This past June 2018, the U.S. Supreme Court affirmed a Ninth Circuit decision interpreting the treaties of twenty-one tribes in western Washington to include a right to not have salmon habitat so depleted that it prevented significant salmon numbers from reaching the tribes’ accustomed fishing grounds. The basis of this litigation was Washington State’s culverts, structures built to allow roads to cross over streams. Unfortunately, these culverts were not built with sufficient consideration for fish passage, and many obstructed salmon migrations in streams. The result was the loss of a thousand miles of salmon stream habitat, which increased salmon competition in the remaining stream areas. The court ultimately required Washington State to efficiently fix these barrier culverts to allow salmon passage, a decision the State railed against as potentially costing billions of dollars. This Note will explore the implications of United States v. Washington, analyzing how the holding may be used for future tribal litigation to protect more salmon habitat. Taking into account elements such as the risk of the Supreme Court narrowly interpreting tribal treaty rights, political realities, and the culvert-specific nature of the Ninth Circuit’s holding, this Note strives to have a grounded consideration of how the western Washington tribes may continue their fight to ensure their right to fish is meaningful.
Implications Beyond Culverts: The Challenges Tribes Will Face Extending United States v. Washington to Other Habitat-Depleting Policies
