Opposition Brief — Washington, Petitioner v. United States, et al.

No. 17-269

In the Supreme Court of the United States

STATE OF WASHINGTON, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. WOOD

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

EVELYN S. YING

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the “right of taking fish, at all usual and

accustomed grounds and stations * * * in common with

all citizens,” reserved by respondent Indian Tribes in

the Stevens Treaties, e.g., Treaty of Medicine Creek,

U.S.-Nisqually, art. III, Dec. 26, 1854, 10 Stat. 1133, imposes a duty on petitioner to refrain from building or

maintaining culverts that directly block passage of a

large number of anadromous fish to and from those

grounds and that significantly diminish fish populations

available for tribal harvest so that the Tribes cannot

sustain a livelihood from their fisheries.

2. Whether the court of appeals correctly declined to

apply the doctrines of waiver or laches to bar this suit,

which addresses a treaty reserving rights and resources

that pre-date the State, the scope of which has been in

dispute for more than 100 years.

3. Whether the court of appeals correctly held that

the district court did not abuse its discretion in enjoining petitioner to provide fish passage by addressing

barrier culverts on a reasonable schedule necessary to

ensure that petitioner acts expeditiously to remedy a violation of tribal treaty rights.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument..................................................................................... 11

Conclusion ................................................................................... 27

TABLE OF AUTHORITIES

Cases:

Cayuga Indian Nation v. Pataki,413 F.3d 266

(2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006) ...... 22, 23

City of Sherrill v. Oneida Indian Nation,

544 U.S. 197 (2005)........................................................ 21, 22

Choctaw Nation of Indians v United States,

318 U.S. 423 (1943).............................................................. 17

Cramer v. United States, 261 U.S. 219 (1923) .................... 21

Department of Game v. Puyallup Tribe,

414 U.S. 44 (1973) ..................................................... 3, 16, 19

Horne v. Flores, 557 U.S. 433 (2009) ................................... 25

Jones v. Meehan, 175 U.S. 1 (1899) ..................................... 17

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999)........................................................ 17, 21

Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995).............................................................. 18

Oneida Indian Nation v. County of Oneida,

617 F.3d 114 (2d Cir. 2010), cert. denied,

565 U.S. 970 (2011).............................................................. 23

Oregon Dep’t of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753 (1985) .................................................. 18

Pine River Logging Co. v. United States,

186 U.S. 279 (1902).............................................................. 21

(III)

IV

Cases—Continued:

Page

Puyallup Tribe v. Department of Game, 391 U.S. 392

(1968) ................................................................................ 3, 19

Puyallup Tribe, Inc. v. Department of Game,

433 U.S. 165 (1977).......................................................... 3, 16

Rizzo v. Goode, 423 U.S. 362 (1976) ..................................... 26

Seufert Bros. Co. v. United States, 249 U.S. 194

(1919) ................................................................................ 3, 17

Stockbridge-Munsee Cmty. v. New York,

756 F.3d 163 (2d Cir. 2014), cert. denied

135 S. Ct. 1492 (2015) ......................................................... 23

Tulee v. Washington, 315 U.S. 681 (1942)........................... 17

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983),

cert. denied, 467 U.S. 1252 (1984) ............................... 18, 19

United States v. Ahtanum Irrigation Dist., 236 F.2d

321 (9th Cir. 1956), cert. denied, 352 U.S. 988 (1957) ...... 21

United States v. City of Tacoma, 332 F.3d 574

(9th Cir. 2003) ...................................................................... 21

United States v. Dion, 476 U.S. 734 (1986) ......................... 21

United States v. Washington:

384 F. Supp. 312 (W.D. Wash. 1974), aff ’d,

520 F.2d 676 (9th Cir. 1975), cert. denied,

423 U.S. 1086 (1976) .............................................. 4, 16

520 F.2d 676, 685 (9th Cir. 1975) , cert. denied,

423 U.S. 1086 (1976) .................................................. 16

506 F. Supp. 187 (W.D. Wash. 1980), aff ’d in part

and vacated in part, 759 F.2d 1353 (9th Cir.),

cert. denied, 474 U.S. 994 (1985) ................................ 5

759 F.2d 1353 (9th Cir), cert. denied,

474 U.S. 994 (1985) .................................5, 6, 14, 15, 20

573 F.3d 701 (9th Cir. 2009)............................................ 16

United States v. Winans, 198 U.S. 371

(1905) ...........................................................2, 3, 12, 17, 18, 19

V

Cases—Continued:

Page

Ute Indian Tribe of the Uintah v. Myton,

835 F.3d 1255 (10th Cir. 2016), cert. denied,

137 S. Ct. 2328 (2017) ......................................................... 23

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658

(1979) ........................................................................... passim

Winters v. United States, 207 U.S. 564 (1908) .............. 18, 19

Treaty and statute:

Treaty of Medicine Creek, U.S.-Nisqually, art. III,

Dec. 26, 1854, 10 Stat. 1133 .................................................. 3

Equal Educational Opportunities Act of 1974,

20 U.S.C. 1701 et seq. .......................................................... 26

In the Supreme Court of the United States

No. 17-269

STATE OF WASHINGTON, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet.

