The long-running culvert case, filed by Western Washington tribes in 2001, potentially has far-reaching consequences for development and hundreds of millions of dollars of state spending to fix salmon-blocking road culverts.
A court ruling requiring billions of dollars in repairs to state road culverts hangs in the balance after oral arguments Friday before the 9th Circuit Court of Appeals in Seattle.
The 2013 injunction by U.S. District Court Judge Ricardo Martinez required the state to repair hundreds of state-owned, fish-blocking culverts over 15 years at a cost of $2.4 billion. That decision was appealed by the state of Washington.
The original suit was filed by 21 Washington tribes in 2001. Culverts were singled out in the suit as uniquely damaging to habitat because a single road culvert that is too small, or too high over a streambed for a salmon to reach, or clogged with dirt or debris, can block migration of salmon and steelhead to hundreds of miles of upriver habitat.
The state Department of Transportation (WSDOT) with the state Department of Fish & Wildlife has been identifying and repairing problem culverts since 1991 along some 7,054 miles of state highways.
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They counted 3,613 highway culvert crossings over fish-bearing streams. As of 2015, 1,976 frustrate fish passage, including more than 1,500 that each block at least 650 feet of upstream potential habitat.
WSDOT has fixed 291 culverts so far, opening about 1,000 miles of upstream habitat, including 13 projects in 2014 that restored access to 25 miles of streams.
Much of that work was completed under the injunction. The Legislature approved a $300 million, 16-year habitat-restoration program including culvert fixes in its transportation package in the last legislative session.
The question now is whether the injunction requiring the work will be overturned or modified on appeal.
Noah Purcell, arguing for the state, said the treaties, signed with Gov. Isaac Stevens in 1854 and 1855, did not secure a right to any minimum amount of salmon. The injunction also imposed a burden that was expensive, time consuming and, in many instances, to little gain, Purcell argued, because it ignores other man-made barriers to fish. (Road culverts owned by other governments, including counties, are not covered by the ruling.)
“This injunction is enormously wasteful and overly broad,” Purcell said. It also was unfair to impose repair costs on the state for culverts designed to federal specifications, he argued. If the court upholds the injunction, it ought to at least remand it to the lower court to consider federal cost sharing, Purcell said.
He drew sharp questions in particular from William Fletcher, appeals court judge for the 9th circuit. “Is that your argument, that the treaty would allow the state to entirely destroy the fishery?” Fletcher said.
Judges had equally pointed questions for John Sledd, representing the tribes. “Are you taking the position that anything that blocks salmon is a violation of the treaty? Period? Where do you draw the line?” asked David Ezra of the three-judge appeals panel.
“If we were to rule for you, and hold that principal, you could attack in the courts for years to come the construction of virtually any dam in the state, every hydroelectric plant, every construction project, every bridge, on the argument some fish might not get down (stream).”
Sledd answered that each case would have to be considered in its own right.
Tribes ceded vast land holdings to the federal government in the treaties, but as they did so, they understood that they were reserving core rights to fish that had always sustained them, said Tim Ballew II, chairman of the Lummi Nation.
“But we reserved the ability to fish in perpetuity,” Ballew said. “This case highlights the point that in order to have a meaningful fishery, there has to be good habitat.”