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

FILED

SEP 20 2017

No. 17-269 } OFFICE OF THE Cl ERK

lL Subhiiee COUAT 6

3n The

Supreme Court of the Anited States

°

STATE OF WASHINGTON,

Petitioner,

v.

UNITED STATES OF AMERICA, ET AL..,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

e@

BRIEF OF AMICI CURIAE STATES OF

IDAHO, KANSAS, LOUISIANA, MAINE,

MONTANA, NEBRASKA AND WYOMING

IN SUPPORT OF PETITIONER

.

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

CLAY R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amici Curiae States

[Additional Counsel Listed On Inside Cover]

—_____

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS COM

DEREK SCHMIDT

Attorney General

State of Kansas

JEFF LANDRY

Attorney General

State of Louisiana

JANET T. MILLS

Attorney General

State of Maine

Tim Fox |

Attorney General

State of Montana

DouG PETERSON

Attorney General

State of Nebraska

PETER K. MICHAEL

Attorney General

State of Wyoming

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE STATES ..........

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

ED cincsinienipeunitndibciniindasmmereniginipmndaimeiaasea

I.

Il.

ITI.

THE NINTH CIRCUIT’S IMPLICATION

OF AN ENVIRONMENTAL SERVITUDE

FROM THE TREATY FISHING PROVI-

SION WITH RESPECT TO STREAM

CULVERTS BOTH CONFLICTS WITH

FISHING VESSEL AND CREATES THE

SPECTER OF SUCH SERVITUDE’S AP-

PLICATION TO A BROAD RANGE OF

STATE AND LOCAL GOVERNMENT

REGULATORY DECISION-MAKING ......

THE SECOND AND NINTH CIRCUITS’

CONFLICTING DECISIONS OVER

SHERRILL’S APPLICABILITY TO CLAIMS

BY THE UNITED STATES TO VINDI-

CATE A TRIBE’S TREATY RIGHTS

SHOULD BE RESOLVED IN THIS CASE....

THE EXPANSIVE INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

AND AFFIRMED BY THE NINTH CIR-

CUIT MISAPPLIED STRINGENT STAN-

DARDS ESTABLISHED BY THIS COURT

AND WARRANTS REVIEW TO REITER-

ATE THE NEED FOR CAREFUL COM-

PLIANCE WITH THEM ....................0..s00+

Ee aa Te SiS sate He ee fe ee

16

il

TABLE OF AUTHORITIES

Page

CASES

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

sat nt dase hacladupemnah msigemeebienauibos 18

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

NN aia eat daa let ieee a ad Randeaetmdnainntinenescate 1

City of Sherrill v. Oneida Indian Nation, 544

3 SERFS RED an ie aera oa 4,18

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

SI Ti facia atts inca lenaesiaacaiea oaigeasitsenemnannbabactebinn 7,8

Dickerson v. Colgrove, 100 U.S. 578 (1879) ................ 17

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

BP REESE Se ener eek ee Oy SOON Dnes 17

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

Bond Fund, Inc., 527 U.S. 308 (1999)..................0.. 11

Johnson v. Zerbst, 304 U.S. 458 (1938)........00. 0c, 16

Jones v. Meehan, 175 U.S. 1 (1889)............. BRET en ks DS 1

Lewis v. Casey, 518 U.S. 343 (1996)........00000... ee 24

Maine v. McCarthy, No. 1:14-cv-00264-JDL (D.

