Northwest tribes have a knack for winning federal-court lawsuits to enforce treaty rights and force the state of Washington to honor them.
In the latest, the U.S. Supreme Court refused to take up the state’s appeal in a 17-year battle over who pays to install or replace stream culverts where salmon runs are blocked from reaching habitat.
The court’s decision on Monday means that the 9th Circuit Court of Appeals’ decision from last year stands. And that means Washington taxpayers must pay to fix more than 900 culverts as part of upholding tribes’ treaty fighting rights and to protect or restore habitat for threatened salmon runs before it is too late.
In effect, the culvert case affirms that habitat protection – implied in earlier federal fishing cases – is an extension of the treaty right to harvest fish. The case rests in part on the notion that if salmon runs go extinct, the tribal right to half is literally nothing.
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“For us it’s a great victory,” Arnold Cooper, chairman of the Squaxin Island Tribe, told The Olympian Editorial Board after the high court split 4-to-4 on whether to hear the case.
But Cooper added: “This win is not just for the tribes. It is for everybody” who wants to see iconic salmon runs recover.
More than 20 tribes in Western Washington sued over inadequate or failing culverts on streams that feed into Puget Sound, the Strait of Juan de Fuca and northern areas of the Pacific Coast.
The court decision was the eighth in a row to uphold Northwest tribal treaty rights, Squaxin tribal attorney Kevin Lyon told the Editorial Board. Lyon said the habitat-protection part of the case did not get fleshed out initially in the landmark 1974 case decided by federal Judge George Boldt, which said treaty tribes were entitled to half of the sustainable catch of salmon.
Washington state is on a pace to fix some 90 percent of its problem culverts but not until 2030. Local governments were not part of the case but could potentially have work to do, too.
Fixing culverts to fully comply with the lower court orders could cost the state $3.7 billion, according a news report last week by the Seattle Times, which quoted an estimate from the state Department of Transportation.
The Times reported that less, about $2.4 billion, could be needed just to replace culverts for 90 percent of the fish habitat by 2030.
Though Attorney General Bob Ferguson had a point in saying the federal government approved some state culvert designs, which made it unfair for the state to shoulder all the costs, the argument is over.
The ruling's finality ought to end excuse-making by state government.
Political leaders including Gov. Jay Inslee and our state Legislature must step up with a clear plan to pay for replacing or installing culverts on the promised schedule, if not sooner. Our leaders must think big.
A working group that includes government and tribal scientists has been meeting quietly since lower court rulings to talk about implementation of the ruling, if it was upheld, according to Jeff Dickison, assistant director of natural resources for the Squaxin.
Also, Dickison said the state DOT was collaborative in its approach to a recent culvert project near the Squaxins’ Little Creek Casino at Kamilche, west of Olympia.
But frank discussions need to get under way at the highest levels of government and in the Legislature if we'll see meaningful funding before it's too late.
"The main cause of the salmon’s decline is that we are losing habitat faster than it can be restored. The ruling will result in a net gain of habitat that salmon badly need,” Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, said in a statement.
“Today’s ruling shows that our treaties are living documents. They are just as valid today as the day they were signed,” Loomis added.
What matters now is that culvert projects get completed to remove the biggest obstacles to fish passage, and in the quickest fashion. Tribes should help shoulder technical work that sets priorities and produces better culvert designs.
As Dickison noted, culverts need to accommodate increased water flows due to future upland development and to handle the wetter winters predicted as a result of climate change.
Cooper said tribes are just waiting to sit down with the state and other parties to find ways to move forward and solve habitat and water quality problems.
That can't happen soon enough. These problems were inherited from earlier generations, but it’s too late to hand them back. Good faith action is the only way forward.