[env-trinity] E & E News: Highways, salmon habitat collide in WA tribal treaty case --

Tue Apr 17 18:37:41 PDT 2018

| E & E News: Highways, salmon habitat collide in WA tribal treaty case -- detailed article about culverts case
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| Amanda Reilly, E&E News reporter

Published: Tuesday, April 17, 2018

SEATTLE — Salmon swim through Charlene Krise's earliest memories:
streams so dense with fish she couldn't see the bottom, salmon roe for
breakfast and salmon fish head stew for dinner.

"My father said that, as an infant, instead of having a teething ring,
we all had smoked salmon for our teeth," said Krise, who's vice
chairwoman of the Squaxin Island Tribal Council near here.

Like many in her tribe, whose members are called "people of the water,"
Krise spent most of her adult life fishing off northwest Washington.

But in the 1990s, salmon populations in the Pacific Northwest declined
dramatically. There were times, Krise said, when "not one of us could
find the salmon."

"It felt like the whole world was in the negative because there was no
salmon," the soft-spoken Krise said.

There are many reasons salmon populations have fallen off in northwest
Washington: water pollution, overfishing, dam construction and climate
change. But tribes around Puget Sound point to the state's construction
of culverts — tunnels that channel water under roadways — that keep
salmon from reaching habitat upstream.

Tomorrow, the tribes will go to the Supreme Court to ask justices to
uphold a 2013 court injunction ordering the state to fix hundreds of
culverts that are blocking salmon from accessing upstream habitat.

The 9th U.S. Circuit Court of Appeals upheld the order, but Washington
state is appealing, arguing the injunction is expensive and too broad in
scope.

"It's very worrisome thinking about the future and the growth of the
area," Krise said. "If we don't have set policies to protect those
streams for fish passage with the culverts, we are going to be in
trouble for the future."

Culverts are only the latest focal point in a decadeslong legal war
between Northwest tribes and Washington over treaties signed in 1854 and
1855.

Washington territory's first governor, Isaac Ingalls Stevens, negotiated
the treaties between white settlers who had been lured by the West's
magnificent forests and the area's native inhabitants. Tribes agreed to
give up some 64 million acres and in return received "the right of
taking fish, at all usual and accustomed grounds and stations ... in
common with citizens of the Territory."

But after the Stevens treaties, the Pacific Northwest's white settlers
impeded tribal access to fishing locations in the Columbia River and
Puget Sound. That led to court clashes, beginning with an 1884 case over
a settler's efforts to deny Yakima tribal fishers access to their
fishing grounds.

The culverts case itself is several decades old. Its origin is a lawsuit
that coincided with acts of civil disobedience that tribes undertook
during the 1960s and '70s to uphold their treaty rights. Tribal members
— later joined by celebrities — were arrested as they returned to their
traditional fishing grounds in staged "fish-ins." Tribal environmental
advocate Billy Frank Jr., who later received a posthumous Presidential
Medal of Freedom, was arrested more than 50 times.

The "fish wars" culminated with the United States and Northwest tribes
suing Washington in 1970. The federal government asked the court to find
that the treaties guaranteed tribes a fair amount of fish, that the
tribe's share included hatchery fish and that the state is required to
maintain the habitat necessary to provide protection for salmon runs.

"Our elders, they fought to get into the federal court," said Phil
Hamilton, vice chairman of the Muckleshoot Fisheries Commission. "It was
a time where different tribes were having their fish-ins and every tribe
was trying to get into the federal courts, because if they could get
into the federal courts, they knew they could get the help that they
needed."

The tribes secured a major victory in 1974, when the late Judge George
Hugo Boldt of the U.S. District Court for the Western District of
Washington ruled that they have the right to act as co-managers of
salmon and harvest them in accordance with the treaties.

The state of Washington, however, resisted Boldt's ruling. After five
more years of legal wrangling, the Supreme Court in 1979 ruled that
tribes have a right to a "fair share of available fish" or up to half of
each salmon run.

Boldt, who died in 1984, didn't get to the questions of whether the
tribes have a right to hatchery fish and salmon habitat free of
environmental degradation. Those questions were left for later courts.

In an en banc ruling in 1985, of which Supreme Court Justice Anthony
Kennedy was a part, the 9th Circuit affirmed a lower-court decision that
hatchery fish must be included when determining the share of fish to
tribes. But it punted on the habitat question.

