Treaty Rights Law Alert: Federal Court Decision Regarding Impassable Culverts Under State Roads

On August 22, 2007, the U.S. District Court, Western District of Washington, declared that Treaties reserving tribal rights to take fish impose a duty on Washington State to refrain from diminishing fish runs by constructing and maintaining culverts that block fish passage. The court emphasized that its "narrowly-crafted declaratory judgment does not raise the specter of a broad ‘environmental servitude.’"

Motion for Summary Judgment

In 2001, several Tribes and the United States initiated a sub-proceeding, generally known as the "culverts case," in the long-standing United States v. Washington Treaty fishing case to compel Washington State to repair or replace culverts impeding salmon migration to or from spawning habitat. Relevant Treaties reserved to Indian tribes the "right of taking fish, at all usual and accustomed grounds and stations."

In 1980, the district court had issued a broad declaration that the Treaties implicitly incorporated a right to have fishery habitat protected from "man-made despoliation." The Ninth Circuit initially rejected the "environmental servitude created by the district court," but went on to hold that the State and Indians must each take reasonable steps to preserve and enhance the fishery when their projects threaten then existing levels. Upon rehearing in a decision issued in 1985, the Ninth Circuit set aside its initial decision and the district court decision, leaving the applicable legal standard to be decided in the context of a particular dispute. The culverts case presented the context for that decision.

According to the Tribes, culverts under State-owned or State-maintained roads block at least 249 linear miles of streams, closing more than 400,000 square meters of productive spawning habitat and more than 1.5 million square meters of productive rearing habitat. The State did not contest that a certain number of culverts under State-owned roads present barriers to fish migration. In its August 22 order, the district court noted: "by the State’s own estimates, removal of the obstacles would result in an annual increase in production of 200,000 fish, many of which would be available for Tribal harvest."

The Tribes presented evidence that tribal fish harvest levels have declined to less than half the levels of the years 1985 to 1991. Washington argued that the Tribes had failed to produce evidence that the blocked culverts affirmatively diminished the number of fish available for harvest. Acknowledging that there may be other causes for this reduction, the district court stated that the "conclusion is inescapable that if culverts block fish passage so that they cannot swim upstream to spawn, or downstream to reach the ocean, those blocked culverts are responsible for some portion of the diminishment. It is not necessary for the Tribes to exactly quantify the number of ‘missing’ fish to proceed in this matter."

Legal Issue and Decision

Given this background, the district court stated that the issue is purely legal: "whether the Tribes’ treaty-based right to taking fish imposes upon the State a duty to refrain from diminishing fish runs by constructing or maintaining culverts that block fish passage."

To resolve that legal issue, the court looked to the words of the Treaties and the intentions of the Tribes and the United States as parties to those Treaties. The court noted that Governor Isaac Stevens, the first governor of Washington Territory, who negotiated the Treaties on behalf of the United States, was well aware that promises to protect the tribal right to take fish and related commerce in fish would be crucial in obtaining Indian consent to the Treaties. In exchange, the Tribes ceded land to facilitate non-Indian settlement. The district court cited the Supreme Court’s 1979 decision in the United States v. Washington litigation, which construed the Treaties as securing to Tribes the right to "take" fish, not the mere "opportunity" to catch fish.

Against this background, the district court found that the Tribes had presented sufficient evidence regarding the number of blocked culverts to justify a declaratory order that the Treaties impose a duty on Washington to refrain from building and maintaining culverts in a manner that blocks fish passage to and from Tribal usual and accustomed fishing places. Cautioning against overreading this outcome, the court added: "This is not a broad ‘environmental servitude’ or imposition of an affirmative duty to take all possible steps to protect fish runs as the State protests, but rather a narrow directive to refrain from impeding fish runs in one specific manner."

The district court has not announced what remedy it will require in light of its order. Although trial on that issue is scheduled for September 24, 2007, statements by the State and Tribal representatives after the August 22 decision suggest both sides may seek a settlement.

What Does This Mean?

The court went to great pains to make clear that its decision was both narrowly focused and fact-specific. Evidence showing that tribal fish harvests had been substantially diminished, together with the logical inference adopted by the court that a significant portion of that diminishment is due to the "many" blocked culverts cutting off access to spawning and rearing areas, led the district court to issue its declaratory order. Importantly, the court made it clear that its order does not establish an environmental servitude or impose an affirmative duty to take all steps possible to protect fish runs.

Very few activities will present issues as stark, complete blockage, on a landscape scale and with fish production impacts rivaling those of State culverts blocking access to spawning habitat. Nonetheless, it is likely that Tribes will try to use this decision to seek protection for all life stages and functions of salmon. Many projects already provide extensive mitigation to avoid, minimize and mitigate fishery impacts. With this decision, project owners will have more reason to document why project activities avoid blocking passage to or from spawning habitat and avoid significant adverse effects, quantitatively and qualitatively, on other life stages and functions of salmon. In appropriate circumstances, on a prudential basis, the district court’s recent decision may encourage project owners to consider additional mitigation measures to avoid, minimize and mitigate fishery impacts.

For more information on this alert, please contact:

Barbara D. Craig at or (503) 294-9166
Jason T. Morgan at or (206) 386-7527
Michael P. O'Connell at or (206) 386-7692

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