Julie Henning (right), division manager of the Washington Dept. of Fish and Wildlife ecosystem services division habitat program, and Melissa Erkel, a fish passage biologist, look at a wide passageway for the north fork of Newaukum Creek near Enumclaw in 2015. (Ted S. Warren / Associated Press)

Julie Henning (right), division manager of the Washington Dept. of Fish and Wildlife ecosystem services division habitat program, and Melissa Erkel, a fish passage biologist, look at a wide passageway for the north fork of Newaukum Creek near Enumclaw in 2015. (Ted S. Warren / Associated Press)

State must fix culverts for salmon passage, court says

EVERETT — Washington state will have to come up with $2.4 billion to replace hundreds of culverts that impede salmon migration. 

On Monday, the U.S. 9th Circuit Court of Appeals upheld a lower court order from 2013. It’s the second major court decision in as many months concerning salmon habitat in the Northwest.

The decision was hailed by tribal leaders in the state.

“Tulalip and other tribes are very happy to see this decision,” said Mel Sheldon Jr., chairman of the Tulalip Tribes, one of the plaintiffs in the case.

“This is not just a tribal issue; yes, it’s a treaty right on salmon fishing and the environment,” Sheldon said.

However, it also ties into other issues that the tribes and state have fought over in recent years, including standards for fish consumption and this year’s breakdown over setting the fishing season, which at their heart focus on environmental degradation.

This case and another recent example in Oregon placed salmon habitat and tribal fishing rights front and center. In May, a federal judge in Portland ruled that a massive habitat restoration effort by the U.S. government doesn’t do nearly enough to improve Northwest salmon runs, and that federal law may require authorities to consider removing four huge dams on the lower Snake River in eastern Washington.

The current action stems from 2001, when 21 tribes and the federal government filed a complaint in U.S. District Court.

The court ruled in 2007 that building and maintaining the culverts caused the salmon runs to decline, violating the state’s obligation under treaties signed with the tribes. That litigation was part of the ongoing fallout from the landmark Boldt Decision, which has governed fisheries issues involving the state, the federal government and 21 Native American tribes.

In 2013, the court issued an injunction requiring the state Department of Transportation to replace all its culverts with more fish-friendly structures that let streams flow unimpeded. The court gave the state 17 years to do it.

The state appealed, arguing that its treaties with the tribes created no obligation to restore salmon habitat.

The state agreed that replacing old culverts was one important part of restoring salmon runs and noted that it had spent hundreds of millions of dollars to fix fish habitat. But the state called the 2013 order too sweeping and expensive, and said it would force the state to focus on fixing culverts even when salmon-restoration dollars could be spent more effectively elsewhere.

A three-judge panel of the U.S. 9th Circuit disagreed unanimously.

“The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” Judge William Fletcher wrote for the panel.

Isaac Stevens, who was governor of the Washington Territory at the time the treaties were signed, “did not make … such a cynical and disingenuous promise,” Fletcher wrote.

“This is a great day for salmon, tribal treaty rights and everyone who lives here,” said Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, in a prepared statement.

“Fixing fish-blocking culverts is one of the most cost-effective steps that can be taken to recover salmon,” she said. “This ruling makes clear that our treaty rights include the right to have salmon habitat protected so that there are fish to harvest. That means more salmon for everyone.”

The state transportation department owns 818 culverts that are covered by the ruling in Western Washington. It has been working to make them more fish-friendly as it performs regular road maintenance. The state’s budget for the 2015-2017 biennium includes $87.5 million for fish-passage projects.

That’s less than 4 percent of the estimated $2.4 billion price tag for all 818 culverts.

There are 137 state-owned culverts in Snohomish County, plus an unknown number of culverts under county roads.

Eight county-owned culvert projects are planned to be completed in 2016.

“We do have a list of known problem areas,” County Executive Dave Somers said. He said he’s asked staff to prioritize projects based on their impact to salmon streams. The county repairs its own culverts, alongside road repair.

