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Idaho, 10 other states back Washington in culvert appeal

States across the country argue that if Washington loses Supreme Court case, land uses from coast-to-coast will be vulnerable to lawsuits
Don Jenkins

Capital Press

Published on March 6, 2018 8:15AM

Cows graze in a Washington state field. Eleven states, led by Idaho, say that if Washington loses an appeal to the U.S. Supreme Court, land uses such as grazing will be vulnerable to lawsuits based on tribal treaty rights.

Don Jenkins/Capital Press

Cows graze in a Washington state field. Eleven states, led by Idaho, say that if Washington loses an appeal to the U.S. Supreme Court, land uses such as grazing will be vulnerable to lawsuits based on tribal treaty rights.

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Eleven states from around the U.S. argue that if Washington loses its case in the U.S. Supreme Court over culverts, land-use rules across the country will be at risk of being subordinate to tribal treaty rights.

The states, led by Idaho, filed a brief with the high court March 2 supporting Washington’s appeal of a court order to replace more than 800 fish-blocking culverts. The order provides a script for challenging anything that could harm tribal fishing and hunting in their states, according to Idaho Attorney General Lawrence Wasden and colleagues.

The states cite dams, irrigation canals, logging and grazing among the land uses that could be tested under the 9th U.S. Circuit Court of Appeals’ reasoning on culverts. “The amici states ask this court to reject the 9th Circuit’s unprecedented foray into commandeering state decision-making processes over land-use regulation,” the states wrote.

The Supreme Court will hear arguments in the case, United States v. Washington, on April 18. The justices will consider whether the court order unfairly saddles Washington with replacing culverts built to federal standards.

The main question presented to the court, however, will be whether treaties signed in 1854 and 1855 guaranteed there would always be enough fish to provide 21 Western Washington tribes with a “moderate living.”

The 9th Circuit Court gave a qualified “yes” to the question.

It ruled Washington violated the treaties by building roads across salmon-bearing streams and putting in culverts that allowed water to pass but blocked fish. The deciding judges, however, said they were confident their ruling wouldn’t open the floodgates to litigation.

They said the “moderate living” standard wouldn’t hold against acts of God, such as Mount Rainier erupting, or even all “human-caused diminutions.” Dissenting justices, however, said the decision failed to state a legal principle to sort out what human-caused diminutions are acceptable and which are treaty violations.

Idaho and the other states argue the absence of a limiting principle could undermine their constitutional right to ensure “that the interests of all their residents are protected.”

Washington Attorney General Bob Ferguson, a Democrat, has branded himself a foe of the Trump administration. His office has sued the administration 21 times. Most recently, he joined a suit to stop the Environmental Protection Agency from withdrawing the Obama administration’s Waters of the United States rule. In August, he will lead a “Save Our Coast” hike on the Olympic Peninsula to protest Trump’s support for offshore oil drilling.

In the culvert case, his office has the support of 10 Republican attorneys general, plus Maine’s Democratic attorney general, Janet Mills.

The states that joined Idaho and Maine in the brief are Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, Oklahoma, Wisconsin and Wyoming. According to their brief, two-thirds of U.S. states have Indian lands established by treaties or statutes.

Ferguson also has the backing of the conservative Pacific Legal Foundation. It filed a brief March 2 calling the culvert-replacement order a “treasure trove of potential treaty rights claims.”

A third brief supporting Washington’s position was filed that day by Klamath County, Ore., ranch and farm groups. The groups are embroiled in their own litigation over the scope of treaty rights in Southern Oregon.



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