Published on Jun 12, 2018

U.S. Supreme Court deadlock on culverts case: Ninth Circuit decision remains the law

Contact: Sheila Gall, Carl Schroeder

The long-running culverts court case recently took a challenging turn for cities. The culverts case addresses the state’s obligations under a tribal treaty to address fish-blocking culverts, with possible implications for local governments. The U.S. Supreme Court issued a rare 4-4 decision in Washington v. United States after Justice Kennedy recused himself. Because of this tie decision, the Ninth Circuit court decision and injunction remain in place.

AWC and our member cities are committed to salmon recovery and environmental stewardship. We have worked for several years to help develop a coordinated and strategic statewide approach to the culvert issue specifically. We have been investing in culvert inventories to better understand the extent of existing culvert blockages within cities. We expect to continue these efforts. However, there are several significant implications of this lawsuit for cities, some of which could be very concerning.

We are still working through our full understanding of the ramifications of this decision, but here are a few highlights:

  • The state remains on the hook to fix hundreds of fish-blocking culverts underneath state highways, with a potential cost of several billion dollars without resources dedicated to this purpose.
  • The state is obligated to fix almost all of their culverts under a very aggressive timeline, with little flexibility to prioritize investments where they will make the biggest difference.
  • There’s wide belief that the resolution of this case could ultimately point the way for the treatment of city- and county-owned culverts.

For the last several years, AWC has focused on developing and funding a comprehensive statewide approach to culverts. This strategy helps local governments correct their blockages – recognizing that it does no good to fix a state-owned culvert upstream of another owner’s blockage. The fish still cannot get further upstream. Our hope is that this effort will provide a framework to address and fund corrections on a systemwide basis. The extent to which a strategic state approach could apply to city culverts will only become clear over the next several years as this issue evolves.

Another element of this case that was very concerning to local governments (and was the focus of the amicus brief filed by AWC and the Washington State Association of Counties) is the potential to extend the logic of this decision to other governmental activities that could be argued to negatively impact salmon abundance. There are a number of land use, permitting, or other regulatory actions that could be argued to have an impact on salmon. The Ninth Circuit decision did not lay out any decision-making framework to determine what is, and what is not, an appropriate exercise of these authorities. We expect this will continue as an active legal question in the coming years.

Another bigger-picture question that this decision poses is what affect, if any, it will have on our efforts to secure state support for local culvert corrections. We have already seen a dynamic in the conversations in Olympia where some feel that the top priority is to address state culverts since they are under court injunction. AWC maintains that in order to make progress, we need to look at these stream systems as a whole, so that the benefits to fish are consistent with the size of investments.

Please contact Sheila Gall or Carl Schroeder if you have any questions about this case, and we will keep you updated as things become more clear.

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