Everett, Wash.
Published: Thursday, August 23, 2007

Tribes win key ruling; others will have to pay

It will be left to the state and counties to correct culverts that block fish, but the full effect of the decision isn't yet known.

By Jim Haley, Herald Writer

 SEATTLE — Indians will have a much greater role in deciding how and where the state and other governments build culverts that impede salmon migration, following a federal court ruling Wednesday siding with the Tulalips and many other Washington tribes.

In their federal lawsuit, the tribes said that state and local government has an obligation under the 1855 Treaty of Point Elliot to protect salmon habitat by not hindering fish passage with narrow or blocking culverts.

The written decision by U.S. District Judge Ricardo Martinez "declares that the right of taking fish secured to the tribes in the Stevens Treaties imposes a duty upon the state to refrain from building or operating culverts .... that hinder fish passage."

Martinez also found that the state "currently owns and operates culverts that violate this duty."

The full effect of the decision is not known.

The ruling was good news for the Tulalip Tribes, which is in the forefront of asserting their treaty rights.

"This is a clear step for the tribes to enter into discussions with the state in terms of the impact to our tribal culture," Tulalip fisheries commissioner Terry Williams said.

The tribes alleged in their lawsuit that fish don't have access to 249 miles of streams that they should have, preventing the production of potentially 200,000 fish for tribal harvest.

"This is very significant," Williams said. "Obviously we have to wait to see the detail of the judge's comments, but clearly what is being said is when the fish are impaired by habitat problems, that affects the reserved rights of the tribes."

The 152-year-old Point Elliot Treaty, also known as the Stevens Treaties, gave the tribes the right to take fish "at all usual and accustomed grounds and stations." That's key to this lawsuit, as it was to the landmark tribal fisheries decision of federal Judge George Boldt in 1974.

"For (fish) to exist, they have to have habitat," Williams said. " The treaty right is hollow without the habitat to sustain our culture. This is a treaty obligation. That's what this comes from."

Janelle Guthrie, spokeswoman for the state attorney general's office, said the lawsuit is not over.

"The court said the Stevens Treaties say the state has to make sure our culverts allow fish to pass. While we currently have some culverts that don't allow fish to pass, the state has plans in place to improve or replace these culverts," Guthrie said. "The next step in the process is for the court to determine its remedy. The court has set a status conference for next Wednesday."

Whatever the remedy, it will have an effect on Snohomish County government.

"How this ruling is going to affect our current business, I'm not sure," said Steve Thomson, Snohomish County public works director. "I'm sure it will have some impact. I just can't say right now."

The county works with state fisheries officials on new road projects near streams, and occasionally gets grants to restore older culverts that block salmon.

The state didn't dispute that some culverts block returning salmon. According to documents, the state found 18 percent of the culverts on land managed by the Department of Natural Resources were identified as barriers to fish in a 2000 inventory.

The state's attorneys argued that since 1991 the state Department of Transportation's culvert projects have also opened access to more than 410 miles of salmon habitat, Guthrie said. They also argued that there is no evidence the state is diminishing the number of fish for the tribal harvest.



Reporter Jim Haley:425-339-3447 or jhaley@heraldnet.com.
© 2009The Daily Herald Co., Everett, WA