App. 58a-126a) is reported at 853 F.3d 946. The relevant opinions of the district court are reported at

20 F. Supp. 3d 828 (Pet. App. 249a-272a), 20 F. Supp. 3d

986 (Pet. App. 127a-179a, 235a-242a), and 19 F. Supp. 3d

1317 (Pet. App. 273a-282a). Additional opinions of

the district court (Pet. App. 180a-234a, 243a-248a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 2, 2017. A petition for rehearing was denied on

May 19, 2017 (Pet. App. 1a-57a). The petition for a writ

of certiorari was filed on August 17, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In 1854 and 1855, in exchange for vast cessions of

land in what is now the western part of the State of

Washington, respondent Indian Tribes entered into

treaties securing for themselves periodic monetary payments, smaller tracts of land set aside for their exclusive use, and the preservation of fishing rights in the

ceded areas. Pet. App. 68a; Washington v. Washington

State Commercial Passenger Fishing Vessel Ass’n,

443 U.S. 658, 661-662 (1979) (Fishing Vessel). The treaties, known as the Stevens Treaties, were negotiated

under the leadership of Governor Isaac Stevens of the

Washington Territory. Pet. App. 68a; Fishing Vessel,

443 U.S. at 666.

From time immemorial, the Tribes have used and relied on fish for commercial, subsistence, and ceremonial

purposes and have exercised that right at particular

places. Fishing Vessel, 443 U.S. at 665-666; see United

States v. Winans, 198 U.S. 371, 381 (1905) (fishing was

“not much less necessary to the existence of the Indians

than the atmosphere they breathed”). The United

States treaty negotiators were well aware of “the vital

importance of the fisheries” to the Tribes, and they understood that without preservation of the Indians’ offreservation right to take fish at particular sites, the

Tribes would not have entered into the treaties, Fishing

Vessel, 443 U.S. at 666-667, which reserved property

rights in the Tribes that were “continuing against the

United States and its grantees as well as against the

State and its grantees.” Winans, 198 U.S. at 381-382.

To preserve the Tribes’ fishing right, the Stevens

Treaties provide in essentially identical language: “The

right of taking fish, at all usual and accustomed grounds

3

and stations, is further secured to said Indians, in common with all citizens of the Territory.” Treaty of Medicine Creek, U.S.-Nisqually, art. III, Dec. 26, 1854,

10 Stat. 1133; see, e.g., Pet. App. 68a; C.A. E.R. 44-45.

The negotiators assured the Tribes that, under the treaties, they would have “continued access to their usual

fisheries” and “would still be able to feed themselves

and their families forever.” Pet. App. 129a; see Fishing

Vessel, 443 U.S. at 667 n.11 (Stevens assured the Indians that “ ‘[t]his paper secures your fish’ ”) (citation

omitted). Both the United States and the Tribes viewed

the protection of the Tribes’ off-reservation fishing

right as a critical element of the treaties. Fishing Vessel, 443 U.S. at 666-668.

2. As the availability of fish—in particular, salmon

and other anadromous fish—has diminished, disputes

have ensued between petitioner State of Washington

and the Tribes over fishing rights. Pet. App. 7a; Fishing Vessel, 443 U.S. at 670. 1 In 1970, the United States,

on its own behalf and as trustee for several of the

Tribes, sued petitioner in federal district court. Fishing Vessel, 443 U.S. at 669-670. The United States

sought declaratory and injunctive relief based on the

fishing-rights clause of the Stevens Treaties. Ibid. The

district court divided the case into two phases. Pet.

App. 78a.

Before Fishing Vessel and the present dispute, this Court addressed the Tribes’ treaty fishing right in Winans, 198 U.S. 371;

Seufert Bros. Co. v. United States, 249 U.S. 194 (1919); Tulee v.

Washington, 315 U.S. 681 (1942); Puyallup Tribe v. Department of

Game, 391 U.S. 392 (1968); Department of Game v. Puyallup Tribe,

414 U.S. 44 (1973); and Puyallup Tribe, Inc. v. Department of

Game, 433 U.S. 165 (1977).

1

4

a. In Phase I, the district court established the locations of the Tribes’ “usual and accustomed” fishing

grounds and held that the Tribes could take up to 50%

of the harvestable fish from those grounds. United

States v. Washington, 384 F. Supp. 312, 332-333, 343344 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086 (1976). The court issued a detailed injunction, id. at 413-420, and it reserved jurisdiction to hear unresolved issues arising out

of the treaties, including those it had bifurcated for later

determination, id. at 333.

The district court’s ruling met substantial resistance

from petitioner and spawned numerous suits that ultimately reached this Court in Fishing Vessel, where the

district court’s interpretation of the treaties and issuance of injunctive relief were affirmed. This Court rejected petitioner’s argument that the treaties guaranteed the Tribes only an “ ‘equal opportunity’ ” to harvest

fish with non-Indians, 443 U.S. at 676-679 & n.22, and

affirmed the Tribes’ right to an equal share of the harvestable fish, id. at 685. Furthermore, the Court interpreted the fishing-rights clause as promising not only

an equal share of the fish with non-Indians, but also protection for the Tribes’ supply of fish. Id. at 676. “Because the Indians had always exercised the right to

meet their subsistence and commercial needs by taking

fish from treaty area waters,” the Court explained, the

Tribes “would be unlikely to perceive a ‘reservation’ of

that right as merely the chance * * * to dip their nets”

into the waters. Id. at 678-679. With respect to the equitable share of fish, this Court specified that 50% was

the maximum allocation, but not a minimum because the

treaty rights secured “so much as, but no more than, is

5

necessary to provide the Indians with a livelihood—that

is to say, a moderate living.” Id. at 686.

b. In 1976, the United States initiated Phase II of

the litigation and requested a declaratory judgment

clarifying whether the Tribes’ treaty fishing right extends to hatchery fish and requires protection from significant environmental degradation of the fish habitat

necessary for survival of fish populations. United States

v. Washington, 506 F. Supp. 187, 194 (W.D. Wash.

1980), aff ’d in part and vacated in part, 759 F.2d 1353

(9th Cir.) (per curiam), cert. denied, 474 U.S. 994 (1985).

The district court held that the Tribes’ fishing right extends to an equal share of hatchery fish. Id. at 195-202.

The court further held that the Tribes’ right imposes on

petitioner a correlative duty “to refrain from degrading

the fish habitat to an extent that would deprive the

tribes of their moderate living needs.” Id. at 208. The

decision, however, did not address any particular habitat degradation or specify any remedy. Ibid.

