# Opposition Brief — Washington v. United States, 138 S. Ct. 1832 (2018) (No. 17-269)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

No. 17-269

STATE OF WASHINGTON,

Petitioner,
v.

UNITED STATES OF AMERICA, ET AL.,
Respondents.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

,
a

BRIEF OF RESPONDENT TRIBES IN OPPOSITION

+
Riyaz A. KANJI JouUN C, SLEDD
KANJI & KATZEN, PLLC Counsel of Record
303 Detroit Street, JANE G. STEADMAN
Suite 400 KANJI & KATZEN, PLLC
Ann Arbor, MI 48104 401 Second Ave., S.,
(734) 769-5400 Suite 700
Seattle, WA 98104
(206) 344-8100

jsledd@kanjikatzen.com

Counsel for Respondents the Hoh Tribe, the Jamestown
S’Klallam Tribe, the Lower Elwha Klallam Tribe,
the Nisqually Tribe, the Port Gamble S’Klallam Tribe,
the Sauk-Suiattle Tribe, the Squaxin Island Tribe,
the Stillaguamish Tribe and the Suquamish Tribe

|Additional Respondents And
Counsel Listed On Signature Page|

COCKLE LEGAL BRIEFS (800) 225-6964
WWW COCKLELEGALBRIFEFS COM

2.

QUESTIONS PRESENTED

Whether the Court of Appeals erred in holding
that Washington lacks license to destroy treaty
fisheries through direct, in-stream blockages, where
that holding conflicts with no decision of this
Court or any other court and is demonstrably
faithful to the treaty language and history.

Whether the Court of Appeals erred in holding
that the federal government may abrogate tribal
treaty rights only through express congressional!
action, rather than through inferences drawn by
the State from the putative actions of federal bu-
reaucrats with no responsibility for tribal affairs.

Whether the Petition’s twice-discredited asser-
tions regarding the cost and scope of the district
court’s injunction warrant this Court’s review.

ii
PARTIES

Petitioner is the State of Washington, which, together
with the Director of the State Department of Fisheries
and Wildlife, was defendant at trial, and appellant at
the Ninth Circuit.

Respondents are the United States of America, Con-
federated Tribes and Bands of the Yakama Nation,
Hoh Indian Tribe, Jamestown S’Klallam Tribe, Port
Gamble S’Klallam Tribe, Lower Elwha Klallam Tribe,
Lummi Nation, Makah Tribe, Muckleshoot Indian Tribe,
Nisqually Indian Tribe, Nooksack Tribe, Puyallup
Tribe, Quileute Indian Tribe, Quinault Indian Nation,
Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin
Island Tribe, Stillaguamish Tribe of Indians, Suquamish
Indian Tribe, Swinomish Indian Tribal Community,
Tulalip Tribes, and Upper Skagit Indian Tribe.
Respondents were the plaintiffs at trial and the appel-
lees at the Ninth Circuit.

ill

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ............cssccscscersceeeereees i
REET E DD 8 I SE Rare eee Re mR Co eee ii
ee Ee ST IIE sen ccsccnesvcpcrcnconenzsccnevaonesiennss iii
po Be ky, 8 rr Vv
ET IIIT coin isto niuceinsicaesdeasidunieninsanceesientseowninn l
STATEMENT OF THE CASE. ................sc0ccsssssseeees 3
I. FACTUAL BACKGROUND .............000.....2.. 3
Ke, "Fae BOS POTS TORII ia ve cnciceinceseccccenescsess 3

B. Barrier Culverts and the Decline in
Washington's Fisheries ...................000: 6
Il. COURSE OF PROCEEDINGB.................... 11
REASONS FOR DENYING THE PETITION ....... 16

I. THE COURTS BELOW CREATED NO CON-
FLICT, BUT INSTEAD HEWED CLOSELY
TO THE TREATY LANGUAGE AND THIS
COURT'S PRECEDENTS, IN HOLDING
THAT WASHINGTON DOES NOT HAVE
LICENSE TO DESTROY THE TREATY

PE ca thessedetidesrnrciincoesnsusdansnidetieieethviia 16
A. The Court of Appeals’ Interpretation of

the Stevens Treaties Creates No Con-
flict in Lower Court Authority .............. 16

B. The Court of Appeals’ Decision Does
Not Conflict with Fishing Vessel ........... 17

iv

TABLE OF CONTENTS -— Continued
Page

C. The Court of Appeals’ Decision Conflicts
with No Other Decision of This Court ..... 21

D. No Occasion Exists for Revisiting the
Careful, Factbound Examination of the
Historical Record Conducted by the
I BIE Senicascchceacscscadeisecsvessesnceetenes 23

E. The State’s Attack on the Court of Ap-
peals’ Alternate Holding Suggests No
Basis for this Court’s Review................ 24

Il. THE COURTS BELOW CREATED NO CON-
FLICT IN REJECTING THE STATE’S
EQUITABLE DEFENSE OF WAIVER....... 26

Ill. THE STATE’S RECORD-BOUND ATTACKS
ON THE DISTRICT COURT'S INJUNC-
TION REST ON PREMISES THOROUGHLY
DISCREDITED BELOW ...............0cessseeeeees 29

IV. THE STATE’S ATTEMPT TO SOW FEARS
ABOUT FUTURE DECISIONS DOES NOT
TRANSFORM THE NARROW HOLDING
BELOW INTO ONE DESERVING OF RE-

VEE Oe We BEBE CAFRIIEE sec cencsssccsevessesiccensesoce 36
COUNTY snccsstvingcsnsasaceessevusedindusnoenssinnntusnininese 39
APPENDIX

Letter from Washington Commissioner of Public
Lands to Washington Attorney General (Aug.
i BEE e erhcsinteslies cnanscticsanintdeeadavistcqpnaineusaasunemneeses la

Vv

TABLE OF AUTHORITIES
Page
CASES
Arizona v. California, 373 U.S. 546 (1963)...... .... 19, 25
Cappaert v. United States, 426 U.S. 128 (1976)......... 25
Cayuga Indian Nation v. Pataki, 413 F.3d 266
Ne i I Saroiiccratscecy sacstinsanitereccdetosecuddnbdesetancineianints 28
Choctaw Nation of Indians v. United States, 318
IE EEE ETP catisvansinaadusapainnsocticienepingenssuepiqniccaninpicets 21
City of Sherrill v. Oneida Indian Nation, 544
BA Be GIO deceascccnciinesiaricvhaisakaneasdomenerss 27, 28, 29
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530
SED inecsnacacccnenaisthicnseonstnissebabicncinemdonssienaionramiatpoetess 23
Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830
EINE ocsnitcdisniict bab nepiecbnibbinlesntinbibenasteeidgmendlasecaieinvcnasnbisiibeie 30
Glossip v. Gross, 135 S. Ct. 2726 (2015) ..........ccccceeeees 30
Minnesota v. Mille Lacs Band of Chippewa Indi-
Se Ei e BEE CN iieisvnsncnnscistrcnsnrsestovssosocs 23, 26
Oliphant v. Suquamish Indian Tribe, 435 U.S.
I catiatishchabinichiicescanagsiaciieneiesaciiedasiackcanbipeinants 23
Oneida Indian Nation v. County of Oneida, 617
oe BRR oe 8 eee 28
Puyallup Tribe, Inc. v. Dep't of Game, 433 US.
IE Bacchi sctceccistsentineieiicbonanesnaevuisiebistsaniniasindeukeans 19
Stockbridge-Munsee Cmty. v. New York, 756 F.3d
Se re BD iaitetitictiiseccecasmaeneniaddannbcnticaiaceerindlssias 28
Tulee v. Washington, 315 U.S. 681 (1942)... 6

United States v. Dion, 476 U.S. 734 (1986) ................ 26

vi

TABLE OF AUTHORITIES -— Continued

Page
United States v. Washington, 384 F. Supp. 312
CEG NTs, NEAT Reecascesseissantctagiackataeveniiiindnpbubeddvbess 11
United States v. Washington, 506 F. Supp. 187
Ce ly Be iccinttnsnsinenssvinethicctostentemnivinendigsincnis 12
United States v. Washington, 759 F.2d 1353 (9th
SE SINE (nevsicnstenposnanicinsuindiesscnecmsansatheseseoiigshduoemcivees 12
United States v. Washington, 157 F.3d 630 (9th
GN IPE ixcipsticsnitesn laaeasvuinidcontoneioiseeciteinesebesatencite 21

United States v. Winans, 198 U.S. 371 (1905)....4, 6, 22

Washington v. Wash. State Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658 (1979)....... passim

Winters v. United States, 207 U.S. 564 (1908)...... 24, 25

STATUTES, LAWS, AND TREATIES

Magna Carta of 1215, Ch. 33, 1 Statutes of the
Realm 11 (1810), English translation at '%p://

avalon.law.yale.edu/medieval/magframe.asp........... 6
Treaty of Medicine Creek, Dec. 26, 1854, 10 Stat.

