The state of Washington must unblock barrier culverts that prevent salmon from returning upstream to spawn and block Indian tribes from traditional fishing grounds, a federal appeals court has said. The state has 17 years to comply.
Since 1855, Indian tribes have held rights to traditional tribal fishing grounds in Washington state, in exchange for relinquishing large swaths of land in the Cascade Mountains, Columbia River drainage, Puget Sound and the Olympic Peninsula.
The 9th U.S. Circuit Court of Appeals ordered the state of Washington this week to adhere to the obligations of those treaties. Some 21 tribes sued the state arguing that Washington has and continues to violate the treaties by maintaining culverts that prevent mature salmon from returning from the sea to their spawning grounds.
“We conclude that in building and maintaining barrier culverts Washington has violated, and continues to violate, its obligation to the tribes under the fishing clause of the treaties,” the panel ruled. The state was ordered to make the correction a high-priority barrier culverts within 17 years, and to correct others in the course or road projects or at the end of the culverts’ natural life.
The ruling upholds an injunction issued in 2013 that ordered the state to fix the culverts to allow for the fish spawning.
Despite the tribal fishing rights there has been nearly 100 years of conflict over tribal access to fishing grounds. Settlers developed homes on rivers and the salt-water shoreline, which often blocked access to many of the tribes’ traditional fishing sites.
White commercial fishermen caught enormous amounts of salmon by the end of the 1800s to supply large canneries, according to the court. By 1904, the Yakimas tribe complained that whites blocked access to the Indians’ usual fisheries on the Columbia River until the best ground were taken over by white men who refused to allow them to fish in common, the court said.
In the 1900s, the tribes fished with traps and nets in rivers, while white commercial fishermen fished in salt water using equipment most Indians could not afford and caught mature and immature salmon.
Over the decades the off-reservation fishing has been increasingly restricted. Over the years, this issue has been fought in the courts and gone to the U.S. Supreme Court multiple times.
In more recent decades, the state’s road builders have constructed culverts to allow streams to flow under roads, but many culverts do not allow fish to pass easily or at all.
It I this that the state has been ordered to correct.
Washington argued that it should not have to fix culverts until after the federal government has repaired culverts on federal roadways. The 9th Circuit rejected the argument, saying the state had no right to argue for the tribes and the U.S. was immune from the state’s claims.
Judge William Fletcher wrote the opinion and was joined by Judge Ronald Gould and visiting Judge David Ezra of Hawaii.
Case: U.S., Suquamish Tribe v. Washington State, No. 13-35474