Washington Tribal Law to Change
Fish Passage

The Ninth Circuit Federal Court of Appeals ruled on 27 June, 2016 in United States, et al. v State of Washington 13-35474, 2:01-sp-00001-RSM,2:70-cv-09213-RSM, that Washington State must more quickly repair hundreds of road culverts blocking salmon migration, affirming a 2013 lower court decision. The Ninth Circuit ruled that Salmon passage through these culverts (large pipes under roadways that can become damaged or clogged with debris) is protected by treaties establishing Tribal rights to salmon spawning areas.

The suit, brought by 21 Tribes and the U.S. Government, alleged that Washington’s road culverts blocked as much as 1,000 miles of salmon-spawning habitat. At the State’s current work rate, it would have taken more than100 years to complete the current backlog of culvert repairs.

The 1854-55 treaties, known as the Stevens Treaties, granted off-reservation fishing rights to Tribes in exchange for relinquishing huge tracts of land to the government. The ruling finds that Washington’s refusal to correct its culverts blocks salmon from entering streams, thus impinging on Tribal rights and violating the Stevens Treaties.

The ruling is a follow-up to the finding in the famous 1974 case, United States v Washington, commonly known as the Boldt Decision,384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), that found that Washington State Tribes still retained a Tribal treaty right even after they ceded lands to harvest up to 50 percent of the salmon available for harvest in that State.

After the Stevens Treaties, Washington State had been steadily impinging on Tribal fishing rights by utilizing technology to remove fish before they could reach Tribal fishing areas and by banning native fishing practices, such as fish weirs. The Boldt Decision ruling reaffirmed the right of Tribes to a 50 percent share of salmon harvests. This landmark extension of that right now recognizes a parallel obligation by the State of Washington to also protect access to salmon spawning and rearing habitat as a federal Treaty obligation. The Pacific Coast Federation of Fishermen’s Associations (PCFFA/IFR) filed an amicus curiaebrief at the invitation of the Tribes to assist with their case. The 9th Circuit Court’s ruling could have far-reaching implications for affirming tribal fishing rights as well as habitat protections in other areas of the west coast.