Amicus Curiae Brief — Washington, Petitioner v. United States, et al.

No. 17-269

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In The

Supreme Court of the United States

-----------------------------------------------------------------STATE OF WASHINGTON,

Petitioner,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE STATES OF

IDAHO, INDIANA, KANSAS, LOUISIANA,

MAINE, MICHIGAN, MONTANA, NEBRASKA,

OKLAHOMA, WISCONSIN AND WYOMING

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

CLAY R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amici Curiae States

[Additional Appearances on Inside Cover Page]

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

CURTIS T. HILL, JR.

Attorney General

STATE OF INDIANA

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

JANET T. MILLS

Attorney General

STATE OF MAINE

BILL SCHUETTE

Attorney General

STATE OF MICHIGAN

TIM FOX

Attorney General

STATE OF MONTANA

DOUG PETERSON

Attorney General

STATE OF NEBRASKA

MIKE HUNTER

Attorney General

STATE OF OKLAHOMA

BRAD D. SCHIMEL

Attorney General

STATE OF WISCONSIN

PETER K. MICHAEL

Attorney General

STATE OF WYOMING

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE STATES ...

1

SUMMARY OF THE ARGUMENT .....................

3

ARGUMENT ........................................................

7

I.

THE NINTH CIRCUIT’S IMPLICATION

OF AN ENVIRONMENTAL SERVITUDE

FROM THE TREATY FISHING PROVISION BOTH CONFLICTS WITH FISHING VESSEL AND, IF UPHELD, WILL

BE EXTENDED TO A BROAD RANGE

OF STATE AND LOCAL GOVERNMENT

REGULATORY DECISION-MAKING ......

7

II.

SHERRILL SHOULD BE EXTENDED

TO THE EQUITABLE DEFENSES RAISED

BY WASHINGTON TO THE UNITED

STATES’ CLAIM .......................................... 23

III.

THE MANDATORY INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

WAS NOT NARROWLY TAILORED TO

REMEDYING THE PERCEIVED HARM,

OFFENDED SETTLED FEDERALISM

LIMITATIONS, AND FAILED TO GIVE

ANY CONSIDERATION TO THE EQUITABLE DEFENSES RAISED BY WASHINGTON .................................................... 29

CONCLUSION..................................................... 37

ii

TABLE OF AUTHORITIES

Page

CASES

Cappaert v. United States, 426 U.S. 128 (1976) .........17

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

(9th Cir. 2005)..........................................................25

Cent. Pac. Ry. v. Alameda County, 284 U.S. 463

(1932) .......................................................................28

Choctaw Nation v. United States, 318 U.S. 423

(1943) .........................................................................1

City of Sherrill v. Oneida Indian Nation, 544

U.S. 197 (2005) ........................................ 5, 26, 29, 35

Cramer v. United States, 276 F. 78 (9th Cir.

1921), rev’d on other grounds, 261 U.S. 219

(1923) .......................................................................28

Cramer v. United States, 261 U.S. 219

(1923) ................................................. 5, 24, 27, 28, 29

Dep’t of Game v. Puyallup Tribe, 414 U.S. 44

(1973) ............................................................... 8, 9, 10

Dickerson v. Colgrove, 100 U.S. 578 (1879) ................23

Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231

(1958) .......................................................................23

Grupo Mexicano de Desarrollo, S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308 (1999) .....................14

Johnson v. Zerbst, 304 U.S. 458 (1938) .......................23

Jones v. Meehan, 175 U.S. 1 (1889)...............................1

Lewis v. Casey, 518 U.S. 343 (1996) ............................34

Milliken v. Bradley, 433 U.S. 267 (1977) ....................33

iii

TABLE OF AUTHORITIES – Continued

Page

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries

Serv., 184 F. Supp. 3d 861 (D. Or. 2016) .................15

Nez Perce Tribe v. Idaho Power Co., 847 F. Supp.

791 (D. Idaho 1994) ........................................... 15, 16

Office of Personnel Mgmt. v. Richmond, 496 U.S.

414 (1990) ................................................................26

Oneida Indian Nation v. County of Oneida, 617

F.3d 114 (2d Cir. 2010) ............................................25

Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct.

1962 (2014) ........................................................ 35, 36

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392

(1968) ..................................................................... 8, 9

Puyallup Tribe of Dep’t of Game, 433 U.S. 165

(1977) ................................................................... 8, 10

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947) .........................................................................1

Rizzo v. Goode, 423 U.S. 362 (1976) ...................... 34, 35

SCA Hygiene Prods. Aktiebolag v. First Quality

Baby Prods. LLC, 137 S. Ct. 954 (2017) .................23

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

(1919) .........................................................................8

Tulee v. Washington, 315 U.S. 681 (1942) .....................8

United States v. Administrative Enterprises,

Inc., 46 F.3d 670 (7th Cir. 1995) ..............................25

United States v. Boylan, 256 F. 468 (N.D.N.Y.

1919), aff ’d, 265 F. 165 (2d Cir. 1920) .....................27

iv

TABLE OF AUTHORITIES – Continued

Page

United States v. Oregon, No. 3:68-cv-513-KI (D.

Or.) .............................................................................7

United States v. Washington, 694 F.2d 1374 (9th

Cir. 1982), vacated on reh’g, 759 F.2d 1353 (9th

Cir. 1985) (en banc) .................................................14

United States v. Washington, 573 F.3d 701 (9th

Cir. 2009) ...................................................................8

United States v. Winans, 198 U.S. 371 (1905) ........ 8, 16

Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S.

658 (1979) ........................................................ passim

Winters v. United States, 207 U.S. 564 (1908) ...... 17, 18

CONSTITUTION

U.S. Const. amend. X ....................................................1

U.S. Const. art. VI, cl. 2 .................................................1

STATUTES

16 U.S.C. §§ 1531-1544 ...............................................15

17 U.S.C. § 507(b) ........................................................35

33 U.S.C. §§ 1251-1388 .................................................4

REGULATIONS

81 Fed. Reg. 85,417 (Nov. 28, 2016) ...................... 21, 22

81 Fed. Reg. 92,466 (Dec. 19, 2016) ............................21

v

TABLE OF AUTHORITIES – Continued

Page

33 C.F.R. § 323 ............................................................23

40 C.F.R. § 230.30 .......................................................24

40 C.F.R. § 230.31 .......................................................24

TREATIES

Treaty with Nisquallys (Treaty of Medicine

Creek), 10 Stat. 1132 (Dec. 26, 1854) .......................7

OTHER AUTHORITIES

Anthony Moffa, The Oil Sands of Time: Pipelines

and Promises, 22 Ocean & Coastal L.J. 111

(2017) .......................................................................19

Charles Dickens, Bleak House (Bradbury &

Evans 1853) ...............................................................8

Conference of W. Att’ys Gen., American Indian

Law Deskbook (West 2017) ................................... 2, 7

Dale T. White, Indian Country in the Northeast,

44 Tulsa L. Rev. 365 (2008) .....................................27

George William Van Cleve, Saving the Puget

Sound Wild Salmon Fishery, 2 Seattle J.