"The tribes asked for declaratory relief — a declaration that the
treaties protected habitat — and the 9th Circuit said, well, we don't
really think it's a good idea for courts to opine on this issue unless
we have a specific factual dispute," said Michael Blumm, a professor at
Lewis & Clark Law School.

"And it took the tribes awhile to come up with something that's unique
to the state," he said.

'There's a stream under there'

The state began building culverts in the early 1900s as it began
participating in the federal highway program.

Culverts come in many forms — from concrete boxes to corrugated metal
pipes — all with the purpose of funneling a stream under a road.

There are whole networks of culverts under the greater Seattle area,
many invisible to drivers.

"It's pretty common in these urbanized areas to just fine somebody put a
stream into a pipe and somebody else thinks that's a pretty good idea so
they tack one onto it," said Paul Wagner, biology branch manager at the
Washington Department of Transportation. "We've got some where streams
will flow for 1,000 feet or more through culverts, and probably a lot of
people in their day-to-day business don't even think there's a stream
under there. They'll go under buildings, under schools, under shopping
centers."

Many culverts, though, were built too small or have since become
otherwise blocked. High-velocity flows have carved out the streambed
beneath their openings, creating steep drops of water several feet high.
In others, the water depth is very shallow along the bottom of the
culvert.

They all create obstacles for salmon that cross streams at different
stages of life. The fish use the streams in different ways, but
generally, adults need to travel upstream from the ocean to spawn in
gravel-covered streambeds. The farther upstream they get, the more
likely their offspring will survive because they're away from predators.
Juvenile salmon then remain in streams early in life, seeking out
protected pools of slow-moving water.

If a culvert is blocked — or the water depth through too low or the
velocity of the flow too high — somewhere along a stream, it impedes the
movement of salmon at both adult and juvenile stages.

"It's not only that they can't get home but that it forces much more
competition. It really restricts the area that they can live in," said
Larry Wasserman, environmental services director for the Swinomish
Indian Tribal Community.

For adults, culverts are considered blocked if the water depth is less
than 10 inches or the velocity is greater than about 4 feet per second;
juveniles typically cannot leap over barriers greater than around 10
inches or swim in velocities greater than 2 feet per second. Not all
culverts, though, are total barriers to fish.

"Some fish might get through sometimes. It might depend on hydrologic
conditions, the stream flows and such. They might have to wait for a
more opportunistic time to pass through the culvert," said Susan
Kanzler, stream restoration program manager at the Washington DOT.

But even for adult salmon that make it through barrier culverts to
spawn, putting the effort into getting through can lower their fitness,
making it more difficult for them to get back to the ocean.

"They're just physically beat up. You'll see some of the times they'll
be coming back and they're all scraped up," Wagner said. "They've been
through the gauntlet."

'The perfect case'

In the 1990s, as scientists learned more about the needs of salmon and
commercially harvestable levels declined, Washington recognized that
culverts posed a threat to salmon.

In 1997, the Washington State Legislature established a Fish Passage
Task Force, and state agencies issued a report identifying barrier
culverts as "one of the most recurrent and correctable obstacles to
healthy salmonid stocks in Washington."

But in 2001, the federal government and 21 tribes again sued the state,
this time claiming that the state's management of its culverts violated
the 1850s-era treaty rights.

Judge Ricardo Martinez of the U.S. District Court for the Western
District of Washington agreed in 2007, ruling that culverts have
"substantially diminished" the salmon harvest. Six years later, he
ordered the state to fix or repair hundreds of culverts that were
blocking fish passage in its northwestern corner, including the Olympic
Peninsula and the Seattle area.

Martinez found the state was going too slowly in removing obstacles to
salmon runs. It would take more than 100 years, he wrote, to replace
significantly blocked barrier culverts.

He ordered the state to fix all blocked culverts under state roads. The
Washington Department of Fish & Wildlife, the Washington State
Department of Natural Resources and Washington State Parks were given
until Oct. 31, 2016, while the Washington DOT, which owns significantly
more culverts, has until 2030. The state could defer action on culverts
with less than 200 lineal meters of upstream salmon habitat until the
"end of the culvert's useful life, or sooner as part of a highway
project."

