Amicus Curiae 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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________

BRIEF FOR BUSINESS, HOME BUILDING,

REAL ESTATE, AND FARMING ORGANIZATIONS

AS AMICI CURIAE SUPPORTING PETITIONER

_____________

JENNIFER A. MACLEAN

P ERKINS C OIE LLP

700 Thirteenth St., N.W.

Washington, D.C. 20005

(202) 654-6200

ERIC D. MILLER

Counsel of Record

J ULIE A. W ILSON M C N ERNEY

P ERKINS C OIE LLP

1201 Third Ave., Suite 4900

Seattle, WA 98101

(206) 359-8000

emiller@perkinscoie.com

TABLE OF CONTENTS

Page

Interest of amici curiae ............................................................... 1

Summary of argument................................................................. 5

Argument:

A. The Ninth Circuit’s interpretation is contrary to

the text of the treaties...................................................... 6

B. The Ninth Circuit erred in departing from the

treaties’ text based on its view of their purpose ........ 13

C. The Ninth Circuit’s interpretation is contrary to

prior interpretations of the treaties by this

Court and by the political branches.............................. 18

D. The Ninth Circuit’s decision subjects the State

to a poorly defined and intrusive obligation................ 21

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

TABLE OF AUTHORITIES

Cases:

Arizona v. California, 373 U.S. 546 (1983) ....................... 17

Bond v. United States, 134 S. Ct. 2077 (2014)................... 22

Cappaert v. United States, 426 U.S. 128 (1976).......... 17, 25

Choctaw Nation of Indians v. United States, 318

U.S. 423 (1943) ................................................................. 16

Elk v. Wilkins, 112 U.S. 94 (1884)...................................... 11

Factor v. Laubenheimer, 290 U.S. 276 (1933)............. 20, 21

Geer v. Connecticut, 161 U.S. 519 (1896) ............................. 7

Henson v. Santander Consumer USA Inc., 137 S.

Ct. 1718 (2017) ................................................................. 16

(I)

II

Cases—Continued:

Page

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

261 (1997) .......................................................................... 10

Jones v. Meehan, 175 U.S. 1 (1899) .................................... 16

Kolovrat v. Oregon, 366 U.S. 187 (1961) ............................ 20

Lamie v. United States Trustee, 540 U.S. 526

(2004) ................................................................................. 15

Longmire v. Smith, 67 P. 246 (Wash. 1901) ...................... 26

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

(1842) ................................................................................. 10

McCready v. Virginia, 94 U.S. 391 (1876)......................... 11

Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024 (2014) ........................................................................ 15

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) ................................ 6, 11, 16

Missouri v. Holland, 252 U.S. 416 (1920) ......................... 10

National Wildlife Fed’n v. National Marine

Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) ............... 24

Northwest Res. Info. Ctr., Inc. v. Northwest

Power & Conservation Council, 730 F.3d 1008

(9th Cir. 2013) .................................................................. 20

Northwestern Bands of Shoshone Indians v.

United States, 324 U.S. 335 (1945) ................................ 16

Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) .......................................................... 14

Oliphant v. Suquamish Indian Tribe, 435 U.S.

191 (1978) ............................................................................ 8

Pacific Coast Fed’n of Fishermen’s Ass’ns v.

Gutierrez, 606 F. Supp. 2d 1122 (E.D. Cal.

2008) .................................................................................. 24

Pavelic & LeFlore v. Marvel Entm’t Grp., 493

U.S. 120 (1989) ................................................................. 15

III

Cases—Continued:

Page

Postema v. Pollution Control Hearings Bd., 11

P.3d 726 (Wash. 2000) ..................................................... 26

Puget Sound Gillnetters Ass’n v. United States

District Court, 573 F.2d 1123 (9th Cir. 1978),

vacated, 443 U.S. 658 (1979) .......................................... 19

Puyallup Tribe v. Department of Game of Wash.,

391 U.S. 392 (1968) .......................................................... 19

Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81 (2002) ............................................................................ 15

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155

(1993) ................................................................................. 14

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

(1919) ................................................................................... 7

Shively v. Bowlby, 152 U.S. 1 (1894) .................................. 10

Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) ............. 10

Swinomish Indian Tribal Cmty. v. Washington

State Dep’t of Ecology, 311 P.3d 6 (Wash. 2013) ......... 26

Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S.

614 (2013) .......................................................................... 11

The Amiable Isabella, 19 U.S. (6 Wheat.) 1 (1821) .... 14, 16

Tulee v. Washington, 315 U.S. 681 (1942) ......................... 18

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

1983), cert. denied, 467 U.S. 1252 (1984) ...................... 26

United States v. Alaska, 521 U.S. 1 (1997) ....................... 11

United States v. Choctaw Nation, 179 U.S. 494

(1900) ................................................................................. 16

United States v. New Mexico, 438 U.S. 696 (1978) .... 17, 18

United States v. Winans, 198 U.S. 371 (1905) .......... 7, 9, 18

Utility Air Regulatory Grp. v. EPA, 134 S. Ct.

2427 (2014) ........................................................................ 15

IV

Cases—Continued:

Page

Volkswagenwerk AG v. Schlunk, 486 U.S. 694

(1988) ................................................................................... 6

Washington v. Washington State Commercial

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

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

Water Splash, Inc. v. Menon, 137 S. Ct. 1504

(2017) ................................................................................... 6

Winters v. United States, 207 U.S. 564 (1908) ............ 17, 25

Treaties, statutes, and regulations:

Convention Between the United States and Great

Britain for the Preservation of the Halibut

Fishery of the Northern Pacific Ocean, Mar. 2,

1923, 43 Stat. 1841 ........................................................... 13

