The state of Washington has appealed an injunction ordering the state to remove and replace by 2030 state-owned culverts that have the greatest adverse impact on the habitat of anadromous fish.
Feb. 12, 1974: U.S. District Court Judge George Boldt reaffirmed the right of tribes to act with the state of Washington as co-managers of salmon and other fish, and to continue harvesting fish in accordance with treaties the United States had signed with tribes. The tribes had ceded their land to the U.S. but had reserved the right to fish as they had always done, including at traditional locations off designated reservations. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
July 2, 1979: The U.S. Supreme Court held that the language of the treaties secures to the Indian tribes a right to harvest equal shares with nontreaty fishermen of each run of sea-migrating fish that passes through tribal fishing. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979).
Sept. 26,1980: U.S. District Judge William Orrick for the Northern District of California held there is a duty imposed upon the state (as well as the U.S. and third parties) to refrain from degrading the fish habitat to an extent that would deprive tribes of their moderate living needs. United States v. Washington (Phase II), 506 F.Supp. 187, 208 (WD WA 1980).
June 23, 1993: U.S. District Court Judge Barbara Rothstein for the District of Columbia dismissed without prejudice United States v. Washington, Phase II. All parties supported this motion. However, the United States or the tribes could reinitiate habitat-related litigation in the future.
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Jan. 12, 2001: Twenty-one Washington tribes, joined by the United States, asked the U.S. District Court to find that the state has a treaty-based duty to preserve fish runs and habitat, and sought to compel the state to repair or replace culverts that impede salmon migration.
Aug. 22, 2007: The district court held that while culverts impeding fish migration are not the only factor diminishing their upstream habitat, the state’s building and maintaining of culverts that impede salmon migration had diminished the size of salmon runs and thereby violated its obligation under treaties.
March 29, 2013: The district court issued an injunction ordering the state to significantly increase the effort for removing state-owned culverts and to replace the state-owned culverts that have the greatest adverse impact on the fish habitat by 2030.
June 27, 2016: In a unanimous 3-0 decision, the Ninth Circuit Court of Appeals let stand the injunction.
May 19, 2017: The Ninth Circuit Court of Appeals rejected the state’s petition to rehear its decision.
Jan. 12, 2018: The U.S. Supreme Court agreed to hear the state’s appeal, filed by Attorney General Robert Ferguson (17-269).
April 18, 2018: Argument scheduled at U.S. Supreme Court.