"We've had some really fantastic runs diminished or nearly lost to these
culverts," said Charles Wilkinson, a Native American law expert at the
University of Colorado, Boulder. "This was the perfect case from the
tribal standpoint to raise this environmental matter. The tribes spent
20 years looking for the right case."

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld the
injunction in 2016 and later rejected the state's petition to review the
decision en banc, or in front of the whole court. Eight of the court's
active judges, though, joined an unusually blunt opinion by Senior Judge
Diarmuid O'Scannlain slamming their colleagues for issuing a "runaway
decision" that discovering "a heretofore unknown duty" in the 19th-
century treaties.

The stage is now set for the Supreme Court to weigh in on tribal treaty
fishing rights once again.

Eight justices will hear arguments tomorrow; Kennedy has decided to sit
out because of his prior involvement in the case.

Wilkinson, who is writing a book on the Boldt decision, said that the
case could create a ripple effect for Native American law.

"Will the court, if it doesn't rule for the tribes, make law that will
cut into the Boldt decision, and their own decision in 1979, too?" he
asked. "Will the court backtrack on that? This is an enormous case in
Indian law."

'Untenable standard'

Under Attorney General Bob Ferguson (D), Washington state argues that in
holding that tribes must have enough fish to provide a "moderate
living," the 9th Circuit recognized "a new right, broader than any
previously recognized."

The "untenable standard" would render illegal many past decisions,
including federal dams that affect salmon runs, and make "virtually any
significant future land use decision in the Pacific Northwest subject to
court oversight," the state warned.

Washington also told the Supreme Court that the injunction is
"remarkably unfair" because the federal government specified how the
state should build culverts and granted permits for their construction.

And the state says it will have to spend more than $2 billion by 2030 to
fix hundreds of culverts with no guarantee that they will lead to
improved salmon runs. That's because the injunction applies only to the
state, not private landowners or cities and counties that own culverts
in the case area.

A barrier culvert for an unnamed tributary to Lake Sammamish, a
freshwater lake east of Seattle that's surrounded by houses tucked into
lush, evergreen trees, demonstrates the state's predicament. Invisible
to vehicles, the upstream end of the culvert can be reached by climbing
down a steep, slippery trail from a two-lane road. It's a 3 ½-foot
diameter pipe that crosses under eight lanes of a major east-west
highway and city-owned roads. The pipe is 502 feet long.

When the culvert caused a sinkhole in the highway last year, the state
and tribes agreed on a temporary fix, the installation of a hard plastic
liner that provides protection from erosion. But the liner makes it more
difficult for salmon to pass because it made the hole smaller and
increased the velocity of water flows in the seasonal stream.

The state is designing a long-term correction to open up the 900 feet of
salmon habitat above the blocked culvert, a project that DOT estimates
will cost $11 million. But there are other barriers upstream. The city
of Issaquah owns a series of small dams that it built to keep the
culvert from getting plugged with sediment. Those will have to be taken
out. Beyond that, though, is a barrier culvert on private property that
allows a driveway to pass over the seasonal stream.

Issaquah has said it would consider removing its dams. But except where
it can reach agreements with owners who have culverts directly abutting
state roads, the state can't really do anything about blocked culverts
farther upstream on private property.

"A culvert like that, maybe people would say, 'Let's just put a bigger
pipe in there and make it passable as part of the project.' That would
be a pretty small part," Wagner said. "But the bottom line is, it's not
our responsibility to fix it. And we can also say, 'Hey, we're doing our
part, somebody else has to do their part.'"

In Issaquah, Washington DOT last fall wrapped up a $7 million, three-
year project to fix two culverts that pass under an intersection. Fixing
the culverts required widening them and returning the stream to its
natural, meandering state. The state laid tree trunks, their root wads
still attached, on either side of the stream, creating shallow pools for
juvenile fish. On a recent April day, a newly hatched salmon was
swimming in one such pool. Trees planted along the banks, including
willows and cottonwoods, will grow a few feet by the end of the year,
providing shade.

Other projects sometimes require leveling out the gradient of the
channel, especially in cases where fast-moving water has scoured out the
bottom of the streambed. New culverts are built to withstand 10-year
floods, according to Martin Fox, a biologist for the Muckleshoot Indian
Tribe.

"The thing about culverts is, it's something we can do," Fox said. "We
can't change climate very readily, we can't fix a lot of the
industrialization of our watersheds, but culverts is something where we
can go in and pull those things out, correct them, put in a fish
passable structure, and immediately you have access to these habitats
and your production will be increased."

