Salmon supporters win again in court

Washington will have to fix up culverts that block fish passage.

 

In the Pacific Northwest, treaties with Native Americans — signed in bad faith more than 150 years ago — continue to haunt the federal courts and state governments. Most were made to justify land grabs by newly arriving settlers, and what was guaranteed to the tribes must have seemed inconsequential. 

Washington's first territorial governor, Isaac Stevens, negotiated a bundle of these treaties in the 1850s and 1860s, baldly promising state legislators that he would “extinguish, as quickly as possible, the Indians' claims to their traditional lands so that settlers could be given legal title.”

The governor's duplicitous treaties eventually led to war with the Nez Perce, the Umatilla and the Yakama tribes. Most of his other treaties with tribes on Puget Sound sparked legal battles that have tied up federal courts for more than a century. 

Then, this June, the 9th Circuit Court of Appeals added yet another loss to Washington state’s nearly perfect record of defeats, which began in 1905, with a case challenging the Yakama Tribe's treaty right to hunt, gather and fish in “all of their usual and accustomed places.”

As Matthew Love and Carly Summers explained in the July 2016 National Law Review, this new decision grew out of litigation that began in the 1970s. Back then, Washington's attorney general (and future U.S. senator) Slade Gorton challenged the tribes' fishing rights, with hopes of extinguishing them forever.  

The lawsuit also sought to clarify three issues stemming from the original treaty with Gov. Stevens: Did the tribes have a guaranteed right to a percentage of the annual commercial catch; should hatchery-bred fish be included in that percentage; and do treaty rights implicitly safeguard the environment so that the tribe's right to fish in “all the usual and accustomed places” is protected?

The first question was answered in the now-famous 1974 Boldt Decision.  Judge George Boldt wrote that the Stevens treaties guaranteed tribes half of the commercial salmon catch. As for the second question, that guarantee also had to include hatchery-bred salmon.

The third question about protected places has been bandied back and forth since 1985. The court originally rejected placing the burden of what it called “environmental servitude” on the shoulders of the state. Nevertheless, the same court added a crucial caveat. It ruled that the burden for environmental protection of salmon runs might well fall on the state's shoulders in the future if environmental degradation threatened a sustainable fishery.

By 2007, much had changed in the rivers and streams of the region, and nearly all species of salmon were endangered. At the request of the tribes, the 9th Circuit clarified its earlier caveat by ruling that the state of Washington was responsible for the protection of salmon streams — including their passage through road culverts. The court explained that the Stevens treaties imposed “a duty upon the state to refrain from building and operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” 

This culvert does not allow fish to easily pass.

As the financial burden for removing those culverts could run into hundreds of millions of dollars, the state challenged that decision. But in June, the 9th Circuit told Washington, in effect: Tough luck. It said that after the Boldt Decision, the state should have taken appropriate measures to remedy treaty violations before salmon became endangered. 

Moreover, the court said that the tribes' right to sustain themselves by fishing in their “usual and accustomed places” was long-settled law protected by Article VI, clause 2 of the U.S. Constitution, making the Stevens treaties “the supreme law of the land.” That, combined with the Endangered Species Act passed by Congress in 1973, obligates the state to replace or repair any culverts that make it difficult or impossible for salmon to move freely to their spawning grounds.

Gov. Steven's zeal to extinguish Indian title to lands they had owned since time immemorial has resulted in a bonanza for lawyers, decades of legal headaches for the state, and no end of frustration for the tribes. But in 2016, all of this legal logrolling begs an even more daunting question: How will future courts tell the difference between culverts that stop endangered species from reaching their breeding grounds, and dams that do the very same thing?

Paul VanDevelder is a contributor to Writers on the Range, the opinion service of High Country News. He lives in Portland, Oregon, and is the author of Savages and Scoundrels: America's Road to Empire through Indian Territory.

Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at betsym@hcn.org.