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

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No. 17-269

Jn the Supreme Court of the United States

STATE OF WASHINGTON, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR BUSINESS, HOME BUILDING,

REAL ESTATE, FARMING, AND MUNICIPAL

ORGANIZATIONS AS

AMICI CURIAE SUPPORTING PETITIONER

JENNIFER A. MACLEAN ERIC D. MIL'.ER

PERKINS COIE LLP Counsel of Kecord

700 Thirteenth St., N.W. JULIE A. WILSON-

Washington, D.C. 20005 MCNERNEY

(202) 654-6200 PERKINS COIE LLP

1201 Third Ave., Suite 4900

Seattle, WA 98101

(206) 359-8000

emiller@perkinscoie.com

TABLE OF CONTENTS

A. The Ninth Circuit erred in holding that

Washington’s culverts impair the fishing right

guaranteed by the treaties ................ccssccseesereeseens

B. The Ninth Circuit’s decision wil] have

widespread and significant consequences ............

es HR I esianiissconenenseminunicniseminiiantneimennmnemenson

C. This Court’s review is needed now. ......................

Rn cenemeainaaisaianmniamibesinbenaivaians

TABLE OF AUTHORITIES

Cases:

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

Choctaw Nation v. United States, 318 U.S. 428

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

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

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

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

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) .....scssersereserssserersensenes

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

Serv., 524 F.3d 917 (9th Cir. 2008) ...........c-ccseceseeeseeses

(I)

— 10

Cases—Continued: Page

Northern Ins. Co. of N.Y. v. Chatham Cnty., 547

Fs IT scares eencerrienssnmnneabietadinemnesitaniecstnmmbsenanpens 17

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

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

SI cscs nneccsecesnccorscenvssstevsnvcsnsstennctsonsnecsscnsassannecoansosonsssooees 14

Postema v. Pollution Control Hearings Bd., 11

P.3d 726 (Wash. 2000) .............ccesccessestseereeereeeenseeeneenerees 16

Puyallup Tribe v. Department of Game of

Washington, 391 U.S. 392 (1968).......ccccsecceneeereeeeeeneenees i)

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

(EE iniscseicisisstncniennithageimmnsignisesmiaiuniiiinsensinimesteienieiiasnensineneets 7

Smith v. Maryland, 59 U.S. (18 How.) 71 (18585) ...........0 8

Swinomish Indian Tribal Cmty. v. Washington

State Dep’t of Ecology, 311 P.3d 6 (Wash. 2013)......... 16

Tarrant Reg’l Water Dist. v. Herrmann, 133 8S.

Fc IEEE dibeneseenscninieninncnsssinsmiansnneminenenintininacnnincinnan 8

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

1983), cert. denied, 467 U.S. 1252 (1984)..........cseceeerees 16

United States v. Alaska, 521 U.S. 1 (1997) ...........ccccceceeeeees 8

United States v. Stevens, 559 U.S. 460 (2010)............cc000 17

United States v. Winans, 198 U.S. 371 (19085) ..............e 7

Washington v. Washington State Commercial

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

Gi Oe inicicninurtcinnininnsininnotastdeestinaininmentignibieiiteioes 4, 5, 6, 9, 10

Constitution, treaties, statutes, and regulations:

RE II SN i ccusiainebumeciicmeunbuslis 17

Convention with Great Britain, Oct. 20, 1818, 8

SITES Patil acteclicntaietcincepeaheshaclasiateinbhiataia hddtahapenaaiadntesiinasiuasmatsiniibaisnnininia 8

IT]

Treaties, statutes, and regulations —Continued: Page

Treaty of Paris, Sept. 3, 1783, 8 Stat. 80 .......:..cccseceeeerners

Treaty with the Flatheads, July 16, 1855, 12 Stat.