In 2015, WSDOT worked with the city of Lake Forest Park to widen this
culvert and return the stream to a more natural condition. Tree trunks
create protected areas for juvenile salmon. Amanda Reilly/E&E News

Together, the state wildlife, natural resources and state park agencies
had fewer than 100 culverts to repair. But the state DOT owns 978
culverts that applied to the injunction, with 806 deemed to have
significant habitat, according to the most recent inventory information.
Since the injunction, DOT has so far corrected 55 culverts within the
case area, Wagner said.

On average, the state says it cost $2.3 million in 2016 and $3.4 million
in 2017 to fix a blocked culvert. The cost is going up because the
projects that are left are bigger and more complex, according to Wagner.

At least one project, in an estuarine area on the Olympic Peninsula
where Chico Creek feeds into Puget Sound, is expected to cost more than
$40 million because it will require rebuilding a whole highway
interchange.

"Since we've been working on this for a while, we've kind of gotten a
lot of the low-hanging fruit," Wagner said. "With the standards that we
have from the injunction, we're basically in almost every case tearing
out an existing culvert and putting in a new one. And in a lot of cases,
that's a major construction project."

In 2017 to 2019, the state DOT plans to spend $97.5 million on stand-
alone fish passage projects. The department expects it will need at
least twice that amount from the Legislature in its biennial budget.

Along with building new culverts, the state is also monitoring repaired
ones. Each year, the Department of Fish and Wildlife inventories about
10 percent of the culverts in the case area, according to Tom Jameson,
fish passage and screening division manager in the department's habitat
program.

"Say you've put in a great stream simulation culvert, and then there's a
50-year rainstorm in this one watershed and they get a bunch of erosion
and that culvert gets blown out. Well, now you've got to correct it," he
said.

The federal government and tribes, though, have accused the state of
overstating the cost and complexity of the injunction.

Lawyers for the tribes say that the state is basing its cost projection
on repairing every blocked culvert on its roads in the case area, rather
than culverts that represent 90 percent of blocked habitat. The tribes
also say Washington state is making too big a deal of the 9th Circuit's
statements about a "moderate living" and that they've never pushed the
issue in the culverts case.

"You read a lot about it, but it's all fluff from the attorney general,"
said Mason Morisset, an attorney for the Tulalip Tribes.

The federal government argues it "would make little sense" to interpret
the treaties as "protecting the tribes' access to their traditional
fisheries, yet permitting obstructions that substantially degraded those
same fisheries."

The Department of Justice attorneys have also pushed back on the state's
claims that the federal government shares the blame. The state, DOJ
says, was never required to use a particular model of culvert or was
prevented from making adjustments to take account of local conditions.

Both sides have allies going into tomorrow's arguments.

The National Congress of American Indians, other tribal groups, a
coalition of current and former Washington officials, former Republican
Washington Gov. Daniel Evans (R) — who was governor during the time of
the Boldt decision — and fishermen's associations have all filed amicus
briefs in support of the tribes and the U.S. government.

A group of law professors is also backing the tribes, arguing that,
aside from the treaties, there's a common-law tradition against blocking
fish passage and obstructing waterways.

Washington's allies in the Supreme Court include a coalition of states,
business and industry groups, conservation legal foundations and an
irrigation district.

Led by Idaho, a group of 11 states said in an amicus brief on behalf of
Washington that they're worried about how broadly tribal rights will be
read within their borders if the 9th Circuit decision is upheld. They
warned that EPA's recent decision to impose federal water quality
standards in Maine and Washington where it deemed subsistence fishing or
sustenance rights exist is a "harbinger" of things to come.

The Washington State Association of Counties and the Association of
Washington Cities say they're also worried that the tribes may go after
their infrastructure next if they win the court case.

'Rather fight and lose than settle'

But Brian Cladoosby, chairman of the Swinomish Indian Tribal Community,
slammed the state and its allies for "citing the worst-case scenario."

"Fear is a great motivator," he said. "I can tell you from Swinomish's
perspective, that we've never sat around the table and said, 'What's
next?' Our focus has been 100 percent on winning a culvert case only.
We've never said, 'OK, we've got these damn dams on the Skagit River
that we're going to take down after we win this case."

