Salmon are taking a beating in Washington state.
According to a comprehensive study by the Northwest Indian Fisheries Commission, wild salmon populations continue to decline because of culverts, which block fish migration; shoreline modifications, which affect nearshore habitat; impervious road surfaces, which result in more polluted stormwater runoff; loss of forestland cover that provides nutrients and shade for streams; and an increase in the number of wells, which use water needed to recharge aquifers and streams.
The result: according to the Washington state Department of Fish and Wildlife, between 75 and 90 percent of salmon caught in Washington are hatchery-bred.
“The battle for salmon recovery is being lost for one main reason: Salmon habitat is disappearing faster than we can restore it,” the late Billy Frank Jr., NWIFC chairman, wrote in The Seattle Times on February 16, 2014. “The treaty Indian tribes are leading the fight for salmon recovery. We bring funding, operate hatcheries, conduct research, restore and protect habitat and share traditional knowledge of local watersheds to benefit everyone who lives in Washington.”
And so state Attorney General Bob Ferguson’s August 17 petition before the U.S. Supreme Court, challenging a lower court ruling that the state must replace more than 800 state-owned culverts that block fish passage, drew responses ranging from concern to rebuke from Native and state leaders.
“This is a sad day for Washington state,” Swinomish Chairman Brian Cladoosby said in a statement released by his office after Ferguson filed his petition with the high court. Cladoosby is also president of the National Congress of American Indians.
“We haven’t seen an attack on tribal treaty rights like this by the State of Washington in a very long time. It is my understanding that the state agencies responsible for repairing fish-blocking culverts asked him not to do this. [Attorney General] Ferguson has gone out of his way to attempt to undermine our treaties and our way of life. By this petition, [he] is arguing that it is perfectly OK for the state to destroy thousands of acres of salmon habitat without any consequence. It is an outrageous claim, the 9th Circuit [Court of Appeals] rejected it and we will fight him with all the strength we have.”
In 2013, U.S. District Court Judge Ricardo Martinez gave the state 17 years to replace its most troublesome culverts. Doing so is expected to cost the state as much as $2 billion. The 9th Circuit Court of Appeals upheld Martinez’s ruling.
In an announcement of his petition before the U.S. Supreme Court, Ferguson outlined reasons he is seeking the high court’s review of the appeals court’s decision.
Money should be spent on “more effective restoration efforts”: “The 9th Circuit’s decision forces the state to expend resources on projects that will not benefit salmon,” Ferguson stated. “The decision requires the state to replace culverts even when other barriers, such as dams or federal culverts, block salmon from ever reaching the state’s culvert. Money squandered on such projects could and should instead be used for more effective salmon restoration efforts.”
Feds share some responsibility: “The lower court decision forces state taxpayers to pay for problems largely created by the federal government,” Ferguson stated. “For decades, the federal government specified the design for the state’s highway culverts. The state then invented and began using a new design that is better for salmon. Then, the federal government sued Washington over the old culverts designed to federal standards. The petition asks that the federal government be blocked from bringing its claim, or at least be required to contribute to the cost of fixing the federally designed culverts.”
There are other causes of salmon population decline: “While Washington is committed to protecting salmon — spending hundreds of millions toward this goal in recent years — many factors beyond the state’s control affect [the salmon population] … including global climate change and ocean acidification,” Ferguson stated. “Therefore, the state may be unable to comply with the court’s order if factors outside the state’s control negatively affect the salmon population, regardless of how many culverts it restores.”
Ferguson said he supports culvert replacement and that “the state should increase the pace of culvert replacement.” But he hinted that the state – which is struggling to meet court mandates that it adequately fund basic education and improve the state’s provision of mental health services – may not have the money to replace culverts in the timeframe set by Martinez. According to the Northwest Indian Fisheries Commission’s math, the current pace at which the state is replacing its culverts puts completion in 2060, 30 years after the deadline.
“I will support any proposal from the Legislature, the governor or other public officials who control land use and spending decisions that would accelerate the pace of culvert replacements,” Ferguson said. “The state should not need a court order to restore salmon habitat.”
According to Ferguson’s office, the Supreme Court is expected to decide whether to take the case in fall 2017. If the court decides to hear the case, it will be argued in spring 2018, with a decision before adjournment in June that year.
Meanwhile, state Commissioner of Public Lands Hilary Franz, who heads the state Department of Natural Resources, wrote in an August 11 letter to Ferguson that she opposed an appeal. She wrote Ferguson that the state should instead “work collectively and focus on actions that address and actively aid the many concerns that our tribal governments -- and so many of our non-tribal residents -- have been raising for years” regarding culverts and the hindrance they pose to fish migration.
Franz reported in May the results of collective action. On her blog, she wrote that 43 large forest landowners – among them corporations, two cities and a Native corporation – upgraded 25,000 miles of forest road and removed 6,000 fish-passage barriers to re-open about 3,500 miles of upstream habitat to migrating fish. And they did it before the state Forest Practices Board deadline of 2021. In addition, more than 50 other large forest landowners are in the midst of making required improvements, Franz reported.
“Their efforts are worthy of special recognition because they completed their work on time, and despite the many challenges of a major economic recession,” Franz wrote.
Lorraine Loomis, chairwoman of the Northwest Indian Fisheries Commission, said of the state’s responsibility to replace the culverts it owns: “Fixing fish-blocking culverts under state roads will open up hundreds of miles of habitat and result in more salmon. That means more fishing, more jobs and healthier economies for all of us …
“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.”
Issue At A Glance
Indigenous leaders in what became the state of Washington signed seven treaties with the United States in 1854-56, ceding land to the U.S. in exchange for certain considerations. In addition, those leaders reserved land for their people, as well as “The right of taking fish, at all usual and accustomed grounds and stations.”
Article VI of the U.S. Constitution states that treaties are the supreme law of the land. The treaties signed between the U.S. and indigenous nations have as much weight under the Constitution as treaties between the U.S. and other governments.
U.S. District Court Judge George H. Boldt upheld Indian treaty fishing rights in his 1974 decision in U.S. v. Washington. His decision established the treaty tribes and the State of Washington as co-managers of the state’s salmon population.