Ninth Circuit Expands Tribal Treaty Rights in Culvert Decision That Threatens Economic and Industrial Development on Fish-Bearing Streams

In the matter of United States et al. v. Washington, case number 13-35474, the U.S. Court of Appeals for the Ninth Circuit concluded in 2016 that in building and maintaining barrier culverts, the State of Washington had violated its obligation to various Indian Tribes under the fishing clause of the Stevens Treaties, which were entered in 1854-1855.

A panel of the court expansively interpreted the Treaties to provide certain Pacific Northwest Tribes not only a right to take up to 50 percent of the available fish in a run in common with all other citizens, but also a new right that obligates the State of Washington to take affirmative actions to ensure sufficient fish for tribal fisheries. The full complement of Ninth Circuit judges sitting en banc voted on May 19, 2017 not to revisit the panel decision holding that the Treaties created a right for Tribes to obtain a “moderate living” from affected fisheries.

The decision to not grant rehearing en banc left intact the panel’s decision requiring Washington to remove or replace culverts that block salmon passage (tunnels that carry a stream or open drain under a road) under state-maintained highways and roads, to the tune of billions of dollars in remediation costs to taxpayers.

The decision broadly implies a duty on the part of the State of Washington and other third parties whose development activities – including vital infrastructure – adversely affect salmon-bearing streams to protect and even restore salmon habitat to the extent necessary to guarantee the Treaty Tribes a certain unspecified number of fish.

The court rejected Washington, Idaho and Montana’s Request for Rehearing, which was based on the fear that the panel’s decision fails to articulate a limiting legal principle that will prevent its holding from being used to attack a variety of development, construction and farming practices throughout the Northwest. The panel opinion acknowledged that the state did not intentionally set out to adversely impact the fish population when it installed culverts, but nevertheless concluded that because there was evidence that culverts (along with many other factors) affect fish population, and because certain salmon populations are lower than historic averages, the state violated the Treaties by building and maintaining these culverts. As a result, the “Culverts Decision” can now be read to imply a broad habitat protection servitude on all anadromous fish-bearing streams in the Pacific Northwest covered by the Treaties.

While the panel defended its decision as a narrow one based only on the facts before it, nine other judges joined Judge O’Scannlain in criticizing the decision as overly broad and inviting a host of future suits, positing whether “any surface physical activity, wherever found, that negatively affects fish habitat [constitutes] an automatic Treaty violation?”

Judge O’Scannlain also pointed out that “if culverts are only one measure that could affect the salmon population, what about the others?” He asked why it is appropriate to require the state to correct culverts rather than something else, “since, at some level, almost all urban growth can impact fish populations.” Should the state or other governmental entities be required to reverse decades of development to increase the number of fish for tribal fishermen? Under the Culverts Decision, the answer may well be yes.

In the end, this case places the courts in the center of environmental policy-making – a place the courts are ill-suited for — and invites a host of new claims against any development that might have a tangible effect on salmon.

Environmental activists, agencies and Tribes may use this decision to block economic or development activity on the Columbia River, in the Puget Sound or anywhere else in the Pacific Northwest adjacent to anadromous fish-bearing streams. Future plaintiffs need only pick a reason for salmon degradation (among the myriad reasons that exist, including climate change) and connect that reason du jour to depressed salmon populations, invoke the Stevens Treaties and then argue that the development activity at issue is responsible for prohibiting the Tribe from obtaining a moderate living from the fishery.

Contrary to the panel’s assurances that its decision will not be the boogeyman feared by many, environmentalists most assuredly will interpret this decision to prohibit regulatory agencies from approving development that blocks access to treaty fishing sites or that arguably diminishes the supply of available fish. At stake are the continued operation of the federal hydropower dams on the Columbia and Snake Rivers, other non-federal dams that obstruct fish passage or damage salmon habitat, timber harvests, grazing projects and construction projects that could be argued to have a damaging effect on salmon habitat. The sheer breadth of the decision and its lack of limiting language most certainly positions the case as one ripe for Supreme Court review.