The State of Washington has appealed the "culvert case" to the Supreme Court.

As you might recall, the State of Washington has been in a long-runing legal dispute with the Puget Sound Tribes regarding culverts that block Pacific salmon from their spawning habitat. The State has lost at every step. However, in the latest chapter in this legal battle, the State has asked the Supreme Court to review the 9th Circuit Court's decision on the issue.

http://www.atg.wa.gov/news/news-releases...w-culverts-case

The Supreme Court rejects about 9 out of 10 cases that are appealed to them. So the chances of this getting heard are not good.

But...... this case has national implications and is extremely important for Tribal Treaties and State authorized activities that may adversely affect fish habitat.

If the current decision is upheld (either by the Supreme Court agreeing with it, or if the Supreme Court rejects the appeal), it means that activities that adversely affect salmon habitat may be a Treaty violation. That makes habitat destruction (or degradation) by the State or the Feds a really big deal. So the implications of this decision are huge.

It's good to see the State is continuing to discuss a settlement with the Tribes. Those discussions might get more traction if the Supreme Court agrees to hear the case. They should decide later this year.

The whole issue of habitat destruction versus treaty right is huge. The State actually argued that it has the right, for "the greater good", to destroy salmon runs. Like cohoangler said, this will be big nationwide.

As much as folks like to bash the Conservation Ethic of the Tribes, at least they have one. Without the Tribal push, there would be no wild salmon conservation. Such as it is.

Put a net pen at the mouth of all blocked creeks and a gillnet across the culvert... problem soved...

A toll both at the creek crossing should cover the costs

Carcassman raises a good point. The State is arguing they have the “right” to decrease the salmon stocks all the way to zero, in the name of the greater public good, without abrogating the Treaty right. That is, the State is saying the Treaties do not guarantee a specific number of salmon to the Tribes. The Tribes only get 50% of whatever the State decides to protect. So if there is no harvestable surplus, there would be no Treaty violation since the Tribes are only entitled to 50%, not a specific number. So if the harvestable surplus is zero, the Tribes (and the State) get 50% of zero.

As you might guess, the Tribes don’t agree with the math. According to the Tribes, if the salmon stocks decrease to the point where there is no harvestable surplus (personally, I think we’re already there), the State will have rendered their Treaties worthless. That’s not consistent with established Treaty law.

The District court and the 9th Circuit court both sided with the Tribes. The Tribes arguments were persuasive. But the implications of a ruling that normal human activity that degrades salmon habitat rises to the level of a Treaty violation, is a huge regulatory leap. It would implicate even minor habitat modifications such as building a single family home or withdrawing water for residential use. And in Puget Sound and the Oly Pen, there are very few human activities that do not adversely affect salmon habitat, in some manner. Just think about it - road building, residential development, logging, mining, municipal water supply, almost anything would fall under this definition. That’s why the Supreme Court may take this case.

Which brings up a critically important decision for the Tribes: Even though the Tribes legal arguments are persuasive, do they really want to risk their Treaty rights to this Supreme Court?? In my view, if the Supremes decide to take this case, the Tribes should re-double their efforts to settle it.

On a related note, I would add that the Supreme Court did not agree to re-hear the original Boldt Decision (circa 1974), despite the national implications of that interpretation of the Treaties. They agreed to let the original decision stand. It was only after civil disobedience in Washington State, and institutional intransigence by the State did the Supreme Court agree to a re-hearing. Upon rehearing, they agreed with the original decision by Judge Boldt.

But that was a very different Supreme Court than the one we have now…….

Actually, the re-hearing modified Boldt somewhat, to the benefit of the non-indians. Boldt awarded 50% but it did not include on-rez or C&S. The second visit to the Supremes split the harvestable 50-50, including all harvest in WA.

This decision has national implications because there are a lot of fishing and hunting tribes with some sort of treaty.

