A tie 4-4 vote by the high court upholds a lower-court decision ordering barriers to salmon migration be removed, ending a bitter decades-old controversy.

By Hal Bernton, Seattle Times staff reporter

June 11, 2018

The U.S. Supreme Court is leaving in place a lower court order that forces Washington state to restore salmon habitat by removing barriers that block fish migration.

The justices split 4-4 Monday in the long-running dispute that pitted the state against Indian tribes and the federal government.
 
The tie means that a lower-court ruling in favor of the tribes will stand. Justice Anthony Kennedy stepped aside from the case because he participated in an earlier stage of it when he served on the 9th U.S. Circuit Court of Appeals.

“The judgment is affirmed by an equally divided court,” said the brief statement released by the Supreme Court.

At issue is whether Washington state must fix or replace hundreds of culverts. Those are large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they’re too steep to navigate.

“It is a fantastic day for the tribes and the fish. It is a fantastic day for anyone in Washington who cares about these resources,” said John Sledd, a Seattle-based counsel for the tribes.

Washington Attorney General Bob Ferguson, who had challenged the 9th Circuit ruling, said the Supreme Court ruling marks the end of the case, which had gone on for nearly 20 years.

Ferguson said that the federal government provided faulty designs for culverts but that the Washington taxpayers will be footing the entire bill for the culvert replacements.

“The Legislature has a big responsibility in front of it to ensure that the state meets its obligation under the court’s ruling,” Ferguson said.

The case initially was filed by 21 Washington tribes with treaty-protected fishing rights in 2001. At issue is the state’s obligation to repair road culverts that block salmon from their spawning habitat.