The court of appeals affirmed in part and vacated in

part. United States v. Washington, 759 F.2d 1353 (9th

Cir.) (en banc) (per curiam), cert. denied, 474 U.S. 994

(1985). The court affirmed the Tribes’ right to a share

of hatchery fish. Id. at 1358-1360. The court vacated

the declaratory judgment on the environmental issue,

concluding that it was “contrary to the exercise of sound

judicial discretion” to declare a sweeping right of habitat protection absent a concrete factual dispute. Id. at

1357-1358. Although the court did not dispute that petitioner has some obligations under the Stevens Treaties not to significantly reduce fish populations, it held

that the legal standards that govern petitioner’s precise

duties “will depend for their definition and articulation

6

upon concrete facts which underlie a dispute in a particular case.” Ibid.

3. This litigation presents those “concrete facts.”

The abundance of salmon and the areas open to tribal

harvest have decreased substantially due to the loss of

salmon habitat caused in significant part by the construction and maintenance of barrier culverts under

state roads. Pet. App. 132a. For many years, the Tribes

complained that petitioner had built roads across

salmon-bearing streams, and culverts under those

roads—referred to as “barrier culverts”—allowed passage of water, but not passage of salmon. Id. at 7a-8a,

77a-78a. Salmon are anadromous fish, meaning that

they hatch in fresh water, migrate to the ocean to mature, and return to fresh water to spawn. Id. at 8a, 77a.

Access to spawning grounds is therefore “essential to

their reproduction and survival.” Id. at 8a. Barrier culverts block approximately 1000 linear miles of streams

comprising almost five million square meters of salmon

habitat. Id. at 157a, 162a.

In 1997, the Washington Department of Fish & Wildlife (WDFW) and the Washington State Department of

Transportation (WSDOT) reported that WSDOT culverts alone blocked an area of approximately 1.6 million

square meters of fish habitat, which they estimated

would produce 200,000 additional adult salmon each

year. Pet. App. 109a. In 2001, the Tribes filed a request

for determination seeking declaratory and injunctive

relief against petitioner, based on WDFW’s records and

supporting evidence. C.A. E.R. 1008-1021. The Tribes,

joined by the United States, sought to enforce a duty

owed by petitioner to “refrain from diminishing,

through the construction or maintenance of culverts under State owned roads and highways, the number of fish

7

that would otherwise return to or pass through the

tribes’ usual and accustomed fishing grounds and stations, to the extent that such diminishment would impair the tribes’ ability to earn a moderate living from

the fishery.” Id. at 1013-1014.

Petitioner asserted defenses of waiver and estoppel

to the claims of treaty violations. Pet. App. 274a. The

district court rejected those defenses, concluding that

the United States could not waive the treaty rights of

Indians through the actions of federal officials that

funded and purportedly approved the culverts. Id. at

274a-275a.

On summary judgment, the district court ruled in favor of the Tribes on the issue of treaty fishing rights.

Pet. App. 249a-272a. The court concluded that the

“right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon [petitioner] to refrain from building or operating culverts under Statemaintained roads that hinder fish passage and thereby

diminish the number of fish that would otherwise be

available for Tribal harvest,” and that petitioner “currently owns and operates culverts that violate this

duty.” Id. at 271a.

In 2009 and 2010, the district court held a bench trial

to determine the appropriate remedy. Pet. App. 128a.

In 2013, the court issued a memorandum and decision,

including nearly 200 findings of fact. Id. at 127a-179a.

The court found that improperly designed culverts have

resulted in the loss of spawning and rearing habitat,

both by blocking passage of fish and by causing other

negative effects on streams. Id. at 160a-161a. The court

further found that correction of barrier culverts is a

8

cost-effective and scientifically sound method of restoring habitat that “provides immediate benefit in terms of

salmon production.” Id. at 166a.

The district court, based on WDFW records, found

that at the time of trial, state-owned culverts blocked

access to about 1000 miles of streams, constituting

nearly five million square meters of habitat. Id. at 156a157a, 162a. At the rate petitioner was addressing those

barrier culverts, the court found, “it would take the

State more than 100 years to replace the ‘significantly

blocking’ WSDOT barrier culverts that existed in 2009.”

Id. at 162a-163a.

The district court also issued conclusions of law, including that:

• “Where culverts block passage of fish such that

adult salmon cannot swim upstream to spawn

and juveniles cannot swim downstream to reach

the ocean, those blocked culverts are directly responsible for a demonstrable portion of the diminishment of the salmon runs.” Pet. App. 175a.

• “The depletion of salmon stocks and the resulting

diminished harvests have harmed the Tribes and

the individual members economically, culturally,

and personally,” and the “Tribes have demonstrated * * * that they have suffered irreparable

injury in that their Treaty-based right of taking

fish has been impermissibly infringed.” Id. at

175a-176a.

• “Despite past State action, a great many barrier

culverts still exist, large stretches of potential

salmon habitat remain empty of fish, and harvests are still diminished.” Id. at 176a.

9

• “State action in the form of acceleration of barrier correction is necessary to remedy this decline in salmon stocks and remove the threats

which face the Tribes,” and petitioner “has the

financial ability to accelerate the pace of barrier

correction.” Id. at 177a.

• “[I]t is in the public’s interest * * * to accelerate

the pace of barrier correction” because “[a]ll

fishermen * * * will benefit from the increased

production of salmon” and “[t]he general public

will benefit from the enhancement of the resource and the increased economic return from

fishing.” Id. at 178a.

Based on those findings of fact and conclusions of

law, the district court granted the permanent injunction

requested by the Tribes and the United States. Pet.

App. 179a, 235a-242a. The injunction ordered petitioner

to prepare a list of culverts under state-owned roads

that are salmon barriers, using a methodology adopted

by the WDFW. Id. at 236a. Culverts maintained by

state agencies other than the WSDOT were to be corrected by October 2016—the date by which those agencies were already expected to correct such culverts. Id.

at 237a. The injunction ordered the WSDOT to correct

many of its high-priority barrier culverts within 17

years, allowing deferral of some under certain conditions, and to correct the remainder at the end of the culverts’ useful life or in connection with other highway

projects. Id. at 237a-238a. The injunction further provided that petitioner can deviate from design standards

if it can establish or the parties agree that the standards

are not feasible in specific circumstances. Id. at 239a.

