United States of America v. State of Washington, 2013 U.S. Dist. LEXIS 48850, United States District Court for the Western District of Washington (Martinez J.), 29 March 2013

The U.S. District Court for the Western District of Washington issued a permanent injunction order requiring the State of Washington to repair or replace culverts under State-maintained roads that impede salmon migration to or from spawning grounds. The Court concluded that blocked culverts, which do not allow the free passage of adult and juvenile salmon upstream and downstream, were a cause of salmon habitat degradation, and contrary to the fishing rights of the tribal plaintiffs under the Stevens Treaties of 1855.

In 2001, the plaintiffs in the famous Boldt decision of 1974 initiated this “subproceeding” to compel the State of Washington to repair or replace culverts impeding salmon migration. The plaintiffs are twenty-one Tribes in western Washington State and the United States of America. The decision of Justice Boldt in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) affirmed the rights of the twenty-one Tribes under the Stevens Treaties of 1855 to an equal share of the fish resource.

In August 2007, the Court made a declaration that the right of taking fish secured by the Stevens Treaties imposes a duty on the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage, and thereby diminish the number of fish for Tribal harvest. The matter was then sent to trial on the issue of remedies. The trial took place in 2009 and 2010. The Court delayed making a ruling in the hope that settlement negotiations would occur. Supplemental submissions were made in February 2013.

The claim was based on language in the 1855 Treaty of Point Elliot granting the Tribes the right of taking fish at all usual and accustomed grounds and stations. The Tribes were promised continued access to their fisheries. The negotiations in 1855 were based upon the premise that the fisheries were inexhaustible. The vital importance of the fish to the Indians was repeatedly emphasized by both sides during the negotiations. The Court held:

The Treaties were negotiated and signed by the parties on the understanding and expectation that the salmon runs were inexhaustible and that salmon would remain abundant forever.

The areas available for tribal harvest have decreased significantly since 1855, and treaty and non-treaty harvests have declined substantially since the Boldt decision of 1974.  The Court noted:

Salmon stocks in the Case Area have declined alarmingly since treaty times. A primary cause of this decline is habitat degradation, both in breeding habitat (freshwater) and feeding habitat (freshwater and marine areas).

The harvesting of salmon remains an important part of the Tribes’ livelihood, subsistence and cultural identity. No Tribe has abandoned its fisheries. Many members would engage in more fishing activities if more fish were available. The reduced abundance of salmon has damaged tribal economies, and “caused cultural and economic harm to the Tribes in addition to the economic harm”. There are few learning opportunities for younger members of the Tribe.

The Court held that one cause of the degradation of salmon habitat is blocked culverts. They reduce the number of wild salmon produced in a spawning stream, and may interfere with their feeding and escapement from predators. The depletion of salmon stocks has harmed the Tribes and their individual members. The Court held that it is “not necessary that the Tribes quantify the amount of loss in order to demonstrate their entitlement to relief from further harm”.

The Court made findings of fact about salmon biology and fish passage. The transport and storage of wood, large woody debris, and sediment in fish-bearing streams are important components of healthy productive salmon habitat.

Culverts may pose a velocity barrier to fish depending upon the swimming strength of the fish. Different species of salmon have different swimming strengths, and juvenile salmon have less swimming strength than adult salmon. Larger culverts pass debris and sediment better than smaller culverts.

Culverts may block fish access to freshwater spawning and rearing habitat. They may cause negative effects on stream quality and fish habitat by altering the water velocity, which may cause sedimentation or erosion. Culverts which are improperly designed, installed or maintained may completely bar salmon from access and cause local extirpation of a run. Culverts that do not allow for the downstream movement of woody debris and sediment have a negative impact on stream habitat and spawning grounds.

The current state of scientific knowledge supports the proposition that culverts which most closely simulate the characteristics of a natural stream channel are less likely to inhibit fish passage. No regulation requires the use of stream simulation in the design, construction or maintenance of culverts.

The Court reviewed State policies towards culverts and fish habitat, and noted efforts to identify and correct “barrier culverts”. An inventory of barrier culverts had been completed. A 1997 report stated that the creation of new barriers must be prevented, and “the rate of barrier correction must be accelerated if Washington wild salmon and trout stocks are to recover”. There is no deadline to correct all of the barrier culverts. A culvert will be considered corrected when it has been removed, replaced or modified in such a way to meet certain hydraulic design criteria. The estimated average cost of correcting the fish passage barriers is $230,000. The Court held that state-owned barrier culverts “are so numerous and affect such a large area that they have a significant total impact on salmon production”. Correction of fish passage barrier culverts is a cost-effective and scientifically sound method of salmon habitat restoration.

The scope of this proceeding includes only those culverts that block fish passage under State-owned roads. The Court is not limited to making an order that culverts already identified as blocking fish passage be repaired.

The Tribes demonstrated that they have suffered an irreparable injury, and that monetary remedies would be inadequate. The balance of hardships tips “steeply” in favour of the Tribes. The promise made to the Tribes in the Stevens Treaties was to protect their source of food and commerce. Justice Martinez stated: “Equity favors requiring the State of Washington to keep the promises upon which the Tribes relied when they ceded huge tracts of land by way of the Treaties”. The public interest will not be disserved by an injunction.

State action in the form of acceleration of barrier correction is necessary to remedy the decline in salmon stocks and remove the threats which face the Tribes. The State has the financial ability to do so. State and federal law requires that the barrier culverts be corrected. The extra costs associated with an accelerated schedule would be more than offset by the benefit that will accrue to the Tribes.

Justice Martinez stated:

The State’s duty to maintain, repair or replace culverts which block passage of anadromous fish does not arise from a broad environmental servitude against which the Ninth Circuit Court of Appeals has cautioned [in 694 F.2d 1374 at 1389 (9th Cir. 1982)]. Instead, it is a narrow and specific treaty-based duty that attaches when the State elects to block rather than bridge a salmon-bearing stream with a roadbed. The roadbed crossing must be fitted with a culvert that allows not only water to flow, but which insures the free passage of salmon of all ages and life stages both upstream and down. That passage is best facilitated by a stream simulation culvert rather than the less-effective hydraulic design or no-slope culvert.

The Court held that a permanent injunction is necessary to ensure that the State will act expeditiously in correcting the barrier culverts “which violate the Treaty promises”. The Court noted that reduced efforts by the State in the past three years, which led to a net increase in the number of barrier culverts, demonstrates that injunctive relief is required to remedy Treaty violations.

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Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin 


Aboriginal Law