This court case was just handed down from the 9th Circuit regarding culverts in Puget Sound, Treaty fishing rights, and the State of Washington. Here's the summary:

Tribal Fishing Rights

The panel affirmed the district court’s order issuing an injunction directing the State of Washington to correct culverts, which allow streams to flow underneath roads, because they violated, and continued to violate, the Stevens Treaties, which were entered in 1854–55 between Indian tribes in the Pacific Northwest and the Governor of Washington Territory.

As part of the Treaties, the Tribes relinquished large swaths of land, watersheds, and offshore waters adjacent to those areas (collectively, the “Case Area”), in what is now the State of Washington. In exchange, the Tribes were guaranteed a right to engage in off-reservation fishing. In 1970, the United States brought suit against the State of Washington on behalf of the Tribes to resolve a persistent conflict over fishing rights; and in a 1974 decision, the district court authorized the parties to invoke its continuing jurisdiction to resolve continuing disputes.

The panel held that in building and maintaining barrier culverts within the Case Area, Washington violated, and was continuing to violate, its obligation to the Tribes under the Treaties. The panel also held that because treaty rights belong to the Tribes rather than the United States, it was not the prerogative of the United States to waive them. (This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.)

Concerning the State of Washington’s cross-request seeking an injunction that would require the United States to fix its culverts before Washington repaired its culverts, the panel held that Washington’s cross-request was barred by sovereign immunity, and Washington did not have standing to assert any treaty rights belonging to the Tribes.

Specifically, the panel held that Washington’s cross-request for an injunction did not qualify as a claim for recoupment. The panel also held that the United States did not waive its own sovereign immunity by bringing suit on behalf of the Tribes. The panel further held that any violation of the Treaties by the United States violated rights held by the Tribes rather than the State, and the Tribes did not seek redress against the United States in this proceeding.

The panel held that the district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of their natural life or in the course of road construction project undertaken for independent reasons.

The panel rejected Washington’s objections that the injunction was too broad, that the district court did not defer to the State’s expertise, that the court did not properly consider costs and equitable principles, that the injunction impermissibly intruded into state government operations, and that the injunction was inconsistent with federalism principles.


And for the legal nerds amongst us, here is the link to the entire opinion:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/27/13-35474.pdf

Happy reading.

The summary I read in the Times http://www.seattletimes.com/seattle-news...rts-court-says/ seemed to indicate that this ruling established (or perhaps upheld?) that the state must maintain a minimum level of fish for the tribes to fish for.

What happens when the fish runs continue to decline to where the tribes contend that their "half" no longer meets that minimum and they are granted exclusive access to the runs? Mass exodus of retired fisherfolk from the state?

State has a choice. Maintain/restore the runs of give whatever's left to the Tribes. Least it will save the state money, which may be their goal all along.

cohoangler that's pretty much a different language to me.

Can you summarize if this decision good for the fish or not?

Yes. It means the State of WA has to open up access to areas currently blocked due to culverts. That means more habitat, which means more spawning areas, which theoretically means more fish.

Except that co-managers record, so far, when habitat is opened (culverts removed) that escapement goals stay constant. Fewer fish for more habitat IF they meet the goal.

Be that as it may, that really doesn't matter to the court. The court says the State is violating the tribal right to fish, and they can't do that. Simple as that.



This is also wrong. The court wouldn't have found this was an issue if it was A-ok for the State to maintain the current level of fish (meaning the culverts kept blocking x amount of habitat = x amount of supposed fish)...did you even read the decision?
page 22: 'The court found that salmon stocks in the Case Area have declined “alarmingly” since the Treaties were signed, and “dramatically” since 1985.'
Then on page 24: 'In its brief to us, Washington denies any treaty-based duty to avoid blocking salmon-bearing streams...'
Then on page 26: 'The State misconstrues the Treaties.'

Can't get much more black and white that the State has an obligation to maintain salmon runs for one reason....the tribes right to fish. This decision is fairly black and white.

While the "Culver: decision is a big finical hit for the State and will create significant heartburn it really is small potatoes for what may be coming down the road. This decision is just the first stone in the laying of a legal precedent for a strong tribal position of insuring stronger runs of salmon to assure their fishing access to them. Look over the next few years for water rights, forest practices, water quality, etc. to become the focus of assuring more salmon. This approach will assure much more robust fish populations that would ever be possible under ESA.

The really interesting aspect of this whole case is where will it go if and I believe when the tribes go after the US government once their legal foundation is solidly laid. I would think they would have a strong position for reduce interception of Puget Sound Chinook and coho stocks under the US/Canada salmon treaty. A number of other Federal actions or permitted actions (such as the operation of various dams) also have the potential to be vulnerable to this kind of action.

