Ninth Circuit rejects state’s position on salmon habitat case

Culverts block fish passage

A three-judge panel for the Ninth Circuit Court of Appeals last week upheld a lower court decision that says culverts impeding the passage of salmon in Washington streams and rivers are a violation of tribal treaty rights.

The case dates back to 2001 and is sometimes known as Boldt II, a reference to the 1974 Boldt Decision that upheld Indian tribes’ treaty rights to catch salmon. The U.S. government sued the State of Washington, saying the state needed to protect the habitat for salmon. A ruling by Federal District Court Judge Ricardo Martinez in 2013 did require the state to take measures to fix culverts that blocked fish passage, among other habitat measures. Last week, the state lost its appeal of that decision when the three-judge panel refused to hear the matter.

“For 15 years we have been trying to get the state to live up to its responsibility in restoring and protecting our great Northwest salmon resource by fixing or removing the culverts that keep the fish from completing their migration,” said Fawn Sharp, president of the Quinault Indian Nation. “Salmon swim thousands of miles in the ocean before they return to their rivers of origin. They fight hard to get back to their spawning grounds. Impassable culverts cut their journey short.

Judge Martinez gave the state 15 years to reopen 90 percent of the habitat blocked by its culverts in Western Washington. Today’s judgment totally concurred.

“That is outstanding news for tribal and non-tribal fishermen and for the environment and the economy of the Northwest,” Sharp said.

“Salmon need good clean habitat. More than 800 (culverts) on state land block salmon access to more than 1,000 miles of that habitat. Although the state has been fixing them, at its current pace, it would take a century to finish the job. The salmon can’t wait that long,” she said.