by Debbie Kay
Two different cases in the summer of 2016 have recently been decided, and the definite winner in both cases are salmon. After more than two decades of trying to bolster these threatened species via stocking and by limiting take, their populations continue to decline. Because of this, salmon habitat and land use have come into the spotlight, as they are the pieces of the puzzle that haven’t been addressed yet. These two cases brought habitat access to light, and in both cases, judges believe there was a need to improve access to stream reaches in order to ensure not just fishable levels, but species survival.
The Culvert Case, WA
The ninth circuit court of appeals reaffirmed the need of state agencies (DOT, DNR, and WDFW) to ensure that the culverts beneath state-owned roads are passable for salmon as a condition of the treaties signed in the 1800’s. The judge further claimed that there should be no parsing of language, and that we should listen to the idea as a whole, as the treaties were conducted in English and Chinook Jargon, neither of which was the fluent language of the signatory tribes. To avoid allowing access to habitat on a language technicality does not honor the spirit of the treaty. The state will have 17 years to fix the culverts obstructing 90 percent of the recoverable habitat, and the culverts blocking the remaining 10 percent of habitat will be fixed as a life of pipe condition. The agreement is believed to open up at least another thousand miles of fish habitat.
ESA Listed Species Plans, OR
Meanwhile, a federal judge in Oregon continues to reject salmon protection plans brought forward by agencies to try and save the species. He believes that without more drastic measures to address threats to salmon habitat like dams, particularly on the Snake River, conservation plans only delay extinction. Federal District Court Judge Michael Simon is not the first regional judge to have this opinion, and many nonprofits, scientists and tribes have come forward with similar objections. Others have suggested slightly less extreme solutions, like increased water flows and larger amounts of water spilled over dams.
Salmon Habitat Moving Forward
As salmon fisheries dwindle, we will be faced with the hard choice of setting aside land for the protection of the species in the form of riparian buffers and upstream rearing habitat, or seeing our efforts continue to deplete wild populations. Tribes, the state, and conservation groups will continue to work within current rules to afford whatever protection they can. Forestry, agriculture and residential zoning groups continue to analyze what they can do on their end to improve salmon survival.
As things move forward, there may be more appeals. If this happens, the Supreme Court may become the final battleground where the fate of Pacific Northwest salmon is decided.