One aspect of a "settlement" would be to split harvest 50:50 but include losses due to habitat destruction as harvest. In this case, the NI side would count fish lost to logging/dams/water diversions/etc. as their harvest. Essentially, the only ones who could actually catch a real fish would be the Indians. The State has a lot to lose, but given the current makeup of Congress I suspect that the Tribes have even more to lose.

CA,
Good summary.
It seems the tribes would be heading down a slippery slope. All of human activities you listed that adversely affect salmon are also taking place on reservations and tribal owned lands.

How can a Home Depot, road, residential home, logging or water use on non tribal land be deemed any more damaging then on tribal land?

It will be interesting to see how this plays out.
SF

Sadly enough, WDFW (former Fisheries and Game Dept.s) had the responsibility to issue permits for all fish passage culverts, bridges, etc. for more than 40 years. How many of these poorly placed culverts/obstructions were issued permits through these current and former agencies? My guess is that nearly all of them were issued permits. Why aren't the permitted culverts adequate? Just who is responsible if these obstructions to fish passage are determined to be inadequate by the courts? Is anyone at WDFW EVER held responsible for their actions?

If the supreme Court agrees to hear this case, I'd hope the the state'll hold firm and let court decide over coming to an agreement with tribes. This might be our chance get back some our rights in the process. While it's not 100% that the court would side with the state, it's a good court to go in front of. I also think it'd only take one major loss at the supreme Court level to get the tribes second guessing their litigation happy habits.

I kinda like the idea of having more fish back... half of 2 more fish returning is still one more than before...

whether that is hatchery supplements or fixing culverts, I'm good with it... I rather doubt boldt will ever be challenge, hope I'm wrong though

Actually, while the State might not be willing to challenge the tribes over Boldt this suit, if it were to go before the Supreme Court, would be a great opportunity to address the comparative economic well being qualifier incorporated into the Supreme Court's decision on Boldt.

its a good thing its the supreme court and not the court of popular opinion, because in that court, red lives matter more than black, black more than blue and yellow and white pulling up the rear respectively...

I think one thing that should be addressed, is the tribes ability to link the treaty rights with only salmon. While the ability to harvest Salmon has diminished, the tribes have expanded the original intent of the treaty to include expanded crab fisheries, sea cucumbers, whiting, deep water gooey duc harvesting and much, much more. To insist that the treaty be strictly interpreted should bring in to question many of these fisheries that did not exist at the time of the treaty signing. By using the elasticity of the treaty to include harvests that were not anticipated, I think they limit their ability to try to insist on historical levels of Salmon. In other words, they used to harvest 100 units of salmon and 10 units of other sea life. Now they harvest 20 units of salmon and 2000 units of other sea life with an overall value 100x the original value. To say the treaty is meaningless without the 100 units of Salmon is to ignore the other expansions that should more than make up for the loss.

I’m not sure where to begin with some of these comments…..

For example, Spokey9 stated that “This might be our chance to get back some of our rights in the process.” if the State wins the lawsuit. I don’t understand the comment. What rights? Be specific.

Recall that the State of Washington is arguing they have NO legal obligation to protect salmon habitat or salmon. They are arguing that they do so as a policy choice, not a legal obligation. I’ll quote you some of the arguments at re-hearing:

Judge: (To the Washington Attorney General’s representative) “Are you saying the State of Washington has the authority to dam up and destroy all the salmon habitat around Puget Sound, and with it the salmon resources, with no consideration to the impacts to the Tribes?”

Washington: “Oh, your honor, we would never do that. Salmon are really important to the people of Washington. We spend a lot of money restoring….”

Judge: (cutting him off) “That wasn’t my question. I understand that salmon are important to the State. My question was whether the State of Washington believes it has the legal authority to permanently destroy salmon habitat, and the salmon stocks, despite the provisions of the Treaties?”

Washington: (Long pause) “Yes your honor. That is our position.”

There you have it. If that legal position doesn’t make your blood boil, it should.


Krijack suggests the Tribes are expanding the Treaty provisions to fish and wildlife resources that were beyond the scope of the Treaty. The suggestion seems to be that the Treaty is limited to salmon.