Envtl. L. 85 (2012) ...................................................19

John Tahsuda, The Oneida Land Claim: Yesterday and Today, 46 Buff. L. Rev. 1001 (1998) ..........27

vi

TABLE OF AUTHORITIES – Continued

Page

Katheryn A. Bilodeau, The Elusive Implied Water Right for Fish: Do Off-Reservation Instream Water Rights Exist to Support Indian

Treaty Fishing Rights?, 48 Idaho L. Rev. 515

(2012) .......................................................................19

Michael C. Blumm, Indian Treaty Fishing

Rights and the Right to Habitat Protection

and Restoration, 92 Wash. L. Rev. 1 (2017) ............18

Michael C. Blumm & Jane G. Steadman, Indian

Treaty Fishing Rights and Habitat Protection:

The Martinez Decision Supplies a Resounding

Judicial Reaffirmation, Nat. Resources J. 653

(2009) .......................................................................19

U.S. Energy Info. Admin., Today in Energy (June

27, 2014), available at https://www.eia.gov/

todayinenergy/detail.php?id=16891 .......................14

Wash. Office of Fin. Mgmt., State of Wash. 2017

Population Trends (Table 1), available at

https://www.ofm.wa.gov/sites/default/files/

public/dataresearch/pop/april1/ofm_april1_

poptrends.pdf...........................................................15

Wesley James Furlong, Restoring the Skagit

River Delta: Habitat Restoration and Farmland Reclamation on Fir Island, 38 Pub. Land

& Resources L. Rev. 103 (2017)...............................18

William Fisher, Note, The Culverts Opinion and

the Need for a Broader Property-Based Construct, 23 J. Envtl. & Litig. 491 (2008) ...................20

1

INTEREST OF THE AMICI CURIAE STATES

The interest of the amici curiae states rests on perhaps the most basic tenet of the United States Constitution: the several States retain primary responsibility

in our Union for ensuring that the interests of all their

residents are protected. U.S. Const. amend. X. Discharging that responsibility requires them to make often difficult choices about how best to use their limited

fiscal resources. Whatever balance they strike inevitably displeases some, with their political and occasionally judicial branches providing the mechanism for restriking that balance. Although federal law can limit

the States’ sovereign authority, U.S. Const. art. VI, cl.

2, stringent preemption standards apply to Congressional action when it legislates “in a field which States

have traditionally occupied.” Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947). Indian treaties – like

those here – can alter this standard because they must

“be construed, not according to the technical meaning

of its words to learned lawyers, but in the sense in

which they would naturally be understood by the Indians.” Jones v. Meehan, 175 U.S. 1, 11 (1889). “But even

Indian treaties cannot be re-written or expanded beyond their clear terms to remedy a claimed injustice or

to achieve the asserted understanding of the parties.”

Choctaw Nation v. United States, 318 U.S. 423, 432

(1943).

This case involves, as an immediate matter, the

last of those principles. The Ninth Circuit has plainly

“expanded” the fishing clause in the Stevens treaties

“beyond [its] clear terms” as definitively construed by

2

this Court in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658

(1979) (Fishing Vessel), to imply what a prior Ninth

Circuit panel and commentators characterize as an

“environmental servitude.” Pet.App. 29a. The Ninth

Circuit approved a district court injunction that effectively seizes federal judicial control over the Washington State Highway system but leaves the fiscal burden

on the State to the tune of a billion-plus dollars,

thereby ignoring federalism-based limitations on injunctive relief repeatedly endorsed by this Court.

While the Ninth Circuit decision eviscerates internal governance by one State over one program, it

writes a script for subjecting a broad swath of regulation by States, including the amici curiae, to like servitudes. Two-thirds of the States contain Indian

reservations or other Indian country established by

treaty or statute. Conference of W. Att’ys Gen.,

American Indian Law Deskbook § 5:16, at 331 (West

2017). Tribal fishing, hunting, and gathering rights,

both on and off reservation, exist in many of them. Under the Ninth Circuit’s reasoning, a servitude on state

land-use (and other) regulation can be implied to avoid

negative impacts on such rights through generally applicable, non-discriminatory regulation (as the Washington culvert program concededly is). The amici’s

concerns are not apocalyptical. The Environmental

Protection Agency (EPA) has relied on the decision below to impose federal, rather than state, water quality

standards (WQS) in Maine and Washington insofar as

they applied to waters where it deemed subsistence

3

fishing or sustenance rights existed. The amici States

ask this Court to reject the Ninth Circuit’s unprecedented foray into commandeering state decision-making processes over land use regulation or other areas

of traditional state responsibility.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

1. States have a fundamental sovereign interest

in treaty or statutory provisions affecting natural resources being applied consistently with their plain

scope and not expanded to create wholly new rights.

The Ninth Circuit opinion breaks ground by interpreting the Stevens treaties’ fishing clause to prohibit

States or presumably other local governmental entities from taking land use or other regulatory actions,

or to compel such entities to undo past actions, that

may adversely affect the amount of the harvestable

fish – i.e., imposing an “environmental servitude.” The

Ninth Circuit’s expansive interpretation is doubly

troubling because it directly conflicts with Fishing Vessel’s authoritative construction that the treaty provision’s twin purposes are to provide access to aboriginal

fishing grounds and to apportion otherwise available

harvestable fish between tribal members and nonmembers. Fishing Vessel used the “moderate living”

standard only as a limit on the tribal share, not a

treaty-secured entitlement which Washington must

take remedial action to help achieve. The Ninth Circuit

then compounded its misreading of Fishing Vessel by

failing to identify any standard, other than a

4

subjective ad hoc assessment, against which to determine the types of state, local government or private activity that may infringe impermissibly on the fishing

clause. The appropriate standard, however, is clear:

The fishing clause protects tribal fishers from governmental or private conduct that interferes with their opportunity to harvest an equitable share of the

otherwise available fish. The Ninth Circuit additionally erred in relying on reserved water right doctrine

as support for its interpretation of the fishing clause.

This Court’s relevant precedent leads to precisely the

opposite conclusion because both Fishing Vessel and

the reserved rights doctrine have as their objective equitable distribution of extant natural resources. Lastly,

the Ninth Circuit’s reasoning has far-reaching impact

as reflected by EPA’s recent reliance on it in imposing

federal water quality standards under the Clean Water

Act (CWA), 33 U.S.C. §§ 1251-1388, based upon statutory and treaty fishing rights in Maine and Washington and by the spate of academic commentary on the

district court’s and the Ninth Circuit’s decisions that

recognizes their far-reaching implications.

2. The United States’ pre-2001 conduct plainly

falls within the scope of laches, waiver and estoppel as

those equitable defenses are defined under federal

common law. Washington has constructed culverts as

part of its road building activities for many decades.

In that regard, the Washington State Department of

Transportation (WSDOT) partnered with the Federal

Highway Administration (FHWA) in these activities

and used FHWA culvert design standards as a

5

condition of federal funding. Washington eventually

improved upon those standards, with the FHWA eventually adopting the Washington improvements for use

on federal lands. Washington additionally received

CWA permits in connection with its culvert construction. Notwithstanding this lengthy partnership and

regulatory compliance, the Ninth Circuit rejected as a

matter of law Washington’s waiver and estoppel defenses against the United States as categorically foreclosed by Cramer v. United States, 261 U.S. 219 (1923).

In so doing, it confined City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197 (2005) (Sherrill), to claims

brought by tribes over long-abandoned lands and created a conflict with decisions from the Second Circuit.

