In 2018, the U.S. Supreme Court affirmed without opinion a judgment that requires the State of Washington to replace hundreds of highway culverts that hinder fish passage. It was the result of a 40-year litigation strategy that tribal advocates pursued with the goal of establishing a treaty-based, broadly-applicable rule of law prohibiting fish habitat degradation. This Essay examines the history of treaty fishing rights litigation in the Pacific Northwest, federal policies that encouraged settlement and environmental alteration, and the culvert litigation and its aftermath. The Essay concludes that the culvert litigation did not establish a broad rule of law, and proposes that engagement with state political and administrative processes is a more effective way for tribes to achieve public policy goals.
Woods, Fronda, "Environmental Change, Culverts, and the “Right of Taking Fish” Under the Stevens Treaties" (2019). Connecticut Law Review. 406.