Petitioner declined to participate in the formulation of

10

the injunction or to provide alternative proposals or

time tables. Id. at 107a.

4. a. The court of appeals affirmed. Pet. App. 58a126a. The court rejected petitioner’s argument that it

“has no treaty-based duty to refrain from building and

maintaining barrier culverts,” and, indeed, that it “has

the right, consistent with the Stevens Treaties, to block

every salmon-bearing stream feeding into Puget

Sound.” Id. at 86a-88a. The court explained that “[t]he

Indians did not understand the Treaties to promise that

they would have access to their usual and accustomed

fishing places, but with a qualification that would allow

[petitioner] to diminish or destroy the fish runs.” Id. at

91a. The court concluded that Governor Stevens “did

not make * * * such a cynical and disingenuous promise.” Id. at 91a-92a. Accordingly, the court held that

the Tribes’ fishing right imposes a duty on petitioner to

refrain from constructing and maintaining culverts under state roads that block or restrict passage of anadromous fish to and from traditional tribal fishing grounds.

Id. at 94a-96a. In so ruling, the court explained that

state culverts blocked at least 1000 miles of streams

suitable for salmon habitat, and that if those culverts

were modified to allow fish passage, several hundred

thousand additional mature salmon would be produced

every year, many of which would be available to the

Tribes, whose members currently cannot obtain a moderate living from fishing. Id. at 95a.

The court of appeals also affirmed the district court’s

rejection of petitioner’s equitable defenses against the

United States to claims of treaty violations. Pet. App.

96a-99a. The court concluded that when the United

States sues as a trustee for Indian tribes, it is not subject to equitable defenses of laches, waiver, or estoppel

11

based on the actions of its agents purportedly approving

treaty violations. Id. at 97a-98a. Finally, the court rejected petitioner’s arguments regarding injunctive relief. Id. at 104a-126a. The court concluded that there

was sufficient evidence to show that state-owned barrier culverts have a substantial adverse effect on

salmon, id. at 108a-116a, that the injunction was not an

undue intrusion into state government affairs, id. at

121a-123a, and that the scope of the injunction was consistent both with general equitable principles and remedial principles that apply in the context of Indian treaties, id. at 120a-121a, 123a-125a.

b. Judge O’Scannlain, joined in full or in part by

eight other judges, dissented from the denial of rehearing en banc. Pet. App. 17a-41a. In Judge O’Scannlain’s

view, the Stevens Treaties do not obligate petitioner to

ensure that there are sufficient fish available to provide

the Tribes with a moderate living. Id. at 21a-27a. Judge

O’Scannlain further concluded that the panel opinion

“could be used to challenge activities that affect wildlife

habitat in other western states.” Id. at 19a; see id. at

27a-32a. Judge O’Scannlain believed that the doctrine

of laches should bar the United States’ suit, id. at 32a36a, and that the injunction was overbroad, id. at 36a41a.

ARGUMENT

Petitioner does not challenge that barrier culverts

impede fish passage, eliminating over 1000 miles of

salmon habitat that, if accessible, would likely lead to

increased fish populations. Instead, petitioner contends

(i) that it did not violate the Tribes’ treaty fishing right

by building and maintaining road culverts that block or

restrict the passage of anadromous fish to tribal fishing

grounds (Pet. 18-25); (ii) that the court of appeals erred

12

in rejecting petitioner’s equitable defenses against the

United States (Pet. 25-28); (iii) and that the injunction

entered by the district court violates federalism and

comity principles by requiring petitioner to replace culverts without (petitioner asserts) any clear connection

between culvert replacement and tribal fisheries (Pet.

28-34). The court of appeals correctly rejected those arguments, and its decision does not conflict with any decision of this Court or another court of appeals. Further

review is therefore unwarranted.

1. In Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979),

this Court held that the Stevens Treaties guarantee to

the Tribes an equitable allocation of up to 50% of the

harvestable fish in their usual and accustomed fishing

areas. Id. at 685-686. That 50% share “imposes a maximum but not a minimum allocation.” Id. at 686. That

is so, the Court explained, because the Tribes’ treaty

fishing right “secures so much as, but no more than, is

necessary to provide the Indians with a livelihood—that

is to say, a moderate living.” Ibid.; see United States v.

Winans, 198 U.S. 371, 381-382 (1905).

a. Petitioner contends (Pet. 19-22) that the court of

appeals’ decision conflicts with Fishing Vessel by imposing an affirmative duty upon petitioner to provide a

certain quantity of fish that would ensure a moderate

living for the Tribes. Petitioner contends that the

court’s decision cannot be squared with this Court’s

holding in Fishing Vessel that the Tribes are entitled to

no more than one-half of harvestable fish in their usual

and accustomed fishing areas, even if that amount is

less than the Tribes’ “ ‘needs dictated.’ ” Pet. 20-21

(quoting Fishing Vessel, 443 U.S. at 670). Petitioner’s

argument is misconceived.

13

As petitioner explains, the Tribes in Fishing Vessel

had argued that the treaties reserved a right to “ ‘as

many fish as their commercial and subsistence needs

dictated.’ ” Pet. 19 (quoting Fishing Vessel, 443 U.S. at

670). This Court rejected that argument and instead

held that the Tribes’ fishing right reserves “so much as,

but not more than, is necessary” to provide the Indians

with a moderate living, subject to a ceiling of 50% of the

harvestable run. Fishing Vessel, 443 U.S. at 685-686.