976 .. » sds 11

Treaty with the intinse! in n Middle fe, pon

25, 1855, 12 Stat. 963... aveoien os a

Treaty with the Nez Pant, os une 1, 1858, 12

BN in sheclasiantslentnniaieancayslaipeinbanuattenpennipbaresmepniinnneinimensnds 11

Treaty with the Nisqually, Dec. 26, 1854, 10 Stat

IE crtidndiatnisataiitiaietaaciedestaadntmbgesdenaaeinmmmnenenss 6, 7,8

Treaty with the Walla-Wallas, June 9, 1855, 12

Is Sins cciuneeniscicdndagsiosneutacnntnbenidunnseniecenenibinissemebbennnain 11

Be ee I i erciererceneinsieiainticecctentmmentanmsterenenimnssnnanwiiting 13

Se Eas EIEN sceriustiesdinicnnniccnsiniionesdennienenicnncmvesimmunivintenmeenevedinh 13

Wash. Rev. Code § 36.70A.030(5)...........scsccssersssesssessarenens 13

Wash. Rev. Code § 36. 70A.0G0(2)........cccccccccecceceeceeeceeeereenee 13

Wash. Rev. Code § 90.08.010............:0cceccescsscsrerscseessssoesenes 16

i, Be, COR © Te bectttnicsictcectesccensesescessecescsenecsceces 13

Wash. Admin. Code § 173-26-201(2)(C) .....c.ccccccceeeoreeenrenees 13

Wash. Admin. Code § 173-26-231(2)(d)........cssssserseeereeess 13

Miscellaneous:

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

Cries scshccsntsinmeccisinneiatannipsatiseninameanietivianininatecnainenamntenn 14

2 William Blackstone, Commentaries (1766).........:ccc0c0see 7

Carol J. Smith, Washington State Conservation

Commission, Salmon Habitat Limiting

Factors in Washington State (2005)...........cceseceseeeeee 12

Miscellaneous—Continued: Page

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

Why are Salmon in Trouble?—Poor Habitat ............ 11

Annika W. Walters, et al., /nteractive Effects of

Water Diversion and Climate Change for

Juvenile Chinook Salmon in the Lemhi River

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

SEU csricipsnscsbccstehstiemeedsndcnbiahasiiadeaiiphiebainsncddiaanabialaarinatiantennaieeiniaiee 14

Webdster’s Third New International Dictionary of

the English Lamgwage (1976)......sccsscssssessesersecererererees 7

Hn the Supreme Court of the United States

No. 17-269

STATE OF WASHINGTON, PETITIONER

Vv,

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR BUSINESS, HOME BUILDING, REAL

ESTATE, FARMING, AND MUNICIPAL

ORGANIZATIONS AS

AMICI CURIAE SUPPORTING PETITIONER

INTEREST OF AMICI CURIAE’

Amici are organizations that represent businesses,

home builders, real-estate professionals, farmers, and

" 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 prepara-

tion or submission of the brief. Amici timely notified all parties

of their intention to file this brief, and letters of consent from all

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

(1)

municipalities in Washington State and around the

country.

The Association of Washington Business (AWB) is

Washington State’s Chamber of Commerce and the

principal representative of the State’s business com-

munity. AWB is the State’s oldest and largest general

business membership federation, representing the in-

terests of approximately 8000 Washington companies

who, in turn, employ more than 700,000 employees,

approximately a quarter of the State’s workforce.

AWPB’s members are located in all areas of Washing-

ton, 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 associa-

tion whose mission is to enhance the climate for hous-

ing 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 approxi-

mately 140,000 members are home builders or remod-

elers, and they account for 80% of all homes construct-

ed 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 resi-

dential building construction and remodeling. It has

7500 members across the State.

The Montana Building Industry Association is a

trade association founded in 1968 to promote and pro-

tect the building industry. It represents approximate-

ly 1500 builders and affiliated small business and nine

local associations throughout Montana.

The Oregon Home Builders Association is the voice

of Oregon’s residential and light commercial construc-

tion industry. It has nearly 3000 member companies

representing more than 196,000 jobs and over $3 bil-

lion in the Oregon economy.

