The 9th U.S. Circuit Court of Appeals says the state must replace hundreds of culverts that block passage for salmon to spawning grounds

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The 9th Circuit Court of Appeals has affirmed the state must repair culverts that block passage for salmon to spawning grounds.

The decision handed down Monday marks the third time tribes have won their fight in court to hold the state to the promise of the treaties tribes signed in 1854 and 1855 ceding their lands to the federal government. In return, tribes reserved their right to continue to fish in their usual places.

The court affirmed the federal government also was assuring tribes they would have fish to catch.

Culverts that block salmon passage to more than 1,000 miles of streams suitable for salmon habitat deny that promise, made to tribes in the Stevens Treaties, the three judge panel affirmed. Then-Gov. of Washington Territory Isaac Stevens signed treaties with 21 tribes in 1854-1855 that provided clear title for white settlement of millions of acres of tribal lands. Those same tribes from all over Western Washington, as well as the Yakama Indian Nation, sued in 2001 to hold the state to their treaties by compelling culvert repairs.

Tribes won their case on summary judgment in 2007 and again in the U.S. District Court for the Western District of Washington in 2013, in which Judge Ricardo Martinez affirmed the state’s duty to fix culverts.

Martinez in 2013 ordered the state’s departments of fish and wildlife, parks, transportation and natural resources to accelerate work to remove, replace and repair culverts blocking upstream habitat to help restore salmon runs within 17 years.

The state’s appeal of that decision was heard in October. The state argued that the treaties did not secure a right to any minimum amount of salmon, and that the burden was too expensive and time consuming.

Culverts are pipes under roadways that carry streams and runoff. When a culvert becomes plugged by debris or crushed, salmon cannot pass through to reach their spawning grounds, and young cannot migrate to sea.

Some culverts are too small, and others are perched, or too high from the level of the stream bed for salmon to negotiate. Fixes usually require tearing out the roadbed, and are very costly. The Department of Transportation had estimated the cost of repairing more than 800 culverts within the case area at $1.9 billion over the course of the 17-year schedule.

However, the court of appeals affirmed the district court’s finding that the department greatly overestimated both the cost and the number of culverts that need to be corrected within that time frame. The state also can expect funding from the federal government for culvert repairs it must make anyway, regardless of the court case, the appeals court found.

The department is working on an updated cost estimate and project list, said Paul Wagner, biology branch manager in the environmental services office of the Washington State Department of Transportation.

About 375 culvert fixes can be deferred because together they block less than 10 percent of salmon habitat, Wagner said.

Work already is under way. Since 2013 the department has corrected 23 barriers in the case area, and WSDOT is in the process of fixing another 20 this summer, Wagner said.

Tribal leaders said Monday they are eager to step up the pace. “We encourage the state to quit fighting and sit down with us as co-managers and come up with a realistic plan and a realistic cost to remove these culverts that are blocking salmon,” said Brian Cladoosby, chairman of the Swinomish Indian Tribal Community and president of the National Congress of American Indians.

Attorneys for the state of Washington are reviewing the decision with the affected agencies to determine next steps, said Peter Lavallee, Communications Director for the Washington State Attorney General’s Office.

The state could petition for a rehearing by an 11-judge panel and, if it loses there, appeal to the U.S. Supreme Court.

Culverts are just one of the barriers to salmon recovery throughout the Puget Sound and Washington coastal communities, tribes found in a report released Monday by the Northwest Indian Fisheries Commission.

“The findings are bleak, we are continuing to lose ground because of converting land to impervious surface; forests are disappearing rapidly, water quality is not improving, shorelines continue to be degraded,” said Fran Wilshusen, habitat director for the commission. “The bottom line is we need to have fully functional connected aquatic systems if you want to have productivity for fish.”

A healthy Puget Sound is good for business, good for communities and people all over the region said Leonard Forsman, chairman of the Suquamish Tribe. “This is a good investment,” Forsman said. “A healthy Puget Sound creates jobs and opportunities and is attractive to businesses, there are lots of ways for us to win together with this ruling.”