State Should Drop Culvert Case Appeal

Lorraine Loomis

Lorraine Loomis

Lorraine Loomis

We are disappointed to learn that the state of Washington will continue its long-standing efforts to deny tribal treaty-reserved fishing rights by once again appealing a federal court ruling requiring the repair of hundreds of fish-blocking culverts under state roads.

The state is appealing a unanimous decision handed down in June by a three-judge panel of the 9th Circuit Court of Appeals. That ruling upheld Judge Ricardo Martinez’s 2007 decision that our treaty-reserved right to harvest salmon also includes the right to have those salmon protected so they are available for harvest.

Because the state is unlikely to fare any better in this next appeal, we think Gov. Jay Inslee should encourage State Attorney General Bob Ferguson to drop it. The money, time and effort spent denying tribes their rights could be far better spent on salmon recovery. More salmon would mean more fishing, more jobs and healthier economies for everyone, not just the tribes.

The Appeals Court ruling was not surprising. Our treaty rights have been consistently upheld by federal courts – including the U.S. Supreme Court – since the 1974 decision by Judge George Boldt in U.S. v. Washington. That ruling affirmed tribal treaty rights and recognized the tribes as co-managers of the salmon resource. The U.S. government filed the culvert case on behalf of the tribes in 2001 as a subproceeding of U.S. v. Washington.

More than 800 state culverts block salmon access to more than 1,000 miles of good habitat and harm salmon at every stage of their life cycle. The state has been fixing them so slowly it would need more than 100 years to finish the job. In 2013, Martinez gave the state 17 years to reopen 90 percent of the habitat blocked by its culverts in Western Washington.

“Washington has a remarkably one-sided view of the treaties,” Appellate Court Judge William Fletcher wrote. “Washington characterizes the treaties’ principal purpose as opening up the region for settlement. Opening up the Northwest for white settlement was indeed a purpose of the United States. But it was most certainly not the principal purpose of the Indians. Their principal purpose was to secure a means of supporting themselves once the treaties took effect.”

The court is right. Through the treaties we gave up nearly all of the land that is today Western Washington, but to ensure our survival as a people we kept for ourselves the rights to fish, hunt and gather in all of our traditional places. Our treaties are legally binding contracts and considered the “supreme law of the land” under the U.S. Constitution. They are as valid today as when they were signed in 1854-55.
The state has made its disregard of the treaties shockingly clear, going so far as to tell the Appeals Court that the treaties would not prevent the state from blocking every salmon stream in Western Washington. The state says it would never do that, yet we continue to lose salmon habitat faster than it can be restored. Salmon populations continue to decline as a result, and we have multiple listings of Western Washington salmon stocks under the Endangered Species Act.

The state has a duty to protect and restore habitat for the salmon, treaty tribes and everyone else who lives here. Denying that responsibility, and the treaty rights it represents, hurts tribal and state efforts to work together for salmon recovery. We ask Inslee and Ferguson to take a stand in the best interests of all citizens in the state and end the long, misguided attempts to deny our treaty rights.

Lorraine Loomis is chair of the Northwest Indian Fisheries Commission,