The Treaty is not specific to salmon. The treaty states that the Tribes have the right to hunt and fish in their usual and accustomed places in common with the citizens of the territory. There is nothing that restricts those rights to salmon. The Tribes have stated (correctly) that they historically relied on many forms of fish and wildlife for subsistence. That makes sense. Salmon are available for only a limited time while the need to eat is perpetual (duh). So they had to subsist on crabs, clams, geoducks, elk, deer, and anything else they could catch and eat. So a wide range of fish and wildlife resources also fall under the Treaty provisions.

I’ll leave you with this fact: In the early 1970’s, the Tribes were harvesting about 2% of the salmon resources of the State of Washington. In 1974, the Boldt decision said they have the right to 50% of the available harvest. Now fast forward to 2017. The Tribes are still taking 50% of the available harvest, but the actual numbers of salmon they’re catching is LESS than the 2% they were taking in 1974. Think about that for a minute. I’ll wait………

I hope everyone can see why this lawsuit was necessary. The salmon stocks in this State have fallen to the point where 50% of today’s harvest is LESS than 2% of what it was in 1974. Much of that loss is due to the loss of functioning habitat. The Tribes know this all too well. The lawsuit seeks to highlight the continuing, persistent, and insidious loss of habitat from human development (including their own, as several folks have indicated).

In my view, all recreational anglers, and anyone who values Pacific salmon, should be on the side of the Tribes on this issue.

Plus, the Tribes had a RIGHT to the resources, the State's citizens the privilege. At least is the legal construct to come out of the various reviews.

The elephant in the room is that our government is built on a pyramid scheme; we need more people to come in to pay taxes to support the services. More people equal less fish. To jump on cohoangler's argument, though, what have the Tribes's populations and development done since Boldt? Increased, larger footprint? At some point, there will be more Tribal folks than the Treaty Share (or, ultimately, all) of the harvest can support.
Until the population issue is actually holistically dealt with, the fish lose.

I was not trying to say the Tribe does not have a right to shell fish and other resources, but rather combatting the issue of whether or not the treaty becomes worthless without Salmon. If Boldt is correct, the original intent of the treaty was for the tribes to have the rights to half the salmon and half of the other resources available. Many of the resources now being exploited had no value or the tribe had no way of utilizing them. The interpretation of the treaty is looked at loosely, stating that they are allowed half of these resources. At the time of the treaty there would have been no way of knowing that these resources would eventually become available. To value the treaty only on the available resources at the time of signing (mainly Salmon, clams, halibut, and such) and is, in my opinion, to state that the others have no value. That clearly is not the case. I believe that the value of these resources now available more than makes up for the resources lost. If the intent of the treaty was to provide for the tribes and to allow them to maintain an income, then it surely does such. If it was to maintain a historical way of life, then the Salmon become more important but the other resources come into question as they were not part of that historical life style. Neither were some of the methods used today. I think it is reasonable to state that the treaty was intended to proved a little of both, realizing some things would be lost and others gained. That is where we are today.

In all honesty, if the tribes wanted to, they could claim every piece of water as "accustom places". Its only a matter of time. Look at the skokomish. Pretty soon we will be paying them, river by river. I think the Nisqually and the Puke are next. Maybe they will leave us the cowlitz. Maybe.

By the way, fishing should be a right, not a privilege. Fishing is in my heritage too. Maybe I should tell black people they can't fish because my ancestors were here first? It is 100% the same thing. Telling someone they don't have the same rights because their skin color is racist. I have a right to fish, just the same as the native americans.

Legal precedent is being set for future moves by the tribes. Soon, they will own us. Just wait. $200 for a guide when you want to go fishing. Good for you if you can afford it, but for the 99% of us who can't, what then?

The tribes deserve to lose, even if its the "nuclear" option for our fisheries. Id rather see it all gone than them win.

Jgreen - Let's see if I can help.....

