Term: 2017
Docket: 17-269
Washington v. United States
- Pro
17-269 WASHINGTON V. UNITED STATES DECISION BELOW: 853 F.3d 946 CLERK’S LETTER OF MARCH 23, 2018: JUSTICE KENNEDY WILL NO LONGER TAKE PART. CERT. GRANTED 1/12/2018 QUESTION PRESENTED: In a series of treaties, the federal government promised northwest Indian tribes "[t]he right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens." This Court has held that this language guarantees the tribes "a fair share of the available fish," meaning fifty percent of each salmon run, revised downward "if tribal needs may be satisfied by a lesser amount." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685 (1979). In this case, the Ninth Circuit held that the treaties instead guaranteed "that the number of fish would always be sufficient to provide a 'moderate living' to the Tribes." App. 94a. On that basis, the panel held that the treaties require Washington to replace culverts under state roads that restrict salmon passage. The court ordered the State to replace hundreds of culverts, at a cost of several billion dollars, even though it is undisputed that: (1) the federal government-the lead Plaintiff-specified the design and granted permits for the overwhelming majority of culverts at issue; and (2) many culvert replacements will have no benefit for salmon because of other non-State owned barriers to salmon on the same streams. The questions presented are: 1. Whether the treaty "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens" guaranteed "that the number of fish would always be sufficient to provide a 'moderate living' to the Tribes." 2. Whether the district court erred in dismissing the State's equitable defenses against the federal government where the federal government signed these treaties in the 1850's, for decades told the State to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed. 3. Whether the district court's injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and Plaintiffs showed no clear connection between culvert replacement and tribal fisheries. LOWER COURT CASE NUMBER: 13-35474
In the case of Washington v. United States in 2017, the state of Washington was sued by several tribes and the federal government for violating treaty rights that guaranteed fishing rights to Native American tribes. The treaties signed in mid-1850s promised "the right of taking fish at usual and accustomed grounds" to these tribes. However, over time, construction projects such as road culverts blocked salmon from reaching their spawning grounds which significantly reduced fish populations and infringed upon tribal fishing rights. The lower courts ruled against the state requiring it to repair hundreds of culverts at a cost estimated around $2 billion dollars. In an appeal heard by Supreme Court justices on April 18th, they seemed divided over whether or not this ruling should be upheld with some questioning if there were other factors contributing more heavily to declining salmon populations than just these barriers.
The dissenting opinion in the case of Washington v. United States was not officially published as the Supreme Court dismissed the writ as improvidently granted, meaning they decided not to hear the case after all. The dispute revolved around fishing rights treaties between Native American tribes and the state of Washington. Lower courts had ruled that culverts (tunnels carrying streams beneath roads) maintained by Washington State violated these treaties because they blocked salmon migration, impacting tribal fishing rights. However, due to a tied vote 4-4 from eight justices (Justice Kennedy recused himself), there was no majority decision made at Supreme Court level and thus no formal dissenting or concurring opinions were issued on this matter.
