Wednesday, June 13, 2018

Notes on the Culvert Case Being Upheld

The Supreme Court split 4-4 with Kennedy sitting out. Hence, Washington State will need to proceed with fixing fish blocking culverts as previously ordered by the the US District Court.

Not much to read as with a split opinion there is no decision to be written and no dissent.   no https://www.supremecourt.gov/opinions/17pdf/17-269_3eb4.pdf

The knkx.org story here is a good summary of the result.

Various parties had press releases. Bob Ferguson has perplexed some with his position and taking this case to the Supreme Court in direct conflict with the position of the governor and the Washington State Lands Commissioner of Public Lands.  I add a bit of commentary at the end and will do a future post with a bit more. In any event, the lower court ruling standing is a big deal.

Washington State Attorney General Bob Ferguson issued the following statement:

"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. 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. 

I look forward to working with tribal governments to advocate for the funding necessary to comply with this court order, and to ensure other culvert owners do their part to remove barriers to salmon passage."

The cost impacts are relatively modest in the scheme of the entire state transportation budget. At issue was the State's obligation. That is not the same as the Federal government; Mr. Ferguson knows that, but wants to complain about the different treatment. Some have expressed concern that counties and cities may have to follow a similar path; however, that was not before the court and Mr. Ferguson is over simplifying the problem with other blocking culverts - the lower court already determined that issue and the State's position was vague.   

Hilary Franz, commissioner of public lands, issued this statement:

"Today’s decision affirms that it is our collective responsibility to ensure the survival of Pacific salmon. This decision is fair under the letter of the law, but it is also just. Protecting salmon is an issue not just of importance to Washington’s tribes, but to all of us.

The time is now to think boldly about how we move forward on many fronts, including culverts.

My agency, the Department of Natural Resources, stands ready to work with tribes, state agencies, counties, private landowners and federal partners to restore and protect our treasured salmon. 


It is time to stop fighting over who should do what. Instead, let us roll up our sleeves, stand shoulder to shoulder, and get to work saving our Pacific salmon for future generations. It’s time to do the right thing."

Based on previous statements by Ms. Franz, she gets that this issue is bigger than just the tribal fishing rights - expanding fish populations will benefit both tribal and non tribal fishers.



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