Washington Attorney General Bob Ferguson has made a name for himself this year by battling the Trump administration in court. Now he wants to take on tribal governments at the U.S. Supreme Court over salmon.
Ferguson's office on Thursday appealed a court order to fix road culverts that now block hundreds of miles of salmon streams in Washington.
Many culverts (big steel pipes or concrete tunnels that carry streams beneath roadways) are too narrow or too steep for salmon to swim through.
A lower court in 2013 gave the state 17 years to fix 450 of its most-damaging culverts, work that could cost hundreds of millions if not billions of dollars. A panel of judges on the Ninth Circuit Court of Appeals in May refused to hear the state’s second appeal of that decision.
Twenty-one tribes sued Washington state over the culverts back in 2001.
“Failing culverts deny our treaty-reserved fishing rights that include the right for salmon to be available for harvest,” Northwest Indian Fisheries Commission chair Lorraine Loomis said in a press release Friday. “The right to harvest salmon was one of the few things we kept when we gave up nearly all the land in western Washington.”
“Tribal treaty rights are vitally important,” Ferguson said in a press release announcing the appeal. “I appreciate and share the goal of restoring salmon habitat, but the state has strong legal arguments that the Ninth Circuit decision is overbroad.”
In its appeal, the attorney general’s office argues that some culverts do not harm salmon and that the tribes’ treaty rights to fish do not mean they are entitled to enough fish to provide a “moderate living” from fishing.
Even state officials were divided over Ferguson’s action. Last week, Commissioner of Public Lands Hilary Franz told Ferguson she “strongly opposed” an appeal of the decision.
“It's time to work collectively and focus on actions that address and actively aid the many concerns that our tribal governments - and so many of our non-tribal residents - have been raising for years,” Franz said in an Aug. 11 letter to Ferguson.
Loomis said before the tribes first brought the case, the state was fixing culverts so slowly it would have taken 200 years to finish the job. In the past four years, Loomis said, the Department of Natural Resources and other state agencies have greatly accelerated their work to make culverts salmon-friendly.
The Supreme Court is expected to decide whether to hear Ferguson's appeal this fall.