This case has always been more about the legal precedent that producing more fish. The vast majority of the culverts covered under the decision are on smaller streams and as such are likely to produce more coho than ESA listed Chinook.

Curt

I agree. The Tribes grab the fruit on the ground and then the State even argued that they have a right/permission to blow away stocks. The State waltzed right into that one.

It is unfortunate, given the manner in which at least some tribes have been "sharing" the shared resource that without them the fish are **cked.

I recall Sam Wright, and I think it was while he was still with WDF, argued (at least to staff) that the NI harvest was taken by dams, diversions for ag, logging, and such. Those fish were just as dead as if they were caught in a net.

The Culvert Case just raises the curtain in a State that can't/won't fund basic things like education, mental health, infrastructure maintenance...

Once again Smalma is right. The case is more about establishing a legal foundation than it is about more salmon. The Tribes believe that unless there are fish to catch, their Treaty rights don't exist. Kinda makes sense.....

So, the first step was to establish a right to fish, which they achieved with the Belloni decision; and then an allocation which they achieved with the Boldt decision (50% of the available harvest). Next was the right to ensure that there are fish for them to catch. This case has sometimes been called Boldt 2. It establishes that Treaty rights extend to habitat protection since wild salmon need good habitat to survive. The Tribes are also going after the Federal government in their "Treaty Rights at Risk" initiative, which asks the Feds to curb development that is occurring through Federal authorization (e.g., Federal highway $$'s, wetland permits, etc). A quick internet search will provide lots of information on that issue.

It's likely the Tribes will start to focus on any activity that has the potential to degrade salmon habitat. As Smalma stated, that will include logging, mining, road building, hydropower, residential development, agriculture, irrigation, navigation, and the list goes on. They will likely prevail in many instances. And they will use this court case as precedent. That's good news for all of us.

But there is a limit. Clearly the Steven's Treaties (1855) contemplated develop-ment by the settlers. The Tribes knew that settlers would be coming onto their traditional hunting and fishing areas. Settlements were springing up in the territory, so they understood that more would be coming. It's not likely that anyone knew the extent to which the settlements would arise. Seattle was just getting started, and most of the territory was still wilderness. But still, the Tribes likely can't claim complete ignorance of the development issue. And they know that.

So they will likely use this newly won legal authority selectively and with great care. Indeed, that's why they selected highway culverts as the test case for extending their Treaty rights. Culverts are clearly an obstacle for salmon, they were authorized and built by the State (WashDOT), they have a link to Federal appropriations (Federal highway tax $$'s), they are clearly fixable, and replacing them has been shown to have an immediate improvement for salmon. As the lawyers might say, good cases make good law.

Further brain-storming on this issue:

It's interesting that the court held against the state's motion for cross injunction of the U.S. to fix federal culverts. True, the tribe's case is specific to state culverts and not federal ones, and that's for obvious strategic good reason. Hypothetically the tribes can later petition or sue the Feds to fix federal culverts, but that would mean biting the hand that feeds them, given that tribes receive many millions of federal $$.

Governor Stevens promulgated the treaties in behalf of the federal gov't. It would seem to follow that the federal gov't., therefore, is liable to fulfill any promises made to the tribes, specific or implied. (The implication of course, is that there would be salmon in harvestable numbers forever.) Yet the very purpose of the treaties was to release large tracts of land from tribal ownership so that the land could be settled and developed by citizens. By 1854 the federal gov't. knew, or certainly should have known, that the process of settlement and development invariably led to dramatically reduced abundance and frequent extirpation of fish stocks. They had the entire east coast as the obvious example.

Surely it's on the state to fix the culverts it owns. Let's say WA successfully does this. And then when salmon populations increase by the probable measurably miniscule amount, resulting in no significant increase in harvestable fish, then what? I have harped on the issue for many years that for every habitat improvement or restoration project, our local, state, and federal gov't. agencies approve 9 or 10 habitat degradtion projects (although they are certainly not called that, in fact that is what does happen in real life). I would almost place a bet that if all the culverts are fixed in 17 years, salmon abundance will experience a net decrease instead of an increase due to the ongoing incremental systematic degradation of habitat.

I think the feds will stall as long as possible (NOT ON MY WATCH), but will eventually have to acknowledge that society cannot have it both ways, that is, abundant wild salmon in harvestable numbers and unlimited human population growth and development. And in that moment (which will stretch across many years) the feds will have to decide what the purpose and intent of the Stevens treaties was - usual and accustomed fishing as it was in 1854 or incremental systematic settlement and development of the Washington Territory to accommodate the ever expanding human population.

More thoughts?

Sg

Human population growth, which supports expanded economic growth, is necessary to maintain society as it currently exists. Essentially, the workers support the non-workers. Unless that whole paradigm changes, growth will win out.

