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The Culverts Case: An Overview and Potential Implications for Local Governments


June 20, 2018 by Jill Dvorkin
Category: Land Use Administration

The Culverts Case: An Overview and Potential Implications for Local Governments

This blog takes a look at the Culverts Case and potential implications for local governments in Washington State.

Background: U.S. v. Washington

A long time ago, in 1974, Judge George H. Boldt issued a historic decision in the lawsuit U.S. v. Washington that has become known as the Boldt Decision. An even longer time ago, in 1845 and 1855, representatives of several American Indian tribes in the Pacific Northwest signed what are commonly referred to as the Stevens Treaties with the United States, ceding vast amounts of territory in exchange for a reservation of fishing and hunting rights, among other things. Within the treaties, the tribes reserved the right to take fish from their usual and accustomed grounds and stations.

The Boldt Decision reflects an interpretation of these treaty rights and case law upholding these rights against the State of Washington. In this and subsequent rulings, the treaties were interpreted as preserving for the tribes a right to catch up to half the fish in their traditional waters. The tribes also became co-managers of the fishery with the state.

Several years later in 2001, twenty-one Northwest tribes, joined by the United States, sought a determination by the court that Washington State had a duty under the treaties to preserve fish runs and habitat sufficient for the tribes to earn a moderate living, specifically targeting state-owned culverts that impeded anadromous fish passage (thus the “Culverts Case”). In 2007 the court held that the culverts contributed to declines in the salmon runs and ruled that the state was in violation of its obligations under the treaties.

In 2013 the district court issued an injunction ordering the state to increase its efforts in removing culverts blocking or impeding fish passage. The court ordered the state to replace the culverts with the worst impacts on fish habitat by 2030. In 2016 the Ninth Circuit upheld the district court’s decision imposing the injunction. Just last week, on June 11, 2018, the U.S. Supreme Court affirmed the ruling by an equally divided court. The affected state agencies include the Department of Fish and Wildlife, the Department of Transportation, the Department of Natural Resources, and Washington State Parks.

Implications for Local Governments

What does this mean for local governments? Writing for the Association of Washington Cities (AWC), Sheila Gall and Carl Schroeder published this article, which included the following statement:

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.

So, what should local governments do? In the Western Washington region, local governments should consider how their infrastructure and land use policies may affect anadromous fish and take measures to remove impediments and improve habitat where possible. Local jurisdictions will want to continue working toward increased regional and statewide coordination on habitat restoration efforts as well.

Additional Resources

For more information about the Culverts Case and related issues, see the following:

Additionally, you may wish to consult the following MRSC topic pages for resources regarding stormwater runoff, green design, and sustainable growth for municipalities:

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.

If your jurisdiction is considering new infrastructure or land use policies in response to this ruling, please contact me at jdvorkin@mrsc.org or leave a comment below.

About Jill Dvorkin

Jill joined MRSC as a legal consultant in June 2016 after working for nine years as a civil deputy prosecuting attorney for Skagit County. At Skagit County, Jill advised the planning department on a wide variety of issues including permit processing and appeals, Growth Management Act (GMA) compliance, code enforcement, SEPA, legislative process, and public records. Jill was born and raised in Fargo, ND, then moved to Bellingham to attend college and experience a new part of the country (and mountains!). She earned a B.A. in Environmental Policy and Planning from Western Washington University and graduated with a J.D. from the University of Washington School of Law in 2003.

VIEW ALL POSTS BY Jill Dvorkin

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Comments

"Haven't read the decision, but if the obligation is based on the State's treaty obligations, it would seem logical that the duty to correct would be on the State and not local governments. Granted, the State could enact legislation requiring local governments to make corrections, but at least then they could seek to require the State to fund the mandates it imposes on local jurisdictions. Just a thought."

ryan brown on Jun 28, 2018 1:37 PM

"In addition to planning and implementing culvert upgrades systematically, local governments can take advantage of opportunities to make improvements as they present themselves. During my tenure as Bainbridge Island City Administrator (1991-2003) we incorporated fish passage improvements in three major projects and saw a return of migrating fish the very next season in all cases."

Lynn Nordby on Jun 22, 2018 11:18 AM

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