Treaty with the Nisqually (Treaty of Medicine

Creek), Dec. 26, 1854, 10 Stat. 1132 ..................... passim

Treaty with the Utah, Dec. 30, 1849, 9 Stat. 984................ 8

United Nations Convention Relating to the Status

of Refugees, Jan. 31,1967,19 U.S.T. 6223 ..................... 14

Act of June 2, 1924, ch. 233, 43 Stat. 253 ........................... 11

33 U.S.C. 1342(p) .................................................................. 23

33 U.S.C. 1344 ....................................................................... 23

Act of Feb. 27, 1845, ch. 80, § 10, 1845 Mo. Laws

578 ....................................................................................... 9

Act of July 20, 1858, ch. 44, § 2, 1858 Minn. Laws

104 ....................................................................................... 8

Wash. Rev. Code § 36.70A.030(5) ....................................... 23

Wash. Rev. Code § 36.70A.060(2) ....................................... 23

Wash. Rev. Code § 90.03.010............................................... 26

Wash. Rev. Code § 90.58.080............................................... 23

V

Regulations —Continued:

Page

Wash. Admin. Code § 173-26-201(2)(c) .............................. 24

Wash. Admin. Code § 173-26-231(2)(d) .............................. 24

Miscellaneous:

John Quincy Adams, The Duplicate Letters, The

Fisheries and the Mississippi (2d ed. 1823) ................ 12

5 American State Papers (Foreign Relations)

(1823) ................................................................................. 12

Nathan Baker, Water, Water, Everywhere, and at

Last A Drop for Salmon? NRDC v. Houston

Heralds New Prospects Under Section 7 of the

Endangered Species Act, 29 Envtl. L. 607

(1999) ................................................................................. 25

2 William Blackstone, Commentaries (1766) ...................... 7

B.M. Brennan, Director, Dep’t of Fisheries, State

of Washington, Report of the Preliminary

Investigations Into the Possible Methods of

Preserving the Columbia River Salmon and

Steelhead at the Grand Coulee Dam (1938) ................ 20

H.R. Exec. Doc. No. 84, 46th Cong., 2d Sess.

(1880) ................................................................................. 12

Lawrence Juda, International Law and Ocean

Use Management (1996) .......................................... 12, 13

3 James Kent, Commentaries on American Law

(1828) ........................................................................... 10, 11

Carol J. Smith, Washington State Conservation

Commission, Salmon Habitat Limiting

Factors in Washington State (2005) ....................... 22, 23

VI

Miscellaneous—Continued:

Page

U.S. Dep’t of the Interior, Fifty-Seventh Annual

Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1888) ............................ 8

U.S. Dep’t of the Interior, Report of the

Commissioner of Indian Affairs to the

Secretary of the Interior (1863) ....................................... 9

U.S. Dep’t of the Interior, Sixty-First Annual

Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1892) ............................ 8

U.S. Fish & Wildlife Service, Salmon of the West:

Why are Salmon in Trouble?—Poor Habitat ............ 22

Annika W. Walters, et al., Interactive Effects of

Water Diversion and Climate Change for

Juvenile Chinook Salmon in the Lemhi River

Basin (U.S.A.), 27 Conservation Biology 1179

(2013) ................................................................................. 25

Webster’s Third New International Dictionary of

the English Language (1976)........................................... 7

In the Supreme Court of the United States

_____________

No. 17-269

STATE OF WASHINGTON, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________

BRIEF FOR BUSINESS, HOME BUILDING,

REAL ESTATE, AND FARMING ORGANIZATIONS

AS AMICI CURIAE SUPPORTING PETITIONER

_____________

INTEREST OF AMICI CURIAE *

Amici are organizations that represent businesses,

home builders, real-estate professionals, and farmers in

Washington State and around the country.

*

No counsel for a party authored this brief in whole or in part,

and no person other than amici, their members, or their counsel has

made a monetary contribution intended to fund the preparation or

submission of the brief. Petitioner has entered a blanket consent to

the filing of amicus briefs, and letters of consent from respondents

to the filing of this brief are on file with the Clerk.

(1)

2

The Association of Washington Business (AWB) is

Washington State’s Chamber of Commerce and the principal representative of the State’s business community.

AWB is the State’s oldest and largest general business

membership federation, representing the interests of

approximately 8000 Washington companies who, in turn,

employ more than 700,000 employees, approximately a

quarter of the State’s workforce. AWB’s members are

located in all areas of Washington, represent a broad array of industries, and range in size from sole proprietorships to large corporations that do business around the

world.

The National Association of Home Builders (NAHB)

is a Washington, D.C.–based trade association whose

mission is to enhance the climate for housing and the

building industry. Founded in 1942, NAHB is a federation of more than 700 state and local associations. About

one-third of NAHB’s approximately 140,000 members

are home builders or remodelers, and they account for

80% of all homes constructed in the United States.

The Building Industry Association of Washington is

the State’s association of home builders and related

companies that provide products and services for residential building construction and remodeling. It has

7800 members across the State.

The Montana Building Industry Association is a trade

association founded in 1968 to promote and protect the

building industry. It represents approximately 1500

builders and affiliated small businesses.

The Oregon Home Builders Association is the voice of

Oregon’s residential and light-commercial construction

industry. It has nearly 3000 member companies repre-

3

senting more than 196,000 jobs and over $3 billion in the

Oregon economy.

The Master Builders Association of King and

Snohomish Counties is a trade organization of professional home builders and related professionals. With

nearly 2800 member companies from all facets of housing

construction, it is the largest local home builders’ association in the United States.

Washington REALTORS® is a trade association of

approximately 20,000 licensed real-estate brokers. It

represents their interests, and those of Washington’s

homeowners and businesses, on a variety of issues affecting residential and commercial real estate.

The Washington State Farm Bureau is a voluntary,

grassroots advocacy organization representing the social

and economic interests of farm and ranch families in

Washington State. It includes more than 47,000 member

families.

The Idaho Farm Bureau Federation is a non-profit

organization representing approximately 78,000 Idaho

families. Its members live and work in each of Idaho’s

44 counties and represent all commodities grown in Idaho. It includes a substantial number of livestock producers who graze on public lands.