It will be one of those "not to decide is to decide". If everything on the Esat Coast were held static from today forward would Atlantic Salmon recover to levels that would support the local Tribes? I think not. Can the Sacramento River watershed, as it exists today, fulfill tribal needs there? No again. We will just develop here until the case is settled because the watersheds can't produce fish.

I would add that the Treaties do not mention hatchery fish or wild fish.

It is a time-honored tradition in the PNW to construct hatcheries whenever and wherever salmon habitat is lost. Most of the time it's associated with hydropower development, but not always. I realize we can't put hatcheries everywhere. We still need a source of cool, clean, disease-free water. But as habitat is degraded over time, the Tribes will continue to ask difficult questions on the limits of human habitation on Puget Sound and the Oly Pen. At some point, the prospect of additional hatcheries will arise again. I'm not sure that will ever be a good answer, but that's the direction it's going.

I had a lot of the same takeaways as Sg and Smalma. I tend to subscribe to Sg's claim that none of this will result in net benefit to fish, unless some sort of catastrophic event or pestilence wipes out a large percentage of our population, thereby slowing new development significantly. More likely, the Tribes have long seen the writing on the wall, and they're building up the legal precedents required to sue WA and the Feds into oblivion once the fish are gone.

It would be interesting to see what happened if they went after the Alaska and BC commercial fisheries. That would start something of a war. Sport fishing interests are soft and can easily be swept aside. Not so for the well-established, deep-pocketed seafood processors.

Interesting times....

Back when the US/Canada (or Canada/US if you were on that side of the border) Treaty was proposed in the 80's, the WA Tribes were preparing was was called the "All-Citizen" lawsuit. In it, the 50:50 sharing would be between US citizens and the Tribes. AK refused to support the treaty if the Tribes proceeded with the suit as AK take of WA fish would count against the non-Indian share and that would essentially close a whole bunch of Chinook fishing either in AK or here.

Bill Wilkerson offered Co-Management if the Tribes would drop the suit. If memory serves, they got co-Management, did not totally drop the suit, but pulled it from pipeline. Perhaps to be reborn later.......... And, Wilk got his treaty.

Not to add to the gloom and doom, but I tend to agree with the sentiment expressed above regarding the ever growing human impacts on Pacific salmon and Pacific salmon fisheries, especially in Puget Sound.

With regard to how that intersects with Tribal treaty fishing rights going forward in light of the "culverts decision", I'd be interested to hear how others think the Supreme Court's "moderate living" standard limitation on Treaty fishing rights may play out. In the "culverts decision", the 9th Cir. noted that the Supreme Court specified the fishing clause of the treaties guaranteed “so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say, a moderate living.”

Most if not all of the Tribes are less economically dependent on fishing than back in the 1850s. (The subsistence and especially cultural importance of fishing is another matter completely.) And the Tribes, like other segments of our society, have benefited from other aspects of modern society and the development of the Puget Sound region (better roads, hospitals/medical care, education opportunities, employment opportunities, abundant food supply at every neighborhood grocery store, etc.).

I wonder if the "moderate living standard" gloss on the Tribes' treaty fishing right combined with the Tribes' economic development in other areas (e.g., casinos and other commercial ventures) may eventually undermine any treaty-based claims they may make to significantly curtail future development and preserve/restore salmon runs and salmon habitat. Thoughts?

Good information and discussion.

Thanks.

Consider, though, if the tribes went to "full subsistence" on salmon in the same manner as many Fraser Bands. Each individual member would get a couple hundred annually...

Really great observations. I haven't thought of this, but it's likely the Tribes have.

The question you seem to be raising is that because of the "moderate living standard', the Treaty rights may have been diminished, as it relates to commercial use of salmon (putting aside ceremonial and subsistence use). In other words, if the Tribes currently enjoy a 'moderate living standard' due to unrelated economic development (for example, casinos), do the Treaty rights to salmon for commercial purposes still apply?

The Tribes certainly believe the Treaty rights to commercial salmon still apply since they are moving forward with economic development, with startling success. And I've never heard them express any concerns about their Treaty rights being at-risk because they are developing themselves economically. But as we all know, economic development (at various scales) is the root cause of the loss of salmon habitat. And if the Tribes are contributing to that loss with their own economic development (e.g., casinos), it brings that question more into focus as it relates to both Indian and non-Indian economic development and the 'moderate living standard' set by the Supreme Court. I'm not the first person to raise that issue on this BB.

My sense is that the Tribes have decided to 'cross that bridge when they come to it'. The question being raised is whether the bridge will still be there when they arrive.....

When that "moderate living" clause first became public knowledge, many non-Indian groups, particularly commercials, wanted the state to pursue it in the 80s. The state wouldn't. One could conclude that the state believed catches by Indians in the 1980s did not reach the moderate living threshold. Since runs have declined since then................