PE Kescteashicdiiraencannesecclnsecacsoesteneaesccamnucnadaniceatinss 5, 22
Act of August 14, 1848, 9 Stat. 328 .0.0.0.0....... cece eeeeeeees 7
Act of March 2, 1863, 10 Stat. 172 ............00scssccccsssereees 7
Wash. Rev. Code § 77.15.3200 (2017) ..........00sssseeseseresees 7

Wash. Rev. Code § 77.57.030 (2017) ............cccccseeseeeeees 7

vii

TABLE OF AUTHORITIES — Continued
Page
OTHER AUTHORITIES

Results Washington, Public Dashboard, Goal 3
Measure 2.2.c (Dec. 2015) https://data.results.wa.
gov/reports/G3-2-2-c_Fish-Passage-Barriers ......... 15

I Tk Wks BOP inti cccenastuscamispencepsovabesaitpacesanonedentesiennes 30
I Bac iy i rctisaseninnricdiasicnbtidehimnbiasesncisnebinnseinipiseensncds 34

Wash. Att’y Gen. Op. No. 304, Fish Passage Fa-
cilities for Highway Culverts (July 19, 1950)........... 7

INTRODUCTION

This case concerns the passage of treaty-protected
fish. The core facts are largely beyond dispute. For cen-
turies, the culture and economy of the western Wash-
ington Tribes depended on salmon, which returned
from the Pacific in immense numbers to spawn in local
streams. When those Tribes entered into Treaties ced-
ing their homelands to the United States, they insisted
upon a permanent right to continue taking the fish
that were their lifeblood. Today, those federal treaty
rights are threatened. The State maintains hundreds
of barrier culverts that prevent salmon from complet-
ing their normal migration to and from the ocean.
There is no serious question about the culverts’ impact.
The State’s own agencies have documented the result-
ing devastation to the fisheries, and the district court
made detailed findings in this regard. Nor is there any
doubt about the State’s ability to fix the problem —
again, the State’s own agencies have demonstrated the
feasibility of remediating the culverts to simulate nor-
mal stream flow. Nevertheless, the State has resisted
repeated calls to respect the Tribes’ federal treaty
rights, ignoring the Tribes, the State’s own commercial
fishermen, and even the head of its own Department of
Natural Resources, all of whom have urged the State
to comply with the law and preserve the fisheries.

Faced with the State’s inaction, the Tribes and the
United States turned to federal court to vindicate the
Tribes’ federal rights. The courts below correctly recog-
nized that the right to fish is of little value if the State
can bar the streams, and thus properly held the State’s

2

refusal to remediate its fish-destroying culverts to vio-
late the Treaties. The State’s arguments notwithstand-
ing, this narrow and straightforward holding broke no
new ground. It fully accords with the treaty text and
the clear promises made by the United States treaty
negotiators — promises previously reviewed and expli-
cated by this Court. The holding conflicts with no ap-
pellate decision, and hews faithfully to the seven prior
decisions of this Court interpreting the Treaties. And
it is consistent with state policy. Since statehood, and
in accordance with dictates dating back centuries,
Washington has required that in-stream barriers allow
for fish passage, and nearly seven decades ago Wash-
ington’s Attorney General made clear that this re-
quirement applies to road culverts.

To argue for certiorari, therefore, the State has to
turn this case into something that it is not. Legally, the
State claims that this case disposes of issues ranging
from land use to water rights, when truly it is a case
about fixing state culverts that obstruct fish passage.
Factually, it asks this Court to ignore the district
court’s detailed, well-supported findings, affirmed by
the Court of Appeals, on issues ranging from the
historical intent of the treaty negotiators to the pre-
sent-day harm caused by its culverts. The Petition
overstates the scope of the injunction, distorting the
district court’s careful tailoring beyond recognition,
and repeats cost estimates that have been thoroughly
discredited. These efforts do not transform the careful,

3

record-based conclusions drawn below into ones war-
ranting this Court’s review.

>
A

STATEMENT OF THE CASE
I FACTUAL BACKGROUND
A. The Stevens Treaties

From time immemorial, the Indians of western
Washington have been a fishing people. “|A}I! of them
shared a vital and unifying dependence on anadro-
mous fish,” Washington v. Wash. State Commercial Pas-
senger Fishing Vessel Ass'n, 443 U.S. 658, 664 (1979)
(“Fishing Vessel”), which “was the great staple of their
diet and livelihood,” id. at 665 n.6.' In 1854 and 1855,
the United States negotiated a series of treaties with
the Respondent Tribes, who insisted upon one perma-
nent, overriding condition for their land cessions: that
they maintain, on and off their reservations, the an-
cient fisheries that “were not much less necessary to

‘ Anadromous fish, including salmon and steelhead, “hatch
in fresh water, migrate to the ocean where they. . . reach mature
size, and eventually complete their life cycle by returning to the
fresh-water place of their origin to spawn.” Fishing Vessel, 443
U.S. at 662. Fishing Vessel was the last of seven decisions from
this Court interpreting the Treaties at issue; it arose from the
same litigation of which this case is a subproceeding. The detailed
historical findings described and affirmed in Fishing Vessel sig-
nificantly informed this Court’s holdings. This Statement draws
heavily from Fishing Vessel’s historical discussion, which likewise
was relied upon (and supplemented) by the district court and the
Court of Appeals here. The State introduced no historical evidence
in this subproceeding.

4

the existence of the Indians than the atmosphere they
breathed.” Jd. at 680 (quoting United States v. Winans,
198 U.S. 371, 381 (1905)).

The American treaty commissioners, led by Terri-
torial Governor Isaac Stevens, “recognized the vital
importance of the fisheries to the Indians|.]” Jd. at 666.
They understood that securing those fisheries was crit-
ical to obtaining the Tribes’ agreement, and would also
allow the negotiators to satisfy their “very clear in-
structions” that the Tribes “not become a burden on the
treasury.” App. 268a. Accordingly, the Tribes “were in-
vited by the white negotiators to rely and in fact did
rely heavily on the good faith of the United States to
protect [their fishing] right.” Fishing Vessel, 443 U.S. at
667. Governor Stevens repeatedly assured the Tribes
that they would remain able to sustain themselves
through their fisheries, telling the Tribes that “|t)his
paper secures your fish,” id. at 667 n.11, and that they
could rely on this essential sustenance “forever.” App.
92a. As this Court concluded, “|the] Governor . . . and
his associates were well aware of the ‘sense’ in which
the Indians were likely to view [such] assurances. .. .
[T}he vital importance of the fish to the Indians was
repeatedly emphasized by both sides, and the Gover-
nor’s promises that the treaties would protect that
source of food and commerce were crucial in obtaining
the Indians’ assent.” Fishing Vessel, 443 U.S. at 676
(emphasis added); see also App. 91a; App. 128a-130a,
FF 1-2; App. 177a, CL17; App. 266a-268a.

5

The resulting Treaties contain virtually identical
fishing clauses:

The right of taking fish, at all usual and ac-
customed grounds and stations, is further se-
cured to said Indians, in common with all
citizens of the Territory|.|

Treaty of Medicine Creek art. III, Dec. 26, 1854, 10
Stat. 1132, 1133. In the ensuing decades, this promise
was largely honored, and the “Indians continued to
harvest most of the fish taken from the waters of Wash-
ington|.|” Fishing Vessel, 443 U.S. at 668.

By the end of the nineteenth century, however,
the State began to “deliberately and systematically
prevent| | the Tribes from engaging in the off-reserva-
tion fishing promised under the Treaties.” App. 7a.
The State waged a century-long campaign of oppres-
sive and discriminatory regulation, mass arrests, and
physical attacks to thwart the Tribes’ exercise of
their fishing rights. App. 69a-77a. The Tribes, with the
assistance of the United States, fought to save their
way of life. Repeated judicial intervention, necessi-
tated by some of “the most concerted official and pri-
vate efforts to frustrate a decree of a federal court
witnessed in this century,” and culminating in the de-
cision in Fishing Vessel, 443 U.S. at 696 n.36, ensured
that the rule of law prevailed and that the treaty prom-
ise was honored.“

* The State resurrects the canard, often expressed during
this period, that it was a “nonparty” to the Treaties. Pet. 1, 31.
However, this Court has long held the State to be hound by them

6

The efforts of the Tribes and the United States to
vindicate the Tribes’ fishing rights have long extended
to protecting the fisheries on which the rights depend,
and it is those efforts — and the State’s corresponding
resistance — that occasioned the present dispute.

