On March 29th, the U.S. District Court for the Western District of Washington issued a permanent injunction requiring certain State of Washington (“State”) agencies to provide and maintain fish passage for salmon at numerous culverts under State-owned roads.  United States v. Washington, Case No. 70-9213 (W.D. Wash., Mar. 29, 2013).  The court imposed the injunction as a remedy following its 2007 declaratory order, finding that the State has built and operates stream culverts that block fish passage to and from the Tribes’ usual and accustomed fishing places, and these culverts deprive the Tribes of the fishing rights reserved by the Stevens Treaties.  The court concluded that issuing the injunction will ensure that the State acts “expeditiously” in correcting the barrier culverts, and will provide salmon with access to approximately 1,000 miles of additional stream habitat.

The court emphasized that its ruling is narrowly focused on the State’s specific treaty-based duty to address fish-blocking culverts.  Unless overturned on appeal, this decision could affect significantly the programs and budgets of State agencies as they are required to reprioritize funding to remedy the identified barrier culverts to provide fish passage. 

In addition, notwithstanding the court’s narrow holding, the Tribes could seek broader application of the decision to address other State activities that potentially impact salmon and salmon habitat.