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................

I agree. But I believe point that BrianM is making is that the economic conditions of the Tribes has increased considerably since the 1980's. And with the development of casinos, and the economic benefits that accrue (more and better housing, better schools, secondary economic development, etc), the Tribes may have already achieved the 'moderate living standard' in the absence of lots of salmon. So, if the 'moderate living standard' has already been achieved, has this eroded the Treaty right?

This is particularly important in the context of the need for enough fish to sustain an economically viable commercial salmon harvest. So, in light of that standard, does the Treaty right to enough salmon for a 'moderate living standard' still apply to the Tribes who are, say, millionaires?

I'm NOT saying the Tribes are millionaires. Clearly, they're not. I'm just wondering whether the Treaty right to enough salmon for a 'moderate living standard' still exists, even if they were.

(Again, this does not address the issue of ceremonial, subsistence, and religious use of salmon by the Tribes.)

That could open an interesting can of worms. Boldt initially decided that 50:50 sharing was for off-reservation commercial catch. I believe it was the second review by the Supremes that folded in C&S and on-reservation. I think before one goes too far down the road of "moderate living" it would be good to look at what the actual (as best as we can determine) catch on the Fraser is by the purely C&S fishing tribes/bands and perhaps what other tribes are harvesting just for C&S.

I don't think the Tribes' current economic standing enters into the conversation. I absolutely agree that the game has changed, but because the treaty interpretation doesn't make mention of the right being conditional, it probably wouldn't be treated as conditional by the courts.

I do think the question of how Tribal development has degraded habitat over time is pertinent and should be addressed.

It could get interesting as the tribes get more wealth. I was just looking at some aerial photos of the Carbando/Wilkeson area, and one can see thousands of clear cut land, much of it owned by the Muckleshoot tribe. You can clearly see where the federal forest starts, as it is much more forested. I think with the development of the amphitheater, large casino and current forest holdings, they would have a hard time saying they are not currently part of the problem. They certainly have less impact due to their limited size, but currently can not claim to be much different. If they keep buying land, they may end up holding as much problem land within their treaty watershed, in terms of volume, as non-treaty owners.

This would be, conceptually, easy to do. First, you start with an agreed-to production of a watershed in the absence of humans of any kind. Then, you'll estimate the return for a given year, based on the historic production. Based on the management goal, all the rest is harvestable and divided 50:50. Under what are called prior interceptions would be "development harvest" based on the proportion or Treaty/non-Treaty land in the watershed. Wilderness areas would be exempted. Then, the relationship by population would take its "share". At this point, reasonably "live" fish would be left for harvest.

Carcassman,
Non-treaty vs. Treaty land would have to be also adjusted to take into account how the current development impacts or helps the current tribe. In other words, what percentage of hospitals, roads, stores, schools or other development are beneficial to the tribes current or past standing. This can become quite burdensome, because the current levels of population are obviously being exploited by the tribes through their economic enterprises. With no population here, there would be very limited use for the timber they are harvesting, there would be no one to visit the casinos, no roads to take fish to harvest, no need for gas stations. Economic standing of the tribe must be taken into account in the current situation, as it is clearly related to the development that has impacted their fisheries. If you take away the development both on and off reservation and add the resulting fish, you then can start reducing their overall economic standing.

Yes, the continuing decline of habitat, exceeding the pace of habitat restoration, is exactly what Treaty Rights at Risk is about. The tribes are on this. I seriously do not get why the non-Indian fishing communities are not on this as well, demanding better stewardship of salmon habitat. The first step is to demand that local governments make land use decisions based on the needs of salmon, or at least by taking the needs of salmon into account. The state and the feds should be pressuring the local governments to do that, but they won't touch the issue until significant numbers of their constituents demand that they do.

I do not agree that reducing human population is the only way to save habitat and salmon. If you've travelled around the world much you've seen that most places have much higher population density than we have here. We are going to have to accommodate MORE people with LESS impact on salmon. That means living a lot differently than we do now, which is the real inconvenient truth that no politician dares to talk about.

Also, the information presented at the culvert trial documented fairly substantial losses in production due to improperly designed culverts. While it is true that the case did not hinge on the exact amount of the production lost, there is a large potential gain from opening habitat above culverts. I often wonder why more people who are interested in salmon do not spread the word about salmon habitat needs to the larger public. There is so much arguing about who gets to catch the few fish available now that people forget to talk about what we need to do to gt back some of the production we have lost.

One of the reasons why folks are not behind habitat improvement is that there is no benefit to them. Local landowner in R6 asked just how many more fish he would see spawning in his restored/improved habitat. Answer was none, as the additional fish would be caught.

In the middle of reading a look at what a century of human impact has done to the avifauna of western NA. Significant reductions in top predators (birds) due to variety of reasons, with fishing being in the mix. Salmon are a critical part of the habitat; Jeff Cederholm used to say that "salmon are habitat". This piecemeal approach will not work.