B. Barrier Culverts and the Decline in
Washington’s Fisheries

Across Washington, scores of roads cross water-
ways that salmon and steelhead use to migrate to the
ocean and to return to their spawning grounds. When
road builders do not bridge a waterway, they construct
culverts that allow the stream to flow under the road.
App. 77a-78a; App. 136a, FF3.29. “Stream simulation”
culverts allow for the passage of water and fish, App.
137a-138a, FF3.37-3.38, 3.41, whereas a “barrier cul-
vert” inhibits or prevents fish passage, App. 77a. No
dispute exists that it is generally feasible to build
stream simulation culverts to allow fish to pass. App.
137a-139a, FF3.35-3.47.

Since Magna Carta, proscriptions against barriers
to fish passage have been common in Anglo-American
law. See Magna Carta of 1215, ch. 33 (“All kydells for
the future shall be removed altogether from |the Riv-
ers| Thames and Medway, and throughout all England,

under the Supremacy Clause. See, e.g., Tulee v. Washington, 315
U.S. 681 (1942). Indeed, the Tribes’ land cessions paved the way
for Washington statehood. Winans, 198 U.S. at 384.

7

except upon the sea shore.”).* The Oregon Territory Or-
ganic Act barred obstruction of salmon streams that
did not provide for proper fish passage. Act of August
14, 1848, § 12, 9 Stat. 323, 328. Just shortly before the
Treaties were negotiated and signed, that prohibition
became the law of the Washington Territory (of which
Isaac Stevens was Governor) when it was carved out
from Oregon in 1853. Act of March 2, 1853, § 12, 10
Stat. 172, 177. Washington retains fish passage laws to
this day, Wash. Rev. Code §§ 77.15.320, 77.57.030, and
since at least 1950, Washington has recognized that
those laws apply to state highway culverts. Fish Pas-
sage Facilities for Highway Culverts, Wash. Att’y Gen.
Op. No. 304 (July 19, 1950). See App. 140a, FF3.50 (ad-
mitted fact).

Unfortunately, while state law has long required
culverts to pass fish, the State has constructed and
maintains hundreds of culverts that do not. The State
claims, remarkably, that no evidence exists that these
barrier culverts harm salmon populations. Pet. 30-31.
But its assertions are flatly contradicted by the district
court’s detailed factual findings, which were affirmed
by the Court of Appeals and rest in significant part on
the State’s own admissions, including reports pub-
lished by state agencies and the testimony of agency
scientists.

* Reprinted in English translation at http://avalon.law.yale.
edu/medieval/magframe.asp.

8

The district court’s thorough findings document
how barrier culverts destroy salmon populations:

Culverts which block the upstream passage of
adult salmon returning to spawn render large
stretches of streambed useless for spawning
habitat, and reduce the number of wild salmon
produced in that stream. Culverts which block
stream areas in which juvenile salmon rear
may interfere with their feeding and escape-
ment from predators. Culverts which block
the passage of juvenile salmon downstream
prevent these salmon from reaching the sea
and attaining maturity.

App. 174a-175a, CL7 (summarizing findings); see also,
e.g., App. 160a-162a, FF20-23, 26.

With respect to state barrier culverts specifically,
the district court quantified, based on the Washington
Department of Fish and Wildlife’s (““WDFW’s”) own

records, their singular impact on salmon spawning and
rearing habitat:

State-owned barrier culverts are so numerous
and affect such a large area that they have a
significant total impact on salmon produc-
tion. ... As of the trial date in 2009, there
were 1,114 state-owned culverts in the Case
Area, including at least 886 that blocked
“significant habitat”.... WDFW_ records
showed at that time that State-owned barrier
culverts blocked salmon access to an esti-
mated 1,000 miles of stream and nearly five

9

million square meters of habitat. Admitted
Facts 3.64-3.71.

App. 162a, FF27 (emphasis added); see also App. 95a
(affirming same); App. 115a (“The record contains ex-
tensive evidence, much of it from the State itself, that
the State’s barrier culverts have |a substantial adverse
effect on salmon|.”); App. 156a-157a, FF4; App. 109a.

The district court further made findings regarding
specific rivers where barrier culverts have destroyed
or substantially interfered with salmon populations.
App. 161la, FF24-25; see also App. 110a-111a. It found
that “|clyclical patterns in ocean conditions and other
natural disturbances cannot account for the persistent,
long-term downward trend in Case Area salmon popu-
lations.” App. 158a, FF 15 (emphasis added). And, again
contrary to the State’s claims, it found that “|clorrec-
tion of fish passage barrier culverts is a cost-effective
and scientifically sound method of salmon habitat res-
toration. It provides immediate benefit in terms of
salmon production, as salmon rapidly re-colonize the
upstream area and returning adults spawn there. Ex-
hibit AT-004, p. 12.” App. 166a-167a, FF38; see also
App. 111la-114a. Indeed, as the district court noted, the
State’s own fisheries agency “has recognized that cul-
verts must be corrected in order to accomplish the
State’s salmon recovery efforts\.\” App. 155a, FF3.131
(admitted fact) (emphasis added); see also App. 130a,
FF3.1; App. 156a, FF3.132-3.134 (admitted facts).

In 1997, the state legislature created a Fish Passage
Task Force, co-chaired by the WDFW and the Washington

10

State Department of Transportation (“WSDOT”), and
including governmental and industry representatives.
App. 147a, FF3.88. The Task Force reported “that fish
passage barrier culverts are a ‘kev factor’ in the wild
salmon equation” and that “the creation of new barri-
ers must be prevented and the rate of barrier correc-
tion must be accelerated if Washington wild salmon
and trout stocks are to recover.” App. 147a, FF3.89
(quoting Task Force Report) (internal quotation marks
omitted). Thereafter, WDFW, State Parks, and the Wash-
ington Department of Natural Resources (“WDNR”)
took steps to remediate their barrier culverts. App.
148a, FF3.90; App. 166a, FF36-37. However, the vast
majority of state barrier culverts are operated by
WSDOT, whose remediation has been so slow that the
district court found that even “assuming no new bar-
rier culverts were to develop, it would take the State
more than 100 years to replace the ‘significantly block-
ing’ WSDOT barrier culverts that existed in 2009.”
App. 163a, FF 28.

But neither the fish nor the Tribes have a century
to wait. “Salmon abundance has declined precipitously
from treaty times, but particularly in the last few
decades.” App. 157a, FF7; see also App. 174a, CL6
(“Salmon stocks in [western Washington| have de-
clined alarmingly|.|”); App. 85a. And “(t]he Tribes and
their individual members have been harmed econom-
ically, socially, educationally, and culturally by the
greatly reduced salmon harvests that have resulted
from . . . State-maintained fish passage barriers.” App.
176a, CL14; see also App. 85a (quoting App. 158a,

1]

FF 10); App. 157a-158a, FF9-13 (describing impacts on
Tribes from decline in fisheries). Non-Indian fisher-
men have likewise suffered greatly from the deteriora-
tion of the fisheries, App. 157a, FF8; App. 167a, FF 39;
App. 175a, CL11, and have voiced strong support for
the district court’s injunction. Pacific Coast Fed’n of
Fishermen’s Ass’n Amicus Brief, 9th Cir. Dkt. 66-1, 66-
2. As the head of the WDNR summarized in urging
the Washington Attorney General not to file a Petition
here, “Salmon runs continue to decline across the
state. ... Saving our salmon is not simply a tribal is-
sue. It is a Washington issue|.|” Tribal Respondents
App. la-2a.

Il. COURSE OF PROCEEDINGS

The United States and tribal plaintiffs filed
United States v. Washington in 1970, challenging inter-
ference with tribal harvest through discriminatory
state regulation and enforcement and fishery deple-
tion through habitat alteration, including barrier cul-
verts. United States v. Washington, 384 F. Supp. 312,
328 (W.D. Wash. 1974). The district court bifurcated
the proceedings. In Phase I, it apportioned the harvest
to allow sufficient fish for tribal needs and enjoined
contrary state regulation. Jd. at 342-44, 401-02, 414-
19. It retained jurisdiction to resolve the Phase II hab-
itat and hatchery fish issues and other fishing disputes
that might arise. /d. at 333.