The Montana Farm Bureau Federation is the State’s

largest agricultural organization, representing 30 county

farm bureaus. It provides a voice for agricultural producers in legislative, legal, and other areas affecting agriculture.

The Oregon Farm Bureau is a grassroots advocacy

organization founded in 1919 to represent the social and

economic interests of Oregon’s farming and ranching

families in the public policy arena. It has farming and

4

ranching members in all 36 Oregon counties, with a total

of 65,000 member families statewide.

This case presents the question whether treaties

providing Indian tribes in the Pacific Northwest the

“‘right of taking fish, at all usual and accustomed

grounds and stations’” also guarantee “that the number

of fish [will] always be sufficient to provide a ‘moderate

living’ to the Tribes.” Pet. App. 86a, 94a (quoting Washington v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658, 674, 686 (1979) (Fishing Vessel)). The Ninth Circuit answered that question

in the affirmative. In so holding, it affirmed a sweeping

injunction compelling the State of Washington to remove

or replace highway culverts that allegedly impair salmon

habitat and reduce the number of salmon available for

tribal fishing. The court’s reasoning is not confined to

culverts but will affect land-use and water-allocation decisions throughout the West. Amici therefore have a

significant interest in the resolution of this case.

SUMMARY OF ARGUMENT

This case involves the interpretation of treaties that

Territorial Governor Isaac Stevens negotiated on behalf

of the United States with Indian tribes in the Pacific

Northwest in 1854 and 1855. All of the treaties contain

similar clauses providing that “[t]he 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.” Treaty with the Nisqually (Treaty of

Medicine Creek), art. 3, Dec. 26, 1854, 10 Stat. 1133. The

Ninth Circuit held that “[t]he Indians reasonably understood Governor Stevens to promise not only that they

would have access to their usual and accustomed fishing

5

places, but also that there would be fish sufficient to sustain them.” Pet. App. 92a. For that reason, the court

“infer[red] a promise that the number of fish would always be sufficient to provide a ‘moderate living’ to the

Tribes.” Id. at 94a (quoting Fishing Vessel, 443 U.S. at

686). Because the State’s decision “to build and maintain

barrier culverts under its roads” had “diminish[ed] the

supply of fish,” the court concluded that “in building and

maintaining barrier culverts * * * Washington has violated, and is continuing to violate, its obligation to the

Tribes under the Treaties.” Id. at 95a-96a. It therefore

affirmed an injunction compelling the State of Washington to spend billions of dollars removing or altering

those culverts.

The Ninth Circuit’s interpretation is contrary to the

text of the treaties, which guarantee only a right to access “usual and accustomed grounds and stations” for

the purpose of taking fish. At common law, fishing

rights were understood to be interests in real property

tied to particular locations, not rights in the fish themselves. Because fish were viewed as an inexhaustible

resource, fishing-rights treaties ensured access to places

where fishing could occur. There was no need to guarantee a particular quantity of fish. While the assumption

of inexhaustibility proved incorrect, that does not authorize a court to insert into the treaties a guarantee

that the parties did not negotiate.

The Ninth Circuit’s decision is also contrary to prior

interpretations of the treaties by this Court and by the

political branches. Although this Court has construed

the treaties several times, it has never suggested that

they contain a guarantee of a particular quantity of fish.

And Congress and the Executive Branch have repeated-

6

ly taken actions—most notably, constructing or authorizing dams that have wiped out entire fisheries—that are

inconsistent with such a guarantee.

Finally, the Ninth Circuit’s interpretation of the treaties raises serious federalism concerns. While the

court’s decision is nominally limited to highway culverts,

its reasoning is far broader. If tribes have a right to ensure that States maintain a particular number of fish for

tribal interests, then few activities in the West will escape judicial superintendence at the behest of tribes.

The construction of culverts is not the only human activity that can harm salmon. Almost all land-use decisions

affect fish habitat directly or indirectly, as does the

withdrawal of surface or underground water under

state-law water-rights regimes. Even if the treaty language were ambiguous, it should not be read to displace

the State’s traditional authority to regulate land use and

water rights.

ARGUMENT

A. The Ninth Circuit’s interpretation is contrary to

the text of the treaties

In interpreting treaties, this Court “begin[s] with the

text of the treaty and the context in which the written

words are used.” Water Splash, Inc. v. Menon, 137

S. Ct. 1504, 1508-1509 (2017) (quoting Volkswagenwerk

AG v. Schlunk, 486 U.S. 694, 699 (1988)). For treaties

with Indian tribes, as for of other kinds of treaties, “the

starting point for any analysis * * * is the treaty language itself.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 206 (1999). Here, the starting

point should also be the ending point. The treaties all

contain similar clauses providing that “[t]he right of tak-

7

ing fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with

all citizens of the Territory.” Treaty of Medicine Creek,

art. 3, 10 Stat. 1133. That language does not confer the

right that the Ninth Circuit identified: “that the number

of fish would always be sufficient to provide a ‘moderate

living’ to the Tribes.” Pet. App. 94a (quoting Fishing

Vessel, 443 U.S at 686).

1. The treaties guarantee a “right of taking fish,”

and in the nineteenth century, “take,” as applied to wild

animals, had the same meaning it does today: “to get

possession of (as fish or game) by killing or capturing.”

Webster’s Third New International Dictionary of the

English Language 2330 (1976); see also Geer v. Connecticut, 161 U.S. 519, 523 (1896); 2 William Blackstone,

Commentaries 411 (1766). The treaties thus protect the

ability to engage in the act of catching fish, an act that

necessarily occurs at a particular place. By protecting

the right to fish in “all usual and accustomed grounds

and stations,” the treaties guarantee access to those

places for the purposes of fishing. Treaty of Medicine

Creek, art. 3, 10 Stat. 1133. In doing so, they “impose[] a

servitude upon every piece of land as though described

therein,” allowing Indians to access or occupy private

property as necessary to fish at traditional fishing

grounds, regardless of the ownership of those grounds.