The Master Builders Association of King and

Snohomish Counties is a trade organization of profes-

sional home builders and related professionals. With

nearly 2800 member companies from all facets of hous-

ing 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 af-

fecting residential and commercial real estate.

The Washington State Farm Bureau is a voluntary,

grassroots advocacy organization representing the so-

cial 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 76,000 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 agri-

cultural 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 ranch-

ing families in the public policy arena. It has farming

and ranching members in all 36 Oregon counties, with

a total of 65,000 member families statewide.

The Association of Washington Cities is a private

non-profit corporation that represents Washington’s

cities and towns before the State Legislature, the

State Executive branch, and regulatory agencies.

Membership is voluntary, but the association includes

all of Washington’s 281 cities and towns.

This case presents the question whether treaties

providing Indians 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. 94a (quoting Washington v.

Washington State Commercial Passenger Fishing

Vessel Ass’n, 443 U.S. 658, 686 (1979) (Fishing Ves-

sel)). The Ninth Circuit answered that question in the

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

junction compelling the State of Washington to re-

move or replace highway culverts that allegedly im-

pair 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. Ami-

ci therefore have a significant interest in the resolu-

tion of this case.

SUMMARY OF ARGUMENT

The Ninth Circuit affirmed an injunction compelling

the State of Washington to spend billions of dollars

removing or altering highway culverts in order to fa-

cilitate the migration of salmon. It did so based on

treaties that guarantee Indian tribes the “right of tak-

ing fish, at all usual and accustomed grounds and sta-

tions.” Adopting an interpretation ungrounded in the

text of the treaties, the court concluded that Indian

tribes enjoy a guarantee “that the number of fish [will]

always be sufficient to provide a ‘moderate living’ to

the Tribes.” Pet. App. 94a (quoting Fishing Vessel,

443 U.S. at 686).

The decision below is not only wrong but also ex-

traordinarily important. Tribes in several other

States enjoy treaty rights similar to those construed

in this case. And while the decision below is nominally

limited to highway culverts, its reasoning is far broad-

er. If tribes have a right to ensure that States main-

tain a particular number of fish for tribal interests,

then few activities in the West will escape judicial su-

perintendence at the behest of tribes. Culverts, after

all, are not the only human activity that can harm

salmon. Almost all land-use decisions affect fish habi-

tat directly or indirectly, as does the withdrawal of

surface or underground water under state-law water

rights regimes.

While some adverse effects of the Ninth Circuit’s

decision will become apparent only in future litigation,

others will be felt immediately. The court ordered the

removal or modification of culverts that have been in

place for many years. Anyone undertaking develop-

ment that might affect fish habitat must now confront

the possibility that the court’s decision will be applied

to require that the development be altered. The deci-

sion thus creates uncertainty that will inhibit devel-

opment throughout the West. It warrants immediate

review and correction by this Court.

ARGUMENT

A. The Ninth Circuit erred in holding that Wash-

ington’s culverts impair the fishing right

guaranteed by the treaties

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. See generally

Fishing Vessel, 443 U.S. at 666-667. All of the treaties

contain similar clauses providing that “(tjhe 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, art. 3, Dec. 26, 1854, 10 Stat. 1133.

The Ninth Circuit held that “[t]he Indians reasona-

bly understood Governor Stevens to promise not only

that they would have access to their usual and accus-

tomed fishing places, but also that there would be fish

sufficient to sustain them.” Pet. App. 92a. The court

therefore “infer[red] a promise that the number of fish

would always be sufficient to provide a ‘moderate liv-

ing’ to the Tribes.” Jd. 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 Trea-

ties.” Jd. at 95a-96a. That conclusion is contrary to

the language of the treaties, and it finds no support in

this Court’s decisions.