The court of appeals’ decision follows from that central

tenet of Fishing Vessel. As the court explained, “[i]t is

undisputed that at the present time fifty percent of the

harvestable salmon in Puget Sound does not provide a

moderate living to the Tribes,” and that petitioner has

acted affirmatively to build roads with barrier culverts

that impair the shared resource and “substantially diminish[] the supply of harvestable salmon.” Pet. App.

10a. The court’s conclusion that petitioner violates the

treaty fishing right by interfering with the Tribes’

ability to ensure a moderate living does not conflict with

the Court’s statement in Fishing Vessel that the Tribes’

are entitled only to what is necessary to provide them

with a moderate living, subject to the 50% ceiling, but

not to “ ‘as many fish as their commercial and subsistence needs dictated.’ ” Pet. 19 (quoting Fishing Vessel,

443 U.S. at 670).

Furthermore, the court of appeals explicitly stated

that its opinion “does not hold that the Tribes are entitled to enough salmon to provide a moderate living, irrespective of the circumstances.” Pet. App. 10a. The

court acknowledged that the promise of a moderate living is not valid against “acts of God,” “all human-caused

diminutions, or even against all State-caused diminutions.” Ibid. The court concluded only that, in this case

14

concerning only state-owned barrier culverts, petitioner violates the treaty fishing right when it acts “affirmatively to build roads across salmon bearing

streams, with culverts that allowed passage of water but

not passage of salmon.” Id. at 10a-11a.

According to petitioner (Pet. 20-21), the “moderate

living” standard is only an “equitable limit the State

could invoke * * * as a ceiling on the tribal share of the

catch, not a floor on fish harvests that the treaties always guaranteed.” Under that view, it would thus be

consistent with the treaties for petitioner to take actions that would “entirely eliminate the supply of harvestable salmon” so that the Tribes ends up with “fifty

percent of nothing.” Pet. App. 9a; see id. at 87a-88a.

That contention is unsound. Reviewing the history of

the treaties, relevant principles of treaty interpretation,

and this Court’s decisions in Fishing Vessel and other

cases interpreting the treaty fishing right, the court of

appeals determined that the Indians reasonably understood the treaties to recognize “not only that they would

have access to their usual and accustomed fishing

places, but also that there would be fish sufficient to

sustain them,” Id. at 92a, and that those assurances do

not permit petitioner to “destroy the fish runs,” id. at 91a.

Ignoring those assurances, petitioner focuses on the

court of appeals’ statement in a prior en banc opinion

during Phase II of the original round of litigation in this

case that “ ‘Fishing Vessel did not hold that the Tribes

were entitled to any particular minimum allocation

of fish’ ” and instead “ ‘mandates an allocation of 50 percent of the fish to the Indians, subject to downward revision if moderate living needs can be met with less.’ ”

Pet. 20 (quoting United States v. Washington, 759 F.2d

15

1353, 1359 (9th Cir.) (en banc) (per curiam), cert. denied, 474 U.S. 994 (1985)). That passage, which comes

from the portion of the opinion holding that hatchery

fish must be included in the Tribes’ harvest allocation,

does not address the issue of degradation of fish habitat

that results in diminishment of the supply of fish. In

fact, as the court of appeals stated in the sentence prior

to the passage cited by petitioner, “Fishing Vessel’s

holding that the Tribes are entitled under the treaty to

an ‘adequate supply of fish’ supports the inclusion of

hatchery fish in the allocation.” 759 F.2d at 1358 (emphasis added). That the Tribes are entitled to a share

of hatchery fish in part as mitigation for the decline in

the supply of fish “caused by their non-Indian neighbors” is consistent with an interpretation of the treaty

fishing right that includes rights relating to the supply

of fish. Id. at 1360. If the Tribes had no rights relating

to the supply of fish, petitioner would owe the Tribes no

such mitigation. 2

Other decisions have recognized that the Tribes’

treaty fishing right presumes an adequate supply of fish

Petitioner has previously not taken issue with the proposition

that the “moderate living” standard applies to the Tribes’ treaty

right and fish supply. In Phase II, the Tribes stated in the district

court that their “treaty entitlement is to a quantity of fish sufficient

to supply their needs for a moderate income.” C.A. Supp. E.R. 145;

see id. at 146-147 (stating that “even if nonnatural reductions in fish

runs occur, they would not violate any Indian right to take fish so

long as there continues to exist fish in sufficient quantities to meet

the treaty fishermen’s needs”). In the face of that statement, petitioner did not raise on appeal any meaningful issue regarding the

application of the moderate living standard to the treaty right. Yet,

in its rehearing petition, and now its petition to this Court, petitioner attacks (Pet. 21-22) the moderate living standard as unworkable.

2

16

and a duty on Indians and non-Indians not to unilaterally

destroy or significantly impact the treaty-protected resource. See, e.g., United States v. Washington, 573 F.3d

701, 704 (9th Cir. 2009) (“the treaty fishing right * * *

‘exists in part to provide a volume of fish which is sufficient to the fair needs of the tribes’ ”) (quoting United

States v. Washington, 384 F. Supp. 312, 401 (W.D.

Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976)); United States v. Washington, 520 F.2d 676, 685 (9th Cir. 1975) (“neither the

treaty Indians nor the [S]tate on behalf of its citizens

may permit the subject matter of these treaties to be

destroyed”), cert. denied, 423 U.S. 1086 (1976); see also

Department of Game v. Puyallup Tribe, 414 U.S. 44, 49

(1973) (Puyallup II) (Tribes do not have an untrammeled treaty fishing right “to pursue the last living

steelhead” into their own fishing nets that would unilaterally deny non-Indians the shared resource and their

fair share of fish); Puyallup Tribe, Inc. v. Department

of Game, 433 U.S. 165, 173-177 (1977). Thus, petitioner’s citation to other cases (Pet. 20) that simply reference Fishing Vessel’s allocation methodology of ensuring Tribes half of the harvestable share, adjusted

downward if tribal needs can be met with less, has little

force. Those cases cannot be read to say that petitioner,

through its barrier culverts resulting in diminishment

or destruction of fish runs, may leave far fewer (or no)

fish for the Tribes.