United States v. Winans, 198 U.S. 371, 381-382 (1905);

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

199 (1919).

Nothing in that right, which is tied to particular locations, suggests a power to regulate the non-fishing activities of the State in other locations. Such a power would

be inconsistent with Article I of the treaties, under

8

which the tribes “cede[d], relinquish[ed], and convey[ed]

to the United States all their right, title, and interest in

and to the lands and country occupied by them.” Treaty

of Medicine Creek, art. 1, 10 Stat. 1132 (emphasis added). If the “right of taking fish” dictates how States are

to manage road construction on State land, then the cession, relinquishment, and conveyance cannot reasonably

be said to include “all the right, title, and interest” the

Indians had to the ceded lands.

2. The Ninth Circuit suggested that a treaty provision limited to a right of access to traditional fishing

grounds would have been “cynical and disingenuous.”

Pet. App. 91a-92a. That suggestion ignores the principle

that treaty language “must be read in light of the common notions of the day.” Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191, 206 (1978). Under the legal regime

that prevailed at the time the treaties were signed, such

a provision would have provided meaningful and important guarantees to the tribes.

During the nineteenth century, reservation Indians

were sometimes prohibited from engaging in offreservation travel. Some treaties explicitly restricted

such travel. See, e.g., Treaty with the Utah, art. 7, Dec.

30, 1849, 9 Stat. 985. The federal government often prevented Indians from leaving reservations without a

permit. See, e.g., U.S. Dep’t of the Interior, Sixty-First

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior 24 (1892); U.S. Dep’t of

the Interior, Fifty-Seventh Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior 86 (1888). Similarly, some States enacted legislation

prohibiting off-reservation travel without permits. See,

e.g., Act of July 20, 1858, ch. 44, § 2, 1858 Minn. Laws

9

104; Act of Feb. 27, 1845, ch. 80, § 10, 1845 Mo. Laws 578.

By securing the right to access “usual and accustomed

grounds”—many of which were off-reservation—the

signatory tribes ensured that they would not be so restricted but instead would have the right “to leave the

reservation whenever they choose” in order to fish. U.S.

Dep’t of the Interior, Report of the Commissioner of Indian Affairs to the Secretary of the Interior 50 (1863).

In addition, the treaties contemplated that the ceded

lands might be sold to private owners, and they ensured

that those owners could not impair access to fishing

grounds. As this Court has recognized, by granting a

right of access, “[t]he contingency of the future ownership of the lands therefore was foreseen and provided

for; in other words, the Indians were given a right in the

land—the right of crossing it to the river—the right to

occupy it to the extent and for the purpose mentioned.”

Winans, 198 U.S. at 381. That “right was intended to be

continuing against the United States and its grantees as

well as against the state and its grantees.” Id. at 381382. The treaties thus ensured access to traditional fishing grounds regardless of property ownership.

3. The Ninth Circuit’s interpretation also fails to take

account of the treaties’ language specifying that the

right to fish is “in common with all citizens of the Territory.” Treaty of Medicine Creek, art. 3, 10 Stat. 1133.

The reference to a common right to fish drew on an established body of common-law fishing jurisprudence that

informs the interpretation of the treaties.

At common law, the right of fishing was understood

as an interest in real property. The right was associated

with ownership of the land beneath or adjacent to the

waters where it would be exercised, and it was a kind of

10

easement, severable from the ownership of the land and

capable of being freely transferred. See 3 James Kent,

Commentaries on American Law 329 (1828). In the case

of navigable waters, the right of fishery was vested in

the State as an incident of its ownership of the submerged lands under navigable waters. See Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 284-287

(1997); Shively v. Bowlby, 152 U.S. 1, 57-58 (1894). That

right was held by the State as a public trust. Smith v.

Maryland, 59 U.S. (18 How.) 71, 74-75 (1855); Martin v.

Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 413-418 (1842).

Three features of common-law fishing rights are particularly relevant here. First, common fishery rights on

public waters were not exclusive. No one person or

group of persons was entitled to exclude others or monopolize the fishery in waters subject to a common right

of fishing. An exclusive right to fish was considered a

“private right of fishery,” and such rights were “confined

to fresh water rivers.” 3 Kent, Commentaries 331-332

(emphasis added). By contrast, “the right of fishing in

the sea, and in the bays and arms of the sea, and in navigable or tide waters * * * is a right public and common to every person.” Id. at 331-332 (emphasis added);

see id. at 336.

Second, the right granted by the treaty, like all rights

of fishery recognized at the common law, was attached

to real property—the “usual and accustomed grounds

and stations.” But by its nature, such a right did not

consist of an interest in the fish themselves. Cf. Missouri v. Holland, 252 U.S. 416, 434 (1920) (“Wild birds

are not in the possession of anyone; and possession is the

beginning of ownership.”). The right therefore did not

11

establish a cognizable interest in activities outside the

boundaries of the “usual and accustomed grounds.”

Third, as a public right, the common right of fishery

was subject to regulation by the State. See Tarrant

Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 631 (2013)

(noting that the “power to control navigation, fishing,

and other public uses of water, ‘is an essential attribute

of sovereignty’”) (quoting United States v. Alaska, 521

U.S. 1, 5 (1997)); 3 Kent, Commentaries 332 (“[I]t is everywhere agreed, that this common right is liable to be

modified and controlled by the municipal law of the

land.”). The State’s regulatory authority over its fisheries included the power to limit the right to fish to its own

citizens. McCready v. Virginia, 94 U.S. 391, 395 (1876).

That power is critical in this context because, in 1855,

reservation Indians were not treated as citizens. Elk v.

Wilkins, 112 U.S. 94, 100 (1884); see Act of June 2, 1924,

ch. 233, 43 Stat. 253 (extending citizenship to Indians).