1. The Ninth Circuit’s interpretation cannot be

reconciled with the text of the treaties, which guaran-

tee a “right of taking fish.” In the 19th century,

“take,” as applied to wild animals, had the same mean-

ing it does today: “to get possession of (as fish or

game) by killing or capturing.” Webdster’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 oc-

curs at a particular place. By protecting the right to

fish in “all usual and accustomed grounds and sta-

tions,” the treaties guarantee access to those places

for the purposes of fishing. Treaty with the Nisqually,

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

vitude 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.

Notably, the language of the Stevens Treaties is

similar to that of earlier international treaties guaran-

teeing fishing rights. For example, the 1783 Treaty of

Paris provided “that the people of the United States

shall continue to enjoy unmolested the right to take

fish of every kind on the Grand Bank, and on all the

other banks of Newfoundland.” Treaty of Paris, art. 3,

Sept. 3, 1783, 8 Stat. 82; see also Convention with

Great Britain, art. 1, Oct. 20, 1818, 8 Stat. 248. Those

provisions have not been construed to restrict British

activities elsewhere.

If there were any doubt on the point, it would be

resolved by examining Article I of the Stevens Trea-

ties, under which the tribes “cede[d], relinquish[ed}],

and conveyled] to the United States all their right, ti-

tle, and interest in and to the lands and country occu-

pied by them.” Treaty with the Nisqually, art. 1, 10

Stat. 1132 (emphasis added). If the “right of taking

fish” dictates how States are to manage road construc-

tion on State land, then the cession, relinquishment,

and conveyance could not reasonably be said to include

“all the right, title, and interest” the Indians had to

the ceded lands.

2. 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 with the Nisqually, art. 3, 10 Stat.

1133. This Court has held that the common right of

fishery is a public right, subject to the regulation of

the State. See, e.g., Martin v. Waddell’s Lessee, 41

U.S. (16 Pet.) 367 (1842); Smith v. Maryland, 59 U.S.

(18 How.) 71 (1855); see also Tarrant Reg’l Water Dist.

v. Herrmann, 133 S. Ct. 2120, 2132 (2013) (noting that

the “power to control navigation, fishing, and other

public uses of water, ‘is an essential attribute of sover-

eignty’”) (quoting United States v. Alaska, 521 U.S. 1,

5 (1997)). Thus, the Court has “repeatedly reaffirmed

state authority to impose reasonable and necessary

nondiscriminatory regulations on Indian hunting, fish-

ing, and gathering rights in the interest of conserva-

tion.” Minnesota v. Mille Lacs Band of Chippewa In-

dians, 526 U.S. 172, 204-205 (1999).

This Court has interpreted the Stevens Treaties to

permit States to regulate the off-reservation fishing

activity of Indians in order to preserve fish resources.

See Puyallup Tribe v. Department of Game of Wash-

ington, 391 U.S. 392, 399 (1968). In so holding, the

Court stated 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 appropri-

ate standards and does not discriminate against the

Indians.” /d. at 398. More recently, in Fishing Vessel,

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.” 443 U.S. at 679. It ulti-

mately concluded that the tribal share can be no more

than 50%, subject to modification based on changing

circumstances. /d. at 686-687.

Even in Fishing Vessel, however, the Court merely

read the treaties to guarantee “a share of each run of

fish.” 443 U.S. at 679. It did not hold that the State

must ensure that each run has a particular number of

fish in it; still less did it interpret the treaty language

to impose an obligation on the State to regulate activi-

ties unrelated to fishing in a certain manner because of

effects on fishing. The treaty language does not per-

mit such a construction.

3. The court of appeals made little effort to recon-

cile its interpretation with the text of the treaties. In-

stead, it 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 practi-

cal 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 there are limits to how generously treaty

language may be read. This Court has held that “even

Indian treaties cannot be re-written or expanded be-

yond their clear terms to remedy a claimed injustice or

to achieve the asserted understanding of the parties.”

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

(1943). The court of appeals erred by doing just that.

B. The Ninth Circuit’s decision will have wide-

spread and significant consequences

The Ninth Circuit panel stated its holding in super-

ficially narrow terms: “{[WlJe conclude that in building

and maintaining barrier culverts Washington has vio-

lated, and continues to violate, its obligation to the

Tribes under tne 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

“(ecjabinled] * * * [by] a careful, detailed description

of the facts presented.” /d. 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.

