‘Culvert case’ could be costly issue for state

Staff writerApril 13, 2013 

Lawmakers are facing more than $2.4 billion in costs to address a federal ruling handed down last month in the so-called “culvert case.”

The ruling came more than a decade after an injunction was sought by 21 area tribes claiming that poorly planned culverts are blocking salmon from reaching important spawning grounds and subsequently infringing on treaty-protected tribal fishing rights.

Culverts are often built under roadways to allow streams to flow under them.

State agency officials briefed lawmakers on the House Capital Budget Committee on the ruling’s impact Friday during a public meeting.

Tim Burns, assistant director at the Washington Department of Fish and Wildlife, told lawmakers the agency is capable of getting the work done by its 2016 deadline — if lawmakers provide the money.

Rep. Hans Dunshee, D-Snohomish, compared the ruling from the U.S. District Court for Western Washington to a state Supreme Court case that has lawmakers scrambling to move more money into basic education.

“This is sort of our McCleary a bit,” Dunshee, chairman of the Capital Budget Committee, said during Friday’s work session, making reference to the state’s education-funding mandate. “Right? Like, if we don’t act, what will they do next? But that’s kind of a bad game of chicken to play with a federal court.”

U.S. District Court Judge Ricardo Martinez’s permanent injunction, issued March 29, has two major deadlines.

First, the state has until Halloween 2016 to fix approximately 180 culverts on recreational lands. Preliminary estimates by the state’s Office of Financial Management put the cost of those repairs at $55.3 million, with the work being coordinated by the Department of Natural Resources, State Parks, and the Washington Department of Fish and Wildlife.

Second, the Department of Transportation will have until 2030 to repair or replace the 817 culverts under its jurisdiction.

Ann Briggs, a spokeswoman with the department, said dealing with those culverts is expected to cost an estimated $2.4 billion over the next 17 years.

Richard Brown, capital program manager at the State Parks and Recreation Commission, said the average cost to fix a culvert is $300,000. That doesn’t include the $30,000 each in permitting fees.

The salmon culvert legal battle stems from the 1974 U.S. District Court case, United States v. Washington. The landmark ruling, known as the Boldt Decision, ultimately was affirmed by the U.S. Supreme Court.

The decision found that when Indian tribes signed treaties in the 1850s, they reserved the right to catch up to 50 percent of the harvestable fish.

In 2007, the U.S. District Court ruled tribal fishing rights also impose “a duty on the state to refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.”

After six years of failed negotiations, Judge Martinez issued last month’s ruling, noting that the state needed to accelerate its attempts to “remedy the decline in salmon stocks and remove the threats which face the Tribes.”

In previous culvert case proceedings, the state argued the injunction would cause Washington to bear a “disproportionate burden” of meeting treaty-based duties.

It also argued the federal government managed its own land “in such a way as to create a nuisance that unfairly burdens the state.”

The Attorney General’s Office has until May 28 to decide whether to appeal the ruling.

Spokeswoman Janelle Guthrie said the attorney general has options if the state decides to fight the ruling. She said the state could file a motion asking the court to reconsider the ruling, or it could file an appeal with the Ninth Circuit Court of Appeals.

Jimmy Lovaas: 360-943-7123 jimmy.lovaas@ thenewstribune.com @jimmylovaas

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