Friday, April 20, 2018

Culvert Case Notes: a Few Highlights

Washington State appealed a 9th Circuit Court ruling on culverts to the US Supreme Court (Washington State v United States 17-269. Oral arguments were earlier this week. The short story is State roads stream crossings in many places have blocked salmon fish passage. This blockage led to a 9th District Court ruling that the State of Washington needed to accelerate culvert replacements on State Road stream crossings due to the violation of Indian treaties.

I can't say I understand the State's position other than it is keeping with a long time Washington State tradition of not being very supportive of "usual and customary" treaty fishing rights for treaty tribes.

The Supreme Court oral argument transcripts are HERE for those that try to decipher where the Supremes might be heading. 

I noted a few highlights:
JUSTICE SOTOMAYOR (to Noah Purcel arguing for Washington State): In the courts below during the argument in the Ninth Circuit, you said the Stevens Treaty would not prohibit Washington from blocking completely every salmon stream into Puget Sound.

MR. PURCELL: I remember that answer well, Your Honor, and that was a mistake at oral argument about how our theory....

JUSTICE GORSUCH: -- the treaty, which guarantees the right to all usual and customary fishing grounds, really means half of them?

  The point of a treaty I would have thought would have been to -- to freeze in time certain rights and -- and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim.

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.

 MR. PURCELL: Not exactly, Your Honor.

JUSTICE KAGAN: And like Justice Gorsuch, I'm wondering where that is in the treaty? 

Much of the Washington State argument and back and forth with the Justices at oral revolved around vague standards about that applied prioritization of culverts. Given a recent opinion by Gorsuch on another case, being vague may not be a good idea. I did not fine the 9th Circuit ruling on prioritization vague:

"The court ordered correction of high-priority culverts — those blocking 200 linear meters or more of upstream habitat — within seventeen years. For low-priority culverts — those blocking less than 200 linear meters of upstream habitat — the court ordered correction only at the end of the useful life of the existing culvert, or when an independently undertaken highway project would require replacement of the culvert. Further, recognizing the likelihood that accelerated replacement of some high-priority culverts will not be costeffective, the court allowed the State to defer correction of high-priority culverts accounting for up to ten percent of the total blocked upstream habitat, and to correct those culverts on the more lenient schedule of the low-priority culverts."

Allon Keden arguing for the United States of America against the Washington State appeal had this quote: "The state takes about a half dozen quotations out of context from more than 1,000 pages of record and briefing."

Keden's quote matches how things went during the first appeal to the Court of Appeals for the 9th Circuit. The Court of Appeals panel stated "Washington misrepresents the evidence and mischaracterizes the district court’s order.

It should be noted that much of the 9th's ruling was based on Washington State's own studies:

"WDFW and WSDOT, stated, “Fish passage at human made barriers such as road culverts is one of the most recurrent and correctable obstacles to healthy salmonid stocks in Washington.” The report concluded: A total potential spawning and rearing area of 1,619,839 m 2 (249 linear miles) is currently blocked by WSDOT culverts on the 177 surveyed streams requiring barrier resolution; this is enough wetted stream area to produce 200,000 adult salmonid annually. These estimates would all increase when considering the additional 186 barriers that did not have full habitat assessments."

In sum, we disagree with Washington’s contention that the Tribes “presented no evidence,” and that there was a “complete failure of proof,” that state-owned barrier culverts have a substantial adverse effect on salmon. The record contains extensive evidence, much of it from the State itself, that the State’s barrier culverts have such an effect. We also disagree with Washington’s contention that the court ordered correction of “nearly every state-owned barrier culvert” without “any specific showing” that such correction will “meaningfully improve runs.” The State’s own evidence shows that hundreds of thousands of adult salmon will be produced by opening up the salmon habitat that is currently blocked by the State’s barrier culverts. Finally, we disagree with Washington’s contention that the court’s injunction indiscriminately orders correction of “nearly every state owned barrier culvert” in the Case Area. The court’s order carefully distinguishes between high- and low-priority culverts based on the amount of upstream habitat culvert correction will open up. The order then allows for a further distinction, to be drawn by WSDOT in consultation with the United States and the Tribes, between those high-priority culverts that must be corrected within seventeen years and those that may be corrected on the more lenient schedule applicable to the low-priority culverts."

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