In the absence of the treaty guarantee, the State therefore could have prohibited reservation Indians from fishing altogether. By providing that the right to fish was to

be held “in common with the citizens of the territory,”

the treaty prohibited States from discriminating against

the tribes in its management of fisheries. Mille Lacs

Band of Chippewa Indians, 526 U.S. at 205 (noting that

the Court has “repeatedly reaffirmed state authority to

impose reasonable and necessary nondiscriminatory

regulations on Indian hunting, fishing, and gathering

rights in the interest of conservation”). It did not guarantee any particular quantity of fish.

4. In a footnote in Fishing Vessel, this Court suggested that the “in common with” language did not refer

to common-law fishery concepts. 443 U.S. at 677 n.23.

12

In reaching that conclusion, the Court reasoned that the

United States had used similar language in fishing treaties with Britain, and that those treaties “gave each signatory country an ‘equal’ and apportionable ‘share’ of the

take of the treaty areas.” Ibid. Although the Court cited diplomatic correspondence concerning those treaties,

the cited correspondence did not relate to an apportionment of the total number of fish, but only to ensuring

equal access. See H.R. Exec. Doc. No. 84, 46th Cong., 2d

Sess. 2 (1880) (describing “the alleged interference with

American fishermen” who suffered “expulsion from [the]

inshore fishery” in Fortune Bay, Newfoundland); 5

American State Papers (Foreign Relations) 528 (1823)

(“The transactions which gave rise to this controversy

occurred * * * when several fishing vessels of the

United States, on the coast and within the strictest territorial jurisdiction of the island of Newfoundland, were

ordered away.”).

Because fish stocks were seen as an “inexhaustible

repository,” there was no reason for nineteenth-century

treaties to guarantee a particular quantity of fish or

even a particular share of the total catch, and fishingrights treaties were not understood to do so. John

Quincy Adams, The Duplicate Letters, The Fisheries and

the Mississippi 185 (2d ed. 1823); see Lawrence Juda,

International Law and Ocean Use Management 17

(1996) (“At least into the mid-nineteenth century, writers in the field of international law continued to reflect

the view that the living resources of the oceans were inexhaustible.”). It was much later, “as fishery technology

became more sophisticated, and as total fishing effort

continued to expand,” that it became necessary to limit

the total catch and apportion it among the participating

13

nations. Juda, International Law and Ocean Use Management 20. Only near the beginning of the 20th century

did nations begin to sign treaties intended to regulate

fishing in order to conserve—and apportion—a scarce

resource. See, e.g., Convention Between the United

States and Great Britain for the Preservation of the Halibut Fishery of the Northern Pacific Ocean, Mar. 2, 1923,

43 Stat. 1841; Juda, International Law and Ocean Use

Management 72 (explaining that the Halibut Convention

“set a precedent for later agreements and constituted

explicit recognition of the potential for commercial exhaustion of fish stocks”). The treaties at issue here, like

other treaties of their era, were not aimed at resource

conservation but at guaranteeing access to fishing

grounds.

B. The Ninth Circuit erred in departing from the

treaties’ text based on its view of their purpose

A key premise of the decision below is that “[t]he Indians reasonably understood Governor Stevens to promise 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.” Pet. App. 92a. Although the parties may have believed that the number of

fish would be sufficient, it does not follow that the treaties contain a promise to that effect.

1. At the time the treaties were signed, the parties

viewed salmon as an inexhaustible resource—an understandable view given the improbability of seriously depleting fish stocks using pre-industrial technology. As

this Court has observed, “when the treaties were negotiated, neither party realized or intended that their

agreement would determine whether, and if so how, a

14

resource that had always been thought inexhaustible

would be allocated between the native Indians and the

incoming settlers when it later became scarce.” Fishing

Vessel, 443 U.S. at 669. Because the parties assumed

that fish would always be abundant, guaranteeing such

abundance would never have occurred to them. They

did not imagine a future in which new fishing, shipping,

and canning technologies would eventually deplete fish

stocks, nor did they consider whether development on

the ceded lands might need to be constrained in order to

ensure that enough fish would be available. Although

the parties’ assumption about the inexhaustibility of the

salmon population proved incorrect, that is not a reason

for a court to supply a missing term that the parties did

not negotiate.

This Court has repeatedly held that the interpretation of a treaty is governed by its text, not by a court’s

speculation as to how the parties would have resolved

other matters to which they “likely gave no thought.”

Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S.

450, 466 (1995). Thus, as Justice Story explained, the

Court may not “supply a casus omissus in a treaty, any

more than in a law.” The Amiable Isabella, 19 U.S. (6

Wheat.) 1, 71 (1821). Instead, it must “find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, [its]

duty is to follow it as far as it goes, and to stop where

that stops—whatever may be the imperfections or difficulties which it leaves behind.” Ibid.

In Sale v. Haitian Centers Council, Inc., 509 U.S. 155

(1993), this Court applied that principle in concluding

that the United Nations Convention Relating to the Status of Refugees, Jan. 31,1967,19 U.S.T. 6223, which pro-

15

hibits the expulsion of refugees, does not apply extraterritorially. The Court acknowledged that the parties to

the Convention “may not have contemplated that any

nation would gather fleeing refugees and return them to

the one country they had desperately sought to escape,”

and that “such actions may even violate the spirit” of the

Convention. Id. at 183. But it explained that “a treaty

cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its

general humanitarian intent.” Ibid.

The interpretive principle at issue is familiar in the

context of statutory construction, which, like treaty construction, often entails interpreting a “compromise between groups with marked but divergent interests.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81, 93-94 (2002). In construing a statute, the Court’s role

is to apply the text, not to “to revise clear statutory

terms that turn out not to work in practice.” Utility Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014).

