On Monday, tribes in Washington State won a victory for treaty rights, salmon restoration, and those in the region who fish commercially, recreationally, or just enjoy the beauty of these iconic species. In one-sentence the U.S. Supreme Court announced that “The judgment is affirmed by an equally divided Court.” The Court’s 4-4 vote supported the 9th Circuit Court of Appeals’ 2016 ruling that culverts managed by the State of Washington had violated treaty-reserved tribal fishing rights when they cut off access to critical spawning and rearing habitat for salmon. Justice Anthony Kennedy abstained from the decision, having served on the 9th Circuit during an earlier phase of the case.
While the court did not issue a full opinion, it affirmed the 9th Circuit’s ruling that the state must repair its fish-blocking culverts within a 17-year span instead of the more than 100-year trajectory under current restoration plans. The “culverts case” is the latest phase of the original Boldt decision (U.S. v Washington) that in 1974 held that treaties between Indian Nations and the United States in the 1850s had reserved to tribes one-half of the fish moving through their “usual and accustomed” fishing places. The ruling also affirmed a tribal right to co-manage fisheries with the State of Washington.
The culverts case began in 2001 when 20 treaty-tribes sued the State of Washington after a 1997 Washington State Department of Transportation (WSDOT) report concluded that 268 of the agency’s culverts blocked some 249 miles of salmon stream habitat. The actual impact of state culverts was much greater, amounting to some 1,000 linear miles and 5 million square meters of streams suitable for salmon habitat,” according to the appeals court’s ruling. The state attorney general’s office had opposed treaty protections for salmon habitat during the tenures of Democrat Christine Gregoire, Republican Rob McKenna and now Democrat Bob Ferguson, continuing an anti-Indian trajectory set in motion in the 1970s under former Republican AG Slade Gorton.
The tribes’ victory gives Attorney General Ferguson the opportunity to rethink the office’s long-standing opposition to tribal treaty rights – an opportunity to bring his office’s practices in line with the 1989 Centennial Accord’s call “to better achieve mutual goals through an improved relationship between their [state and tribal] sovereign governments.”
As a first step the AG’s office should address the troubling statements made by Assistant Attorney General Mike Grossman to the Kitsap Poggie Club on February 21. As recounted in the Kitsap Sun, Grossman explained to the sports-fishing group that federal and tribal sovereign immunity kept the state from suing to challenge Skokomish control of the river. Grossman was quoted as saying, “I think, frankly, the federal government has to sue us…And why would they do that if we’re not fishing?…I think we need to get back in the river and fish.” A January 2016 memo from the U.S. Department of Interior had affirmed that this segment of the river “is held in trust by the United States for the benefit of the Tribe.” As the Sun reported, the AG’s office disagreed with the Interior opinion and appeared to endorse the idea of “bait[ing] the federal government into suing the state by reopening the Skokomish to recreational fishing.”
IREHR reached out to the Attorney General’s office to ask if they intended to oppose tribal fisheries management and whether Grossman had intended to encourage sports fishers to fish in violation of tribal authority so as to provoke a federal lawsuit. Brionna Aho, the AG’s communications director, responded by email that,
“Mr. Grossmann’s quotes were taken out of context and intended only to respond to a hypothetical posed by an event attendee. He was in no way encouraging any action. The Attorney General’s Office does not have a role in fisheries management beyond providing legal advice to the Washington State Department of Fish and Wildlife.”
While the state AG may not directly manage fisheries, its past actions go well beyond just providing legal advice – including decades of litigation aimed at undermining tribal protection and management of treaty-reserved fisheries.
IREHR reached out again for clarification on the context of Mr. Grossman’s statements and details on the “hypothetical” posed by the audience member. IREHR also asked if the AG’s office would be willing to call on non-tribal sports fishers to respect treaty-reserved tribal fisheries management authority.
We have received no response.
Monday’s decision in the culverts case is the latest defeat for the state’s efforts to thwart tribal treaty rights. It presents a golden opportunity for Attorney General Bob Ferguson to chart a path away from the office’s decades-old opposition to treaty rights and sovereignty.
We should all let Attorney General Ferguson know that the time for a new direction is now.