Following Ninth Circuit affirmance and subse-
quent proceedings engendered by state resistance to

12

the district court’s decrees, this Court held that, in or-
der to meet their moderate living needs, the Tribes
have a right of up to half the harvest in their usual and
accustomed fishing waters. Fishing Vessel, 443 U.S.
at 686-87. The Court deemed hatchery fish issues
broached by the parties as beyond the scope of its re-
view, as the district court had not yet ruled in Phase II.
Id. at 688 n.30.

The district court subsequently issued a broad
declaration, applicable to all state activities and with-
out reference to a particular dispute, that the State
had a duty “to refrain from degrading the fish habitat
to an extent that would deprive the tribes of their mod-
erate living needs.” United States v. Washington, 506
F. Supp. 187, 208 (W.D. Wash. 1980). On rehearing en
banc, the Ninth Circuit, with then-Judge Kennedy on
the panel, emphasized that “|t|he State of Washington
is bound by the [Treaties],” United States v. Washing-
ton, 759 F.2d 1353, 1357 (9th Cir. 1985) (per curiam),
but vacated the district court’s declaration as contrary
to sound judicial discretion. “|T|he measure of the
State’s obligation will depend for its precise legal for-
mulation on all of the facts presented by a particular
dispute.” Jd.

In 2001, following the State’s failure to take mean-
ingful action regarding WSDOT barrier culverts fol-
lowing the 1997 Task Force Report, supra at 9-10, the
Tribes initiated this sub-proceeding under the district
court’s continuing jurisdiction. The United States
joined, seeking the same relief. On cross-motions for
summary judgment, the district court declared that

13

the State’s barrier culverts violated the Treaties. App.
271a. The court then held a trial to determine the pro-
priety and scope of injunctive relief. App. 84a. The
State declined the district court’s invitation to propose
injunction terms, stating only that it had not violated
the Treaties and hence that no injunction should issue.
App. 107a.

The district court’s final opinion included exten-
sive findings of fact and conclusions of law. App. 128a-
179a. It held that the State had violated a “narrow and
specific treaty-based duty,” App. 178a, CL19, “to re-
frain from building or operating culverts . . . that hin-
der fish passage and thereby diminish the number of
fish that would otherwise be available for Tribal har-
vest.” App. 271a; App. 174a, CL4.

The district court made numerous detailed find-
ings, discussed above, regarding the harm to the fish-
eries from state-owned barrier culverts; the resulting
injury to the Tribes’ economy and culture; and the con-
comitant injury to the State’s non-Indian commercial
and sports fishermen. Supra at 8-11. It found that the
costs of fixing WSDOT culverts were far less than the
State was predicting and that the State’s culverts
would need to be replaced at the end of their useful life
in any event, or in connection with highway projects.
App. 170a, FF48. Even the State’s inflated claims of
$117 million in annual costs, App. 118a, would easily
fall within the Department of Transportation’s budget
(which was $7.88 billion for the 2011-2013 biennium),
and such spending would have no effect on other
state programs because of the segregation of the

14

transportation budget. App. 171a-173a, FF54-60; App.
177a-178a, CL17.

The district court also found that at its current
rate of culvert remediation, the WSDOT would not fin-
ish the job for more than a century, if ever. App. 162a-
164a, FF28-31. It concluded that “|t|he balance of
hardships tips steeply toward the Tribes in this mat-
ter,” App. 177a, CL16, and that the public interest fa-
vors an injunction because the Tribes, non-Indian
fishermen, and Washington’s iconic fisheries and re-
lated economic activity will all benefit, App. 178a,
CL18.

The district court carefully tailored the injunction
to remedy the barrier culverts while minimizing the
burden on the State. The court’s injunction “dividels]
WSDOT barrier culverts into two categories. High pri-
ority category culverts |those blocking more than 200
meters of habitat] must be remediated within seven-
teen years. Low priority category culverts must be re-
mediated only at the end of the natural life of the
existing culvert, or in connection with a highway pro-
ject that would otherwise require replacement of the
culvert.” App. 14a. In addition, high priority “culverts
blocking a total of ten percent of the accessible up-
stream habitat above all the high priority culverts | |
can be remediated on the schedule of low priority cul-
verts.” App. 14a-16a; see also App. 237a-238a, §§ 6-8.
By the State’s own calculations, approximately 230
high-priority state culverts can be deferred under this
latter provision. App. 15a-16a; App. 119a; App. 238a,
§ 8. The injunction also requires the State’s natural

15

resource agencies to correct their barrier culverts by
2016, as already required by state law and policy. App.
237a, § 5.

The State did not seek a stay of the injunction. The
natural resource agencies largely completed their cor-
rections by the 2016 deadline.*

The State appealed. In a thorough opinion, the
Ninth Circuit affirmed the district court’s extensive
findings of fact and its determination that the State
has acted in violation of the Treaties by maintaining
barrier culverts, as well as the propriety and scope of
its injunction. App. 58a-126a, la-17a. The Circuit de-
nied rehearing en banc, over a dissent authored by
Judge O’Scannlain. App. 17a-42a. This Petition fol-
lowed.

* https://data.results.wa.gov/reports/G3-2-2-c_Fish-Passage-
Barriers.

16

REASONS FOR DENYING THE PETITION

I. THE COURTS BELOW CREATED NO CON-
FLICT, BUT INSTEAD HEWED CLOSELY
TO THE TREATY LANGUAGE AND THIS
COURT’S PRECEDENTS, IN HOLDING THAT
WASHINGTON DOES NOT HAVE LICENSE
TO DESTROY THE TREATY FISHERIES.

A. The Court of Appeals’ Interpretation of
the Stevens Treaties Creates No Conflict
in Lower Court Authority.

Washington argues that, despite securing to the
Tribes the right of taking fish, the Stevens Treaties
place no restriction on the State’s ability to extirpate
the fish runs that form the subject matter of the treaty
right. “The State contended, and continues to contend,
that it can block every salmon-bearing stream into Pu-
get Sound without violating the Treaties.” App. 8a; see
also App. 87a-88a (quoting oral argument); App. 83a
(quoting State’s Answer). That cannot be correct, as it
would nullify the Tribes’ carefully negotiated fishing
rights. The Court of Appeals recognized this and re-
jected the State’s novel position. It did so cautiously,
“holdling| only that the State violated the Treaties
when it acted affirmatively to build roads across
salmon bearing streams, with culverts that allowed
passage of water but not passage of salmon.” App. 10a-
lla; see also App. 96a; App. 84a. No court of appeals or
state supreme court takes the contrary view — namely,
that a State can freely destroy treaty-reserved fisher-
ies despite the absence of treaty language giving it that
authority. As the State does not contest, the decision

17

below accordingly creates no conflict in lower court au-
thority.

B. The Court of Appeals’ Decision Does
Not Conflict with Fishing Vessel.

The State’s principal argument for certiorari is
that the decision below “interprets a federal treaty in
a way that rejects this Court’s prior reading of the ex-
act same language in this very case.” Pet. 18. But the
conflict alleged with Fishing Vessel is illusory. Fishing
Vessel addressed the allocation of the fisheries, and
held 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 {moderate living] needs may be satisfied by a
lesser amount.” 443 U.S. at 685. Fishing Vessel so held
because the Treaties secure the Tribes’ right to take
fish “in common with all citizens,” id. at 674, and
“|slince the days of Solomon, |an equal] division has
been accepted as a fair apportionment of a common as-
set,” id. at 686 n.27.

The Court of Appeals, by contrast, addressed
whether the Treaties place any limits on the State’s
ability to destroy the fisheries that form the Treaty res,
and held that they do. There is no inconsistency be-
tween these two holdings.

First, the procedural history of this case precludes
the State’s assertion of a conflict. As discussed above,

18

Judge Boldt bifurcated the proceedings in United
States v. Washington, with Phase I focused on the tribal
share of the fisheries and Phase II on issues relating
to the overall number of fish, including in-stream bar-
riers. Supra at 11; App. 78a. Fishing Vessel arose from
the lower court proceedings in Phase I, see 443 U.S. at
674, and the Court recognized that Phase II issues
were not “fairly subsumed within |the] grant of certio-
rari.” Jd. at 688 n.30. The State thus claims a conflict
with Fishing Vessel on an issue not before the Fishing
Vessel Court.