The facts here, which involve the attempt by the

United States to impose liability on a State for sovereign activity that the federal government had actively

participated in over many years, provide ample justification for extending Sherrill beyond claims raised by a

tribal sovereign. This Court’s holding in Cramer, in

contrast, arose from a failure by agency employees to

adhere to established departmental policy in leasing a

parcel of land to a railroad, not from decades-long federal-state cooperation to further the public interest. If

the first question is resolved negatively to Washington’s position, this matter should be remanded to the

lower courts for consideration of its equitable defenses

on the basis of a full evidentiary record.

3. The district court issued, and the Ninth Circuit affirmed, an expansive permanent injunction that

departs from settled boundaries on appropriate

6

coercive relief against States or their officials for several reasons. First, the relief ordered massive changes

to the state culvert system under a single, general criterion, not through a culvert-specific assessment of

benefit and cost. It thus violates the core requirement

that injunctive relief be tailored as narrowly as possible to remedying the conduct that causes the legal

wrong. Second, the injunction’s elaborate detail, broad

scope and exorbitant cost replace Washington’s ongoing efforts to remediate its culverts’ impact on salmon

passage with ongoing judicial management. The relief

ignores limits on the federal judiciary’s injunctive powers to control a State’s sovereign authority over its governmental programs and, necessarily, how and when

state funds are expended. Third, neither the district

court nor the Ninth Circuit considered the equitable

considerations raised by Washington in its waiver and

estoppel defenses in fashioning the relief. This Court

has made clear that even when such defenses do not

constitute a complete bar to injunctive relief, they retain relevance to the scope of such relief. At the least,

therefore, the permanent injunction should be vacated,

and the case remanded for further proceedings to fashion relief consistent with the Court’s opinion.

------------------------------------------------------------------

7

ARGUMENT

I.

THE NINTH CIRCUIT’S IMPLICATION OF

AN ENVIRONMENTAL SERVITUDE FROM

THE TREATY FISHING PROVISION BOTH

CONFLICTS WITH FISHING VESSEL AND,

IF UPHELD, WILL BE EXTENDED TO A

BROAD RANGE OF STATE AND LOCAL

GOVERNMENT REGULATORY DECISIONMAKING

A. Isaac I. Stevens and Joel Palmer, then Superintendents of Indian Affairs for Washington and Oregon Territories, entered into ten treaties with Pacific

Northwest Indian tribes between December 1854 and

July 1855, each of which reserved on- and off-reservation hunting, fishing and other usufructuary rights in

largely comparable language. See, e.g., Treaty with

Nisquallys (Treaty of Medicine Creek), art. III, 10 Stat.

1132, 1133 (Dec. 26, 1854) (“The right of taking fish, at

all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory.”).1 The fishing rights reserved

under the Stevens treaties exist in Idaho, Montana,

Oregon and Washington. Their scope and application

have spawned substantial litigation over the last half

century, with much of it now centered in two federal

district court proceedings – this case and United States

1

Isaac Stevens signed seven of the treaties alone, including

the Treaty of Medicine Creek. Joel Palmer signed one treaty alone.

They jointly signed two treaties. See American Indian Law Deskbook § 9:13, at 647 n.1. All contain identically or similarly-worded

fishing clauses and are referred to as the Stevens treaties in this

brief.

8

v. Oregon, No. 3:68-cv-513-KI (D. Or.). One Ninth Circuit panel, comparing the litigation below to the generations-long Chancery will dispute in Bleak House,2

observed that “this case has become a Jarndyce and

Jarndyce, with judges dying out of it and whole Indian

tribes being born into it.” United States v. Washington,

573 F.3d 701, 709 (9th Cir. 2009). The panel further observed that “the Constitution does not establish the

district courts as permanent administrative agencies.”

Id.

Notwithstanding the length of the United States v.

Washington proceeding below, this Court has addressed issues arising from it only in Fishing Vessel.

Six decisions construing the fishing clause, however,

preceded Fishing Vessel. United States v. Winans, 198

U.S. 371, 381-82 (1905); Seufert Bros. Co. v. United

States, 249 U.S. 194, 198 (1919); Tulee v. Washington,

315 U.S. 681, 685 (1942); Puyallup Tribe v. Dep’t of

Game, 391 U.S. 392, 398 (1968) (Puyallup I); Dep’t of

Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973)

(Puyallup II); and Puyallup Tribe, Inc. v. Dep’t of Game,

433 U.S. 165, 177 (1977) (Puyallup III). The decisions,

while separated by over 70 years and applying the fishing clause in differing factual contexts, share a common thread: All construed the clause as reserving

tribal access to historic fishing places and to harvest a

share of available fish. The Ninth Circuit re-wrote this

Court’s construction by imposing a burden on the State

to increase the amount of harvestable fish; i.e., it

2

Charles Dickens, Bleak House (Bradbury & Evans 1853).

9

augmented the share-of-the-pie entitlement with a

duty to increase the pie’s size. Only this departure

from the Court’s consistent construction of the clause

allowed the Ninth Circuit to create the environmental

servitude that lies at the heart of this case.

B. Beginning with the Puyallup trilogy, the issue

took on its modern shape of accommodating the competing demands of Indian and non-Indian fishermen to

salmon and steelhead runs. As this Court would later

state in Fishing Vessel, “it is fair to conclude that when

the treaties were negotiated, neither party realized or

intended that their agreement would determine

whether, and if so how, a resource that had always been

thought inexhaustible would be allocated between the

native Indians and the incoming settlers when it later

became scarce.” 443 U.S. at 669.

Puyallup I addressed Washington’s power to enforce against treaty fishermen a generally applicable

prohibition of using set nets in fresh water streams or

their mouths where, as one state expert testified, returning adults often milled and entire runs became

vulnerable to harvest. 391 U.S. at 401. This Court upheld the State’s right to establish “ ‘reasonable and

necessary’ ” conservation measures but left to Washington state courts resolution in the first instance of

whether the net prohibition satisfied that standard

consistently with the “in common with” requirement of

the treaty fishing clause. Id. at 401-02. When the dispute returned in Puyallup II, the conservation issue

had been winnowed down to whether a prohibition of

all set net fishing – a traditional form of tribal fishing

10

– on the Puyallup River violated the “in common with”

requirement. The Court found discrimination “because

all Indian net fishing is barred and only hook-and-line

fishing, entirely pre-empted by non-Indians, is allowed.” 414 U.S. at 48. It remanded for expert estimation of “what degree of net fishing plus fishing by hook

and line would allow the escapement of fish necessary

for perpetuation of the species” and counseled that “[i]f

hook-and-line fishermen now catch all the steelhead

which can be caught within the limits needed for escapement, then that number must in some manner be

fairly apportioned between Indian net fishing and nonIndian sports fishing so far as that particular species

is concerned.” Id. Puyallup III completed the litigation’s cycle, affirming a state court judgment that limited the number of steelhead available for harvest by

Indian net fishing as the river passed through the

Puyallup Reservation. 433 U.S. at 176 (“Though it

would be decidedly unwise, if Puyallup treaty fishermen were allowed untrammeled on-reservation fishing

rights, they could interdict completely the migrating

fish run and ‘pursue the last living (Puyallup River)

steelhead until it enters their nets.’ . . . In this manner

the treaty fishermen could totally frustrate both the

jurisdiction of the Washington courts and the rights of

the non-Indian citizens of Washington recognized in

the Treaty of Medicine Creek.”) (citation and footnote

omitted).

