United States v. Washington

Rule of Law:

The right to take fish guaranteed to Native American tribes in the Stevens Treaties imposes an affirmative duty on the State of Washington to refrain from constructing and maintaining infrastructure that degrades fish habitat, such as barrier culverts, to the extent that it diminishes the number of fish that would otherwise be available for tribal harvest.

Facts:

• In 1854 and 1855, various Indian tribes (the 'Tribes') in the Pacific Northwest entered into the Stevens Treaties with the United States.
• In exchange for ceding vast amounts of land, the treaties guaranteed the Tribes 'the right of taking fish, at all usual and accustomed grounds and stations... in common with all citizens of the Territory.'
• Salmon, which are central to the Tribes' diet, economy, and culture, are anadromous fish that hatch in freshwater, migrate to the ocean, and must return to their native streams to spawn.
• Over many decades, the State of Washington built roads and highways that crossed these salmon-bearing streams.
• To allow stream water to pass under the roads, the State constructed numerous culverts.
• Many of these state-owned culverts were designed or maintained in a way that inhibited or completely blocked the passage of both juvenile salmon migrating to the sea and adult salmon returning to spawn, effectively becoming 'barrier culverts'.
• The presence of these barrier culverts significantly reduced the amount of upstream habitat accessible to salmon for spawning.
• The resulting decline in salmon populations has harmed tribal economies and prevented many tribal members from being able to earn a moderate living from fishing.

Procedural Posture:

• In 1970, the United States, on behalf of the Tribes, sued the State of Washington in the U.S. District Court for the Western District of Washington to enforce treaty fishing rights.
• In Phase I of the litigation, the district court's 'Boldt Decision' (1974) held that the Tribes were entitled to up to 50% of the harvestable fish, a ruling later affirmed by the U.S. Supreme Court.
• In Phase II, the district court declared that the treaty implied a right to have fish habitat protected from man-made despoliation.
• The U.S. Court of Appeals for the Ninth Circuit, sitting en banc in 1985 (Washington III), vacated the environmental ruling, stating that the issue was too broad and must be resolved based on 'concrete facts which underlie a dispute in a particular case.'
• In 2001, twenty-one Tribes, joined by the United States, filed a 'Request for Determination' with the district court, invoking its continuing jurisdiction to resolve the specific dispute over barrier culverts.
• The district court granted summary judgment in favor of the Tribes, finding that Washington's culverts violated the treaties.
• After a bench trial on the appropriate remedy, the district court issued a permanent injunction in 2013 ordering Washington to repair or replace its barrier culverts according to a set schedule.
• The State of Washington appealed the district court's decision and the resulting injunction to the U.S. Court of Appeals for the Ninth Circuit.