Leaders from Western Washington tribes and state officials have agreed to enter mediation about removing salmon migration barriers, reviving a decadeslong court case over tribal treaty fishing rights and habitat damage from generations of building state highways.
Lawyers for the two sides asked a federal judge this week to refer the case to mediation, following more than a year of revelations that thrust the state’s multibillion-dollar salmon restoration program into limbo.
The Washington State Department of Transportation’s fish passage program was beset by ballooning costs and delays that came into sharper focus in June, when state leaders told tribes they could not meet a key court deadline.
A Seattle Times investigation last March highlighted WSDOT fish passage projects — some costing more than $100 million each — that are essentially useless without further large investments. Some tribal leaders and state legislators have been questioning the effectiveness of restoration projects, especially as the Legislature faces a $1 billion transportation budget deficit.
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“The tribes are very committed to making sure that the state lives up to its obligation to correct the mistakes of the past,” said W. Ron Allen, chair of the Jamestown S’Klallam Tribe. “But we have to chart a course that … takes into consideration the fact that there’s only so much money in the state coffers.”
Going into mediation, Allen said, the tribes would aim for the same amount of habitat restoration, but “we may have to consider an adjusted schedule.” Also, Allen said the tribes would probably want to reprioritize the list of restoration projects to focus on “the ones that restore the greatest amount of habitat for spawning grounds.”
Gov. Bob Ferguson’s office has been closely involved in the discussions leading to mediation, picking up where former Gov. Jay Inslee’s office left off. The state is represented by Solicitor General Noah Purcell of the state Attorney General’s Office who argued the case when it reached the U.S. Supreme Court in 2018.
“Restoring habitat for salmon is a priority for Attorney General (Nick) Brown and all Washingtonians,” Mike Faulk, spokesperson for the Attorney General’s Office, said in an email. “We look forward to working collaboratively as we navigate this process together.”
The court case and the construction program deal with culverts — typically metal or concrete pipes that carry streams under state highways. A group of 21 tribes sued the state in 2001 to force the replacement of culverts that, because of their design or lack of maintenance, block salmon and steelhead trout migration.
U.S. District Judge Ricardo Martinez in 2013 ordered the state to replace its fish-blocking culverts in Western Washington. For those with 200 meters or more of upstream habitat, WSDOT had to replace enough to restore 90% of the habitat by 2030.
When replacing culverts, WSDOT usually builds bridges over the streams and re-creates natural streambeds below — an expensive process, particularly for large freeways.
But the state Legislature lagged on funding culvert replacements until a few years ago, setting the program on a precarious course. Despite nearly $4 billion in allocations and quickly ramping up construction, WSDOT determined the 2030 deadline was unreachable.
WSDOT late last year asked the Legislature for an additional $5 billion. Some of that would be spent on newly discovered problem culverts.
“I think we have a financial commitment that we’re going to have to meet,” said Sen. Marko Liias, D-Edmonds, who chairs the Senate Transportation Committee. “To me, the question is, ‘how quickly?’ … If we have to do this quickly, it becomes one of the only things we can do. And we’ve got other things we need to do in the transportation system, and many of those also impact tribal communities.”
Liias expects the mediation will cover the timeline for hitting the 90% habitat goal and the pace of replacing newly discovered fish-blocking culverts (the 2013 injunction was vague on that point). He also anticipates a discussion about alternatives to less effective culvert replacement projects.
In Port Angeles, for example, WSDOT is planning to replace a culvert, which could require tearing down a motel and spending some $100 million, but the potential benefit for fish would be negligible. Downstream from the motel, a city-owned concrete slab blocked fish from accessing the creek under most conditions, and upstream, 10 other barriers would completely stop migrating salmon. Allen, from the Jamestown S’Klallam Tribe, whose traditional territory includes that stream, said the funds could be spent on more productive salmon streams.
Those complications are common across the more than 400 barriers WSDOT was targeting to meet the 2030 goal. A Seattle Times analysis of available project design reports found that for every barrier WSDOT fixes, nine others upstream and two downstream partially or fully block fish migration.
WSDOT leaders say the state is doing its part to rehabilitate the streams and that other culvert owners, like cities and counties, are also obligated to remove their fish passage barriers.
Still, some projects might not make sense for a local tribe. The Puyallup Tribe of Indians struck agreements in recent years with WSDOT to leave some low-habitat-value culverts as barriers in their area, provided the state would pursue restoration on a creek with more potential for salmon recovery.
But a handful of other tribes objected to how the deals were carried out, criticizing the state for its “secrecy” when negotiating with the Puyallup Tribe. Liias hopes the mediation will clarify how and when such alternative agreements could happen and who needs to be notified.
“In places where the local context suggests that maybe there should be some other set of improvements, how do we negotiate that? Who’s a part of that discussion?” Liias said.
It’s unclear how much will be known publicly about the mediation talks, if they are approved by Martinez, the federal judge. The parties agreed to keep the negotiation process confidential under mediation laws. But the state Attorney General’s Office said in an email that the public’s right to records won’t be altered by the agreement.