Fishing Vessel built directly upon the Puyallup

trilogy in construing the fishing clause and left no

doubt about the clause’s meaning. 443 U.S. at 682-84.

11

This Court characterized as “totally foreign to the

spirit of the negotiations” the contention, proffered by

one state agency, that the phrase “in common with”

simply meant “[t]hat each individual Indian would

share an ‘equal opportunity’ with thousands of newly

arrived settlers” to fish. Id. at 676. Rather, “the purpose

and language of the treaties are unambiguous; they secure the Indians’ right to take a share of each run of

fish that passes through tribal fishing areas.” Id. at

679. The Court buttressed this conclusion, explaining

that the Puyallup cases “clearly establish[ed] the principle that neither party to the treaties may rely on the

State’s regulatory powers or on property law concepts

to defeat the other’s right to a ‘fairly apportioned’ share

of each covered run of harvestable anadromous fish.”

Id. at 682 (emphasis added). Turning to the question of

what the “share” should be, this Court “agree[d] with

the Government that an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a ‘usual and

accustomed’ place into approximately equal treaty and

nontreaty shares, and should then reduce the treaty

share if tribal needs may be satisfied by a lesser

amount.” Id. at 685 (emphasis added). It even defined

the term “harvestable” as the “amount of fish” remaining after “subtracting from the total number of fish in

each run the number that must be allowed to escape

for conservation purposes.” Id. at 670 n.15.

This Court then turned to determining the “lesser

amount” that would warrant a reduction of the treaty

share of the harvestable anadromous runs. It credited

12

the federal district court’s basic apportionment formula of “starting with a 50–50 division and adjusting

slightly downward on the Indians’ side when it became

clear that they did not need a full 50%.” 443 U.S. at 685.

The Court stressed “the 50% figure imposes a maximum but not a minimum allocation.” Id. at 686. “[T]he

central principle here must be that Indian treaty

rights to a natural resource that once was thoroughly

and exclusively exploited by the Indians secures so

much as, but no more than, is necessary to provide the

Indians with a livelihood – that is to say, a moderate

living.” Id. The Court criticized the dissent on this

point, noting that “[b]ecause the 50% figure is only a

ceiling, it is not correct to characterize our holding ‘as

guaranteeing the Indians a specified percentage’ of the

fish.” Id. at n.27. It gave an example of when “changing

circumstances” could warrant a downward adjustment

– a reduction in tribal membership to a level that

would make a “45% or 50% allocation an entire run

that passes through its customary fishing grounds . . .

manifestly inappropriate because the livelihood of the

tribe under those circumstances could not reasonably

require an allotment of a large number of fish.” Id. at

687.

Here, the nine-judge dissent from the Ninth Circuit’s denial of en banc rehearing rightly reasoned that

“the panel opinion turns Fishing Vessel on its head” by

“impos[ing] an affirmative duty upon the State to provide a certain quantity of fish, which reads out the 50%

ceiling entirely.” Pet.App. 24a. This is so because the

50% limit accommodates the modern-era reality that

13

population increases and related economic development have caused, and likely will continue to cause,

salmon populations insufficient to support a “moderate

living” for treaty fishers, thereby necessitating an

equal division of the diminished populations between

non-treaty fishers and them. Implicit in the 50% ceiling is the absence of a treaty right to a specific supply

of fish. Two panel-opinion members retorted that

“there is nothing in the [Fishing Vessel] opinion that

authorizes the State to diminish or eliminate the supply of salmon available for harvest.” Pet.App. 10a. But

that response misstated the dispositive issue: Whether

the fishing clause, as definitively construed in Fishing

Vessel, requires Washington to carry out its governmental functions so as not to adversely affect the supply of salmon. It plainly did not for the very reason that

the rehearing dissent gave; i.e., the clause reserves to

treaty fishers only an equitable share of the fishery

otherwise available to all fishers in light of current day

conditions, not a particular supply of fish.

The rehearing denial concurrence attempted to

limit the potential breadth of the equitable servitude

by disclaiming “that the Tribes are entitled to enough

salmon to provide a moderate living, irrespective of the

circumstances,” or any intent to “hold that the promise

is valid against all human-caused diminutions, or even

against all State-caused diminutions.” Id. Tellingly,

though, the concurrence failed to articulate any standard upon which to distinguish those “diminutions”

from Washington’s culvert system. The panel opinion

was equally unhelpful. See Pet.App. 95a (“The

14

‘measure of the State’s obligation’ . . . depends ‘on all

the facts presented’ in the ‘particular dispute’ now before us.”). One can only conclude that the true measure

is the length of the Chancellor’s foot. See, e.g., Grupo

Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 332-33 (1999).

The district court’s labored analysis reflects the

ipse dixit quality of the Ninth Circuit’s approach. The

trial court reasoned that “[t]he State’s duty to maintain, repair or replace culverts which block passage of

anadromous fish [did] not arise from a broad environmental servitude against which the Ninth Circuit

Court of Appeals cautioned” in United States v. Washington, 694 F.2d 1374, 1381 (9th Cir. 1982), vacated on

reh’g, 759 F.2d 1353 (9th Cir. 1985) (en banc), because

“it is a narrow and specific treaty-based duty that attaches when the State elects to block rather than

bridge a salmon-bearing stream with a roadbed.”

Pet.App. 178a. To be sure, the injunction pertains only

to stream culverts, but the district court’s explanation

did not answer the real question of why stream culverts differ from other governmental (or non-governmental) activities that may negatively affect salmonid

populations. For example, dams and related powergenerating facilities exist throughout the Columbia

River Basin and, according to federal government estimates, account for more than 40% of this Nation’s

total hydroelectric generation. U.S. Energy Info. Admin., Today in Energy (June 27, 2014), available at

https://www.eia.gov/todayinenergy/detail.php?id=16891

(last visited Jan. 31, 2018). These facilities have

15

contributed significantly to the decrease in salmon and

steelhead runs since pre-treaty times and to the listing

of 13 salmonid evolutionarily significant units as

threatened or endangered under the Endangered Species Act, 16 U.S.C. §§ 1531-1544. See, e.g., Nat’l Wildlife

Fed’n v. Nat’l Marine Fisheries Serv., 184 F. Supp. 3d

861, 869-70 (D. Or. 2016). So, too, during the 90-year

period between 1920 and 2010, the State of Washington’s population grew from approximately 1.2 million

to 6.7 million – or over 550% – with attendant infrastructure development and habitat loss. Wash. Office

of Fin. Mgmt., State of Wash. 2017 Population Trends

at 7 (Table 1), available at https://www.ofm.wa.gov/

sites/default/files/public/dataresearch/pop/april1/ofm_

april1_poptrends.pdf (last visited Jan. 31, 2018). Nothing in the lower courts’ lengthy decisions suggests how

to separate the wheat from the chaff.

C. The failure of the Ninth Circuit and the district court to offer a reasoned, general standard contrasts sharply with the analysis in Nez Perce Tribe v.

Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994).

