On June 11, 2018, the Supreme Court summarily affirmed the Ninth Circuit’s opinion in United States v. Washington through a 4-4 split, with Justice Kennedy taking no part in the decision due to his involvement in similar cases during his time as a circuit judge on the Ninth Circuit. The immediate effect of the high court’s decision will be to require the State of Washington to replace or modify, at the State’s expense, several hundred culverts placed in streams under roads and bridges throughout the State. In the longer run, however, the decision could have much more far-reaching impacts related to federal and state obligations to protect against habitat degradation of salmon and other aquatic species pursuant to their obligations under several Nineteenth Century treaties reached with Native American Tribes in the Pacific Northwest.
In its simplest form, United States v. Washington is a case about the proper interpretation of a series of treaties between several Native American Tribes in the Pacific Northwest and the United States. Collectively known as the “Stevens Treaties,” these treaties give the signatory Tribes an off-reservation “right of taking fish, at all usual and accustomed grounds and stations, . . . in common with all citizens of the Territory[.]” E.g., Treaty of Medicine Creek, 10 Stat. 1132. The culverts impinged that right, according to the Tribes, because they blocked salmon from migrating up- and downstream to spawn or feed, thereby reducing the total number of fish available to be taken.
The United States joined the Tribes’ suit as their trustee, and the Tribes and federal government secured an injunction from the district court against the State to modify or replace its culverts. The State, in response, argued that the Stevens Treaties extend to Tribal members a right to fish, but do not impose a duty on the State to provide habitat for or guarantee a certain number of fish. The State also argued that the United States shared some blame; it had, according to the State, waived or undermined its own claim by working with the State to design and issue permits for the culverts.
In the ruling affirmed by the Supreme Court, the Ninth Circuit sided with the Tribes and federal government on the meaning of the fishing rights under the Stevens Treaties. The Ninth Circuit panel had concluded that, when the parties struck those agreements, they did so with the understanding that they guaranteed the Tribes both access to fishing spots and “also that there would be fish sufficient to sustain them.” 853 F.3d at 964. The panel further noted that it would generally “infer a promise that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” Id. at 965. Put another way, a right of taking fish included an implied duty on the part of the State not to degrade the supply of fish.
The Ninth Circuit also rejected Washington’s equitable arguments that the United States had waived its claims when its various agencies—including the National Marine Fisheries Service, the Federal Highway Administration, and the Army Corps of Engineers—had funded, designed, or issued permits for the culverts without any objection based on their impact on fishing rights. The panel reasoned that, because the federal government is a trustee for the Tribes, but not the holder of their rights under the Stevens Treaties, those rights could be waived only by the Tribes. In fact, the panel concluded that the United States itself had violated the Treaties, though the Tribes had not sought an injunction against any federal entity. The Supreme Court’s summary affirmation of the Ninth Circuit’s judgment leaves these holdings intact.
While the equally divided per curiam summary opinion issued by the Supreme Court carries no precedential weight with future Justices, the potential implications of this decision could be significant. The Ninth Circuit’s decision could well require federal and state agencies to ensure that their decisions—e.g., when issuing or reviewing grants, permits, licenses, and approvals for other infrastructure projects that touch streams, rivers, lakes, or ocean—not only protect Tribal access to off-reservation fishing grounds and stations, but also ensure that such actions protect against habitat degradation to ensure a supply of fish sufficient to provide a moderate living to the Tribes.
In fact, as several State amici pointed out to the Supreme Court, the U.S. Environmental Protection Agency (EPA) has already cited the Ninth Circuit’s decision in considering impacts on “the right to an adequate supply of fish[,]” 81 Fed. Reg. at 92,480, and “treaty-reserved subsistence fishing rights[,]” 81 Fed. Reg. at 85,423, when reviewing state water quality standards under the Clean Water Act. While these EPA statements pre-date the Supreme Court’s summary affirmance, they may portend, as Judge O’Scannlain predicted in his dissent from the Ninth Circuit’s denial of hearing en banc, that tribal fishing rights will soon intersect with “a variety of development, construction, and farming practices, not just in Washington but throughout the Pacific Northwest.” Order, No. 13-35474 (9th Cir. May 19, 2017).