b. Petitioner further contends (Pet. 22-25) that the

court of appeals’ decision conflicts with holdings of this

Court on treaty interpretation. It does not. This is not

a case in which the court of appeals has rewritten a

treaty “ ‘to remedy a claimed injustice’ ” or created a

17

“massive new right.” Pet. 22-23 (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 432

(1943)). The court relied on well-established standards

of treaty construction to hold that the treaties reserved

the Tribes’ right to continue to take fish at their usual

and accustomed fishing places to maintain their livelihood, and that petitioner’s barrier culverts violated that

right by blocking fish passage and significantly reducing fish population. Pet. App. 86a-96a. To reach that

holding, the court looked to the express words of the

fishing clause, treaty negotiations and other historical

materials, and decisions of this Court addressing the

fishing clause. Ibid. That approach is consistent with

principles of treaty interpretation set forth in Choctaw

Nation, as petitioner acknowledges (Pet. 22-23). See

318 U.S. at 431-432 (in ascertaining the meaning of treaties, courts “may look beyond the written words to the

history of the treaty, the negotiations, and the practical

construction adopted by the parties”); accord Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 196 (1999).

Moreover, petitioner’s contention (Pet. 22) that the

court of appeals declared a new right “nowhere mentioned in the treaties” ignores the canon governing

Indian treaty interpretation that treaty words must be

construed “in the sense in which they would naturally

be understood by the Indians.” Jones v. Meehan,

175 U.S. 1, 11 (1899). This Court has explicitly relied

upon that rule to “broadly interpret[] [the Stevens

Treaties] in the Indians’ favor” in the past. Fishing

Vessel, 443 U.S. at 675-676 (citing Tulee v. Washington,

315 U.S. 681 (1947); Seufert Bros. Co. v. United States,

249 U.S. 194 (1919)); see Winans, 198 U.S. at 381; see

also Pet. App. 88a-90a (discussing cases). Petitioner’s

18

contention also overlooks that the “ ‘treaty [i]s not a

grant of rights to the Indians, but a grant of rights from

them—a reservation of those not granted,’ ” and thus silence implicates a reservation of rights under the

treaty. Winans, 198 U.S. at 381 (citation omitted).

Nor does the court of appeals’ decision conflict with

the other decisions of this Court cited by petitioner. See

Pet. 23. Both Oregon Department of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753 (1985), and Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S.

450 (1995), involved the question whether treaty rights

reserved within a tribe’s reservation or limits could be

extended by implication outside such areas. The treaty

language in Klamath Indian Tribe, unlike the language

of the Stevens Treaties, confirmed that the express

tribal rights to hunt and fish were meant to exist only

“within the limits of the reservation.” 473 U.S. at 766;

see id. at 766-768. Similarly, in Oklahoma Tax Commission, the treaty, by its plain terms, applied only to

persons and property “ ‘within [the tribe’s] limits,’ ” such

that even liberal construction could not support the

tribe’s claim. 515 U.S. at 465-466 (citation omitted).

Here, the treaties expressly reserved fishing rights and

interests both on and off the reservation.

The court of appeals also correctly relied on Winters

v. United States, 207 U.S. 564 (1908), and United States

v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied,

467 U.S. 1252 (1984), to hold that, even if Governor Stevens had not made an explicit promise that “ ‘[t]his

pa per secures your fish,’ ” that promise should be inferred to support the purpose of the treaties because

the Tribes’ treaty right “would be worthless without

harvestable fish.” Pet. App. 91a-94a (quoting Fishing

Vessel, 443 U.S. at 667 n.11). In Winters, this Court

19

held that the express reservation of land for the Fort

Belknap Indian Reservation impliedly reserved a

sufficient interest in water from the river to fulfill the

purposes of the reservation. 207 U.S. at 576-577.

Accordingly, the Court upheld an injunction barring

non-Indians from diverting water upstream that was required to irrigate lands on the reservation. Ibid.; see

Adair, 723 F.2d at 1408-1415 (treaty right to fish implied reservation of water to support tribal fisheries).

Here, the destructive consequences of state-owned

barrier culverts on the Tribes’ ability to harvest fish

justified the injunction requiring petitioner to replace

or modify barrier culverts. As this Court made clear in

Fishing Vessel, the Tribes’ reservation of the right to

take fish at usual and accustomed grounds includes

more than the bare right to “dip their nets” into treaty

waters and net “virtually no catch at all.” 443 U.S. at

679, 677 n.22. Rather, it includes recognition of a right

that precludes others from “crowd[ing] the Indians out

of any meaningful use of their accustomed places to

fish,” id. at 676, whether those impediments be fish

wheels (Winans, 198 U.S. at 382-384), state laws restricting the means of taking fish when not required by

conservation reasons (Puyallup Tribe II, 414 U.S. at 45,

48; Puyallup Tribe v. Department of Game, 391 U.S.

392, 398 (1968)), or—as here—building or maintaining

culverts that interfere with the ability of salmon to migrate up or downstream.

c. Petitioner contends (Pet. 32-34) that this case

warrants review because the court of appeals’ decision

will be “ ‘used to attack a variety of development, construction, and farming practices * * * throughout the

Pacific Northwest.’ ” Pet. 33 (citation omitted). That

20

concern is unfounded. The court made clear that its ruling is based on an exhaustive legal analysis of treaty

fishing rights, the significant destructive impact of barrier culverts, and petitioner’s duty as defined by the

specific facts presented by this case. Pet. App. 11a-12a.