There, a Stevens treaty tribe sought damages against

a power company for construction and maintenance of

dams that diminished anadromous fish runs from

their 1855 levels. The court rejected the proposition

that “Indian tribes . . . have an absolute right to the

preservation of the fish runs in their original 1855 condition, free from all environmental damage caused by

the migration of increasing numbers of settlers and the

resulting development of the land.” Id. at 808. Rather,

“[t]he Stevens treaties require that any development

16

authorized by the states which injures the fish runs be

non-discriminatory in nature . . . but does not, however, guarantee that subsequent development will not

diminish or eventually, and unfortunately, destroy the

fish runs.” Id. at 814.

The non-discriminatory standard applied in Idaho

Power derives directly from this Court’s decisions in

the Puyallup trilogy and Fishing Vessel and supplies

the level of analytical certainty essential to accommodating the Stevens treaties’ fishing clause with the demographic and land use changes that would and did

accompany non-Indian settlement of the Pacific Northwest. It also comports with this Court’s construction of

that clause in Fishing Vessel which fashioned an apportionment of fisheries severely diminished over time

precisely because of those changes. A necessary predicate for the apportionment was recognition that the

treaties reserved to the tribes not a specific supply of

fish but an equitable share of the fish otherwise available for harvest. The fishing clause, in sum, protects

tribal fishers from governmental or private conduct

that interferes with their opportunity to capture an equitable proportion of extant fish runs. See Fishing Vessel, 443 U.S. at 681 (deeming “even more significant”

than the access issue in Winans the case’s “actual disposition” that involved, at least in the Government’s

briefing, proposed removal of fishing wheels used by

non-Indian fishers to capture virtually the entire harvestable run). No evidence here suggests that discrimination against tribal fishing rights tainted the design

and operation of Washington’s culvert system. The

17

parties’ admitted facts showed precisely the opposite;

i.e., the State has long recognized the impact of culverts on anadromous species’ migration and taken affirmative action through culvert design improvements

to reduce that impact. Pet.App. 144a-156a. The court

of appeals itself acknowledged this fact. Pet.App. 95a.

Nor does the reserved water rights doctrine enunciated initially in Winters v. United States, 207 U.S. 564

(1908), which the Ninth Circuit relied on for inferring

a right to a supply of fish unaffected by subsequent demographic or land use changes, counsel a different

standard. Pet.App. 92a-94a. Winters turned on the determination that the 1888 statute creating the Fort

Belknap Indian Reservation impliedly reserved a water right adequate to effectuate the reservation’s

agrarian purposes and assigned the statute’s enactment date as the priority date for prior appropriation

purposes. See Cappaert v. United States, 426 U.S. 128,

138 (1976) (“This Court has long held that when the

Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the

Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.”). Here, in

contrast, the question is whether a right to take fish

from streams outside of a reservation imposes an affirmative duty upon a non-party to the treaty to restore some unknown number of salmon to the

ecosystem. Fishing Vessel answers that question “no”

because, as discussed above, it construed the fishing

clause as reserving to the tribes only an entitlement to

18

an equitable share of available fish. Indeed, Winters

and Fishing Vessel are entirely consistent in that regard because both addressed the appropriate distribution of an otherwise extant natural resource between

Indian and non-Indian uses; i.e., Winters did not require Montana to create more water, just as Fishing

Vessel did not require Washington to create more fish.

D. The Ninth Circuit’s construction and application of the fishing clause have not only a Stevens

treaty-specific impact but also substantially wider significance. The court’s reasoning will lead inevitably to

one result: claims for injunctive or other relief against

States or their officials, state political subdivisions and

private parties for any diminishment of anadromous

fish runs, or other fish, shellfish, and wildlife harvested by tribal members. Commentary on the Ninth

Circuit’s decision leaves no doubt about its implications with respect to, inter alia, dams, water diversions

increasing stream temperatures, timber harvests,

grazing practices and sediment-producing construction projects.3 Various commentators discussed in

3

Michael C. Blumm, Indian Treaty Fishing Rights and the

Right to Habitat Protection and Restoration, 92 Wash. L. Rev. 1,

30 (2017) (“Diversions that dewater streams can have much the

same effects on fish migration as barrier culverts or dams. The

dewatering of a tribe’s usual and accustomed fishing ground

would seem to be no less a treaty right violation as migration

blockage by a structure in the stream.”); Wesley James Furlong,

Restoring the Skagit River Delta: Habitat Restoration and Farmland Reclamation on Fir Island, 38 Pub. Land & Resources L. Rev.

103, 132-33 (2017) (“Without interpreting the treaties as implying

a proactive right to habitat protection, courts have nevertheless

interpreted them as implying a retroactive right to remedy state

19

similar fashion the potential reach of the district

court’s 2007 decision (Pet.App. 249a) that laid the

predicate for the 2013 injunction.4 The expansive scope

of the Ninth Circuit’s decision thus cannot be denied.

actions that have degraded habitat necessary for salmon survival

to satisfy treaty tribes’ moderate living needs. Seen another way,

courts have imposed a duty on the State to remedy degraded habitats where tribes can show concrete evidence that the loss of habitat affects their right to take fish.”) (footnote omitted); Anthony

Moffa, The Oil Sands of Time: Pipelines and Promises, 22 Ocean

& Coastal L.J. 111, 124-25 (2017) (“the United States, or at least

the Ninth Circuit, has thus provided a model for the adjudication

of situations where government projects come into conflict with

indigenous rights to natural resources”).

4

See George William Van Cleve, Saving the Puget Sound

Wild Salmon Fishery, 2 Seattle J. Envtl. L. 85, 118 (2012) (“Because the tribes could contend that each defendant government

has an independent legal duty to observe and enforce tribal fishing rights, each government would, arguably, also have the responsibility to take steps to compensate for either inaction or

inadequate action under the ESA by any other government engaged in ESA permit review, or related actions such as the provision of flood insurance, in order to ensure that treaty rights are

adequately protected.”); Katheryn A. Bilodeau, Comment, The

Elusive Implied Water Right for Fish: Do Off-Reservation Instream Water Rights Exist to Support Indian Treaty Fishing

Rights?, 48 Idaho L. Rev. 515, 545 (2012) (“The holding in Culverts

added a new dimension to the fishing litigation. With a sufficiently defined scope, treaty fishing language includes a right to

protection from environmental degradation. A right to protection

from the degradation of water quality in fish passages compels

the presumption of water in fish passes. This is essentially an implied instream right.”); Michael C. Blumm & Jane G. Steadman,

Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation,

Nat. Resources J. 653, 695-96 (2009) (“An ‘unreasonable interference’ in the context of the Stevens treaties is habitat degradation

that results in decreased fish populations, which, in turn,

20

From a Stevens treaty perspective, this expansion

of the fishing clause’s scope has immense consequences given the treaties’ geographical reach

throughout the Pacific Northwest. But the Ninth Circuit’s reasoning logically extends beyond the fishing

clause to any usufructuary entitlement in those treaties. So, to use the Treaty of Medicine Creek, fishing is

only one of several rights reserved under Article III.

