US District Court Judge Orders Washington Highway Culverts Opened for Fish Passage

Federal district court Judge Ricardo Martinez has issued a permanent injunction requiring the Washington State Department of Transportation (“WSDOT”), the Washington State Department of Natural Resources, and the Washington State Parks and Recreation Commission to remove barriers to fish passage in hundreds of state-highway culverts over the next 17 years. The March 29 decision (“Culvert case”) is the latest in a legal case dating back to the 1970s, in which Native American tribes in Washington state have sought to enforce their treaty fishing rights. While the decision does not apply to county roads or other barriers that might exist, it provides important guidance for future actions that could broaden the ruling’s application beyond state-owned highway culverts.

The Culvert case first arose in 2001, when 21 tribes asked the federal court to rule that the state of Washington has a treaty-based duty to preserve fish runs, and to compel the state to repair or replace culverts that impede salmon migration to or from spawning grounds. In 2007 the court ruled for the tribes and declared that the 1850s-era treaties imposed a duty on the state to refrain from building or operating culverts under state-maintained roads that hinder fish passage. Judge Martinez then held a seven-day trial in October 2009 on the remedies and heard final arguments in June 2010, but delayed ruling while the parties tried to negotiate a settlement, which they were unable to do.

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