Instead, the Court’s “task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entm’t

Grp., 493 U.S. 120, 126 (1989); accord Lamie v. United

States Trustee, 540 U.S. 526, 538 (2004). As the Court

recently explained, even when “the text as written creates an apparent anomaly as to some subject it does not

address,” a Court may not “disregard clear language

simply on the view that * * * Congress must have intended something broader.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2033-2034 (2014) (internal

quotation marks omitted). Thus, “while it is of course

[the Court’s] job to apply faithfully the law Congress has

written, it is never [the Court’s] job to rewrite a constitutionally valid statutory text under the banner of spec-

16

ulation about what Congress might have done had it

faced a question that, on everyone’s account, it never

faced.” Henson v. Santander Consumer USA Inc., 137

S. Ct. 1718, 1725 (2017).

2. Those principles are fully applicable to treaties

with Indian tribes. United States v. Choctaw Nation,

179 U.S. 494, 533 (1900) (citing The Amiable Isabella, 19

U.S. (6 Wheat.) at 71-72). The Ninth Circuit emphasized

that a court construing an Indian treaty must “look beyond the written words to the larger context that frames

the [t]reaty, including ‘the history of the treaty, the negotiations, and the practical construction adopted by the

parties.’” Pet. App. 89a (quoting Mille Lacs Band of

Chippewa Indians, 526 U.S. at 196); accord Fishing Vessel, 443 U.S. at 675-676 (Treaties are to “be construed

* * * in the sense in which they would naturally be understood by the Indians.”) (quoting Jones v. Meehan, 175

U.S. 1, 11 (1899)). But even when construing Indian

treaties, courts cannot alter treaty terms “to meet alleged injustices.” Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 353 (1945). Courts

cannot “by mere interpretation or in deference to [a]

view as to what was right under all the circumstances,

incorporate into an Indian treaty something that was inconsistent with the clear import of its words.” United

States v. Choctaw Nation, 179 U.S. at 532. “[E]ven Indian treaties,” in other words, “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 of Indians v. United States,

318 U.S. 423, 432 (1943). The Ninth Circuit erred in doing just that.

17

3. The Ninth Circuit relied on this Court’s cases involving reserved water rights, which, it said, support

reading the treaties as if they contained “a promise to

‘support the purpose’ of the Treaties.” Pet. App. 93a-94a

(quoting Winters v. United States, 207 U.S. 564, 577

(1908)). That reasoning reflects a misreading of the water-rights cases.

This Court has 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.” Cappaert v. United States, 426 U.S.

128, 138 (1976); see also United States v. New Mexico,

438 U.S. 696, 699-700 (1978); Winters, 207 U.S. at 576–

577. To infer a reserved water right, the Court must

“carefully examine[] both the asserted water right and

the specific purposes for which the land was reserved,

and conclude[] that without the water the purposes of

the reservation would be entirely defeated.” New Mexico, 438 U.S. at 700.

In all of the cases in which this Court has identified an

implied water right, the right at issue has been associated with a federal land reservation. For example, Winters involved water rights appurtenant to the Fort

Belknap Indian Reservation, where, without water, “civilized communities could not be established.” 207 U.S. at

576. Similarly, Cappaert implied a right to an underground pool appurtenant to Devil’s Hole National Monument, which had been set aside to preserve a “peculiar

race of desert fish” that required the water to survive.

426 U.S. at 141; accord Arizona v. California, 373 U.S.

546, 596 (1983) (reservation of lands for Indian tribes

18

“reserved not only land, but also the use of enough water

* * * to irrigate the irrigable portions of the reserved

lands”).

Here, instead of carefully examining the right and the

“specific purposes for which the land was reserved” by

the government, New Mexico, 438 U.S. at 700 (emphasis

added), the Ninth Circuit inferred “a promise to ‘support

the purpose’ of the Treaties” in general, Pet App. 93a94a (emphasis added). The court concluded that a principal purpose of the treaties was to provide the tribes a

means for support through an adequate supply of salmon. Id. at 91a. But the implied-reservation-of-water

doctrine turns on the purpose of the reservation of land;

it is not a license to engage in a broad inquiry into the

purpose of the treaty as a whole. The Ninth Circuit’s

approach finds no support in this Court’s cases.

C. The Ninth Circuit’s interpretation is contrary to

prior interpretations of the treaties by this

Court and by the political branches

1. Although this Court has had several occasions to

interpret the “right of taking fish” clause in the Stevens

Treaties, it has never held that a state government must

limit off-reservation land development to increase the

number of available salmon. Instead, the Court has interpreted the treaties to provide a right of access to the

tribes’ usual and accustomed fishing grounds for the

purpose of fishing. In Winans, for example, the Court

held that the treaties “imposed a servitude upon every

piece of land” used as a traditional fishing ground. 198

U.S. at 381. The Court has also held that the right of access cannot be made subject to the payment of a state

license fee. Tulee v. Washington, 315 U.S. 681, 684

19

(1942). At the same time, the Court has recognized that

the treaties leave an important role for state regulation.

For example, in Puyallup Tribe v. Department of Game

of Washington, 391 U.S. 392, 398 (1968), the Court held

that “the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and

does not discriminate against the Indians.”

More recently, in Fishing Vessel, the Court stated

that it would interpret the “right of taking fish” as guaranteeing a right to “some of the large quantities of fish

that will almost certainly be available at a given place at

a given time.” 443 U.S. at 677-678. In other words, the

Court read the treaties to “secure the Indians’ right to

take a share of each run of fish that passes through tribal fishing areas.” Id. at 679. It ultimately concluded that

the tribal share can be no more than 50%, subject to

modification based on changing circumstances. Id. at

686-687.

