By Lynda V. Mapes
Seattle Times staff reporter
NEAR KENDALL, Whatcom County — It doesn't seem like much, this no-name pipe, sluicing water into an unnamed stream that ripples its way to Bear Slough in the North Fork of the Nooksack River.
But small things can make big problems for salmon. This culvert was placed too high above the stream bed. It's a target no salmon can hit in its journey home to spawn. This pipe, and thousands like it, is as impermeable a barrier to upstream spawning grounds as the thickest, tallest dam.
More than 1,676 culverts from Neah Bay to Walla Walla block more than 2,377 miles of potential salmon habitat. And those are just the culverts owned by the state Department of Transportation. Pipes owned and maintained by other state and local agencies add to the problem.
It's been a well-known problem for years. But culverts recently became a big, costly liability for the state.
Last summer, U.S. District Court Judge Ricardo S. Martinez agreed with 20 of the state's Indian tribes that the state has a duty to fix problem culverts because they diminish salmon runs, and that violates the tribes' fishing rights guaranteed by treaties signed in the 19th century.
Martinez didn't offer a specific remedy or set a deadline, and now the ruling creates dilemmas for all sides.
The state says it wants to fix the culverts, but it would cost hundreds of millions of dollars. Tribal leaders say while it may seem like it's just a matter now of getting the other side to pay up, the political realities are far more complicated — and delicate. They want to settle the case, but they don't want to create a potential political liability in an election year for Gov. Christine Gregoire, their ally on expanding tribal gambling, social-service programs and other issues.
"Our objective is to just make sure it doesn't become a political factor," said W. Ron Allen, chairman of the Jamestown S'Klallam Tribe and president of the Washington Indian Gaming Association.
"We won the case, and we are not going to do anything to negate the fact. But we are trying to find a politically viable solution. The governor doesn't want this to turn into a campaign issue."
Built for water, not salmon
Out of sight, out of mind, culverts carry stormwater and streams under roads. Usually, they were built with only one thing in mind: getting water down straight pipes, as cheaply as possible. No one was thinking about getting salmon back up them.
It's not just pipes placed too far above the stream beds that create problems for fish. Culverts all over the state block salmon streams in a number of other ways that require expensive reworking, replacing and restorations. For example, many culverts are too small for the volume of water they carry, creating high-pressure hoses salmon can't navigate.
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When their ancestors signed treaties with the U.S. government, ceding millions of acres of land for white settlement, the Indians expected the deals to guarantee not just their right to go fishing, but to actually catch fish — and in their usual and accustomed areas.
After decades of debate, the tribes collectively sued the state in 2001. That led to months of negotiations that failed before Martinez issued his summary judgment for the tribes.
The ruling is not a final order; that won't come until there is a remedy. And that could take a negotiated settlement, approved by the judge. Or, if the two sides can't reach a settlement, they can fight it out in court. The state would have to then decide whether to live with the judge's final order or appeal.
State Transportation Secretary Paula Hammond has estimated that fixing her department's culverts to help rebuild fish runs will cost taxpayers hundreds of millions of dollars. The agency has already set aside $69 million for the next 12 years. That's on top of the $26 million the department has spent fixing culverts since 1991.
Other state agencies, including the Department of Fish and Wildlife and the Department of Natural Resources, which owns the pipe above Bear Slough, also have plenty of problem culverts.
Fixing some culverts would deliver more benefits than others. But the judge's ruling provided no guidance to establish priorities, a budget or a repair schedule. The state and tribes have been working since August to come up with a settlement. The judge set no deadline for resolution, but has required the parties to update him every 60 days.
Any solution would also have to be approved by the Legislature. And state officials and tribal leaders agree that's not going to happen this year, with a short legislative session and a firm warning from Gregoire to lawmakers to hold the budget.
Voters also just rejected an expensive transportation ballot measure. So how much appetite will they have to help salmon get home?
"We've been beaching ferries and closing bridges," said Matt Steuerwalt, an executive policy adviser to Gregoire on the case. "There are a lot of hard infrastructure problems out there, and we have to work on them all."
A solution to the culvert case will have to fit into the larger salmon recovery and transportation picture, Steuerwalt said. "Whatever we do has to make sense on the merits. I don't work for the campaign. I don't think about how this fits into the election. That's not my call."
For now, some tribal leaders say they are taking a long view of the culvert problem.
"You are not going to fix them overnight," said Billy Frank Jr., a Nisqually tribal elder and chairman of the Northwest Indian Fisheries Commission. The culvert case is just one chapter in a long history of tribal efforts to defend treaty fishing rights, he notes. Frank, for one, likes to remind people that amid all the grumbling about the costs of fixing culverts and rebuilding salmon runs, non-Indians enjoy uncountable economic prosperity from the lands the tribes gave up in the treaties so long ago.
In fighting to get the culverts fixed, tribes are simply seeking their part of the bargain, Frank said.
"Our salmon have to come home to us, like they always did," Frank said. "We want everyone to fish. We want this place to be healthy again."
Lynda V. Mapes: 206-464-2736
Copyright © 2008 The Seattle Times Company