What Is The Cause Of Action The Tribes Are Claiming Under The Culvert Case?
The Washington State Department of Transportation and other state agencies have built road culverts that either were improperly designed and installed or have failed to maintain adequate fish passage. Fish blocking culverts contribute to the loss of spawning and rearing habitats for the salmon resource. They have diminished and destroyed hundreds of miles of salmon habitat and fish production. This loss of fish production has contributed to the lack of necessary non-Indian and tribal treaty-reserved fishing.
The suit challenges only barrier culverts under state roads that affect salmon runs passing through the tribes’ usual and accustomed areas fishing areas, as defined in United States vs. Washington. It does not challenge other issues, such as water rights, agricultural practices or urban land use.
Why Are The Tribes Bringing An Action At This Time?
A 1997 report by the Washington State Department of Transportation (WDOT) and Washington Department of Fish and Wildlife (WDFW) estimates it would take 20 to 100 years to fix problem culverts using current funding sources.
Neither the salmon resource nor the tribes can wait that long. The salmon resource, the treaty-reserved rights of the tribes, and tribal economies will be lost long before the state gets around to dealing with the problem.
Implementation of ESA has brought the salmon issue to a crisis level. While the tribes continue to restrict or eliminate their own fisheries, the state of Washington maintains a business as usual approach to the exercise of its authorities. For example, an independent scientific review of the state’s Salmon Recovery Plan revealed exactly what the tribes suspected; a plan based on maintaining status quo. The state recovery plan articulates a strategy to address fish blocking culverts over decades. The state has permitted the construction of fish blocking culverts, yet turns its back on any meaningful enforcement or restoration. The tribes are bringing this court action to help stem the tide of continual destruction of salmon habitat and to ensure that there are ceremonial, subsistence, commercial, and recreational fisheries in this state.
Why Are Tribes Targeting Fish Blocking Culverts?
Fish-blocking culverts are considered one of the most pervasive impediments to productive salmon habitat in the state, and yet are among the easiest and most cost-effective problems to correct.
The WDOT/WDFW report identified 363 culverts under state roads that need correction. The agencies closely surveyed 193 of those culverts and 177 were identified as offering a significant amount of habitat gain above the blockage. The 177 culverts block 249 linear miles of salmon spawning and rearing habitat. The report concludes that even if only half of the fish-blocking culverts under state roads were repaired, 200,000 more adult wild salmon could be produced annually.
Fixing the barrier culverts statewide would result in an economic benefit far exceeding the repair costs.
Are The Tribes Seeking Veto Power Over The State Of Washington In How It Builds And Maintains Its Roads?
No. The tribes have never sought veto power over the sovereign authorities of the state of Washington. However, the tribes argue that their treaty-reserved right prevents the state from continually allowing the destruction of the fish habitat and the fishery resource. The state does not have the authority to allow for the destruction of the cultures and economies dependent on the fisheries resource. The state can neither monopolize the salmon resource, nor destroy it through the destruction of the spawning and rearing habitats of our salmon resource.
Won’t Implementation Of The ESA Deal With The Culvert Issues?
No. First of all, ESA – a law of last resort – is designed to address only species that are threatened by extinction; many other species of salmon are in trouble. In addition, for ESA-listed species, it is not clear whether the Act will result in recovery sufficient to meet treaty rights. The tribes hope that this court action will help stem the tide of further listings under ESA and contribute to meaningful recovery of all salmon stocks impaired by poorly constructed or maintained culverts.
How Does The Case Affect The Tribes’ Commitment To Cooperative Approaches To Salmon Recovery?
Not at all. Recovering wild salmon is the primary goal of the treaty Indian tribes in western Washington. The tribes remain committed to participating in any collaborative process that meaningfully addresses salmon recovery.