Second, the State’s asserted conflict depends on a
patent distortion of the decision below. The Court of
Appeals addressed a question left open in Fishing Ves-
sel, namely whether the Treaties place any limits on
the State’s ability to destroy the treaty fisheries. In an-
swering that question, the Court of Appeals’ decision
was narrow. Thus, the court did not hold that the
Tribes are entitled to enough salmon to provide a
moderate living irrespective of the obligation to share
harvest, App. 78a-79a, and despite variations in cir-
cumstances. See App. 10a-11a (“We do not hold that the
Treaties’ promise of a moderate living is valid against
acts of God. ... Nor do we hold that the promise is
valid against all human-caused diminutions, or even
against all State-caused diminutions.”). It held “only
that the State violated the Treaties when it acted af-
firmatively to build . . . culverts that allowed passage
of water but not passage of salmon.” /d.; see also App.
128a (district court holding).

19

There simply is no contradiction between this
holding and Fishing Vessel’s allocation determination.
That the “in common with” language limits the tribal
share does not suggest the State may reach in and de-
stroy the fish subject to that share. Indeed, only two
Terms earlier, this Court had held that the Treaties do
not allow one party to frustrate the rights of others
through destruction of the fisheries. Puyallup Tribe,
Inc. v. Dep't of Game, 433 US. 165, 176 (1977)
(Puyallup Tribe could not “interdict completely the mi-
grating fish” passing through its reservation as that
would impair the rights of non-Indian fishers). Only by
ignoring the textual, “in common with” basis for the
equitable allocation of the fisheries can the State argue
that this Court explicitly considered an issue not be-
fore it and rejected all limits on the State’s ability to
eviscerate the Tribes’ share.

Third, the State errs in seeing a conflict in the
Court of Appeals’ characterization of the purpose of the
treaty promise as being “that the number of fish would
always be sufficient to provide a ‘moderate living’ to
the Tribes.” App. 94a (citing Fishing Vessel, 443 U.S.
at 686). Indeed, this language from the decision below
should surely sound familiar, as it tracks this Court’s
statement in Fishing Vessel nearly verbatim:

As in Arizona v. California and its predecessor
cases, the 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

20

with a livelihood — that is to say, a moderate
living.
443 U.S. at 686. Far from “reject|ing| this Court’s prior
reading of the . . . |treaty| language,” Pet. 18, then, the
Court of Appeals described the fishing right in virtu-
ally identical terms.

Indeed, the Court of Appeals relied on the moder-
ate living standard much as this Court did in Fishing
Vessel. Just as this Court used the standard to bound
the tribal share, the Court of Appeals used it to bound
the State’s obligation to maintain culverts for fish pas-
sage — while recognizing that the Tribes cannot exceed
their share “even if the supply of salmon is insufficient
to provide a moderate living.” App. 10a. That is not con-
flict, but agreement.

Fourth, the factual conclusions in Fishing Vessel
confirm the absence of a conflict. As discussed above,
this Court detailed three sets of factual findings con-
cerning the treaty negotiations and historical context
that substantially informed its holding. Supra at 4.
Thus, it described: (1) the tremendous significance of
the anadromous fisheries to the Washington Tribes,
and their insistence on retaining those fisheries in or-
der to survive; (2) the United States’ recognition of that
dependence and its determination, motivated by con-
cern for the Tribes and by self-interest, that the fisher-
ies be protected; and (3) the resulting assurances,
“crucial in obtaining the Indians’ assent,” that “the
treaties would protect |their| source of food and com-
merce,” 443 U.S. at 676.

21

The Court of Appeals and the district court relied
heavily on these same findings, and on additional un-
controverted historical evidence, in concluding that the
treaty negotiators would not have understood the
State to possess the right to block fish passage and
thereby to destroy the fisheries the United States had
promised to protect. App. 7a; App. 79a; App. 84a; App.
129a-130a; App. 263a-266a. Far from conflicting with
Fishing Vessel, then, the decisions below fully comport
with the conclusions that this Court drew from the his-
torical record.°

In sum, the State’s principal argument, that of a
purported conflict with Fishing Vessel, provides no ba-
sis for the writ to issue.

C. The Court of Appeals’ Decision Conflicts
with No Other Decision of This Court.

The State argues that the Court of Appeals’ deci-
sion also “conflicts with this Court’s holdings about
treaty interpretation.” Pet. 22. That is flatly incorrect.

The State first asserts that the decision contra-
venes the statement in Choctaw Nation of Indians v.

* The State additionally argues that the “moderate living”
standard is “unworkable.” Pet. 21. In other words, it argues that
the Court of Appeals’ reliance on a standard ratified in Fishing
Vessel creates a conflict with Fishing Vessel — which underscores
the flimsiness of the asserted conflict. The argument also smacks
of hypocrisy. The State has not hesitated to rely on the moderate
living standard in arguing that the tribal share of various fisher-
ies should be capped. See, e.g., United States v. Washington, 157
F.3d 630, 651-52 (9th Cir. 1998).

22

United States, 318 U.S. 423, 432 (1943), that Indian
treaties “cannot be rewritten or expanded beyond their
clear terms,” because the Court of Appeals purportedly
ignored the treaty provision by which the Tribes ceded
land. But no matter how strenuously the State and its
amici claim that the “import” of the Court of Appeals’
holding is “that the Tribes silently retained a right to
control land use decisions,” Pet. 23, the court held only
that the State cannot maintain culverts that block fish
passage, a decision that has no implications for land
use.

In addition, for over a century this Court has held
that the cession language is qualified by the treaty
fishing clause, which reserves to the Tribes various
pre-existing rights in the ceded territory. Winans, 198
U.S. at 381. The State nowhere explains how its asser-
tion of unlimited authority to block 1,000 miles of
streams and destroy the fish runs in them squares
with the Treaties’ express promise that “|t|he right of
taking fish, at all usual and accustomed grounds and
stations, is further secured to said Indians|.|” Treaty of
Medicine Creek art. 3, 10 Stat. at 1133 (emphasis
added). Under the State’s theory, the Tribes would en-
joy no security at all in their fishing right — it would
exist entirely at the mercy of the State, which could
unilaterally destroy that which the Tribes insisted
upon as a prerequisite to their land cession.

The State next questions the lower courts’ reliance
on statements of Governor Stevens and his fellow ne-
gotiators at the treaty councils to interpret the text of
the Treaties that they drafted. Pet. 23-24. But seven

23

decisions of this Court have construed the language of
the Treaties in light of that negotiating record. And
while the State reads Fishing Vessel differently than
did the courts below, Fishing Vessel unquestionably
looked to the statements of the treaty negotiators in
construing the treaty language, which has been a hall-
mark of this Court’s approach to treaty interpretation.
“This review of the history and the negotiations of the
agreements is central to the interpretation of treaties.”
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 202 (1999) (emphasis added); see a/so Ol-
iphant v. Suquamish Indian Tribe, 435 U.S. 191, 206
(1978) (treaty language is to be “read in light of the
common notions of the day and the assumptions of
those who drafted |it|”); Hastern Airlines, Inc. v. Floyd,
499 U.S. 530, 535 (1991) (applying same principles to
construction of non-Indian treaty).

D. No Occasion Exists for Revisiting the
Careful, Factbound Examination of the
Historical Record Conducted by the
Courts Below.

The State — which did not put on or controvert any
historical evidence in this subproceeding — makes a
faint attempt to question the district court’s detailed
historical findings by asserting that the parties’ “prac-
tical” construction suggests the State is free to destroy
treaty fisheries. Pet. 24. The State wisely does not be-
labor this argument, which would require this Court to
revisit the lower courts’ careful findings of historical

24

fact — findings fully consistent with those affirmed in
Fishing Vessel.

Even if factbound error correction were the stuff
of certiorari, the State makes no claim of error. As
noted, the treaty language, negotiating history, and
subsequent history of tribal harvests belie a State
right to destroy the fisheries. That the “Tribes agreed
in the treaties that roads could be built,” Pet. 24, does
not suggest that they and the United States agreed to
fish barriers under those roads, particularly when con-
temporaneous territorial law proscribed exactly that.
Supra at 7. The culvert and dam building cited by the
State occurred decades after the Treaties, and nothing
in the record indicates that the fedeirui or state govern-
ments considered the Treaties as they undertook those
activities.

E. The State’s Attack on the Court of Ap-
peals’ Alternate Holding Suggests No
Basis for this Court’s Review.

The Court of Appeals held that “|e/ven if Governor
Stevens had not explicitly promised that ‘this paper se-
cures your fish,’ and that there would be food ‘forever,
lit} would infer such a promise.” App. 92a. This holding
follows directly from this Court’s seminal holding in
Winters v. United States, 207 U.S. 564 (1908), that an
explicit reservation of tribal rights in land implies the
reservation of water rights necessary to their use.
“Just as the land on the Belknap Reservation |in Win-
ters| would have been worthless without water to

25

irrigate the arid land,. . . the Tribes’ right of access to
their usual and accustomed fishing places would be
worthless without harvestable fish.” App. 94a.