As explained above, the decision in Fishing Vessel

represented a departure from the treaty text, which

guarantees only a right of access, not a particular share

of the total number of fish. See Puget Sound Gillnetters

Ass’n v. United States District Court, 573 F.2d 1123,

1134 (9th Cir. 1978) (Kennedy, J., concurring) (noting

that “the rationale for the apportionment rule * * *

remains somewhat obscure”), vacated, 443 U.S. 658

(1979). This case does not require the Court to reconsider Fishing Vessel, however, because even in that case

the Court merely read the treaties to guarantee “a share

of each run of fish,” however large that run may be. 443

U.S. at 679. It did not hold that the State must ensure

20

that each run has a particular number of fish in it; still

less did it interpret the treaty language to require the

State to regulate activities unrelated to fishing in a certain manner because of indirect effects on fishing. In

that respect, the Ninth Circuit’s interpretation represents a major expansion of the right recognized in Fishing Vessel.

2. The Ninth Circuit’s interpretation is also inconsistent with the construction given the treaties by the

political branches. “While courts interpret treaties for

themselves, the meaning given them by the departments

of government particularly charged with their negotiation and enforcement is given great weight.” Kolovrat v.

Oregon, 366 U.S. 187, 194 (1961). The political branches

can adopt an interpretation of a treaty not just through

formal statements, but also through “their own practical

construction of it.” Factor v. Laubenheimer, 290 U.S.

276, 295 (1933). Here, the federal government’s conduct

shows that historically it has not maintained the treaty

interpretation the Ninth Circuit adopted below.

As the State explains (Pet. Br. 8-9, 36), the federal

government has taken many actions that have harmed

salmon populations—most dramatically, building or licensing dams that have wiped out entire fisheries. See

Northwest Res. Info. Ctr., Inc. v. Northwest Power &

Conservation Council, 730 F.3d 1008, 1011 (9th Cir.

2013) (“[T]he extensive system of hydroelectric dams in

the Columbia River Basin has been a major factor in the

decline of some salmon and steelhead runs to a point of

near extinction.”) (internal quotation marks omitted).

The effect of the dams on the salmon population was well

understood at the time the dams were built. See, e.g.,

B.M. Brennan, Director, Dep’t of Fisheries, State of

21

Washington, Report of the Preliminary Investigations

Into the Possible Methods of Preserving the Columbia

River Salmon and Steelhead at the Grand Coulee Dam 3

(1938) (explaining that the Grand Coulee Dam “destroys

the spawning grounds of the San Poil, Spokane, Kettle,

Colville and Clark Fork rivers” and “eliminates 1,140

lineal miles of stream from the area available to the

spawning fish”). Those activities therefore demonstrate

that the political branches have adopted a “practical construction” of the treaties that does not prohibit development that adversely affects salmon populations. Factor, 290 U.S. at 295.

D. The Ninth Circuit’s decision subjects the State

to a poorly defined and intrusive obligation

The Ninth Circuit did not explain how to determine

what constitutes enough salmon “available for harvest”

that would be “sufficient to provide a ‘moderate living’

to the Tribes.” Pet. App. 95a (quoting Fishing Vessel,

443 U.S. at 686). It is difficult to see how any court could

do so. If the treaties guarantee a continuing right to

enough fish to provide a moderate living, the required

number of fish would vary with a tribe’s population, with

standards of living, with salmon prices, and with other

income the tribe earned. What constitutes a moderate

living could change from year to year, as could the number of fish required to maintain that standard of living.

The vagueness and unworkability of the approach

adopted by the Ninth Circuit is itself a reason to doubt

that the treaties mandate that approach. In addition,

the breadth of the decision below raises serious federalism concerns because it intrudes on the State’s traditional authority to regulate land use and water rights.

22

Those federalism concerns are an additional reason to

reject the Ninth Circuit’s interpretation. See Bond v.

United States, 134 S. Ct. 2077, 2087 (2014).

The Ninth Circuit panel stated its holding in superficially narrow terms: “[W]e conclude that in building and

maintaining barrier culverts Washington has violated,

and continues to violate, its obligation to the Tribes under the fishing clause of the Treaties.” Pet. App. 126a.

And in the order denying rehearing, two judges from

the panel described the court’s decision as “[c]abin[ed]

* * * [by] a careful, detailed description of the facts

presented.” Id. at 12a (W. Fletcher, J., and Gould, J.,

concurring in the denial of rehearing en banc). But the

court’s reasoning is in no way limited to that factual context, and the consequences of the decision will extend far

more broadly. Barrier culverts are not the only obstacle

to sustaining anadromous fish populations. Many human

activities affect salmon runs, and therefore the Ninth

Circuit’s decision will affect far more than just culverts.

It also threatens to displace state regulation of land use

and water rights.

1. The U.S. Fish and Wildlife Service has determined

that “[t]he biggest threat to salmon today is the loss and

degradation of habitat.” U.S. Fish & Wildlife Service,

Salmon of the West: Why are Salmon in Trouble?—

Poor Habitat, http://www.fws.gov/salmonofthewest/

poorhabitat.htm. The decision below will therefore have

implications for every land-use or development decision

that could affect salmon habitat. That includes almost all

development decisions, for as the Washington State

Conservation Commission (WSCC) has explained,

“[r]iparian zones are impacted by all types of land use

practices.” Carol J. Smith, Washington State Conserva-

23

tion Commission, Salmon Habitat Limiting Factors in

Washington State 127 (2005). For example, the WSCC

has determined that “[r]iparian functions are impaired

by * * * direct removal of riparian vegetation, roads

and dikes located adjacent to the stream channel, road

crossings, agricultural/livestock crossings, unrestricted

livestock grazing in the riparian zone, and development

in the riparian corridor.” Ibid. In addition, salmon can

be harmed by “[h]uman-caused alterations in basin hydrology” resulting from “changes in soils, decreases in

the amount of forest cover, wetlands, and riparian vegetation, and increases in impervious surfaces, sedimentation, and roads.” Id. at 174. Thus, according to the

WSCC, “[h]ydrologic impacts to stream channels can occur at relatively low levels of development.” Ibid.

