaged in habitat restoration and protection. Sharp said the state has a responsibility as a co-manager to replace its culverts that block fish migration.

“Tribes like Quinault Indian Nation have harvested and depended on salmon and other Northwest fisheries resources for thousands of years." Sharp said. “Fishing, hunting and gathering have not only provided our sustenance, they are at the core of our culture and identity. It is who we are. We work hard to protect these resources, and we always will … Now we expect the state to do its duty by unblocking our rivers and allowing salmon to survive to spawn as the Creator intended.”

Loomis said, “Reserving the right to fish so that we can feed our families and preserve our culture was one of the tribes’ few conditions when we agreed to give up nearly all of the land that is today western Washington. The treaties our ancestors signed have no expiration date and no escape clauses.”