The State’s attack on this holding provides no ba-
sis for review. First, the holding was in the alternative,
and revisiting it would not affect the outcome below.

Second, the attack questions the factbound appli-
cation of settled law. This Court enunciated the Win-
ters doctrine over a century ago, and has reaffirmed it
repeatedly. See, e.g., Cappaert v. United States, 426
U.S. 128, 138 (1976); Arizona v. California, 373 U.S.
546, 599-600 (1963). The relevance of the doctrine to
fishing rights under the Stevens Treaties was ce-
mented in Fishing Vessel, which relied on Arizona v.
California (a Winters case) for the “central principle”
that the Treaties reserve fisheries to the tribes suffi-
cient for a moderate living. 443 U.S. at 686.

Third, the State’s claim of error is meritless. The
State asserts that inferring a treaty right to fish pas-
sage through its culverts is unnecessary because both
it and the federal government have the authority and
“incentives to preserve salmon runs.” Pet. 25. This, of
course, has no bearing on the promises made in the
text of the Treaties as explained by Governor Stevens
in 1855. And the unchallenged and largely stipulated
findings, as detailed above, are that there has been a
precipitous decline in salmon stocks, resulting in great
harm to the Tribes, and caused in no small part by
the State’s barrier culverts. App. 85a (quoting App.
158a, FF 10; App. 174a, CL6-7). Washington’s Attorney

26

General may be comfortable engaging in platitudes
about state protection of the treaty fisheries, but the
courts below were correct to respect history, the record,
and the views of the State’s natural resource agencies
instead. App. 69a-77a.

Il. THE COURTS BELOW CREATED NO CON-
FLICT IN REJECTING THE STATE’S
EQUITABLE DEFENSE OF WAIVER.

The State challenges the rejection of its claim that
the United States waived the Tribes’ treaty rights by
permitting or reviewing the design of some state cul-
verts. Pet. 27. The Court of Appeals grounded this re-
jection in the principle that the United States “may
abrogate a treaty with an Indian tribe only by an Act
of Congress that ‘clearly express|es an] intent to do
so.” App. 97a (brackets in original) (quoting Mille
Lacs, 526 U.S. at 202). This is black-letter law, as this
Court has long held that, because “Indian treaty rights
are too fundamental to be easily cast aside,” United
States v. Dion, 476 U.S. 734, 739 (1986), “Congress’ in-
tention to abrogate Indian treaty rights [must] be clear
and plain,” id. at 738; see also Mille Lacs, 526 U.S. at
202-03; Fishing Vessel, 443 U.S. at 690.

The State does not and cannot argue abrogation
by Congress because there has been none. It claims in-
stead that employees of the Federal Highway Admin-
istration — with no responsibility for, apparent knowledge
of, or attention to tribal issues — waived the Tribes’
rights through their review of state culvert designs

27

before approving federal highway grants. Pet. 27. But
no court has ever accorded to federal bureaucrats the
awesome power to destroy treaty rights. Far from cre-
ating a conflict, the Court of Appeals’ decision avoided
one.

The State asserts that the fundamental principle
that only Congress can waive and thereby abrogate
treaty rights was overruled sub silentio by City of Sher-
rill v. Oneida Indian Nation, 544 U.S. 197 (2005), and
has been disregarded by three later Second Circuit de-
cisions. Pet. 25-27. But far from “brush[ing] aside Sher-
rill,” id. at 26, the Court of Appeals analyzed it closely
and properly determined that it does not apply here.
App. 98a-99a; App. 12a. The United States was not a
party to Sherrill. The equitable defenses that this
Court upheld there were grounded in the passage of
time: in particular, in the passage of two hundred years
since the Oneida Nation sold its land, the settlement
of that land by non-Indians, and the disruptive poten-
tial inherent in the Nation’s reassertion of territorial
jurisdiction after so many years. In sum, “the distance
from 1805 to the present day, the Oneidas’ long delay
in seeking equitable relief against New York or its
local units, and developments in the city of Sherrill
spanning several generations, evoke the doctrines of
laches, acquiescence, and impossibility, and render
inequitable the piecemeal shift in governance this
suit seeks unilaterally to initiate.” Sherrill, 544 US.
at 221; see also id. at 218-19. There is nothing like that
here.

28

The Second Circuit has extended Sherrill to
land claims involving the United States. Stockbridge-
Munsee Cmty. v. New York, 756 F.3d 163 (2d Cir. 2014);
Oneida Indian Nation v. County of Oneida, 617 F.3d
114 (2d Cir. 2010); Cayuga Indian Nation v. Pataki, 413
F.3d 266 (2d Cir. 2005). However, like the Court of Ap-
peals, it has recognized that the Sherrill defenses re-
main grounded in the passage of time and inaction by
tribes (and not just the United States). “In the wake of
this trilogy — Sherrill, Cayuga, and Oneida — it is now
well-established that Indian land claims asserted gen-
erations after an alleged dispossession are inherently
disruptive. . . and are subject to dismissal on the basis
of laches, acquiescence, and impossibility.” Stock-
bridge-Munsee, 756 F.3d at 165; see also Oneida, 617
F.3d at 127.

The contrast between this case and Sherrill and
its Second Circuit progeny is stark. There has been no
abandonment of rights. The Tribes (and the United
States) have fought for over a century to preserve the
Tribes’ treaty fishing rights, enduring oppressive state
efforts that culminated in the “employ|ment of] sur-
veillance planes, high powered boats, tear gas, billy
clubs and guns against tribal members engaged in
off-reservation fishing,” App. 7a, coupled with “extraor-
dinary machinations” by state courts and agencies in
resisting federal court decrees protecting the Tribes’
rights, Fishing Vessel, 443 U.S. at 696 n.36. And the
Tribes’ response has long included efforts to address
state-owned barrier culverts. The Tribes and the
United States pled claims respecting culverts at the

29

outset of United States v. Washington, and “|f|or many
years, the Tribes had complained that the State had
.. . built culverts under the roads that allowed passage
of water but not passage of salmon.” App. 8a. The
Tribes’ claims thus upset no “justifiable expectations,”
given their consistent assertion and the ancient prov-
enance of Washington’s ongoing fish passage obliga-
tions. The State accordingly did not argue to the Court
of Appeals, and does not argue here, that the passage
of time may bar the Tribes’ claims. Cf App. 17a-18a
(time bar suggestion made in dissent from denial of re-
hearing en banc); see also App. 20a; App. 32a.

Because no plausible claim can be made that
the Tribes seek to revive long-abandoned rights, there
is no conflict with Sherrill and the Second Circuit’s
decisions. Indeed, under black-letter law regarding ab-
rogation of tribal treaty rights, the State’s waiver ar-
gument, not the Court of Appeals’ rejection of it, is the
outlier.

Ill. THE STATE’S RECORD-BOUND ATTACKS
ON THE DISTRICT COURT’S INJUNCTION
REST ON PREMISES THOROUGHLY DIS-
CREDITED BELOW.

The State, which refused to participate in the
shaping of the district court’s injunction, now spills a
great deal of ink attacking it. But its attacks implicate
no unsettled questions of law. They are record-bound,
and rely on assertions debunked below and contra-
dicted by the state agencies possessing relevant

30

subject-matter expertise. After a detailed review of the
injunction and underlying findings, the Court of Ap-
peals concluded that “Washington misrepresents the
evidence and mischaracterizes the district court’s or-
der.” App. 108a. The same is true here, and the factual
disputes presented by the State provide no basis for
further review. Sup. Ct. R. 10; Glossip v. Gross, 135
S. Ct. 2726, 2740 (2015) (“Where an intermediate court
reviews, and affirms, a trial court’s factual findings,
this Court will not lightly overturn the concurrent
findings of the two lower courts.”) (internal quotation
marks and citation omitted); Exxon Co., U.S.A. v. Sofec,
Inc., 517 U.S. 830, 841 (1996) (this Court “cannot un-
dertake to review concurrent findings of fact by two
courts below in the absence of a very obvious and ex-
ceptional showing of error”) (internal quotation marks
and citations omitted).

