The Ninth Circuit Court of Appeals ruled on June 27 that culverts that block salmon from more than 1,000 miles of streams in Western Washington violate treaties between Tribal governments and the United States.

It’s a decision that the state Department of Transportation likely expected, as work began on culvert replacement before the ruling was made; among the places in Kitsap that fish-blocking culverts are being replaced: state routes 3 and 116 in Gorst, and 104 and 307 in North Kitsap. But the ruling is significant nonetheless.

The Court of Appeals affirmed a 2007 decision by U.S. District Court Judge Ricardo Martinez that hundreds of state-owned, fish-blocking culverts must be repaired. The latest ruling, made by Circuit Court judges William A. Fletcher and Ronald M. Gould and U.S. District Court Judge David A. Ezra, confirms that the State of Washington must invest $2.4 billion to repair the culverts over the next 15 years.

“The Treaty of Point Elliott of 1855 was more than just a piece of paper,” Lummi Nation Chairman Tim Ballew II said in a statement released by his office. “It was a promise to the Lummi Nation that our way of life, our schelangen, would be preserved. Our past leaders were forced to make many concessions in the treaty but they never wavered on our people’s right and ability to fish. Our families, our culture and our economy rely on the ability to harvest fish.”

Leaders of several indigenous nations, among them the Suquamish and S’Klallam, signed treaties with the United States in which they agreed to make a wide swath of Westerna Washington available for non-Native ownership, but they reserved certain rights, among them the right to harvest fish and shellfish in their usual and accustomed places. That provision was agreed to in the treaty by the United States, and treaties are considered “the supreme law of the land” by Article VI of the U.S. Constitution.

“If the fish habitat is damaged or fish passage is impeded, our entire way of life is threatened. We have always known this,” Ballew said. “Lummi has fought from the beginning for this critical case that is, in so many ways, a phase two of the Boldt decision.”

He added, “Courts have consistently determined what we already knew: that fish need good habitat to survive, and a healthy fishery is directly linked to good habitat.”

In a statement issued by her office, Quinault Nation President Fawn Sharp — who is also president of the Affiliated Tribes of Northwest Indians and vice president of the National Congress of American Indians, called the decision a victory for Native and non-Native fishers, because both share the salmon resource.

The culvert replacements “will result in healthier ecosystems. It will help assure that salmon can reach their spawning grounds. Our Northwest salmon are [a] keystone species. They are critically important to the survival of other species, healthy habitat, and an overall healthy environment.”

She added, “This decision affirms that Treaty Tribes do retain off-reservation habitat protection rights. We have been waiting for this decision for a very long time.”

The Boldt DecisionIn 1974, U.S. District Court Judge George Boldt ruled that Treaty Tribes retain a right to take 50 percent of the harvestable fish, based on 19th century treaties established between the U.S. and the Tribes in which the Tribes ceded millions of acres of land. Boldt’s ruling was backed by the U.S. Supreme Court in 1978.

In his decision, Boldt stated that Northwest Treaty Tribes clearly do retain a habitat protection right, though he deferred the specifics and concentrated on allocation. The habitat issue remained unresolved for nearly 40 years.

In 1980, U.S. District Court Judge William Orrick ruled that the habitat protection right is protected in the treaties, though the Ninth Circuit later decided that the habitat issue required a concrete case. For more than 20 years, the issue simmered as the Tribes considered which case to pursue. During that time, the threat of a habitat-related suit helped support meaningful negotiations between the state and the tribes, resulting in such far-reaching cooperative agreements as the Timber-Fish-Wildlife Agreement.

In 2001, the Tribes and the federal government initiated action against the State of Washington, alleging that the state’s construction and maintenance of highway and railroad culverts that block salmon migration violate the treaty fishing right.

“Judge Boldt’s opinion, the 2007 decision by Judge Martinez and today’s Ninth Circuit decision confirm, and reaffirm, that the treaties do apply to habitat protection,” Sharp said in the statement issued by her office. “Tribes have known this all along, and I believe the state has as well. It is time for the state to step up and make the habitat-related investments necessary to protect and restore our great Northwest salmon resource. As co-managers of the resource, with clearly defined habitat rights, it is now very clear that Treaty Tribes have a legally mandated right that requires it.”  The state Department of Transportation and the state Department of Fish & Wildlife have been identifying and repairing problem culverts since 1991, along with some 7,054 miles of state highways. They counted 3,613 highway culvert crossings over fish-bearing streams. As of 2015, 1,976 of them still blocked upstream habitat, according to a press release issued by Sharp’s office.