Federal, state, and local governments currently regulate development projects. During the permitting process, they require compliance with a host of environmental and land-use laws; thereafter, they require proper

mitigation of environmental impacts. For example, the

Clean Water Act prevents developers from dredging or

filling navigable waters and wetlands without a permit

and requires them to obtain permits for their stormwater runoff. 33 U.S.C. 1342(p), 1344. Washington State

requires local governments to make land-use decisions

based on adopted policies aimed at preventing or reducing impacts to fish habitats from development in critical

areas or along shorelines. See, e.g., Wash. Rev. Code

§§ 36.70A.030(5), 36.70A.060(2) (requiring counties and

cities to develop policies and development regulations

to protect critical areas, including fish habitat); id.

§ 90.58.080 (directing local governments to develop

shoreline master programs to regulate shoreline use and

24

modification); Wash. Admin. Code § 173-26-201(2)(c)

(discussing importance of ecological functions of shorelines, particularly for anadromous fish, in development of

shoreline master programs); id. § 173-26-231(2)(d) (requiring local governments to “assure that shoreline modifications individually and cumulatively do not result in a

net loss of ecological functions,” including fish habitat).

The Ninth Circuit’s decision adds another layer of requirements—compliance with treaty rights—to the demands of federal and state law. Despite significant federal, state, and local regulation, the vast majority of

land-development activities will affect stream flows, water quality, or salmon habitat to some extent by altering

the natural state of the environment. Under the reasoning of the court below, those activities therefore have

the potential to infringe a tribe’s treaty right to enough

fish to sustain a “moderate living,” especially if they are

assessed on a cumulative basis. Because the Ninth Circuit articulated no standards to limit the treaty right it

identified, the extension of its decision to land-use regulation will be limited by little but the creativity of regulators and plaintiffs and the equitable discretion of the

district court.

2. The Ninth Circuit’s decision will also affect the diversion of surface water and the withdrawal of groundwater. Salmon require sufficient streamflows for adults

to locate their natal streams, pass to their upstream

spawning grounds, and spawn, as well as for juveniles to

migrate to the ocean. See National Wildlife Fed’n v.

Nat’l Marine Fisheries Serv., 524 F.3d 917, 935 (9th Cir.

2008); Pacific Coast Fed’n of Fishermen’s Ass’ns v.

Gutierrez, 606 F. Supp. 2d 1122, 1135 (E.D. Cal. 2008).

Indeed, streamflow is one of the “critical drivers of ju-

25

venile salmonid growth, movement, survival, and reproduction.” Annika W. Walters, et al., Interactive Effects

of Water Diversion and Climate Change for Juvenile

Chinook Salmon in the Lemhi River Basin (U.S.A.), 27

Conservation Biology 1179, 1180 (2013). Human-caused

diversion of water from rivers and streams can lead to

declines in salmon populations and has been found to

have “substantially interfer[ed] with salmonid migration

in the Columbia River Basin since the nineteenth century.” Nathan Baker, Water, Water, Everywhere, and at

Last A Drop for Salmon? NRDC v. Houston Heralds

New Prospects Under Section 7 of the Endangered Species Act, 29 Envtl. L. 607, 619 (1999).

Following the Ninth Circuit’s logic, just as the presence of barrier culverts on Washington roads would render “the Tribes’ right of access to their usual and accustomed fishing places * * * worthless without harvestable fish,” so too might insufficient streamflows. Pet.

App. 93a-94a. Tribes therefore would have a treatybased guarantee of a flow in streams and rivers sufficient to support a salmon population that is large enough

to provide treaty Indians a “moderate living.”

As noted above, this Court has 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.” Cappaert, 426 U.S. at

138; Winters, 207 U.S. at 576-577. But this Court has not

applied the doctrine to infer a water right based on other

treaty purposes not tied to reserved land. Applied to

water rights, the Ninth Circuit’s decision would extend

beyond the narrow reserved-water-rights doctrine

26

enunciated by this Court. It would instead establish a

much broader implied water right that is appurtenant

not to a tribe’s reservation but to all usual and accustomed fishing grounds.

Applied in that context, the decision below would severely undermine Washington’s water-rights regime.

Like most western States, Washington follows the priorappropriation doctrine and the “first in time, first in

right” priority system. That system is “founded on the

idea that at some point the water in a stream or lake will

be insufficient to satisfy all potential users, and that the

rights of those who have already appropriated water to a

beneficial use will be superior to any later appropriators.” Swinomish Indian Tribal Cmty. v. Washington

State Dep’t of Ecology, 311 P.3d 6, 15 (Wash. 2013). Under Washington law, a senior water right is “entitled to

the quantity of water appropriated by him, to the exclusion of subsequent claimants.” Postema v. Pollution

Control Hearings Bd., 11 P.3d 726, 734 (Wash. 2000)

(quoting Longmire v. Smith, 67 P. 246, 249 (Wash.

1901)); see also Wash. Rev. Code § 90.03.010 (codifying

the “first in time, first in right” principle).

The Ninth Circuit has previously ruled that a tribally

held reserved water right for aboriginal fishing uses

would have a priority date of time immemorial. United

States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), cert.

denied, 467 U.S. 1252 (1984). Such a priority date has

the potential to displace every other water right lawfully

created and recognized under Washington law. If tribes

have an implied reserved water right for enough streamflow to support a quantity of fish that would provide for

a “moderate living” for each tribe in each of the tribes’

usual and accustomed places, there may be no surface

27

water left in Washington to allocate to future users.

Similarly, if there is not enough water to support the

tribes’ implied reserved water rights, then junior users

whose rights infringe the tribes’ water rights could see

their perfected state-law water rights disappear.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JENNIFER A. MACLEAN

P ERKINS C OIE LLP

700 Thirteenth St., N.W.

Washington, D.C. 20005

(202) 654-6200

MARCH 2018

ERIC D. MILLER

Counsel of Record

J ULIE A. W ILSON M C N ERNEY

P ERKINS C OIE LLP

1201 Third Ave., Suite 4900

Seattle, WA 98101

(206) 359-8000

emiller@perkinscoie.com