A tie 4-4 vote by the high court upholds a lower-court decision ordering barriers to salmon migration be removed, ending a bitter decades-old controversy.

Share story

A 17-year legal battle over salmon recovery efforts in Washington has ended with the U.S. Supreme Court leaving in place a lower court order that forces state government to foot the bill for removing culverts that block fish migration.

The  victory for  21 Washington tribes with treaty-protected fishing rights resulted from the justices splitting 4-4 Monday. Justice Anthony Kennedy stepped aside from hearing the case because he participated in an earlier stage of the proceedings when he served on the 9th U.S. Circuit Court of Appeals.

“The judgment is affirmed by an equally divided court,” said the brief statement released by the Supreme Court.

At issue is whether Washington state must fix or replace hundreds of culverts. Those are  structures  that allow streams to pass beneath roads and  railroads  but can block migrating salmon if they become clogged or if they’re too steep to navigate.

Most Read Local Stories

Unlimited Digital Access. $1 for 4 weeks.

“Today is a historic decision. I think that all of Indian Country, all of the treaty tribes, are just grateful that the Supreme Court upheld the decision,” said Jay Julius, chairman of the Lummi Nation. “We believe this will be great for the rivers, for the salmon and for the citizens of Washington state.”

“Now we can roll up our sleeves and get to work, and, I hope, come up with some good places going forward to get these culverts replaced,” said Brian Cladoosby, chairman of the Swinomish Indian Tribal Community.

Washington Attorney General Bob Ferguson, who had challenged the 9th Circuit ruling, said the Supreme Court ruling marks the end of the case.

Ferguson said that the federal government provided faulty designs for culverts but that the Washington taxpayers will be footing the entire bill for the culvert replacements, which by the state’s estimates will be astronomical.

“The Legislature has a big responsibility in front of it to ensure that the state meets its obligation under the court’s ruling,” Ferguson said.

The culvert project will take years to complete, and the price tag has been in dispute.

In a petition last year to the state Supreme Court, state attorneys wrote that the state had been ordered to replace hundreds of culverts at a cost of several billion dollars.

Tribal attorneys, in a brief,  wrote that the state has overstated the scope of the 9th Circuit injunction and repeated cost estimates “that have been thoroughly discredited.”

On Monday,  in a response to a request from The Seattle Times, a state a Washington Department of Transportation estimated it would cost $3.7 billion to fully comply with the 9th Circuit ruling. It would cost a lesser amount —  $2.4 billion — to comply with a 2030 court deadline to restore 90 percent of the salmon habitat.

Paul Wagner, a WSDOT branch manager, said that the ruling covers more than 900 culverts in western Washington. Repairing a single culvert typically costs more than $1 million, and some will cost more than $20 million to replace due to expenses such as tearing up roads.

The lawsuit dates back to 2001, and was focused on the state’s obligation to repair road culverts that block salmon from habitat as they return from ocean feeding areas to freshwater spawning grounds.

Culverts that are too small, or pitched too high above the stream bed, or in other ways are unsuitable for fish passage, destroy miles of habitat above the culvert. That depletes fish runs that tribes rely on and are entitled to by treaties.

In signing treaties with the U.S. government that in the 1850s ceded millions of acres of tribal lands for non-Indian settlement, tribes reserved their right to fish at their usual and accustomed places. That right to fish was affirmed in 1974 by Seattle U.S. District Court Judge George Boldt. That decision, later upheld by the U.S. Supreme Court, also divided the catch between tribal and nontribal fishers and established tribes as co-managers of salmon with the state of Washington.

The culvert case is an extension of that decision, in which tribes have argued that their reserved treaty right is meaningless if habitat that sustains fish runs is allowed to degrade until there are no fish to catch. Courts have agreed.

State attorneys, in their petition to the Supreme Court, argued that salmon runs declined dramatically long before the state built any culverts. They also noted the highest estimate of the salmon affected by state culverts was 200,000 fish, which is a fraction of annual harvests.

The work to replace the culverts  has been going on for years.

State funding for the culvert work in the 2017-2019 biennial budget is $108.5 million.
Wagner, of WSDOT said that funding level would only restore about 50 to 60 percent of the habitat by 2030, which is well below the court-ordered level.

King County also has been involved in the salmon restoration effort.

King County Executive Dow Constantine said the high court’s decision provides “the final word on a decades-long argument.” He said that King County departments have been developing a culvert strategy that inventories  where county trails and roads block access to habitat, and will work with tribal and state scientists to fix them.

Material from The Associated Press is contained in this report.