By The Herald Editorial Board
Washington State Attorney General Bob Ferguson is walking a fine line.
Ferguson, in appealing a federal court ruling to the U.S. Supreme Court last week, doesn’t want to discourage state agencies from continuing their work to replace stream culverts under highways that block the passage of salmon to and from spawning grounds. Yet, the state’s top attorney believes the decision by the U.S. 9th Circuit Court of Appeals is overly broad and forces state taxpayers to pay for problems created by the federal government.
Some background: In May, a panel of judges for the federal appeals court declined a request from Ferguson and the state to reconsider its decision from a year ago that ordered the state to replace culverts beneath state highways, affirming a 2013 lower court decision that gave the state until 2030 to replace about 450 of the most damaging culverts.
The U.S. government, joined by 21 tribes in Washington state, first sued the state in 2001, claiming the state’s placement of culverts — because of size or placement that blocked or hindered fish passage — violated tribal treaty rights because they were hurting salmon runs.
It’s estimated that work to replace the culverts could cost the state about $2 billion.
Such work is continuing now to replace a culvert beneath Highway 532 at Church Creek near Stanwood. A detour that began Aug. 11 continues this week for the $5.1 million project.
Beyond the state and federal governments’ legal and moral obligations to uphold treaties signed with tribes more than 160 years ago, the culvert issue also weighs on a $38 billion state fishing industry and the health of a resource valued by its residents.
With a court deadline approaching, Ferguson filed the appeal of the 9th Circuit Court decision to preserve the state’s ability to challenge parts of the ruling.
But Ferguson isn’t arguing against replacement of the culverts and said in a news release that the appeal won’t limit the state’s ability to continue work to replace culverts. In fact, “the state should increase the pace of culvert replacement,” Ferguson said in the release, adding he would support any proposal from state lawmakers and officials that accelerates the pace of replacement.
Instead, the attorney general seeks the Supreme Court’s review for a few reasons:
The appeals court ruling forces the state to use its resources on some projects that won’t benefit salmon, replacing culverts when other barriers, including dams and federal culverts, block salmon from reaching the state’s culverts. It’s money, Ferguson said, than can be used elsewhere on more effective salmon habitat restoration.
It forces the state to pay to resolve problems that are the federal government’s making. After the state began using a new design for culverts that improved on a design required by federal agencies, the federal government sued to return to the old design. Ferguson’s petition asks that the federal government’s claim be blocked and that it be required to help pay for replacement of the federally designed culverts.
The appeals court ruling doesn’t take into account the other factors effecting the health of salmon runs, including climate change and ocean acidification, that the state has no control over. Interpreting treaties to require that the state ensure enough salmon to guarantee the tribes’ harvest rights is a “sweeping treaty interpretation” it can’t guarantee, regardless of how many culverts are replaced.
Getting the federal government to acknowledge and allow a better culvert design and help pay for replacement would be a welcome outcome. But, other factors affecting salmon runs — such as climate change and barriers that admittedly are not in the state’s control — don’t absolve the state from its responsibilities to address the culverts beneath the highways we use. If the state believes it can ignore its responsibility, others aren’t likely to take their own responsibility seriously.
Ferguson’s decision disappointed the state’s treaty tribes, said Lorraine Loomis, chairwoman of the Northwest Indian Fisheries Commission.
“Instead of continuing to appeal the culvert case, tribes think the state should use the momentum gained by those efforts to finish the job and focus on our shared goal of salmon recovery,” she said.
Loomis noted that the state Department of Transportation has committed additional resources to the replacement projects and that at its current pace will come close to meeting the court mandate.
And at least one other state official objected to Ferguson’s appeal.
State Public Lands Commissioner Hillary Franz wrote Ferguson earlier this month warning him that his appeal could “begin yet another chapter of fighting each other over who should do what, rather than rolling up our sleeves, standing shoulder to shoulder and investing our limited time, energy and resources toward saving salmon for future generations.”
She urged the attorney general, as the Supreme Court now considers the appeal, to begin discussions among tribes, state officials and other stakeholders toward a settlement on culverts, and pledged that the Department of Natural Resources was committed to working on effective solutions for salmon recovery.
Ferguson is doing that and has retained a special assistant attorney general who has served previously as a tribal liaison for three state attorneys general to lead the state’s efforts toward a settlement.
The Supreme Court is expected to decide whether to hear the case later this fall. If it takes the case, it would be argued next spring, with a decision before adjournment in June.
Regardless of whether the court agrees to hear the state’s appeal, the state attorney general, other state agencies, tribes and others should work on a settlement, one that ensures an achievable and effective pace of replacement of the culverts.
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