Dec 13 | 2018 Re-Wire Policy Conference | Learn More

Former Gov. Evans asks Supreme Court to uphold Washington’s culvert case ruling

Former Governor Daniel J. Evans submitted a brief on Monday to the U.S. Supreme Court asking them to uphold the ruling in Washington’s long-running culvert case. The case is a 17-year battle over the state’s responsibility to protect salmon habitat as part of the salmon treaties with Washington tribes.

In 2001, 21 Washington tribes filed a lawsuit demanding the State of Washington repair and replace culverts that were impeding salmon migration and blocking access to spawning and rearing habitat. As part of the Stevens Treaties of the 1850s, the Tribes gave up huge amounts of land to the federal government but reserved their right to fish in common with non-Native citizens. With culverts harming the salmon and impeding their migration, the tribes demanded the state fix the culverts so that their access to salmon is unimpeded.

In 2007, a US District Judge Ricardo Martinez ruled in favor of the tribes, declaring,

“The right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest. The Court further declares that the State of Washington currently owns and operates culverts that violate this duty.”

The state appealed the ruling with the 9th Circuit Court of Appeals in 2015, but lost. In 2017 AG Ferguson filed a petition with the U.S. Supreme Court to review the decision.

“Tribal treaty rights are vitally important,” said Ferguson in a press release. “I appreciate and share the goal of restoring salmon habitat, but the State has strong legal arguments that the Ninth Circuit decision is overbroad. We are working with tribes to resolve this matter, but we needed to file this appeal today to preserve our ability to challenge aspects of the Ninth Circuit’s opinion.”

In January the Supreme Court agreed to hear the case. Since then, numerous groups have filed amicus briefs, all of which can be found here.

Now former Governor Evans has joined the fray, expressing his support for the tribes’ position and his dismay for the state’s hesitancy to full comply with the ruling:

“The State of Washington has a stewardship responsibility to its citizens – Indian and non-Indian alike – to protect and conserve its natural resources for the benefit of future generations. There is no question under the facts of this case that the current condition of the State’s road culverts is causing serious harm to its salmon resources. The State’s position in this case is inconsistent with its stewardship responsibility…”

“…Given this commitment it is astounding that one entity with responsibility for much of this problem – the Washington Department of Transportation – objects to meaningful participation in regional, state and local salmon recovery. The physical condition of many State-maintained culverts undermines the efforts of other entities to protect and restore salmon. The district court properly directed the State Department of Transportation to take corrective action, in a timely manner.”

Arguments are scheduled to be heard on April 18, 2018 and a decision is expected by June 2018.