Supreme Court case is good for salmon, so why did Washington even fight it?

Photo: Northwest Treaty Tribes

Washington taxpayers must now deliver to tribes, the courts ... and to fish

Mark Trahant

Indian Country Today

The question that kept coming up over and over is “why?”

Why did the state of Washington pursue a case about culverts all the way to the Supreme Court? Why, especially, when the only logical outcome was to improve the habitat for salmon and give the fish a better shot at recovery?

Associate Justice Sonia Sotomayor was one of those asking and said so during the oral arguments in April. “I'm just still having a hard time,” she asked, when “the district court essentially took your plan of remediation that was going to take 99 years, and it condensed it to 17.”

Why not do the right thing?

The state said the treaty rights should limit “certain types of state actions that are not justified by substantial public interest. And -- and applied here, we think that means that -- the plaintiffs need to show that state barriers are causing a large decline in a particular river and that it's not justified by substantial public interest.”

So the state’s definition of “substantial public interest” means the state did not want (or could not) spend the billions of dollars on replacing culverts, sooner rather than later.

Associate Justice Neil Gorsuch picked up on this thread, too. “I think that's really where the case boils down, and -- and -- and I'm struggling with that. Right? You -- you assert that you have rights to pursue other public goods and that those can outweigh the treaty effectively.”

Gorsuch was even more blunt later. “I don't see anything in the treaty -- maybe you can point it to me, maybe I'm just missing it textually -- anything in the treaty that says: ‘Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you're taking, I think, before this Court.”

In other words if a treaty costs too much, well, you know …

So why was there even a case? Especially when there is another idea that came up in the original U.S. versus Washington, the Boldt decision. Boldt set a standard that treaties must be interpreted as the tribes understood them at the time. That meant salmon, yes, and a substantial public interest? No.

Courts have been after Washington to do the right thing and make streams friendly to salmon since 2001, ordering a replacement of some 600 culverts over hundreds of miles because they impede salmon from spawning up river. The late Billy Frank Jr, chairman of the Northwest Indian Fisheries Commission chairman, called the state’s appeal a “disappointment.”

Now, of course, the state will have to do the right thing. And move a little quicker. (Related: Supreme Court tie favors tribes, salmon recovery in Washington state.)

“Today’s ruling brings a resolution to a case that has gone on for nearly 20 years, defended by multiple attorneys general. It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design,” said Washington’s Attorney General Bob Ferguson.

“The Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling. It’s also time for others to step up in order to make this a positive, meaningful ruling for salmon. Salmon cannot reach many state culverts because they are blocked by culverts owned by others. For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state. These culverts will continue to block salmon from reaching the state’s culverts, regardless of the condition of the state’s culverts, unless those owners begin the work the state started in 1990 to replace barriers to fish.”

The most important outcome of Boldt -- other than a win for treaty rights -- was the idea that science and natural resource management are essential partners to recovery. It’s also an understanding that someone has to invest money to rectify mistakes of the past. This Supreme

The court ruling Monday reinforces that idea.

The headlines say that tribes won this case. And, yes, like Boldt, it’s a win for treaty rights. But the bigger winner is salmon. And a recognition that governments, including states, cities, and counties, will have to invest taxpayer dollars doing the right thing.

That’s why.

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