Some Tribes have the right to fish in their usual and accustomed places only because that is what their Treaties say (as interpreted by the courts). It's not because they are Indians or because of the color of their skin.

There are plenty of Tribes in Washington State that DO NOT have the right to fish in their usual and accustomed places. Why? Because they don't have a Treaty with the Federal government that provides them with that right. Examples include the Tribes in the Upper Columbia including the Colvilles, the Kalispell, the Wanapums, and the Spokane Tribe. Their "rights" to harvest fish are no different than yours and mine, despite the fact that they are Federally recognized Tribes (except the Wanapums) and fishing is an important part of their heritage. And that heritage is just as important to them as it is to the Tribes who have fishing rights. But without a Treaty to assure them that right, they don't have one.

Also, the right to fish is a Tribal right. It is not a right of individual tribal members. No specific Indian has the right to fish, even those with a Treaty right. The "right" is held by the Tribe. The Tribe can extend that right to individual tribal members so they can go fishing. But the Tribe can also revoke that authority by due process. So individual Tribal members have the privilege to fish, not the right to fish.

In that sense, it's no different than the State of Washington. The State has the authority (i.e., the right) to manage the natural resources within their boundaries. They hold the "right" to fish. You and I do not. The State can extend that "right" when you buy a fishing license. And they can revoke that right by due process. As such, fishing by individual anglers, such as you and I, is a privilege, not a right.

That is no different than the Tribes who have Treaty reserved fishing rights.

Hope this helps.

Skin color or blood type it's still racist.
"To determine blood quantum, many tribes ask applicants to obtain a Certificate of Degree of Indian Blood, issued by the BIA."
It's impossible for Whites or other minorities to join this elite club and have these rights.

http://www.slate.com/articles/news_and_p...dian_tribe.html

I LOVE that the Tribes are interested in recovering habitat. Not hard to get behind something like that. The wholesale, all or nothing way they demanded it was obviously going to become a major economic problem for the State. Guess it didn't take too long.

I always said the day we stopped honoring treaties as supreme law would be the day it became too costly. That day has apparently arrived.

Interesting times ahead. No idea what will happen, but I am certain of one thing: there is no outcome to this case that benefits sport fishing, so for me, it comes down to basic principle. Even with habitat improvements, escapement goals will remain static, negating sny meaningful benefit of the new habitat. I'm no fan of tribal politics, but a ruling to allow Whitey to polish off the rest of the habitat would be a worse outcome, IMO. With the degraded habitat we have now, we get back 2% of what we did in the 70s. That 2% will seem like a lot when we see what comes back with zero habitat....

All you need to do is look at how well humans have lived with Atlantic Salmon and ask yourself "Why are we different?". So far, we're not and the results will be the same.

Here is the link the oral hearing transcript before the court (occurred on Wednesday): https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-269_o75q.pdf

Seems like the state got spanked and the tribes are going to notch another win. Plus at the end the court said this:

JUSTICE SOTOMAYOR: Then my words are
-- are wrong. They caught X amount. If the
proof is that Y amount would have happened
absent the obstruction, they're entitled to
50 percent of Y amount. I don't care what
caused the decimation.

Seems like the court picked up on that the tribes should be getting more fish due to habitat degradation.

Here's a blog post that summarizes the hearing if you don't want to read the transcript: http://www.scotusblog.com/2018/04/argume...fishing-rights/

Final decision is in June.

If the Supremes follow Sotomayor they slope might just have gotten a tad slicker. IF the Tribes are owed what should have returned, absent destroyed habitat, a very simple solution is to give them that number and take the NI side as development, saved tax dollars from not fixing anything, and so on.

It's a very attractive and simple argument to make...and once you remove the non-tribal share caught in Alaska and BC, and the non-tribal share killed by development, I suspect that the tribes would still be getting shorted a lot.

I may not have been a fan of how it has played out, but I am generally supportive of tribal fishing rights...they have treaties, treaties are the law of the land, and overall they got royally screwed...but that being said, I would caution the tribes to take to heart the axiom that "Pigs get fat, and hogs get slaughtered".

