By The Yakima Herald-Republic
The Washington Legislature is no stranger to court orders that demand comprehensive and costly action on decades-long issues. Lawmakers spent the last six years struggling with the state Supreme Court’s McCleary decision on K-12 school funding. Within days of legislators getting the news that they had finally complied on McCleary, they got news that a different court is calling for a fix on a different issue.
Call it the McCleary of Culverts.
On Monday, a deadlocked U.S. Supreme Court left in place a 9th U.S. Circuit Court of Appeals order that the state remove road and railroad culverts that block fish migration. The justices split 4-4 on the issue, with Justice Anthony Kennedy recusing himself because he took part in earlier, related proceedings while serving on the 9th Circuit.
The move marks a victory for 21 Washington tribes, including the Yakama Nation, in asserting their treaty rights. Washington Attorney General Bob Ferguson, a Democrat who has antagonized many political allies in pursuing the case to the nation’s highest court, said the ruling marks an end to the case.
Motorists likely don’t give much thought to culverts, the large pipes that encase streams as they pass under roads and rail lines. But tribes have given a lot of thought and taken a lot of action. The case dates back to 2001, when they sued the state, claiming the culverts blocked migrating fish from reaching spawning habitat in more than 1,000 miles of streams in much of Western Washington. In some cases the culverts are too small, in others they are placed so far above the stream bed that even mature migrating salmon can’t leap into them. The tribes’ case said the state should replace about 900 culverts with structures that enable migration of salmon and other fish.
Ferguson contended that while repairs to some culverts would aid fish passage, not all are to blame due to other kinds of obstacles, and that many culvert culprits are owned by counties and the federal government. He also said the state shouldn’t be on the hook for culverts built to federal specifications, and that the court mandate is so broad that it could be used to argue for the removal of Snake River dams.
Like McCleary, the culvert case has its roots in a landmark 1970s court ruling — in this case, the Boldt decision that affirmed the rights of Washington tribes to half the salmon harvest. The culvert ruling doesn’t directly affect the Yakima Valley — such work is part of the multiparty Yakima Basin Integrated Plan. But it will be of statewide interest as legislators will be called upon to find money for a fix.
How much money is subject to serious dispute. The state Department of Transportation says total replacement could cost up to $3.7 billion, a figure that tribes and their allies claim is vastly overstated.
The state DOT actually has been working on the issue since 1991. In 2013, a permanent injunction arising from the tribes’ 2001 lawsuit required the state to accelerate its program and called for barriers to be removed in 90 percent of the affected area by 2030. A state DOT official says to date, the state has spent about $200 million; the current two-year budget allocates $108.5 million, a funding level that the official say would restore only about 50 to 60 percent of habitat by 2030.
Whatever the dollar amount, future legislative sessions must address it. Ferguson asserts that because current culverts meet federal specifications, help should come from Washington, D.C., and he has a point. Just as our congressional delegation has advocated funding for the Yakima Basin Integrated Plan, it should do so for the Western Washington culverts. As with school funding, the courts now have forced the state’s hand to act — in this case, to move faster in the direction that it was already headed.
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Members of the Yakima Herald-Republic editorial board are Bob Crider and Frank Purdy.