The entire article provides:

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all

citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting,

gathering roots and berries, and pasturing

their horses on open and unclaimed lands:

Provided, however, That they shall not take

shellfish from any beds staked or cultivated

by citizens, and that they shall alter all stallions not intended for breeding-horses, and

shall keep up and confine the latter.

prevents tribes from being able to make a moderate living from

fishing. [¶] Thus, only activities that restrict tribes’ ability to earn

a moderate living from fish unreasonably interfere with the

tribes’ piscary profit.”) (footnote omitted); William Fisher, Note,

The Culverts Opinion and the Need for a Broader Property-Based

Construct, 23 J. Envtl. L. & Litig. 491, 511 (2008) (“This case can

also be viewed as a stepping stone toward the establishment of

either: (1) a broad duty, such as that originally established by the

district court in Phase II, or (2) several narrow duties (such as

this one) directed at specific activities that harm fish passage and

habitat.”).

21

10 Stat. at 1133. Although certain other Stevens treaties do not include the proviso, they contain the remaining rights. Carried to its natural conclusion, the

Ninth Circuit’s reasoning imposes an environmental

servitude that prevents States or their political subdivisions from taking actions that negatively affect hunting, gathering or pasturing privileges on “open and

unclaimed lands” or failing to remediate past actions

that did.

Beyond the Stevens treaties lies the effect of the

Ninth Circuit’s decision in other contexts. Recent EPA

actions and final rules declining to approve Maine and

Washington WQS and imposing federal WQS in their

stead are likely harbingers. See 81 Fed. Reg. 92,466

(Dec. 19, 2016) (Maine); 81 Fed. Reg. 85,417 (Nov. 28,

2016) (Washington). Maine has a nationally unique

tribal-state relationship with four tribes as a result of

a 1980 settlement reflected in federal and state statutes (the Maine Indian Settlement Acts). See id. at

92,467. For the first time in February 2015, EPA interpreted those acts as implicitly requiring a new CWA

tribal sustenance fishing designated use for unspecified Maine waters that Maine itself never adopted. See

id. at 92,472, 92,478. In subsequent rulemaking, EPA

built on this new interpretation as a basis for imposing

federal WQS and cited the Ninth Circuit’s decision for

the proposition that “it would defeat the purposes of

the [settlement acts] for the tribes in Maine to be deprived of the ability to safely consume fish from their

waters at sustenance levels” (id. at 92,479-80):

22

[T]he Ninth Circuit Court of Appeals recently

determined that the right of tribes in the

State of Washington to fish for their subsistence in their “usual and accustomed” places

necessarily included the right to an adequate

supply of fish, despite the absence of any explicit language in the applicable treaties to

that effect. Specifically, the Court held that

“the Tribes’ right of access to their usual and

accustomed fishing places would be worthless

without harvestable fish.”

Id. at 92,479 (footnote omitted). As to both Maine

and Washington, EPA found the decision below, along

with other cases, consistent with a Department of the

Interior legal opinion “conclud[ing] that ‘fundamental,

longstanding tenets of federal Indian law support the

interpretation of tribal fishing rights to include the

right to sufficient water quality to effectuate the fishing right.’ ” Id. at 85,423 n.39, 92,479.

Proper application of Fishing Vessel, in sum, will

remove the Ninth Circuit’s decision as justification for

this misunderstanding of Indian law generally and the

Indian canons specifically. Treaties may reserve and

statutes may create certain rights. The canons serve

only to determine those rights, not to establish them

where the parties or Congress has not. The Ninth Circuit in ignoring Fishing Vessel did the latter.

23

II.

SHERRILL SHOULD BE EXTENDED TO

THE EQUITABLE DEFENSES RAISED BY

WASHINGTON TO THE UNITED STATES’

CLAIM

“Laches is ‘a defense developed by courts of equity

to protect defendants against unreasonable, prejudicial delay in commencing suit.’ ” SCA Hygiene Prods.

Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct.

954, 960 (2017). “A waiver is ordinarily an intentional

relinquishment or abandonment of a known right or

privilege.” Johnson v. Zerbst, 304 U.S. 458, 460 (1938).

“The vital principle [for equitable estoppel] is that he

who by his language or conduct leads another to do

what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the

expectations upon which he acted.” Dickerson v. Colgrove, 100 U.S. 578, 560 (1879); see also Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 233-34 (1958).

These equitable defenses have clear relevance here

given the United States’ pre-2001 conduct.

To start, WSDOT adhered to hydraulic culvert designs published by the FHWA as a condition of federal

funding until Washington itself developed design

methods that improved upon the federal model. Federal agencies subsequently adopted the Washington

design improvements for their own projects. Pet.App.

137a-139a. WSDOT has an ongoing program to remediate its salmon barrier culverts for which it has received

excellence awards from the FHWA. Pet.App. 144a155a; J.A. 224a, 390a. Washington also has received

CWA permits under 33 C.F.R. § 323 with respect to its

24

culvert construction activities under which impacts to

endangered or other fish must be considered. J.A. 78a80a; see 40 C.F.R. §§ 230.30, 230.31. There is, as well,

no dispute that Washington’s road building activities,

including culvert construction, have been ongoing for

many decades. Pet.App. 139a-144a. Needless to say,

tribal members and other state residents directly benefitted, and continue to benefit, from the state road infrastructure. The United States and the tribes could

have challenged the State’s actions as they were being

undertaken or to bring proposed ameliorative measures

to the state agencies’ attention through governmentto-government collaboration or asserted claims under

statutes such as the CWA or the ESA.

The trial record thus contained substantial evidence that the United States partnered with Washington over many decades in culvert construction and

maintenance. The Ninth Circuit nonetheless deemed

the State’s equitable defenses based, inter alia, on that

partnership precluded as a matter of law “[b]ecause

the treaty rights belong to the Tribes rather than the

United States” and thus outside the federal government’s prerogative to waive, relying on Cramer v.

United States, 261 U.S. 219 (1923). Pet.App. 98a. It

deemed this Court’s decision in Sherrill inapposite because the present dispute did not involve a tribal claim

to sovereignty over abandoned lands, a situation where

the tribes themselves had authorized the state culvert

program, or a revival of “disputes that have long been

left dormant.” Pet.App. 99a.

25

The Second Circuit, however, has reached the opposite conclusion. As it stated in Cayuga Indian Nation

v. Pataki, 413 F.3d 266 (9th Cir. 2005), “[w]e recognize

that the United States has traditionally not been subject to the defense of laches” but immediately added

that “this does not appear to be a per se rule.” Id. at

278. The Cayuga court then endorsed a set of factors

formulated by the Seventh Circuit in United States v.

Administrative Enterprises, Inc., 46 F.3d 670 (7th Cir.

1995), governing application of laches to the United

States: “first, ‘that only the most egregious instances

of laches can be used to abate a government suit’; second, ‘to confine the doctrine to suits against the government in which . . . there is no statute of limitations’;

and third, ‘to draw a line between government suits in

which the government is seeking to enforce either on

its own behalf or that of private parties what are in the

nature of private rights, and government suits to enforce sovereign rights, and to allow laches as a defense

in the former class of cases but not the latter.’ ” 413 F.3d

at 279; see also Oneida Indian Nation v. County of

Oneida, 617 F.3d 114, 129 (2d Cir. 2010) (“Cayuga expressly concluded that the United States is subject to

such defenses under circumstances like those presented here (i.e., a lengthy delay in asserting the relevant cause of action, the absence of an applicable

statute of limitations for the great majority of this delay, and an intervention to vindicate the interests of an

Indian nation).”). Each factor exists here. The Ninth

Circuit panel did not even acknowledge those decisions’ contrary holding – as the opinion dissenting

from en banc rehearing discussed. Pet.App. 34a-35a.

