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Leaders of tribes and state officials in western Washington agreed to participate in mediation over the removal of salmon migration barriers, reviving decades-long trials for tribal treaty fishing rights and habitat damage from state highway generations.
Lawyers on both sides I asked a federal judge. This week we’ll be introducing the case to mediation following more than a year of revelation pushing the state’s multi-billion-dollar salmon repair program into Limbo.
The Washington Department of Transport’s Fish Street Program was plagued by inflation costs and delays focused in June when state leaders told tribes they wouldn’t meet major court deadlines.
A Seattle Times survey last March highlighted that WSDOT’s fish-passing projects (some cost over $100 million each, but this is essentially useless without a larger investment. Some tribal leaders and state legislators have questioned the effectiveness of the restoration project, particularly as Congress faces a $1 billion transport deficit.
“The tribes are very committed to ensuring that the nation is in response to its obligation to correct past mistakes,” said W. Ron Allen, chairman of the Jamestown Scrulam tribe. “But we need to diagram the course that takes into account the fact that there is only so much money in the state’s financial resources.”
Entering mediation, Allen said the tribes are aiming to restore the same amount of habitat, but “may be required to consider a coordinated schedule.” Allen will also want to play the list of restoration projects to focus on “what restores the largest habitat for spawning grounds.”
Gov. Bob Ferguson’s office is closely involved in the mediation-driven discussions, picking up Gov. Jay Inslee’s office where he left off. The state is represented by Attorney General Noah Purcell, the state attorney general who argued the case when it arrived at the U.S. Supreme Court in 2018.
“Restoring salmon habitat is a priority for Attorney General (Nick) Brown and all Washingtonians,” said Mike Falk, a spokesman for the Attorney General’s Office, in an email. “We look forward to working together as we navigate this process together.”
Court litigation and construction programs deal with dark verts. It is usually a metal or concrete pipe that carries a stream under a state highway. A group of 21 tribes sued the state in 2001, forcing the dark verts to block the movement of salmon and steelhead trout due to its lack of design or maintenance.
In 2013, US District Judge Ricardo Martinez ordered the state to replace the fish blocking dark vert in western Washington. For people over 200 metres of habitat, WSDOT had to replace enough by 2030 to restore 90% of its habitat.
When replacing dark verts, WSDOT usually builds a bridge over the stream and reproduces the following natural rivers: This is an expensive process, especially for large highways.
However, the state legislature had been behind funding Calvert alternatives until a few years ago and setting the program on a volatile course. Despite a nearly $4 billion allocation and a rapid increase in construction, WSDOT has determined that the 2030 deadline cannot be reached.
WSDOT asked Congress for another $5 billion late last year. A portion of this is spent on the dark vert of newly discovered problems.
“I think we have a financial commitment that we have to meet,” said Sen. Marko Liias of D-Edmonds, who chairs the Senate Transport Committee. “For me, the question is, ‘How quickly?’ …If we have to do this quickly, it will be one of the only things we can do. And we have other things that need to be done in the transport system, but many of them have an impact on the tribal community as well. ”
Liias hopes mediation will cover the timeline for achieving its 90% habitat goal and the pace at which it exchanges dark verts for newly discovered fish blockades (the 2013 injunction was ambiguous at that time). He also anticipates discussions about alternatives to ineffective dark vert exchange projects.
For example, at Port Angeles, WSDOT plans to replace the dark vert. This requires spending around $100 million by destroying the motel, but the potential benefits of the fish are negligible. Downstream from the motel, city-owned concrete slabs prevented fish from accessing the stream under most conditions, while 10 other barriers upstream have completely stopped the movement of salmon. Allen of the Jamestown Scrulam tribe, whose streams are included in traditional territory, said the funds could be spent on more productive salmon streams.
These complications are common at over 400 barriers WSDOT was targeting to achieve its 2030 goals. A Seattle Times analysis of available project design reports found that for all barrier WSDOT corrections, nine other people upstream and two downstreams partially or completely block fish movement.
WSDOT leaders say the state is playing its role in rehabilitating streams, and other dark vert owners, such as cities and counties, are also obligated to remove barriers to passing fish.
Still, some projects may not make sense to local tribes. The Indian Puyallup tribes have attacked the agreement with the WSDOT in recent years, leaving a dark vert of the value of low habitat as a barrier to the region.
However, a few other tribes opposed how the deal was made and criticised the state for “secrets” when negotiating with the Puyallup tribe. Liias hopes that mediation will clarify when and when such alternative agreements will occur and whom it will need to be notified.
“Where do you negotiate that where local contexts suggest there should be other sets of improvements? Who is part of that argument?” Rias said.
It is unclear how much money will be known for the mediation consultation, if approved by federal judge Martinez. The parties agreed to keep the negotiation process secret. Under the mediation law. However, the state Attorney General’s Office said in an email that the right to record the public will not be changed by the contract.
