The case former attorney general Rob McKenna once called “the most important Washington lawsuit you have never heard of” was heard in the United States Supreme Court on April 18. Commonly referred to as “the culverts case,” Washington v. United States is part of a decades-long set of legal cases establishing the scope and implications of the 19th century treaties between the United States and the Northwest Indian tribes as they relate to tribal fishing rights. The case arrived at the Supreme Court after an injunction at the Ninth Circuit Court of Appeals obligated the state to fix almost all of their fish-blocking culverts by 2030 – at a cost of billions of dollars. One core question posed by this case is whether the treaties guarantee some level of protection for salmon populations or merely a share of otherwise available fish.
Cities and AWC are keenly interested in this case for two main reasons. First, cities own nearly the same number of similar culverts in the region covered by the case. Tribal representatives have been quoted publicly indicating that local governments could be at risk of similar claims after the suit with the state is finalized. Whatever balance is struck for the state between the public’s interest and tribal rights will likely serve as precedent for how local culverts are ultimately treated. Second – and perhaps even more important – the reasoning of the appeals court decision opens the possibility for new claims of treaty violations for a much wider variety of local government actions, such as development approval or land use decisions if plaintiffs can make a case those decisions impact fisheries abundance.
AWC partnered with the Washington State Association of Counties to submit an amicus brief supporting the state and expressing significant concerns about the breadth, lack of clarity, and financial consequences of the Ninth Circuit’s ruling. Numerous other parties also submitted amicus briefs on both sides of the issue. Those who wrote in support of our position and the state’s included eleven other states, businesses, agricultural, and development interests.
The oral arguments seemed to dive very quickly down into the weeds, spending a considerable amount of time questioning the two sides about their thoughts for what the standard should be that triggered a treaty violation (substantial degradation or large decline) and whether that could be quantified. There was also a lot of back and forth on procedural issues related to whether the tribes had argued legal concepts in their briefs that were not raised in lower courts (new arguments cannot be made on appeal). Unfortunately for cities, there was limited discussion about the potential implications of this case, if the tribes prevail, on other local government decisions. Scotusblog has a detailed summary of the oral argument that is worth reading if you are tracking this case.
The Supreme Court will release their decision on this case by the end of June. Meanwhile, cities have continued to work with the state, other local governments, and the tribes over the last several years to create a strategic and prioritized approach to local fish passage projects to maximize the cost effectiveness and benefits for all stakeholders.
The Fish Barrier Removal Board, that AWC helped revive to develop this strategic approach, just closed their second round of grant applications. We look forward to supporting additional funding next session.