To Cladoosby, who was born and raised on the Swinomish reservation along
the Skagit River and whose father's great-grandfather Kelkehltsoot
signed the 1855 treaty on behalf of the Swinomish, the state's decision
to appeal the Martinez injunction all the way to the Supreme Court is
the latest in a long state history of anti-Native American policy and
sentiment.

"If they started doing the work that we wish they would have done when
we filed this lawsuit instead of fighting it, we would be light years
ahead of where we are today," he said.

Cladoosby said that the tribes "tried very hard" over the last decade to
negotiate with the state on the culvert issue. He accused the state of
having a "we'd rather fight and lose than settle and win" mentality when
it comes to tribal treaty rights.

"It's not for a lack of the tribes putting proposals out on the table
that we thought were very, very fair," he said. "They walked away from
what we put on the table."

He added: "Then the Bob Fergusons of the world can go tell their
constituents, 'We fought the good fight against the Indian tribes, we
gave it our best shot, but the courts ruled against us.' They always
have that excuse, that the courts ruled against us."

But the state also contends it tried its best to settle the litigation.
The attorney general's office retained Special Assistant Attorney
General Rob Costello, who has served as tribal liaison for prior
administrations, to negotiate with the tribes.

"We have worked hard to reach a resolution in this case outside of
court," Ferguson said in a statement. "To that end, I have personally
met with tribal leaders three times in an effort to reach agreement.
While we made progress, we have not reached a mutually acceptable
resolution."

Still, the people at state agencies charged with carrying out the
injunction and tribal members have continued meeting. Agencies involve
the tribes in project-level decisions and in broader talks to hammer out
the details of the seven-page court injunction, said Jameson of the
Department of Fish and Wildlife.

"There's two ways to resolve the gray area. One is like the decision
directs — we're encouraged to work together with the tribes to implement
the injunction," Jameson said. "The way is, OK, we don't get along, so
the tribes' only recourse would be to go back to Martinez and say, 'The
state's not implementing this correctly, they won't talk to us, we can't
get along, we need you to help us.' That's inefficient."

'A different type of value'

If the state wins at the Supreme Court, the Washington DOT would likely
go back to its former system of prioritizing culvert projects. It placed
more emphasis on the quality of habitat, rather than focusing on
culverts with 200 lineal miles or more of upstream habitat.

"With the injunction, you can have miles and miles of degraded habitat,
but you're still required to open it up," said Kanzler, DOT's stream
restoration program manager.

But tribes say they are worried that if the injunction goes away, the
culverts will continue to be formidable obstacles for spawning and
juvenile salmon.

When the tribes first brought their case in the 1970s, they made up less
than 5 percent of the annual salmon harvest. Now, thanks to the
successive court decisions, their share is 50 percent. But they're
catching fewer fish now than they did in the 1970s.

"I used to be able to be able to live an entire year off what I did in
fishing for anywhere from 36 to 48 days out of the year. I used to be
able to live the entire year off of that," Hamilton of the Muckleshoot
Indian Tribe said. "Now, we're lucky if we're fishing 20 days total. I
mean, some fisheries are down to hours."

Like Krise, the Squaxin Island Tribal member, Hamilton grew up fishing
in local streams to provide salmon for his family's smokehouse. He
stopped fishing commercially in 1995.

"I took my boat out back — I had a 26-foot gill netter — brought in a
bulldozer, dug a big hole, pushed it in and crushed it up. It was no
longer economically feasible," he said.

When Hamilton stopped, he began to work on fishing policy full-time.

"We're fishing people," Hamilton said. "Even though we have casinos, we
have a majority of people that don't work, that will never work in
[casinos], because fishing — it's what they do. ... Everything we do
revolves around the water and the salmon."

For the tribes, Krise said, the case is about more than just restoring
habitat.

"Salmon to our tribal people — it's not only the body, mind, soul,
spirit. It's infant, child, adult, elder. It's spring, summer, fall,
winter. It's who we are as a people," she said.

She hopes that the tribes and state can one day work together to protect
the area's natural resources.

"The hope is that the Supreme Court will also recognize that there's a
different type of value," Krise said. "Maybe Washington state is worried
about the expenditure of having to do these culverts; however, there are
some of us that worry about the other value that when something is lost
it can never be regained again." 

Amanda Reilly, E&E News reporter

Published: Tuesday, April 17, 2018