As an initial matter, the effect of the decision below

is unlikely to be limited to Washington. Tribes located

in Oregon and Idaho negotiated treaties with substan-

tially the same language. See Treaty with the Indians

in Middle Oregon, art. 1, June 25, 1855, 12 Stat. 964;

Treaty with the Nez Percés, art. 3, June 11, 1855, 12

Stat. 957; Treaty with the Walla-Wallas, art. 1, June 9,

1855, 12 Stat. 946. In Montana, the Confederated Sa-

lish and Kootenai Tribes of the Flathead Reservation

also reserved “the right of taking fish at all usual and

accustomed places,” as well as “the privilege of hunt-

ing, gathering roots and berries, and pasturing their

horses and cattle upon open and unclaimed land.”

Treaty with the Flatheads, art. 3, July 16, 1855, 12

Stat. 976. The underlying principle of the decision be-

low—that States cannot engage in (or fail to remedi-

ate) activities that have the effect of diminishing fish

populations—will affect those States as well.

In the affected States, the Ninth Circuit’s decision

will affect far more than just culverts. The decision

also threatens to displace state regulation of land use

and water rights.

1. Land use

The Ninth Circuit focused on the role of barrier

culverts in diminishing fish runs. Pet. App. 95a. Bar-

rier culverts, however, are not the only obstacle to

sustaining anadromous fish populations. Many human

activities affect salmon runs. The U.S. Fish and Wild-

life 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 af.

fect salmon habitat. That includes almost all develop-

ment decisions, for as the Washington State Conser-

vation Commission (WSCC) has explained, “(riparian

zones are impacted by all types of land use practices.”

Carol J. Smith, Washington State Conservation Com-

mission, Salmon Habitat Limiting Factors in Wash-

ington State 127 (2005), http://docs.streamnetlibrary.

org/Washington/ConservationCommission/Statewide .

LFA_Final_Report_2005.pdf. For example, the

WSCC has determined that “(riparian functions are

impaired by * * * direct removal of riparian vegeta-

tion, roads and dikes located adjacent to the stream

channel, road crossings, agricultural/livestock cross-

ings, unrestricted livestock grazing in the riparian

zone, and development in the riparian corridor.” [bid.

In addition, salmon can be harmed by “[hJuman-caused

alterations in basin hydrology” resulting from “chang-

es in soils, decreases in the amount of forest cover,

wetlands, and riparian vegetation, and increases in

impervious surfaces, sedimentation, and roads.” Jd. at

174. Thus, according to the WSCC, “(hlydrologic im-

pacts to stream channels can occur at relatively low

levels of development.” Jbid.

Federal, state, and local governments currently

regulate development projects. During the permitting

process, they require compliance with a host of envi-

ronmental and land-use laws; thereafter, they require

proper mitigation of environmental impacts. For ex-

ample, 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, in-

cluding fish habitat); id. § 90.58.080 (directing local

governments to develop shoreline master programs to

regulate shoreline use and modification); Wash. Ad-

min. 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 gov-

ernments to “assure that shoreline modifications indi-

vidually 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 al-

tering 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 tribal plaintiffs

and the equitable discretion of the district court.

2. Water rights

The Ninth Circuit’s decision will also affect the di-

version 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 Wild-

life Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d

917, 935 (9th Cir. 2008); Pacific Coast Fed’n of Fish-

ermen's Ass’ns v. Gutierrez, 606 F. Supp. 2d 1122,

1135 (E.D. Cal. 2008). Indeed, streamflow is one of the

“critical drivers of juvenile salmonid growth, move-

ment, survival, and reproduction.” Annika W. Wal-

ters, 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 (2018). 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 Pro-

spects 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 with-

out harvestable fish,” so too might insufficient stream-

flows. Pet. App. 98a-94a. Tribes therefore would have

a treaty-based guarantee of a flow in streams and riv-

ers sufficient to support a salmon population that is

large enough to provide treaty Indians a “moderate

living.”

