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Attorney General’s Office seeks US Supreme Court review in culverts case

The Attorney General’s Office recently filed a petition asking the U.S. Supreme Court to review a decision by the Ninth Circuit Court of Appeals in the “culverts case.”

Press release from Washington State Attorney General Bob Ferguson:

The Attorney General’s Office recently filed a petition asking the U.S. Supreme Court to review a decision by the Ninth Circuit Court of Appeals in the “culverts case,” officially referred to as United States of America et al. v. State of Washington. Today was the deadline for filing the petition for Supreme Court review.

The petition asks the high court to review the case and resolve some of the especially challenging effects of the lower court ruling, which reach beyond culverts.

The cert petition does not prevent the state legislature from appropriating money to replace old culverts, and it does not halt or delay state agencies’ efforts to replace old culverts to improve fish passage.

“Filing this appeal does not in any way limit the State’s ability to replace culverts,” Attorney General Bob Ferguson said, “and the State should increase the pace of culvert replacement. But I do not get to decide how much the State spends on fixing culverts or set priorities for state agencies that regulate or build culverts. I will support any proposal from the Legislature, the Governor or other public officials who control land use and spending decisions that would accelerate the pace of culvert replacements. The State should not need a court order to restore salmon habitat.”

The cert petition also does not prevent the Attorney General’s Office from engaging Washington tribes in ongoing discussions to potentially resolve challenges with the Ninth Circuit ruling outside of court. The Attorney General’s Office retained Special Assistant Attorney General Rob Costello, who served as tribal liaison for three state Attorneys General, to manage and coordinate the state’s efforts to reach such a resolution. The Attorney General’s Office respects tribal sovereignty and treaty rights, and is committed to working with tribes and other stakeholders to preserve and restore Washington’s salmon runs.

“Tribal treaty rights are vitally important,” Ferguson said. “I appreciate and share the goal of restoring salmon habitat, but the State has strong legal arguments that the Ninth Circuit decision is overbroad. We are working with tribes to resolve this matter, but we needed to file this appeal today to preserve our ability to challenge aspects of the Ninth Circuit’s opinion.”

The impacts of the Ninth Circuit decision extend beyond culverts. As nine dissenting judges of the Ninth Circuit pointed out, “Legal commentators have noted that plaintiffs could use the panel’s decision to demand the removal of dams and attack a host of other practices” that affect fish habitat, from farming to logging to construction.

The Attorney General’s Office is asking for Supreme Court review for the following reasons:

• The Ninth Circuit’s decision forces the state to expend resources on projects that will not benefit salmon. The decision requires the state to replace culverts even when other barriers, such as dams or federal culverts, block salmon from ever reaching the state’s culvert. Money squandered on such projects could and should instead be used for more effective salmon restoration efforts.

• The lower court decision forces state taxpayers to pay for problems largely created by the federal government. For decades, the federal government specified the design for the state’s highway culverts. The state then invented and began using a new design that is better for salmon. Then, the federal government sued Washington over the old culverts designed to federal standards. The petition asks that the federal government be blocked from bringing its claim, or at least be required to contribute to the cost of fixing the federally designed culverts.

• The Ninth Circuit adopted a sweeping treaty interpretation that contradicts the U.S. Supreme Court’s previous interpretation of the state’s obligation under the treaty. The Ninth Circuit held that the treaty language guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” While Washington is committed to protecting salmon — spending hundreds of millions toward this goal in recent years — many factors beyond the state’s control affect whether there are enough salmon “to provide a ‘moderate living’ to the Tribes,” including global climate change and ocean acidification. Therefore, the state may be unable to comply with the court’s order if factors outside the state’s control negatively affect the salmon population, regardless of how many culverts it restores.
The culverts case involves the meaning of 1850’s treaties between the federal government and western Washington Indian tribes that promised the tribes “[t]he right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens.” The case began in 2001 when the federal government and 21 tribes sued the state, claiming that culverts under state roads violate this treaty provision if they restrict salmon passage and reduce the number of salmon available for the tribes.

In 2013, the District Court for the Western District of Washington ruled for the federal government and the tribes, ordering Washington to replace by 2030 hundreds of culverts under state highways, at a cost of billions of dollars. The state appealed. In 2016, the Ninth Circuit upheld the district court’s order.

The Supreme Court should decide whether to take the case in the fall of 2017. If the court decides to hear the case, it will be argued in the spring of 2018. A decision would come before adjournment in June 2018.

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