Tribal fishing rights/techniques aren't going anywhere until they have been pushed far enough to effectively exclude all other options and fishers, and when that happens, then there will be political will to abrogate the treaty right. If they think that can't happen then they, too, haven't been paying attention the last 200 years.

I feel like we have been heading that way the last several years. Start shutting down Alaska commercial fishing so that six more Chinook can swim through a culvert under a logging road in the Willapa hills and this will stop being a small scale problem where a handful of redneck sporties in Washington are getting bent, and will become an economic problem of large enough proportions to get some attention.

Fish on...

Todd

This is going to get real interesting really quick if the court adopts the tribal position without modification.

Their argument is that their opportunity is limited by habitat issues (in this case the culverts). Even if the feds closed all non-tribal fisheries in the Pacific, Puget Sound and Puget Sound rivers the habitat is so trashed on many of the Puget Sound rivers that even without any fishing runs would not be any where enough to support any thing close to half of the historic numbers.

Using the Stillaguamish as an example the co-managers following the ESA listing in 1990 of Puget Sound Chinook developed estimates that under properly functioning habitat conditions (PFC) the river would support 30,000 Chinook. From the estimates I have seen the current habitat can not support more than 1,000 fish (without any fishing). Restoring the basin's salmon habitat to support that number of fish would make the economic impacts from replacing those culverts look like pocket change.

Could see immediate bans on any further development, no more logging, no more water withdrawals (including domestic wells), no replacement of infrastructure, etc. We are arriving at Stage 2 of Boldt; the Tribes will find themselves in a very strong position to play lets make a deal with little to no input from non-tribal citizens.

Curt

Have you driven I-5 through Tacoma recently and noticed the Puyallup tribe's new Emerald Queen casino under construction? Or seen the plans for the new facility at the Tulalip gaming facility? I cite those as plain view examples of how many of the treaty tribes have adapted; that is, no longer relying on fishing for subsistence. They have exploited the region's economic boom and associated development and clearly are a part of that reality - both the good and the bad.

Todd - Neither the Feds nor the State can abrogate the Treaty right to fish.

The courts have recognized that the Stevens Treaties held that the tribal right to fish in their 'usual and accustomed places' is a reserved right. In other words, their fishing rights were NOT granted to the Tribes via the Treaty. Rather, the treaty recognized that the Tribes ALREADY had those rights since the Tribes were living in the area since time immemorial, and fishing was critically important to their culture and survival.

So, abrogating the Treaty itself would have no effect on the right to fish. That would still be there, even if the absence of the Treaties.

The Treaties could be abrogated by an act of Congress. But if Congress abrogated the Treaties, the Tribes would immediately ask for their land back, since that is what they gave up when they signed the Treaties. So virtually all of the land that is now in the State of Washington would revert back to the Tribes. The Tribes would become sizable land barons overnight. And they would still have the right to fish in their usual and accustomed places…….

My sense is that Congress won’t be abrogating the treaties anytime soon.



Also, I read the transcript of the Supreme court hearing. The justices torn the State attorney general limb-from-limb. By the time they were done, he was a mumbling mess. I sorta felt bad for him. But any attorney will tell you that the Justices questions and cross-examinations are not a good predictor of their final verdict. The State could still win this case.

But at this point, the State would likely be happy with a remand to redo the analysis. In fact, the Court was angling towards establishing some level of impact on the reduction of salmon productivity as a treaty violation. Judge Gorsuch suggested 5%. But clearly the Justices are wary of making an overall judgement that says any reduction in salmon productivity becomes a Treaty violation. They may ask the lower court to re-think the analysis and provide some number, past which the impact would be a treaty violation. For example, a reduction of 2% might not be a treaty violation, but 10% would be.

But that's just my guess.

There comes a point where there literally is nothing more that the State/Feds can do, and that's the time that either the tribes have to stop pushing (well, before that time, really), or that's the time that Congress will have to step in and put a stop to it.

