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

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## Record

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

## Text

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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

Sr

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

II

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

IV

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

eT

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)

2

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.

3

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.

4

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.

5

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

6

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

7

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

8

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

9

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-

10

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.

1]

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://

12

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

13

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

14

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-

15

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-

16

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

17

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

18

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
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

SEPTEMBER 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0776%3A06. Public record. Not legal advice.