Case No. 17-269 | 9th Cir.
In the 1850s, the United States entered into treaties with several Indian tribes in the Pacific Northwest regarding the right for the tribes to take fish “at all usual and accustomed grounds and stations . . . in common with all citizens.” Indian Treaties, 10 Stat. 1132, 1133 (1854). In Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979), the Supreme Court interpreted this treaty provision to guarantee that tribes get a fair share of available fish, and that a fair share was 50% of the fish, or revised downward based on tribal need.
In 2001, the federal government and tribes sued Washington, claiming that the treaties also required Washington to replace any culverts under state roads that were restricting fish passage—namely, those that blocked salmon from traveling to certain areas to spawn. The Ninth Circuit agreed, and held that the treaties should be interpreted as guaranteeing an amount of fish sufficient to provide the tribes with a moderate living, and ordered Washington to replace culverts that restricted salmon passage.
Washington argues that the rejection of Washington’s equitable defenses of waiver and estoppel regarding the culverts goes against Supreme Court precedent. Washington further argues that such a ruling is especially unfair here where the federal government, which told the State for decades how to design the culverts and approved the permitting, is now telling Washington that it is in violation of the treaty. Washington also argues that the replacement of the culverts will cost billions of dollars and will not benefit salmon because of other non-State-owned barriers.
The United States argues that the Ninth Circuit correctly interpreted the treaties by looking at the express words, treaty negotiations, and other Supreme Court decisions on this subject. The Government also argues that the Ninth Circuit did not create a new right not mentioned in the treaty, and argues that the canon governing Indian treaty interpretation directs courts to broadly interpret these treaties in the tribes’ favor.
Washington worries that an affirmation of the Ninth Circuit’s new interpretation of the treaty will open the floodgates for challenges to dams or other parts of Washington’s infrastructure, and that this new interpretation could have an impact on other states with a similar treaty, such as Idaho, Montana, and Oregon. The Government rejects this concern by noting that any future disagreements concerning treaty interpretations will be adjudicated on a case-by-case basis with heavy dependence on the facts presented by the particular dispute.