This Court has held that “when the Federal Gov-

ernment withdraws its land from the public domain

and reserves it for a federal purpose, the Government,

by implication, reserves appurtenant water then un-

appropriated to the extent needed to accomplish the

purpose of the reservation.” Cappaert v. United

States, 426 U.S. 128, 1388 (1976); Winters v. United

States, 207 U.S. 564, 576-577 (1908). “The doctrine ap-

plies to Indian reservations and other federal en-

claves, encompassing water rights in navigable and

nonnavigable streams.” Cappaert, 426 U.S. at 138.

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 Cir-

cuit’s decision would extend beyond the narrow re-

served-water-rights doctrine enunciated by this

Court. It would instead establish a much broader im-

plied 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 re-

gime. Like most western States, Washington follows

the prior-appropriation doctrine and the “first in time,

first in right” priority system. That system is “found-

ed 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 appro-

priated 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 ap-

propriated 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 trib-

ally 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 priori-

ty date has the potential to displace every other water

right lawfully created and recognized under Washing-

ton 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 water left in Washing-

ton to allocate to future users. Similarly, if there is

not enough water to support the tribes’ implied re-

served water rights, then junior users whose rights

infringe the tribes’ water rights could see their per-

fected state-law water rights disappear.

C. This Court’s review is needed now

In the Ninth Circuit’s order denying rehearing, two

judges from the panel expressed confidence that they

had not “opened the floodgates to a host of future

suits.” Pet. App. lla (W. Fletcher, J., and Gould, J.,

concurring in the denial of rehearing en banc). That is

so, they reasoned, because the Eleventh Amendment

means that “a further suit against Washington State

seeking enforcement of the Treaties cannot be brought

by the Tribes.” bid. In their view, the United States

is “{tlhe only possible plaintiff,” and “(t]he United

States is a responsible litigant and is not likely to bur-

den the States without justification.” Jbid.

That argument overlooks that the State is not the

only possible defendant in further litigation seeking

treaty enforcement. As explained above, a variety of

land-use and water-allocation decisions can plausibly

be alleged to infringe the expansive treaty right iden-

tified by the Ninth Circuit. Many of those decisions

will be made by municipalities, which do not enjoy

Eleventh Amendment immunity. See Northern Ins.

Co. of N.Y. v. Chatham Cnty., 547 U.S. 189 (2006). As

for suits by the United States against the State, it

may be that the United States is generally “a respon-

sible litigant,” but faith in its responsible litigation

conduct is hardly a justification for adopting an un-

bounded treaty obligation. Washington should not be

left “at the mercy of noblesse oblige.” United States v.

Stevens, 559 U.S. 460, 480 (2010).

This Court should not await further litigation be-

fore intervening to correct the Ninth Circuit’s errone-

ous interpretation of the treaties. The decision below

will have immediate harmful consequences. Regula-

tors conducting agency proceedings must now attempt

to incorporate the treaty right that the Ninth Circuit

defined. And the decision will create ongoing uncer-

tainty about the legal regime governing development

throughout the West. Significantly, the court of ap-

peals did not merely block new development. Rather,

brushing aside the State’s laches argument, it ordered

the removal or modification of culverts that had been

in place for years. See Pet. 25-28. Anyone undertak-

ing development that might affect salmon—essentially

all development—will have to confront the possibility

that the court’s decision will be applied, years down

the road, to require that the development be altered.

Similarly, holders of water rights will face doubt about

whether their state-law property rights will be im-

paired to satisfy the court’s understanding of the trea-

ty’s obligations.

The uncertainty created by the decision will inhibit

investment and development throughout the West. To

prevent that result, this Court’s review is needed now.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JENNIFER A. MACLEAN ERIC D. MILLER

PERKINS COIE LLP Counsel of Record