CITYWISE
BART FREEDMAN and BEN MAYER, K&L Gates LLP
CULVERT
OPERATIONS
LEGAL AFFAIRS
WHAT CITIES NEED TO KNOW ABOUT A SALMON RULING THIS PAST SPRING
ON MARCH 29, 2013, United States District Judge Ricardo
S. Martinez ordered the State of Washington to identify and
replace culverts under state-owned roads that block the passage of salmon to and from critical habitats. In a 2007 summary
judgment order, Judge Martinez found that those culverts
violated tribal treaty rights.
Where we are now
The immediate effect of the so-called Culvert Case is that the
state must replace culverts that impede the passage of adult
salmon to their spawning grounds and juvenile salmon to their
feeding habitat. The state must replace blocked culverts on
lands owned or managed by the Department of Fisheries and
Wildlife, the Department of Natural Resources, and the Parks
and Recreation Commission by October 31, 2016. The Washington State Department of Transportation must replace culverts
it owns or manages within 17 years of Judge Martinez’s ruling if
the culvert has 200 lineal meters or more of upstream salmon
habitat, or at the end of the culvert’s useful life if the culvert
has less than 200 lineal meters of upstream salmon habitat.
The ruling specifies a number of ways in which the state can
comply with these mandates, including, among other things,
the complete avoidance of crossing a stream with a roadway,
the use of a full-span bridge to cross a stream, and/or the use
of stream simulation culverts. In addition to economic costs
upon the state, estimated at over $1 billion, the ruling likely
imposes regulatory costs on the state, the tribes, and the United
States—as well as the court itself, which will monitor implementation of the ruling.
In May, the state filed an appeal with the Ninth Circuit Court
of Appeals seeking guidance as to whether it has a treaty-based
duty to refrain from taking action that could potentially impact
fish populations, whether the court properly exercised its discretion in granting broad
Bart Freedman
injunctive relief, and whether the court
is a partner in
properly dismissed the state’s affirmative
the Seattle office
of K&L Gates
defenses. In response, the tribes filed a
practicing Indian
limited cross-appeal in which they plan to
law as well as a
challenge the exclusion of certain expert
broad range of
testimony about harm to tribal fisheries.
environmental
How we got here
The Culvert Case is the most recent decision in a line of cases known as United
States v. Washington. It follows a Ninth
Circuit ruling from 1985, in which the
court vacated a district court order imposing upon the state a duty to refrain
from degrading the environment in ways
that would deprive treaty
continued
and business
litigation.
Ben Mayer is
an associate in
the Seattle office
of K&L Gates
focusing on
environmental
and commercial
litigation.
Going with the Flow
A Typical Problem Undersize pipes
that create high water velocity or pipes
too high above the streambed cut off
upstream habitat.
For more information:
klgates.com
A Potential Solution Enlarged culverts
with artificial streambeds that mimic
natural conditions can facilitate access
to habitat.
JULY/AUGUST 2013
Another Potential Solution A small
bridge may be the best solution if
stream size or slope is too large or
large debris is frequent.
CITY VISION MAGAZINE
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CITYWISE
Indians of their treaty-protected fish allocation. In that
case, the Ninth Circuit held that it could only evaluate the
claimed environmental servitude if presented with concrete
facts underlying a particular dispute.
Other United States v. Washington decisions create bright
lines for liability. For example, courts have held that the
physical invasion of treaty-protected fishing areas violates
tribal treaty rights, and that tribal fisherman have a treaty
right to a 50 percent share of the annual catch in western
Washington. It remains to be seen, however, how Judge
Martinez’s culvert ruling will translate into a liability standard that could be a framework for resolving other cases
on this subject.
In the culvert ruling, Judge Martinez found that
barrier culverts are directly responsible for a portion of
significantly diminished salmon runs. Judge Martinez also
acknowledged that other factors may contribute to this diminishment, but he did not identify these additional factors.
Importantly, the ruling fails to say what a tribe must show
in order to obtain an injunction like the one Judge Martinez
issued on March 29. That is to say, Judge Martinez did not
articulate a clear standard for determining whether particular conduct amounts to a violation of treaty-protected
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fishing rights. As such, the ruling leaves many questions
regarding its prospective application unanswered.
While the ruling clearly applies to culverts under stateowned roads, it may have wider implications. It potentially
implicates tide gates, floodgates, dams, and stream-flow or
river temperature changes caused by or attributable to
the state, local governments, or private-party actions. It
could impact the development of habitat for a number of
purposes, including housing, recreational, and industrial
purposes. Ultimately, the ruling’s impacts could be numerous and far-reaching.
Looking ahead
The state’s opening brief on appeal is due in September,
with the tribes’ and the United States’ answering brief due
in October. The best course of action at this point is to monitor the case as it proceeds on appeal. As the Ninth Circuit
provides guidance on the standards and meaning of the
Culvert Case, the state, local and tribal governments, and
private parties will gain a better understanding of the ruling’s short- and long-term impacts. Ultimately, appellate
court guidance is necessary for a complete understanding
of how and when the ruling applies. Stay tuned.
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