The court adhered to the directive in the en banc decision in Phase II to evaluate habitat-protection duties

based “upon concrete facts which underlie a dispute in

a particular case.” Washington, 759 F.2d at 1357. The

future reach of this decision and the contours of the

treaty right “will depend for its precise legal formulation on all of the facts presented by a particular dispute.” Ibid.; see Pet. App. 11a-12a. Hence, Judge

O’Scannlain’s assertion (Pet. App. 28a-29a) that any activity that negatively affects fish habitat could be an

“automatic Treaty violation” is wrong. In any event, petitioner does not contest that its culverts have a significant, deleterious effect on salmon populations, or that

such effect can be remediated. As a result, and because

the decisions below are based only on these “concrete

facts,” this case would be a poor vehicle to explore the

possible application of the court of appeals’ ruling in

other circumstances.

2. Petitioner further contends (Pet. 25-28) that the

court of appeals’ decision conflicts with decisions of this

Court and other courts of appeals on the applicability of

equitable defenses to the treaty claims at issue. That is

incorrect. In the district court, petitioner argued that

action and inaction by the United States in funding and

approving (or failing to object to) petitioner’s culverts

barred the United States from asserting a claim that

those culverts violate the Tribes’ treaty rights. Binding

authority forecloses that argument, and the court of appeals correctly rejected petitioner’s equitable defenses.

21

Only Congress can abrogate or limit rights reserved

under an Indian treaty. Mille Lacs Band of Chippewa

Indians, 526 U.S. at 202; United States v. Dion,

476 U.S. 734, 738-740 (1986); Fishing Vessel, 443 U.S. at

690. Accordingly, a defense to a suit by the United

States to enforce rights under an Indian treaty cannot

be based on actions of government officials allegedly

waiving the rights of the Indians under the treaty. See

Cramer v. United States, 261 U.S. 219, 234 (1923)

(where Indians had rights of occupancy to land, “no officer or agent of the Government had authority to deal

with the land upon any other theory,” and the “acceptance of leases for the land from the defendant company by agents of the Government was, under the circumstances, unauthorized and could not bind the Government; much less could it deprive the Indians of their

rights”); Pine River Logging Co. v. United States, 186

U.S. 279, 291 (1902) (government agents had no authority to waive terms of Indian timber contracts, and their

actions could not estop the government); United States

v. City of Tacoma, 332 F.3d 574, 581 (9th Cir. 2003)

(“when the government acts as [a] trustee for an Indian

tribe, it is not at all subject to that defense,” i.e., estoppel); United States v. Ahtanum Irrigation Dist., 236

F.2d 321, 334 (9th Cir. 1956) (no defense of laches or estoppel available against Government acting as trustee

for Indian tribe), cert. denied, 352 U.S. 988 (1957).

Petitioner contends (Pet. 25-28) that the court of appeals’ rejection of petitioner’s equitable defenses conflicts with this Court’s decision in City of Sherrill v.

Oneida Indian Nation, 544 U.S. 197 (2005), and Second

Circuit cases applying that decision. In Sherrill, this

Court considered the Oneida Nation’s claim to immun-

22

ity from taxation for land that had been out of its possession for more than 200 years. Id. at 202-203. Given

the longstanding, distinctly non-Indian character of

central New York and its inhabitants, the regulatory

authority over the area constantly exercised by that

State and its counties and towns for 200 years, and the

Oneidas’ long delay in seeking judicial relief, the Court

found that standards of federal Indian law and equity

practice precluded the Tribe from unilaterally reviving

its sovereignty over the parcels at issue. Id. at 202-203,

214-220.

As the panel below explained, this case is “radically

different” from Sherrill. Pet. App. 99a. This case does

not involve an attempted unilateral assertion of sovereignty over territory that had lost its Indian character

many years earlier. Unlike in Sherrill, there can be no

argument here that the Tribes have done anything to

authorize petitioner to construct and maintain barrier

culverts or have attempted to revive a long-dormant

dispute. Ibid. To the contrary, the Tribes and petitioner “have been in a more or less continuous state of

conflict over treaty-based fishing rights for over one

hundred years.” Ibid. Moreover, the Court in Sherrill

had no occasion to consider whether equitable defenses

would apply against the United States or to specific

rights directly arising from a treaty.

Nor does the court of appeals’ decision conflict with

Second Circuit cases applying Sherrill, as petitioner

contends (Pet. 26-27). In those cases as well, the Second

Circuit did not consider whether actions of federal officials could waive the treaty rights of tribes and subject

treaty claims by the United States on behalf of the

tribes to waiver or other equitable defenses. In Cayuga

Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005),

23

cert. denied, 547 U.S. 1128 (2006), the majority held in

factual circumstances similar to Sherrill that the doctrine of laches could be applied to a land claim by the

United States on behalf of a tribe, at least in “ ‘egregious

instances’ ” involving very long delay and where relief

would be highly disruptive. Id. at 278-279 (citation

omitted). This case does not involve an ancient land

claim that would be disruptive of long-established patterns on non-Indian ownership. And the holding in Cayuga Indian Nation was limited to laches, and it did not

suggest that the court there would have accepted a defense based on waiver due to the actions of federal officials. Likewise, the other Second Circuit cases cited by

petitioner did not suggest that there is a waiver defense

against claims of tribes in circumstances such as in this

case. See Oneida Indian Nation v. County of Oneida,

617 F.3d 114 (2010), cert. denied, 565 U.S. 970 (2011);

Stockbridge-Munsee Cmty. v. New York, 756 F.3d 163

(2014) (per curiam), cert. denied, 135 S. Ct. 1492 (2015).

Moreover, the factual circumstances that led this

Court and the Second Circuit to rely on principles of equity to reach their holdings are not present here. This

is not a case in which the Tribes or the United States

did nothing to assert their rights for two centuries. See

Ute Indian Tribe of the Uintah v. Myton, 835 F.3d 1255,

1263 (10th Cir. 2016) (distinguishing Sherrill “on a very

different record where the land was sold to nontribal

members and neither the tribe nor the federal government did anything to assert their rights ‘[f ]rom the

early 1800’s into the 1970’s’ ”) (citation omitted) (brackets in original), cert. denied, 137 S. Ct. 2328 (2017). Rather, the treaty fishing right has been repeatedly asserted by the Tribes and consistently upheld by this

Court for more than a century.

