Treaty tribes celebrate after court refuses to rehear salmon dispute

Monday, May 22, 2017  

Treaty tribes are celebrating after a federal appeals court refused to reheard a dispute over salmon crossings in Washington state.

Last June, the 9th Circuit Court of Appeals held that the state has been violating treaties that were signed in 1854 and 1855 by failing to fix hundreds of culverts that prevent salmon from returning to "usual and accustomed" tribal fishing sites. The decision from a panel of three judges was unanimous.

The state then asked a larger panel of judges to rehear the case but the request was denied on Friday. The Northwest Indian Fisheries Commission, which represents more than 20 tribes, called the development a "win for salmon."

“This is a win for salmon, treaty rights and everyone who lives here,” Lorraine Loomis, the chair of the commission, said in a press release. “Fixing fish-blocking culverts under state roads will open up hundreds of miles of habitat and result in more salmon. That means more fishing, more jobs and healthier economies for all of us.”

But the battle may not be over just yet. The state has the option of appealing to the U.S. Supreme Court -- the state's Attorney General’s Office did not respond when the Associated Press sought comment about the case.

There may indeed be reason for the nation's highest court to take up the dispute. One judge wrote separately to address the "significance" of the matter, questioning whether the treaties at issue require the state to ensure safe passage of salmon.

"Fashioning itself as a twenty-first century environmental regulator, our court has discovered a heretofore unknown duty in the Stevens Indian Treaties of 1854 and 1855," Judge Diarmuid O'Scannlain wrote in an 11-page opinion that was joined in parts by eight other colleagues on the 9th Circuit.

Yet another member issued a statement which described O'Scannlain's opinion as misguided. Judge Andrew D. Hurwitz noted that the state could take the case to the Supreme Court.

In an earlier stage of the litigation, a federal judge ordered the state to remove more than 800 culverts in order to allow free passage for salmon. The effort has been estimated to cost at least $2.4 billion and take 17 years to complete.

Turtle Talk has posted documents from the case, US v. Washington.

Read More on the Story:
Washington loses fight, might pay up to $2B to save salmon (AP 5/19)

9th Circuit Court of Appeals Decision:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)

White House task force to address treaty issues in Washington (October 19, 2016)
Washington tribes win major fishing rights decision at appeals court (June 27, 2016)
Washington fights tribal treaty rights decision before 9th Circuit (July 6, 2015)
Washington wants 9th Circuit to take up treaty fishing case (May 29, 2013)
Treaty tribes in Washington win major decision in fishing case (April 1, 2013)