Conservation of resources so we can add more people can only go so far.

Each person needs X water to survive. Our streams are already over-appropriated. We can save water by "conserving" but at some point use at X still sums up to more than we use now. Food has to be grown somewhere, wood fiber too, we need to mine metals for all those computers, and the list goes on.

Habitat-wise we can certainly do better but at some point we will still hit the wall where it is fish or humans. Europe and eastern NA have denser human populations and where are their salmon, bears, deer, elk, or other megafauna? Africa and Asia, where individual consumption is less than here are not sharing the planet with animals very well.

One of the reasons, I believe, why the "general public" doesn't see the need for habitat protection is because they don't see that their individual action is either hurting salmon or helping. Why should I, for example, reduce my water use by 10 gallons a day when that reduction will have no detectable benefit? "Somebody else" can reduce.

Like salmon fishing. AK needs to cut back, BC needs to cut back. So I cargo fishing..

And the next words were " I quit " and John had fenced off not only his property but also convinced his neighbors to do the same. This was not a feel good effort but a major fencing / set back / crossing and was a poster child for how to save a creek. That is the " Big Lie " as in most circumstances any gains made from habitat restoration over minimum MSY escapement will go to harvest.

CM/Rivrguy-

Whether the escapement goal is increased or not there are some very real benefits from habitat restoration/improvements that benefit both the fish and society. Significant habitat improvement by its very definition results in improvement in both the productivity and capacity of the stream to produce salmonids.

In the short term that means that at any escapement point (current escapement goals??) larger run sizes will be produced at given survival conditions. Those larger runs means that catches/value of the population increases. However that is secondary to what may be the most significant populations/society benefit of habitat improvements. Currently for many of the regions salmonid populations the productivity of the populations have been so compromised that there is little resiliency left in the population to recovery from any of many potential population disasters. Historically when populations where reduced to low levels (say by a major flood) population productivity was high enough that the population bounced back quickly; often in as little as a single generation. At day's productivity that bounce back may stretch over decades (multiple fish generations). This has the dual effect of greatly increasing the likelihood of extinction and increase the time interval until there would once again be fishable numbers for the fishers.

One can not over look the fact that many of the region's salmonid fisheries are based on individual populations exploitation rates. Within the constrains of management break points those exploitation rates increasing the productivity of the base habitat (habitat restoration/improvement) will result in increased runs which in turn will provide both larger escapements and larger escapements.

So yes there are real benefits from habitat improvements!

Curt

Those benefits accrue if you put more fish on the grounds. More spawners means more genes in the system which means more resilience and so on. The current practice of taking out a barrier and keeping the same goal puts less fish per unit area out there.

And, less fish on the grounds continues the myopic view that the ecosystem exists for the fish but the fish do not support the ecosystem. Plus, we need to take the holistic view and make sure that the food base is there for the fish to eat.

Plus, if we want to restore (say) grizzlies or resident Killer Whales we need to provide them with food. They're not going to be successful going vegan.

The culvert replacements will open a lot of smaller waters to salmon and steelhead. But we have to acknowledge that in some cases its a lost cause. We are spending billions on restoration and yet as has been said, we are still destroying much more habitat than is being restored. And what is the point of planting trees along a creek if downstream if flows thru shopping centers and developments with the associated runoff pretty much ensuring that very little is able to survive in those streams.

The state conservation office enthusiastically throws money at these projects and I am not convinced somebody is looking at the big picture before signing the checks. Its just a way to say, we are doing something. We really need to decide which waters are too far gone to waste another dime and which waters will give us more bang for the buck.

The soos creek plateau is just one example. The developers are going gangbusters and yet we still spend money on these little creeks which really don't have a chance. Yes, there were salmon in there many years ago. But that was before we all had children and they had children and everyone needs a place to live.

The green river will never be what it once was. We are not going to move the cities of Auburn, Kent, and Tukwilla along with all the floodplain that is now miles of industrial parks. There is virtually no estuary and the lower river is just a large channeled ditch.

Replacing a culvert on soos creek or little soos creek is just a feel good operation but will not put anymore fish in the system.

We are required by the ESA to make an effort. At some point, reasonable people need to talk about this and put an end to efforts that we all know will not amount to anything.

A lot of folks have written about triage; essentially put the money where there is a real chance of restoring naturally reproducing wild fish. That concept gains little traction for a variety of reasons:

King County, for example, would probably not want to spend "their" salmon recovery money in Pacific County.

Folks want to work locally.

It is easier to get money for mitigation from a dam operator than a taxpayer.

In order to protect the watersheds for wild fish it will be necessary to significantly constrain population and economic growth in those watersheds. Which means that the rest of the state will have to pay the folks who live there.

Essentially, we would have to adopt a strong socialist government to force such actions.