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Federal Appeals Court Says Washington Must Repair Salmon-Blocking Culverts

June 28, 2016

A federal appeals court panel sided with 21 Native American tribes Monday, ruling the state of Washington must continue to repair culverts that prevent salmon from freely moving along waterways.

Culverts are structures that allow water to move under roadways. But when they’re too small, too high or blocked with debris, they can prevent salmon from passing.

Tribes argued successfully more than a decade ago in the case's first hearing that the state’s culverts hurt salmon populations, violating their fishing rights.  

Now a panel of the 9th Circuit Court of Appeals has upheld a lower court injunction requiring the worst of Washington's culverts be fixed within a designated time. 

“This ruling makes clear that our treaty rights include the right to have salmon habitat protected so that there are fish to harvest,” said Lorraine Loomis, chair of the Northwest Indian Fisheries Commission in an email.

The commission argues that fixing culverts is a cost-effective step to recover salmon.

Washington says repairing the culverts will cost taxpayers more than $2 billion, an estimate the 9th Circuit Court called into question in its ruling.    

The Washington Attorney General’s Office declined to comment, aside from saying it is reviewing the decision to determine next steps.

Washington transportation officials say repairing the culverts will cost taxpayers more than $2 billion, an estimate the 9th Circuit Court called into question in its ruling.

 
The Washington Department of Transportation has repaired 23 culverts since an injunction went into effect in 2013. An additional 20 are to be repaired this summer.  

WDOT’s Paul Wagner said the state has dedicated about $45 million dollars a year to meet the terms of the court injunction but it’s not enough.

“We need more funding to do the number of corrections needed,” Wagner said.  

Around 450 culverts will need to be replaced by 2030.  Nearly 500 more will need to be improved for fish passage when they reach the natural end of their useful life.

The case stems from the landmark 1974 Boldt decision, which affirmed the rights of 21 Washington tribes to half the salmon harvest. The tribes, backed by the U.S. Justice Department, sued the state in 2001, trying to force the state to replace the culverts with structures that better allow fish to pass.

 The Associated Press contributed to this report.

 READ the ruling:


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Before: An undersized stream crossing & fish passage barrier, prior to reconstruction, Malheur National Forest.
U.S. Forest Service

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