26

This Court has declined thus far to adopt “ ‘a flat

rule that estoppel may not in any circumstances run

against the Government.’ ” Office of Personnel Mgmt. v.

Richmond, 496 U.S. 414, 423 (1990). In Richmond, it

chose to “leave for another day whether an estoppel

claim could ever succeed against the Government” because “a narrower ground for decision” was adequate

to resolve the case: Equitable estoppel can never serve

as a basis to recover a “payment of money from the

Public Treasury contrary to a statutory appropriation.”

Id. at 423-24. The present dispute, however, does not

involve an affirmative attempt to gain some economic

or other benefit from the United States or even Stevens

treaties tribes. It arises from the United States’ use of

the Supremacy Clause to vindicate third-party rights

against a sovereign State for conduct previously authorized by the federal government. Although the

United States does not seek to restore tribal “sovereignty over land within the boundaries of an abandoned reservation[,]” it does raise “claims that have

long been left dormant.” Pet.App. 99a. Indeed, the facts

here are more egregious than those in Sherrill because

the government predicates its Supremacy Clause

claim on culvert construction that it not only encouraged but affirmatively approved.

Nor does the Ninth Circuit’s observation that this

controversy differs from Sherrill because “Washington

and the Tribes have been in a more or less continuous

state of conflict over treaty-based rights for over one

hundred years” pass the historical plausibility test.

“From the very beginning of their dispossession in the

27

nineteenth century, the Oneidas unsuccessfully sought

federal intervention to recover lands illegally taken by

the State of New York.” John Tahsuda, The Oneida

Land Claim: Yesterday and Today, 46 Buff. L. Rev.

1001, 1004 (1998). The Oneida Nation filed its action

seeking recovery of 250,000 acres of treaty-reserved

land in 1970, the same year as this case began and over

30 years before the request for determination resulting

in the present appeal. See generally Dale T. White, Indian Country in the Northeast, 44 Tulsa L. Rev. 365,

375 & n.69 (2008). Fifty years earlier, the United

States on behalf of certain Oneida Nation members

had filed successful ejectment action to recover 32

acres of improperly conveyed land. United States v.

Boylan, 256 F. 468 (N.D.N.Y. 1919), aff ’d, 265 F. 165 (2d

Cir. 1920). The panel opinion’s “continuous state of conflict” comment simply failed to take account of the contentious relationship between the Oneidas and New

York since the late Eighteenth Century.

Lastly, the Ninth Circuit’s reliance on Cramer as

establishing a per se rule against the availability of equitable estoppel against the federal government where

it asserts a claim on a tribe’s or tribal member’s behalf

in its trustee role reads too much into too little.

Pet.App. at 97a. The United States there sought cancellation of a 1904 patent issued to a railroad insofar

as it included land occupied by several Indians since

1859. This Court held that “settled government policy”

supported the Indians’ right of occupancy that “was

definite and substantial in character and open to observation when the railroad grant was made.” Id. at

28

229-30. It rejected the railroad’s defense that “government [was] estopped from maintaining this suit by reason of any act or declaration of its officers or agents” in

issuing the patents, reasoning that “since these Indians with the implied consent of the government had

acquired such rights of occupancy as entitled them to

retain possession as against the defendants, no officer

or agent of the government had authority to deal with

the land upon any other theory.” Id. at 234. Washington’s defenses, however, arise out of a relationship in

which the United States worked cooperatively over

decades to foster state culvert construction activity –

with the tribes’ knowledge – because the culverts and

related road system “were necessary aids to the development of the public lands” – i.e., they “facilitated communication between settlements already made, and

encouraged the making of new ones, increased the demand for additional lands, and enhanced their value.”

Cent. Pac. Ry. v. Alameda County, 284 U.S. 463, 473

(1932). The government, moreover, engaged in precisely the same activity on federal lands, employing

(like Washington) FHWA design standards before

adopting the State’s improved standards. This case

thus differs radically from the Cramer situation in

which agency employees acted in violation of

longstanding administrative circulars and land decisions by issuing leases that effectively dispossessed Indians from their openly enclosed, improved property.

See Cramer v. United States, 276 F. 78, 80 (9th Cir.

1921) (discussing Interior Department policies and

rulings), rev’d on other grounds, 261 U.S. 219 (1923).

29

To paraphrase Sherrill, “[w]hen a party belatedly

asserts a [treaty] right to [control sovereign activity],

longstanding observances and settled expectations are

prime considerations.” 544 U.S. at 218. The Ninth Circuit erred in holding that Cramer stands as a categorical bar to Washington’s waiver and estoppel defenses.

If this Court resolves the first question presented

against Washington, it therefore should remand for determination of those defenses with reference to a full

factual record.

III. THE MANDATORY INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

WAS NOT NARROWLY TAILORED TO

REMEDYING THE PERCEIVED HARM,

OFFENDED SETTLED FEDERALISM LIMITATIONS, AND FAILED TO GIVE ANY

CONSIDERATION TO THE EQUITABLE

DEFENSES RAISED BY WASHINGTON

The district court’s March 2013 permanent injunction requires Washington, inter alia, to

•

prepare within six months a list of all culverts under state-owned roads that are

salmon barriers;

•

assess and identify, on an ongoing basis,

culverts under state-owned roads that become salmon barriers after the injunction’s issuance;

30

•

construct new culverts on case-area

“salmon waters” in compliance with the

injunction’s standards;

•

require by October 31, 2016 three of the

four state agencies managing culverts to

provide fish passage in compliance with

the injunction’s standards;

•

require WSDOT within 17 years to provide fish passage in compliance with the

injunction’s standards on all culverts “if

the barrier culvert has 200 lineal meters

or more of salmon habitat upstream in

the first natural passage barrier”;

•

require WSDOT to provide fish passage

in compliance with the injunction’s

standards on culverts “having less than

200 lineal meters of upstream salmon

habitat at the end of the culvert’s useful

life, or sooner as part of a highway project,

to the extent required by other applicable

law”;

•

provide fish passage when a corrected

culvert fails to provide such passage or a

new culvert is added to the list of salmon

barrier culverts; and

•

provide tribes with sufficient notice of the

salmon barrier culvert inventory, newly

identified barrier culverts and correction

activities “to monitor and provide effective recommendations for compliance

with the [injunction’s] requirements.”

31

Pet.App. 236a-240a. The injunction, as the preceding

summary indicates, specifies not only what must be

done but also dictates the culvert remediation standards themselves.5 The district court, finally, retains

“continuing jurisdiction over this subproceeding for a

sufficient period to assure that the Defendants comply

with the terms of this injunction.” Pet.App. 240a-241a.

The injunction fits seamlessly within not only the

2009 Ninth Circuit panel’s reference to Jarndyce and

Jarndyce but also its concern over federal district

courts taking on the role of an administrative agency.