The State makes three arguments. First, it claims
that “‘|t|he injunction requires [it] to replace or repair
all 817 culverts located in the [case] area . . . without
regard to whether replacement of a particular culvert
actually will increase the available salmon habitat’”
because of other in-stream barriers. Pet. 29 (quoting
App. 37a). That attack distorts the injunction beyond
recognition. As explained above, supra at 14, the in-
junction divides WSDOT barrier culverts into high-
and low-priority categories and imposes a correction
deadline only for the former. All low-priority culverts,
and up to 230 high-priority culverts designated by the
State, must be remediated only when the State would
do so anyway — at the end of the culvert’s natural life,

31

or during a highway project that would otherwise re-
quire its replacement. App. 114a-116a.° Far from craft-
ing an inflexible injunction, then, the district court
accorded the State considerable discretion in choosing
which culverts to remediate.

Second, the State claims that the injunction re-
quires fish passage through culverts “without any evi-
dence” that this will enhance salmon populations. Pet.
30. As detailed above, this claim is flatly contradicted
by the district court’s detailed findings, affirmed by the
Court of Appeals, and by the State’s own agencies with
subject-matter expertise, on whose reports the district
court’s determinations largely hinged. Supra at 7-10.
The State cannot simply wish away these findings and
the record evidence on which they are based. Nor do
annual fluctuations in the runs, despite stable culvert
numbers, Pet. 30-31, prove that culverts are harmless
~ they merely show that natural variation is also at
work.

The State criticizes only the Court of Appeals’
citation to one particular piece of record evidence,
the 1997 Task Force Report. Even if the criticism was
warranted, it would say nothing about the numerous
other documents relied upon by the district court,
and it would hardly justify the writ. And while the
State claims that “the district court — the factfinder —

® The rehearing dissent misunderstands this point. The in-
junction does not simply provide the State “a longer schedule for
replacing barriers that will open up less habitat.” App. 40a. It al-
lows the State to wait until the barriers would otherwise need re-
placement.

32

rejected the use of that report to predict ‘lost’ salmon
as unreliable and never cited it in its findings of fact,”
Pet. 31, this is simply not true. See App. 147a, FF3.89.

In the wake of the report, state agencies other
than WSDOT have acted to remediate their barrier
culverts. Jd.; see also App. 148a, FF3.90; App. 164a-
166a. Those agencies have recognized that the exclu-
sion of fish from 1,000 miles of spawning and rearing
grounds has significantly harmed their populations.
The district court did not err in so finding based on the
overwhelming and largely stipulated evidence before
it, and the Court of Appeals created no occasion for cer-
tiorari in affirming that conclusion.

Third, and finally, the State claims that the injunc-
tion works a “stark inequity” in requiring the State to
pay the full cost of replacing culverts whose construc-
tion was partly supported with Federal Highway Ad-
ministration grants, Pet. 31, and more generally that
the district court failed “to consider the equities in
fashioning relief,” Pet. 32. As to the first point, the
Court of Appeals aptly concluded that the district court
was right to require the State to remedy its own viola-
tions of the Treaties, rather than continuing to hide be-
hind purported authorizations from federal officials.
“It was not an abuse of discretion to require the State
to pay for correction of its own barrier culverts.” App.
120a.

As to the broader point, the State again misstates
the record. The district court carefully weighed the eq-
uities in fashioning its relief — it just did so in a way

33

that the State does not like. The court concluded that
“Itlhe balance of hardships tips steeply toward the
Tribes in this matter.” App. 177a, CL16; see also App.
120a-121a (affirming district court’s conclusions). It
relied on its findings, consistent with those affirmed in
Fishing Vessel, that the promise of a sustained fishery
“was crucial in obtaining |the Tribes’] assent to the
Treaties’ provisions,” and reasoned that “le|quity fa-
vors .. . keepling| the promises upon which the Tribes
relied when they ceded huge tracts of land|.!” App.
177a, CL16.

As noted, the district court further found that the
Tribes have suffered grave economic and cultural in-
jury from the infringement of their treaty rights. App.
176a, CL 14. By contrast, “|t|he State has the financial
ability to accelerate the pace of barrier correction.”
App. 177a-178a, CL17. The court rejected the State’s
cost estimates for culvert removal as unsupported by,
and significantly in excess of, the historical costs in the
record, App. 170a, FF48, and concluded that the rele-
vant cost is the marginal cost of more timely correc-
tion. App. 177a-178a, CL17. It further found that even
the State’s inflated cost claims would easily fit within
WSDOT’s budget, which exists separate from the
State’s general fund. Supra at 13-14; see also App.
17la, FF54; App. 172a-173a, FF57-60; App. 177a-
178a, CL17. The Court of Appeals affirmed each of
these findings after detailed examination, see App.

34

118a-120a, App. 122a-123a (quoting App. 172a, FF56),
and the State does not challenge them here.’

Finally, the court found:

The public interest will not be disserved by an
injunction. To the contrary, it is in the public’s
interest, as well as the Tribes’ to accelerate
the pace of barrier correction. All fishermen,
not just Tribal fishermen, will benefit from
the increased production of salmon. Commer-
cial fishermen will benefit economically, but
recreational fishermen will benefit as well.
The general public will benefit from the en-
hancement of the resource and the increased
economic return from fishing in the State of

Washington.

App. 178a, CL18. This finding is echoed in the strong
support of non-Indian fishers for the Tribes’ position in
this litigation, 9th Cir. Dkt. 66-1 at 6-14, 17-20, and by
the urging of the State’s Commissioner of Public
Lands, the statewide elected official who leads the
WDNR, that the State’s Attorney General not file a Pe-
tition for Certiorari but instead work with the Tribes
to restore Washington’s salmon fisheries. Tribal Re-
spondents App. la.

’ Given the dismantling of its cost assertions by the courts
below, the State does not directly argue cost as a basis for over-
turning the injunction. However, the State and its amici at various
junctures reiterate, without substantiation, that the injunction will
cost “billions lof] dollars.” Pet. ii (Question Presented 3); Pet. 3.
The State should not present as fact assertions roundly rejected
by the courts below. Sup. Ct. R. 15(2).

35

Aside from its finger-pointing at federal officials,
the only equities the State suggests the district court
to have overlooked are the State’s voluntary efforts to
remediate culverts and restore salmon populations.
Pet. 32. But far from ignoring or punishing these “good
deed|s|,” id., the district court expressly considered
them, finding that at the State’s recent correction rate,
and “assuming no new barrier culverts were to de-
velop, it would take the State more than 100 years to
replace the ‘significantly blocking’ WSDOT barrier cul-
verts that existed in 2009,” App. 163a, FF 28. Indeed,
because of the continued deterioration of culverts, the
court found there had been an “increase in the total
number of WSDOT barrier culverts” from 2009 to 2012,
App. 164a, FF 29, “lead/ing/ to the untenable conclusion
that under the current State approach, the problem of
WSDOT barrier culverts in the Case Area will never be
solved.” App. 164a, FF31 (emphasis added). In light of
these uncontested findings, and the likewise undis-
puted fact that various “stocks of native salmon have
become so depleted that the species is listed as threat-
ened or endangered,” App. 175a, CL8, the district court
properly concluded that an injunction is necessary.
App. 179a, CL20. Indeed, it is fair to say that any deci-
sion that would instead leave in place the State’s pa-
tently inadequate approach to culverts remediation
would threaten to render the Tribes’ treaty rights, and
the salmon on which they depend, little more than a
distant memory.

36

The district court’s fact-intensive analysis of the
equities hardly constitutes an abuse of discretion, let
alone one warranting issuance of the writ.

IV. THE STATE’S ATTEMPT TO SOW FEARS
ABOUT FUTURE DECISIONS DOES NOT
TRANSFORM THE NARROW HOLDING
BELOW INTO ONE DESERVING OF RE-
VIEW BY THIS COURT.

The State and its amici argue that the decision be-
low is exceptionally important — not because of what it
says, but because of what it does not. Cherry-picking
the statements of a few commentators, and echoing the
rehearing dissent, the State claims that “(t]he panel
opinion fails to articulate a limiting legal principle that
will prevent its holding from being used to attack a va-
riety of development, construction, and farming prac-
tices, not just in Washington but throughout the Pacific
Northwest.” Pet. 33 (quoting App. 19a). But the Court
of Appeals could not have been clearer about the nar-
row scope of its decision: “We hold only that the State
violated the Treaties when it acted affirmatively to
build roads across salmon bearing streams, with cul-
verts that allowed passage of water but not passage of
salmon.” App. 10a-11a; see also App. 178a, CL19 (dis-
trict court) (“The State’s duty to maintain, repair or
replace culverts which block passage of anadromous
fish does not arise from a broad environmental servi-
tude. ... Instead, it is a narrow and specific treaty-
based duty that attaches when the State elects to block

37

rather than bridge a salmon-bearing stream with a
roadbed.”).