You can't get blood out of a turnip. You can't re-make Puget Sound into 1886 Puget Sound. You not only can't turn back the clock to 1886, you can't really stop the march that we are on, either...it's not like they are going to shut down all development, water withdrawals, road use, shipping, or anything like that.

The tribes also aren't going to get their land back.

Even if justified in asking for all of those things (which the tribes very well may be), they are literally impossible to give.

I think that fighting over culverts was silly, unless the State really thought that the "we can literally destroy entire populations of salmon without impairing the treaty right" was a winner...and if they thought that, then they were really, really wrong.

Fish on...

Todd

In one of the transcripts I read they asked the Fed attorney about dams. He said that for some they put in ladders, even if that ignores the reservoir, or the paid them off. Get ready to write checks...

I think part of the question should focus on the historical facts rather than the present day reality. At the time of the treaty, the tribes were taking 10X salmon and the state 10X salmon, but there were 100X salmon to be taken. I do not think the sound had started any large commercial fisheries and the tribes were mainly subsistence, with some regional trading. Neither side likely anticipated a future where the fish would be exploited at the rate they are. So, what the treaty guaranteed, was the right to 50% of the harvest at that time, not 50% of the fish at that time. As the ability and desire to take more fish occurred, both sides could argue for 50% of the harvest. Now that levels have fallen, the desire for more than the original harvest (rather the original available harvest) is wanted, but not available. Could it not be argued that as long as the Tribes are able to get 50% of the fish available, with a minimum of what was originally intended guaranteed, that is the right for subsistence and minimal trade, we meet the intent and understanding of the treaty. As long as the tribe gets 50% of what was originally intended that should meet the treaty. The tribe's argument must involve an original intent that includes both the intent of 50% of the harvest at that time, plus 50% of all available resources that become available in the future, for economic reasons alone. That seems to me to be a bit too broad of an interpretation.

Just for an added note, the tribes want 50% of the Lake Washington sockeye run that was non-existent, but also 50% of the originally available chinook. Can they really argue the treaty promises both the original harvests levels of some fish, plus the future levels of others.

There really is no end to the tribes' argument if it is adopted by the court. Substitute anything that harms salmon returns for "culvert" and you can guess what is attacked next. Logging, fishing, runoff, impervious surfaces, houses, malls, etc. There will end up being a political solution if this gets pushed that far.

Holy mackerel! I can hear all the new Hatchery Construction coming in the distance!

Todd's comments seem to be reasonable and make perfect sense. Eventually the Hogs would get slaughtered if this kept going at the rate it seems to be.

The courts determined that the Tribes get 50% of the available harvest. The courts did NOT determine that the Tribes get 50% of the fish. I find it difficult to believe there is an "available harvest", given the low returns we're seeing. If there is no available harvest, nobody gets anything.

That's an easy conclusion if all the harvest is in-river. But since alot of harvest occurs in the ocean, and in foreign countries (Canada and Alaska), the Tribes can easily claim that ocean harvest is taking the non-Indian share.

So, if we can eliminate harvest in the ocean, we would have alot more salmon returning to the rivers, and we would be able to allocate the catch between the Tribes and the State-managed fisheries much easier (commercial/recreational).

But that's not reality either......

The Courts also determined that the tribes right meant "Dead Fish in the Boat" and not the opportunity to put a net in fishless water.

As an infrequent poster around here, I can add a bit of personal knowledge that the goal here is co-management of not just fish but co-management of all things affecting fish. Tribes are asking for the right to have a say prior to any land use or water use decision is made. Yes, that includes individual wells and individual homes being built.

However you feel about tribal rights and treaty rights, if that is the outcome of the culverts case, things will change in a big, big way. And many people will be pissed. Thinking about national politics and how things swing when people get angry, it's uncertain how things will end up. I don't know if the fish will end up ahead.

But, I do see more hatchery Chinook production in the near future. I just don't know if that means non-Indians will be able to fish on those new fish.