“It’s something we want to build into our ongoing program so we’re addressing them, but it’s not something we can address overnight either,” Somers said.

A spokeswoman for Gov. Jay Inslee said state agencies and the Attorney General’s office were reviewing the case.

Chris Winters: 425-374-4165; cwinters@heraldnet.com. Twitter: @Chris_At_Herald. The Associated Press contributed to this story.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

LifeWise local co-directors Darcie Hammer and Sarah Sweeny talk about what a typical classroom routine looks like on Monday, April 14, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Everett off-campus Bible program draws mixed reaction from parents

The weekly optional program, LifeWise Academy, takes children out of public school during the day for religious lessons.

Protesters line Broadway in Everett for Main Street USA rally

Thousands turn out to protest President Trump on Saturday in Everett, joining hundreds of other towns and cities.

An EcoRemedy employee checks a control panel of their equipment at the Edmonds Wastewater Treatment Plant on Thursday, April 17, 2025 in Edmonds, Washington. (Olivia Vanni / The Herald)
Edmonds launches technology to destroy PFAS

Edmonds is the first city in the country to implement… Continue reading

Over a dozen parents and some Snohomish School District students gather outside of the district office to protest and discuss safety concerns after an incident with a student at Machias Elementary School on Friday, April 18, 2025 in Snohomish, Washington. (Olivia Vanni / The Herald)
Parents protest handling of alleged weapon incident at Machias Elementary

Families say district failed to communicate clearly; some have kept kids home for weeks.

Irene Pfister, left, holds a sign reading “Justice for Jonathan” next to another protester with a sign that says “Major Crimes Needs to Investigate,” during a call to action Saturday, April 12, 2025, in Arlington. (Aspen Anderson / The Herald)
Arlington community rallies, a family waits for news on missing man

Family and neighbors say more can be done in the search for Jonathan Hoang. The sheriff’s office says all leads are being pursued.

Mary Ann Karber, 101, spins the wheel during Wheel of Forunte at Washington Oakes on Tuesday, April 1, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Lunch and Wheel of Fortune with some Everett swinging seniors

She’s 101 and he’s 76. At Washington Oakes, fun and friendship are on the menu.

Everett Music Initiative announces Music at the Marina lineup

The summer concert series will take place each Thursday, July 10 to Aug. 28 at the Port of Everett.

Jordan Hoffman-Nelson watches the store cameras for a couple hours each day, often detecting 5 to 10 thefts in a single sitting. (Aspen Anderson / The Herald)
At a Lynnwood thrift store, rising shoplifting mirrors larger retail crime surge

Employees at Bella’s Voice remain alert for theft on a daily basis. They aren’t the only ones.

Connect Casino Road Director Alvaro Gullien speaks at an Everett City Council meeting to share community thoughts regarding affordable housing and preventing displacement of those that live along Casino Road on Wednesday, April 16, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
How will Everett’s comprehensive plan work in Casino Road?

Residents in the diverse, tight-knit neighborhood want “Investment without displacement.” The city’s plan will help achieve that, staff say.

Henry M. Jackson High School’s FIRST Robotics Competition championship robotics Team 2910 Jack in the Bot on Thursday, April 24, 2025 in Mill Creek, Washington. (Olivia Vanni / The Herald)
Mill Creek robotics team celebrates world championship win

The team — known as “Jack in the Bot” — came in first place above about 600 others at a Texas world championship event last week.

Trees and foliage grow at the Rockport State Park on Wednesday, April 3, 2024 in Rockport, Washington. (Annie Barker / The Herald)
Washington Legislature approves hiking Discover Pass price to $45

The price for a Washington state Discover Pass would rise by $15… Continue reading

The Washington state Capitol on April 18, 2025. (Photo by Jacquelyn Jimenez Romero/Washington State Standard)
Parental rights overhaul gains final approval in WA Legislature

The bill was among the most controversial of this year’s session.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.