24

3. Petitioner further contends (Pet. 28-32) that the

court of appeals’ decision conflicts with decisions of this

Court addressing the proper scope of injunctive relief.

According to petitioner (Pet. 28), this Court’s precedents dictate that injunctions must be narrowly tailored

to redress violations of federal law, must be imposed

only after careful consideration of public impacts, and

must consider federalism principles when entered

against a State. After forgoing any input into the development of the remedy before the district court, petitioner now contends (Pet. 29-32) that the injunction violates those principles. Petitioner’s fact-bound and untimely challenges to the terms of the injunction ignore

the extensive evidence presented in the district court

and present no issue warranting review by this Court.

a. Petitioner contends (Pet. 29-30) that the injunction requires it “to replace culverts that will make no

difference” to salmon because of the presence of some

barrier culverts owned by others on the same streams.

But as the court of appeals held, it was appropriate for

the district court to require petitioner to remedy its

barrier culverts on streams notwithstanding that the

streams might have other man-made barriers. The district court in this regard merely followed the same

methodology that petitioner uses to identify and prioritize culverts that should be remedied. Pet. App. 15a,

110a-111a. Furthermore, Washington law imposes

some obligation to allow fish passage on non-state barrier culverts, many of which are in the process of being

repaired or replaced by private parties. Id. at 16a,

110a-111a. State reports have shown that in nearly

90% of such cases, other barriers were upstream of

state-owned barrier culverts, and 69% of the 220 downstream non-state barriers allowed partial passage of

25

fish. Id. at 111a. And, as the court of appeals noted, the

injunction allows petitioner to postpone hundreds of

lower priority culverts, which must “be remediated only

at the end of their natural life or in connection with an

independently undertaken highway project.” Id. at 16a.

Petitioner’s contention that the injunction requires it to

expend unnecessary costs to address its barrier culverts lacks merit and its cost estimates are not supported by evidence in the record. Id. at 118a-119a; id.

at 16a (finding “no plausible basis for the State’s claim

of $1.88 billion”).

b. Contrary to petitioner’s contention (Pet. 30-31),

the record also “contains extensive evidence, much of it

from [petitioner] itself,” that state-owned barrier culverts have a substantial adverse effect on salmon. Pet.

App. 115a. The district court’s findings show that petitioner has admitted for years, including in the 1997

WDFW and WSDOT report, id. at 147a, that barrier

culverts diminish salmon production and that correction

of state-owned barrier culverts is critical to salmon recovery, see id. at 115a, 131a, 147a, 155a. Based on an

extensive record, the district court found that “Stateowned barrier culverts * * * have a significant total impact on salmon production,” id. at 162a, and that “[c]orrection of fish passage barrier culverts is a cost-effective and scientifically sound method of salmon habitat

restoration [that] provides immediate benefit in terms

of salmon production,” id. at 166a.

c. Petitioner’s federalism-based objections to the injunction (Pet. 29-30) rely on general language from

cases involving conventional structural injunctions, not

enforcement of Indian treaty rights. See, e.g., Horne v.

Flores, 557 U.S. 433, 448 (2009) (requiring compliance

with the Equal Educational Opportunities Act of 1974,

26

20 U.S.C. 1701 et seq.); Rizzo v. Goode, 423 U.S. 362

(1976) (requiring reform of police department). In

Fishing Vessel and other cases directly on point, this

Court “affirmed detailed injunctions requiring [petitioner] to comply with the very Treaties at issue in this

case.” Pet. App. 124a. The injunctions ordered in earlier phases of the case were broader in scope than the

injunction here, which only puts petitioner on a schedule to identify and repair or replace barrier culverts. In

Fishing Vessel, this Court stressed that the treaties are

the supreme law of the land in rejecting federalismbased objections to injunctive relief against petitioner;

it also stressed that the district court has discretion to

issue a “detailed remedial order[]” against petitioner to

provide the Tribes with meaningful relief under the

treaties. 443 U.S. at 695-696.

d. There is no merit to petitioner’s contention (Pet.

31-32) that the injunction is an abuse of discretion because it did not properly balance the equities at stake.

The injunction is limited to correction of barrier culverts, Pet. App. 117a-118a, and the relevant cost to the

State is that attributable to an accelerated schedule of

culvert-correction that is already underway, which the

district court found was necessary to remedy the treaty

violation. Id. at 117a-118a, 177a. As the courts below

found, moreover, “ ‘[t]he balance of hardships tips

steeply toward the Tribes,’ ” which were promised that

they would be able to meet their subsistence needs forever. Id. at 121a. In any event, the reopening of salmon

habitat that will be accomplished by corrected barrier

culverts will benefit all citizens of Washington, id. at

178a, and honor what this Court recognized in Fishing

Vessel was the central promise made to the Indians that

the opening up of the Territory (and later the State) to

27

settlement would not crowd out the Indians from their

ability to sustain themselves by taking fish at usual and

accustomed grounds. 443 U.S. at 676.

This Court granted certiorari in Fishing Vessel

“[b]ecause of the widespread defiance of the [d]istrict

[c]ourt’s orders” and an ongoing and irreconcilable conflict between the rulings of the Washington Supreme

Court and federal courts concerning the questions presented. 443 U.S. at 679; see Pet. 9. There is no such

conflict here, and there are no widespread practical exigencies that would require this Court’s intervention.

On the basis of an extensive factual record, the lower

courts have succeeded in bringing this case to a fair resolution: the Tribes retain the fishing rights they were

promised, and petitioner has only the duty to address

barrier culverts (which it recognizes constitute a serious problem) based on a reasonable schedule with significant flexibility. No further review is warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY H. WOOD

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

EVELYN S. YING

Attorneys

NOVEMBER 2017