SEATTLE - The U.S. Supreme Court hears a case today with major implications for the rights of tribes and salmon in Washington state.

At the center of Washington v. United States are culverts, the pipes that carry streams under roads. The state has more than 800 culverts blocking more than 1,000 miles of streams. Twenty-one tribes sued the state 17 years ago to fix these culverts, which make salmon migration more difficult.

Professor Robert Anderson, who specializes in Native American law at the University of Washington Law School, said the lawsuit is based on a series of treaties that opened up the state to settlement.

"In exchange for surrendering their claims to most of their land in Western Washington," he said, "the tribes retained an explicit right to fish at usual and accustomed stations in their aboriginal territories."

The state has said it will cost $2 billion to fix the culverts, although Anderson countered there's no evidence for that number and it most likely represents the worst-case scenario.

Washington Attorney General Bob Ferguson acknowledged that the state needs to do more to protect salmon, but said this case could force a costly solution that might not work.

Anderson said the state argued in a lower court that treaties don't offer protections for fish habitat, meaning tribe members have a right to fish, but the state doesn't have to guarantee there are any fish to catch. Washington has backed away from that argument in the Supreme Court case.

The verdict could have implications for other tribes, and for the habitat protections in treaties, although Anderson says these salmon-blocking culverts set a high bar.

"One thing I can say about this case," he said, "is that the harm is so clear that's being caused by these culverts that it's difficult to see how another case could match this level of hardship that the culverts are causing."

Still, he said, tribes in the West and Midwest are watching the case closely, because of its potential effects on their treaty rights to fish and hunt.

The case is online at supremecourt.gov.


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Coming into the new year, Columbia Riverkeeper is supporting efforts by the Cowlitz Tribe and Yakama Nation to restore salmon migration throughout the Lewis River. Fish passages would enable migration around dams and access to blocked habitats, essential for salmon and steelhead recovery in the culturally vital Lewis River basin.

Miles Johnson, legal director with Columbia Riverkeeper, said he's optimistic about a future of thriving fish and river wildlife.

"We're tentatively pretty excited," Johnson said. "We're going to see fish in parts of the Lewis River, which is a really important tributary of the lower Columbia. We're going to see fish in places that they haven't been in many, many years."

PacifiCorp recently agreed to a new schedule to install fish passage at two of its hydroelectric dams on the Lewis. Johnson said PacifiCorp broke a previous pledge to retrofit its dams to include fish passage, adding that Columbia Riverkeeper will continue to hold the company accountable for promises to tribes and the public.

Johnson said Columbia Riverkeeper will also be watching the project carefully to ensure PacifiCorp follows through, given what he described as its past focus on financial interests over legal obligations.

"These are really expensive projects to build, and PacifiCorp has demonstrated a history of putting its bottom line before its obligations, to the fish and people who use the river," he continued.

Johnson added although things are in motion, until the fish passage facilities are built in a way that's meaningful and going to work, they will continue to monitor the process and if necessary, try to hold PacifiCorp accountable.

He said science shows that reconnecting fish with existing, high-quality spawning habitat is the best way to recover the Lewis River's struggling populations of spring Chinook and coho salmon, steelhead and bull trout.

The Biden administration wants to get serious about restoring salmon populations to the Northwest.

A presidential memorandum directs federal agencies to assess how they can improve fish numbers in the Columbia River Basin.

Mitch Cutter, salmon and steelhead associate for the Idaho Conservation League, applauded the memo, saying other presidents have dodged the issue because it is tricky to address.

"What we're seeing that's very different about this administration is that they are ready to embrace that complexity and ready to get to a level of 'How do we solve this problem?'" Cutter explained. "We've been putting this off across multiple administrations for 30 years now. How do we move this issue forward?"

Cutter pointed out salmon and steelhead populations over the past few decades have been in severe decline in the Columbia River Basin, including on the Snake River stretching into Idaho.

Cutter added working with Indigenous tribes is also prominent in the presidential memo.

"We're seeing this administration treat tribal justice much more seriously than past administrations have," Cutter observed. "At least say the right things about how it is paying attention to what tribes want and is going to factor them in not just as stakeholders but as coequal partners."

Cutter argued breaching the four lower Snake River dams in southeast Washington is important, especially for Idaho fish. He added the Bonneville Power Administration is critical to this decision.

"Because Bonneville Power in large part controls these dams and the energy that is created from them, they are the key player," Cutter contended. "They are someone that we would like this administration to really take a close look at, in regard to how they're treating these fish."

The Biden Administration is considering the future of Pacific Northwest salmon and the effect of dams in the region.

The White House Council on Environmental Quality held listening sessions this spring and is now asking for public comments on dams in the Columbia River basin.

They're especially focused on four dams on the lower Snake River that have been major barriers to the dwindling salmon populations that migrate upstream to Idaho.

Mitch Cutter is the salmon and steelhead associate with the Idaho Conservation League.

"What we've seen so far in both the listening session and in the public comments," said Cutter, "is an overwhelming majority of people saying they want to breach the lower Snake River dams - because it's essential for salmon and steelhead, and because there's other ways of doing the things that the dams provide."

Supporters of keeping the dams say they provide essential energy, irrigation and barging functions. But Cutter noted that during listening sessions, more than three-quarters of commenters were in favor of breaching the dams.

The Council on Environmental Quality public comment period is open through August 31.

Cutter said there is interest in removing the dams from a variety of people in the Northwest.

"We're seeing people from across the region," said Cutter, "come out of the woodwork and say, 'This issue matters to me, even if it didn't two, three, five, ten years ago. We'd like to have this problem solved.'"

During this year's legislative session, Washington state lawmakers approved $7.5 million for planning to replace the dam's services. The four Snake River dams are in southeast Washington.