The Supreme Court of the United States on Friday agreed to consider the culvert case appealed by Washington Attorney General Bob Ferguson, heating up the 17-year, high-stakes dispute.
The U.S. Supreme Court has stepped into Washington’s culvert case, accepting it for review and heating up a 17-year legal battle over the state’s duty to protect and restore salmon habitat as part of its obligation to respect tribes’ treaty fishing rights.
The case, Washington v. U.S. et al., initially was filed by 21 Washington tribes with treaty-protected fishing rights in 2001. At issue is the state’s obligation to repair road culverts that block salmon from their spawning habitat.
Culverts that are too small, or pitched too high above the stream bed, or in other ways are unsuitable for fish passage destroy miles of habitat above the culvert. That depletes fish runs that tribes rely on and are entitled to by treaties.
In signing treaties with the U.S. government that in the 1850s ceded millions of acres of tribal lands for non-Indian settlement, tribes reserved their right to fish at their usual and accustomed places. That right to fish was affirmed in 1974 by U.S. District Court Judge for the Western District George Boldt. That decision, later upheld by the U.S. Supreme Court, also divided the catch between tribal and nontribal fishers and established tribes as co-managers of salmon with the state of Washington.
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The culvert case is an extension of that decision, in which tribes have argued that their reserved treaty right is meaningless if habitat that sustains fish runs is allowed to degrade until there are no fish to catch. Courts have agreed.
In 2007, U.S. District Court Judge for the Western District Ricardo Martinez ruled the tribal treaty…