Tribes take salmon battle into state's road culverts

He's heavier now, his face lined with creases, his white hair receding in a widow's peak. But nearly 65 years after his first arrest for poaching fish, Billy Frank Jr. is back in a familiar spot — in court battling the state of Washington over salmon.

The Nisqually Indian's early poaching arrests, along with the arrests of others, culminated in a 1974 ruling by U.S. District Judge George Boldt that Puget Sound's tribes hold treaty rights to half the region's catch of the fish.

Another judge is dealing with Boldt's unfinished business — presiding over a U.S. District Court trial in Seattle this month about the state's obligation to make sure the fish survive in perpetuity.

No matter the outcome, taxpayers this time may be on the hook for $1.5 billion or more to repair clogged and broken road culverts that prevent salmon from swimming upstream to reach spawning beds.

Even more significant might be the groundwork laid for future lawsuits over other insults to salmon habitat, from stormwater pollution to wetlands to housing developments.

"The judge has already found that there's a treaty right to protect fish habitat," said Robert Anderson, director of the University of Washington's Native American Law Center. The question now is "how far the federal courts are willing to go to compel that result."

In a forgotten skirmish among the battles over fishing rights in the 1970s, the tribes in the Boldt case also pushed to force the state to protect fish habitat. After decades of litigation over what that really means, the tribes settled in 2001 on using culverts as a specific example.

More than 1,000 culverts between the Columbia River and British Columbia, most of them owned by the Washington Department of Transportation, are designed so poorly or in such ill repair that they block or limit access by fish to hundreds of miles of streams.

While the state slowly has been working to fix them, U.S. District Judge Ricardo Martinez ruled for the first time in 2007 that treaty rights required it. He urged the state and tribes to agree on plans. But negotiations stalled after months of talks while the economy collapsed, sending both sides back to court.

For a weary tribal fisherman who has been at this as long as Frank, it all feels a bit too much like dithering.

"I'm 78 right now and still in the courtroom all day, still talking about fixing the salmon problem," Frank said. "It never seems to get done, and we're running out of time."

Even with a governor who is closely aligned with the tribes — and who has made cleaning up Puget Sound a large plank of her administration — the state wouldn't commit to the tribes' timetable.

"The problem is the cost is just huge," Transportation Secretary Paula Hammond said. "We already don't have enough money to maintain and preserve our existing highway system."

The tribes want the culverts fixed in two decades, but state lawyers say that would cost $165 million every two years — 10 times what the state spends fixing culverts now.

The tribes suggest the costs are overstated, but also maintain money is beside the point. They were willing to consider a more flexible timetable if the state guaranteed a baseline of work each year, said Ron Allen, chairman of the Jamestown S'Klallam Tribe, but the state refused.

"Our fear was that at some point they wouldn't provide the revenue to honor the commitment," Allen said. "You're in an environment where you don't want to raise taxes and you have big-ticket challenges, like rebuilding 520 or replacing the viaduct."

With transportation money mostly dedicated to specific projects, Hammond said, agreeing to spend that much could force the state to "make very tough choices between things like plowing and freeway and road repairs."

The state's alternative plans wouldn't likely change the costs — which might even grow — but the work would take 50 or more years to complete.

In part, that's because the state argued in negotiations that it didn't have the ability to bind future Legislatures, said Marty Brown, Gov. Chris Gregoire's legislative director. But he also said the state's holistic approach to salmon recovery showed fixing culverts wasn't always the most ecologically important thing to do, especially since cities, counties and federal agencies — including national forests — often had hundreds of culverts blocking the same streams.

"We're just as concerned as the tribes about Puget Sound and habitat restoration," Brown said, "but we want to make sure we're talking about the whole ecology of the thing."

Deputy Attorney General Rob Costello agreed.

"We do believe our current method of approaching salmon protection is the correct one," he said. "It's broad-based, science-driven, and we think the court will agree it makes sense."

But the tribes say the state knew about problem culverts for 60 years but kept building them and even now fixes only a few dozen in a good year. Given the tribes' successful record in these cases, some outside observers suspect the state may in part be using the courts for political cover. The state could appeal if it loses, putting off binding commitments a few more years. And spending the money ultimately "might be a lot easier if they were under a court order," said Michael Blumm, an Indian law expert with Lewis & Clark Law School in Portland.

And regardless of the outcome, the tribes suggest they may keep looking for ways to legally force the state to improve fish runs — in part because they fear they're getting worse.

"We're going backward, backward, backward," Frank said. "Their budgets are falling. Their half of the management of our 50-50 split hasn't worked. The tribes are doing lots of things on the watershed. We've got to get the co-managers to do more of the same."

Craig Welch: 206-464-2093 or cwelch@seattletimes.com