5

Paragraph 10 of the injunction thus provides:

In carrying out their duties under this injunction, the

Defendants shall design and build fish passage at each

barrier culvert on the List in order to pass all species

of salmon at all life stages at all flows where the fish

would naturally seek passage. In order of preference,

fish passage shall be achieved by (a) avoiding the necessity for the roadway to cross the stream, (b) use of a

full span bridge, (c) use of the “stream simulation”

methodology described in Design of Road Culverts for

Fish Passage (WDFW, 2003) or Stream Simulation: An

Ecological Approach to Providing Passage for Aquatic

Organisms at Road-Stream Crossings (U.S. Forest Service, May 2008), which the parties to this proceeding

have agreed represents best science currently available

for designing culverts that provide fish passage and allow fluvial processes. Nothing in this injunction shall

prevent the Defendants from developing and using designs other than bridges or stream simulation in the

future if the Defendants can demonstrate that those future designs provide equivalent or better fish passage

and fisheries habitat benefits than the designs required in this injunction.

Pet.App. 238a-239a.

32

It subjects Washington’s sovereign management of its

highway culverts to tribal oversight and federal judicial control for potentially decades. The district court’s

coercive relief exacts a heavy toll from both state

sovereignty and public coffers. The latter toll is staggering. The district court’s findings on the remediation

costs for WSDOT projects, while spare, suggest that

they could range between $658,639 (for projects completed before the 2009 trial) and an estimated $1,827,168

(state expert estimate identified in the 2013 findings).

Pet.App. 170a. As of March 2009, over 800 culverts

under state roads had more than 200 meters of anadromous salmon habitat upstream. Pet.App. 142a. Washington can expect, therefore, to spend in excess of one

billion dollars under even a conservative assumption

that actual per-culvert cost falls within the average

of those amounts ($1,242,903), not considering inflation.

Washington’s brief, like the opinion dissenting from

en banc rehearing, summarizes the injunction’s palpable overbreadth. Br. of Petitioner at 53-54, 56-58; Pet.App.

36a-41a. Amici States believe that several points bear

particular emphasis. First, the district court’s findings

effectively attribute to state culverts salmon population impacts even though (1) those pculverts constitute

a small percentage of all salmon barrier culverts in the

case area and (2) no evidence exists as to the ultimate

increase in returning harvestable fish that the State’s

billion-dollar plus expenditure will generate. Multiple

factors – e.g., ocean conditions, non-case area harvest

and non-culvert-related habitat constraints – affect

33

available harvest. As the rehearing dissent observed,

“[g]iven the significant cost of replacing barriers, . . .

being forced to replace even a single barrier that will

have no tangible impact on the salmon population is

an unjustified burden.” Pet.App. 39a. Obviously

enough, respondents focused on state culverts because

they perceived them in gross as easy targets. But the

federal court’s extraordinary power to issue coercive

relief against States and their officials must be tailored narrowly to matching every element of the relief

to an identifiable and proportionate benefit. The district court simply did not engage in the requisite

cost-benefit analysis on a culvert-by-culvert basis. See

Milliken v. Bradley, 433 U.S. 267, 281-82 (1977) (“The

well-settled principle that the nature and scope of the

remedy are to be determined by the violation means

simply that federal-court decrees must directly address and relate to the constitutional violation itself.

Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate

limits if they are aimed at eliminating a condition that

does not violate the Constitution or does not flow from

such a violation, . . . or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation[.]”) (citation

omitted).

Second, Washington has not ignored, and is not ignoring, improving culvert fish passage. In 1997, the

state legislature established the Fish Passage Task

Force, and since then “the state agencies have identified fish passage barriers under their roads and have

34

accelerated the rate of correction of such barriers.”

Pet.App. 147a (admitted facts ¶ 3.89). Two of the state

agencies had “a goal of correcting their barrier culverts

by July 2016[,]” with “the level of funding” as “[t]he primary factor determining the rate at which the State

can correct fish barrier culverts.” Pet.App. 148a (admitted facts ¶¶ 3.90 and 3.92). The district court’s failure to defer to the state process does not square with

this Court’s admonition in the seminal Rizzo v. Goode,

423 U.S. 362 (1976):

When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with

“the well-established rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal

affairs[.]’ . . . The District Court’s injunctive

order here, significantly revising the internal

procedures of the Philadelphia police department, was indisputably a sharp limitation on

the department’s “latitude in the ‘dispatch of

its own internal affairs.’ ” [¶] When the frame

of reference moves from a unitary court system, governed by the principles just stated, to

a system of federal courts representing the

Nation, subsisting side by side with 50 state

judicial, legislative, and executive branches,

appropriate consideration must be given to

principles of federalism in determining the

availability and scope of equitable relief.

Id. at 378-79 (citations omitted); see Lewis v. Casey,

518 U.S. 343, 385-86 (1996) (Thomas, J., concurring)

(“Broad remedial decrees strip state administrators of

35

their authority to set long-term goals for the institutions they manage and of the flexibility necessary to

make reasonable judgments on short notice under difficult circumstances. . . . At the state level, such decrees override the ‘State’s discretionary authority over

its own program and budgets and forc[e] state officials

to reallocate state resources and funds to the [district

court’s] plan at the expense of other citizens, other government programs, and other institutions not represented in court.’ ”) (citations omitted). The highly

prescriptive and extraordinarily costly mandatory injunction here embodies precisely the evils counseled

against by the Court in Rizzo and Justice Thomas in

Casey. It largely strips Washington of the sovereign

power not only to balance competing fiscal demands

but also to determine how best to carry out its culvert

remediation process without officious oversight by the

federal judiciary. See supra 31 n.5.

Third, the equitable considerations related to application of Sherrill carry significant weight even if not

a complete bar to the United States’ claim. Petrella v.

Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), illustrates the point. There, this Court declined to recognize the availability of a laches as a complete defense

to a Copyright Act claim for damages brought within

the three-year limitation period in 17 U.S.C. § 507(b).

Reversing the Ninth Circuit, it held:

Laches . . . cannot be invoked to preclude adjudication of a claim for damages brought

within the three-year window. As to equitable

relief, in extraordinary circumstances, laches

36

may bar at the very threshold the particular

relief requested by the plaintiff. And a plaintiff ’s delay can always be brought to bear at

the remedial stage, in determining appropriate injunctive relief, and in assessing the

“profits of the infringer . . . attributable to the

infringement.”

134 S. Ct. at 1967. It added later that “[i]n extraordinary circumstances, however, the consequences of a delay in commencing suit may be of sufficient magnitude

to warrant, at the very outset of the litigation, curtailment of the relief equitably awardable.” Id. at 1977; see

also id. at 1978 (“Should Petrella ultimately prevail on

the merits, the District Court, in determining appropriate injunctive relief and assessing profits, may take

account of her delay in commencing suit.”). Neither the

district court in fashioning the sweeping injunction nor

the Ninth Circuit in approving it gave any thought,

much less weight, to the federal government’s involvement in the state culvert system’s development or the

unexplained delay in asserting a treaty violation. Instead, conversely to the Petrella Ninth Circuit panel,

the lower courts simply ignored the equitable considerations raised by Washington once they found waiver

and estoppel unavailable as complete defenses.

The district court injunction, in sum, should be

vacated even if this Court resolves the first two questions presented against Washington. Its overbreadth

trenches deeply upon settled federalism-based limits

on such relief, and the lower courts failed to consider

the appropriate scope of relief in light of the equitable

37

factors identified with respect to Washington’s waiver

and estoppel defenses.

------------------------------------------------------------------

CONCLUSION

The Court of Appeals’ judgment should be reversed.

Respectfully submitted,

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

CLAY R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amici Curiae States

March 2018