The State faults the Court of Appeals for not spec-
ifying other state actions that might or might not
violate the Stevens Treaties. This is remarkable. As
noted, the Phase II district court announced a broad
definition of the State’s environmental responsibilities
under the Treaties, applicable to all state activities.
The State appealed, arguing that this was tantamount
to an environmental servitude. While underscoring
that the State is bound by the Treaties, an en banc
panel of the Ninth Circuit, including then-Judge Ken-
nedy, agreed that the district court had swept too far,
and held that the precise measure of the State’s duties
should be delineated in litigation over particular state
actions. Supra at 12.

That is exactly what happened here. The Tribes
brought a clear set of facts to court on a narrow issue
involving one specific state practice — maintaining cul-
verts in streams that directly impede salmon passage
and break their anadromous life cycle. The courts be-
low found that one practice to violate the State’s duties
under the Treaties, and their carefully circumscribed
remedy focused entirely on it.

This was an appropriate, conservative exercise of
the judicial function. The Court of Appeals, as it properly
recognized, was not sitting as a super-legislature with
the authority to address all manner of situations other
than the one before it:

38

Cabining our opinion by means other than a
careful, detailed description of the facts pre-
sented would have entailed positing hypothet-
ical facts in cases not before us and giving
an improper advisory opinion.... Other
cases with different facts might come out dif-
ferently, but we did not decide — and should
not have decided — such cases.

App. 12a. The Court of Appeals, in other words, did not
“flashion|| itself as a twenty-first century environ-
mental regulator,” App. 17a, but rather as a court, re-
solving a specific dispute based on facts adduced by the
parties.

The dispute here was over the blocking of streams
and the pace of culvert corrections. It was not a dispute
over other activities that may not affect fish to the
same extent, or in the same direct and indisputable
way; that may not be as inconsistent with treaty-time
understandings, or remedied as easily with so little ef-
fect on modern life; or that may never come before the
courts. It was resolved by reading the Treaty text in
the manner required by seven prior decisions of this
Court, and in conjunction with extensive and well-doc-
umented historical, technical, and biological findings
of fact, many of them coming from the State itself. The
result conflicts with no appellate precedent and raises
no issue of such prevalence and importance as to war-
rant this Court’s review.

39

CONCLUSION
The petition should be denied.

Respectfully submitted this 27th day of November,

2017.

Riyaz A. KANJI

KANJI & KATZEN, PLLC

303 Detroit Street,
Suite 400

Ann Arbor, MI 48104

(734) 769-5400

JOHN C. SLEDD
Counsel of Record
JANE G. STEADMAN
KANJI & KATZEN, PLLC
401 Second Ave., S.,
Suite 700
Seattle, WA 98104
(206) 344-8100
jsledd@kanjikatzen.com

Counsel for Respondents the Hoh Tribe, the Jamestown
S’Klallam Tribe, the Lower Elwha Klallam Tribe,
the Nisqually Tribe, the Port Gamble S’Klallam Tribe,
the Sauk-Suiattle Tribe, the Squaxin Island Tribe,
the Stillaguamish Tribe and the Suquamish Tribe

TOM ZEILMAN

LAW OFFICES OF
TOM ZEILMAN

P.O. Box 34

Yakima, WA 98907

(509) 575-1599

Counsel for Respondent
the Confederated Bands
and Tribes of the
Yakama Nation

CRAIG DORSAY
Dorsay & EASTON, LLP

MARY NEIL

OFFICE OF THE
RESERVATION ATTORNEY

LUMMI NATION

1665 Kwina Rd.

Bellingham, WA 98226

(360) 312-9824

Counsel for Respondent
the Lummi Nation

BRIAN GRUBER
ZIONTZ CHESTNUT
2101 4th Ave., Suite 1230

1737 NE Alberta St., Suite 208 Seattle, WA 98121

Portland, OR 97211

(503) 790-9060

Counsel for Respondent
the Hoh Tribe

(206) 488-1230
Counsel for Respondent
the Makah Tribe

LAUREN RASMUSSEN

LAW OFFICES OF LAUREN P.
RASMUSSEN, PLLC

1904 Third Ave., Suite 1030

Seattle, WA 98101

(206) 623-0900

Counsel for Respondents
the Jamestown S’Klallam
Tribe and the Port
Gamble S’Klallam Tribe

STEVE SUAGEE
SAM HOUGH
TRIBAL ATTORNEYS’ OFFICE
LOWER ELWHA
KLALLAM TRIBE
2851 Lower Elwha Rd.
Port Angeles, WA 98362
(360) 452-8471
Counsel for Respondent
the Lower Elwha
Klallam Tribe

CONNIE SUE MARTIN
SCHWABE, WILLIAMSON
& WYATT
1420 5th Ave., Suite 3400
Seattle, WA 98101
(206) 407-1556
Counsel for Respondent
the Nooksack Tribe

SAMUEL J. STILTNER
JOHN HOWARD BELL
Tribal Attorneys
PUYALLUP INDIAN TRIBE
3009 East Portland Ave.
Tacoma, WA 98421
(253) 573-7875
Counsel for Respondent
the Puyallup Tribe

40

ALAN C. STAY
ANN E. TWEEDY
MUCKLESHOOT INDIAN TRIBE
OFFICE OF THE

TRIBAL ATTORNEY
39015 172nd Ave., S.E.
Auburn, WA 98092
(253) 939-3311
Counsel for Respondent

the Muckleshoot Tribe

MARYANNE MOHAN
OFFICE OF THE

TRIBAL ATTORNEY
NISQUALLY INDIAN TRIBE
4820 She-Nah-Num Drive SE
Olympia, WA 98513
(360) 456-5221
Counsel for Respondent

the Nisqually Tribe

Eric NIELSEN
NIELSEN, BROMAN
& Kocu, PLLC
1980 E. Madison St.
Seattle, WA 98122
(206) 623-2372
Counsel for Respondent
the Quinault Indian Nation

EARLE DAviD LEES
Tribal Attorney
SKOKOMISH INDIAN TRIBE
N. 80 Tribal Center Rd.
Skokomish Nation, WA 98584
(360) 887-2100
Counsel for Respondent
the Skokomish Tribe

HARRY R. SACHSE

SONOSKY, CHAMBERS, SACHSE,
ENDRESON & PERRY LLP

1425 K Street, NW

Suite 600

Washington, DC 20005

(202) 682-0240

Co-counsel for Respondent
the Puyallup Tribe

TIMOTHY J. FILER
FOSTER PEPPER PLLC
1111 Third Ave., Suite 3000
Seattle, WA 98101
(206) 447-2904
Counsel for Respondent
the Quileute Tribe

JAMES RITTENHOUSE BELLIS
SUQUAMISH TRIBE

LEGAL DEPARTMENT
SUQUAMISH TRIBE
P.O. Box 498
Suquamish, WA 98392
(360) 394-8501
Counsel for Respondent

the Suquamish Tribe

EMILY HUTCHINSON HALEY
Tribal Attorney
SWINOMISH INDIAN
TRIBAL COMMUNITY
P.O. Box 817
LaConner, WA 98257
(360) 466-7248
Counsel for Respondent
the Swinomish Indian
Tribal Community

41

KEVIN R. LYON
SQUAXIN ISLAND
LEGAL DEPARTMENT
3711 SE Old Olympic Hwy.
Shelton, WA 98502
(360) 432-1771, ext. 1
Counsel for Respondent
the Squaxin Island Tribe

ScoTT OWEN MANNAKEE
Tribal Attorney
STILLAGUAMISH TRIBE OF INDIANS
3322 236th Street NE
Arlington, WA 98223
(360) 572-3028
Counsel for Respondent

the Stillaguamish

Tribe of Indians

DAVID HAWKINS
OFFICE OF THE

TRIBAL ATTORNEY
UPPER SKAGIT INDIAN TRIBE
25944 Community Plaza Way
Sedro Wooley, WA 98289
(360) 854-7016
Counsel for Respondent

the Upper Skagit

Indian Tribe

ARTHUR W. HARRIGAN, JR.
TYLER L. FARMER
KRISTIN BALLINGER
DANIELSON HARRIGAN LEYH
& TOLLEFSON, LLP
999 3rd Ave., Suite 4400
Seattle, WA 98104
(206) 623-1700
Counsel for Respondent
the Upper Skagit Tribe

42

MASON D. MORISSET

MORISSET, SCHLOSSER,
JOZWIAK & SOMERVILLE

1115 Norton Building

801 Second Ave.

Seattle, WA 98104

(206) 836-5200

Counsel for Respondent
the Tulalip Tribes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0776%3A04. Public record. Not legal advice.