I addi hidahscaninnealiconianiiicnenaiiedsiiennniasnadninaneddenmeabizeteieeniien 15

Milliken v. Bradley, 433 U.S. 267 (1977) .............cc0000 23

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

I I nrccicnsscrhacidsdensscesdidniaheisouabanebens 11,12

Oneida Indian Nation v. County of Oneida, 617

I a So sdeesepirenemonnnnnuntenie 19

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

ili

TABLE OF AUTHORITIES — Continued

Page

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

| REESE CSRS ec SES es wee Noes EN OEE 7,8

Rizzo v. Goode, 423 U.S. 362 (1976).............cccc cece eee 23

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

EIEN i ichicscthiteprictthantibonaiadiihaiabilapdimpealertinenclogtieiiisibintaenssasainhen 1

SCA Hygiene Prods. Aktiebolag v. First Quality

Baby Prods., LLC, 1378S. Ct. 954 (2017) ......0..00..... 16

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

TTT iatdacsansantbcdsiehnacibbatddetedeledsndcnpaschnsbeasibapiegndnsnaniakonmps 7

Tulee v. Washington, 315 U.S. 681 (1942)..........cccccc cee. 7

United States v. Administrative Enterprises,

Inc., 46 F.3d 670 (7th Cir. 1996).............0...000000.000-.. 18

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

ati hpeleciiatediiiennddevinapiciesilenpnatstianennieptiinaiiddetianmmatieientenenmnins 6

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

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

BREE EC SU recieve iy 11

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

RSET as CERN oe a ee 5.7

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

Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S.

Pele csterscvseupscininbiscmnsdédsensumeduunudestonnbanagius passim

iv

TABLE OF AUTHORITIES — Continued

Page

AUTHORITIES

UNITED STATES CONSTITUTION

RI NS TE A iia ian acl clas steneanapiddeteniinnioheieeins 1

Be I, SINE UE x sa alia cnarchuenahaiceniabisennonnbensndgnebetalel 1

UNITED STATES CODE

ee ee I sidcncltinlssniecsictninbnitiecupeniscnsbiian Bs |

ee Se ED dadickdrcabivncsdiniindidnesinuh tianvacigteeeckan 4

INDIAN TREATIES

Treaty with Nisquallys (Treaty of Medicine

Creek), art. III, 10 Stat. 1132 (Dec. 26, 1854) ....6, 14

REGULATIONS

81 Fed. Reg. 85,417 (Nov. 28, 2016)..................cceceeeee 14

81 Fed. Reg. 92,446 (Dec. 19, 2016).........................40- 14

SUPREME CouRT RULES

es ao ciieelniinetasees 1

OTHER AUTHORITIES

Charles Dickens, Bleak House (Bradbury & Ev-

ER RRO SERN Ss Ta ce AS OM Ee EAR ES Eo 7

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

RG EOD COU PE UP wi cecncnccchecssinotteseussovatnccseses 2

Vv

TABLE OF AUTHORITIES — Continued

Katheryn A. Bilodeau, Comment, The Elusive

Implied Water Right for Fish: Do Off-Reserva-

tion Instream Water Rights Exist to Support

Indian Treaty Fishing Rights?, 48 Idaho L.

SE IE aI inincaih evaninesibbiadieninincssehmbennaincessisedebons

Michael C. Blumm, Indian Treaty Fishing

Rights and the Right to Habitat Protection

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

Michael C. Blumm & Jane G. Steadman, /ndian

Treaty Fishing Rights and Habitat Protection:

The Martinez Decision Supplies a Resounding

Judicial Reaffirmation, 49 Nat. Resources J.

EE SE tleb ciscatisiasisthineitenisiiandendededuipasertncmandsa hates

William Fisher, Note, The Culverts Opinion and

the Need for a Broader Property-Based Con-

struct, 23 J. Envtl. L. & Litig. 491 (2008)..........

Page

sens 13

paoe 13

1

INTEREST OF THE AMICI CURIAE STATES'

The interest of the amici curiae rests on perhaps

the most basic tenet of the United States Constitution:

the several States retain primary responsibility in our

Union for ensuring that the interests of all their resi-

dents are protected. U.S. Const. amend. X. Discharging

that responsibility requires them to make often diffi-

cult choices about how best to use their limited fiscal

resources. Whatever balance they strike inevitably

displeases some, with their political and occasionally

judicial branches providing the mechanism for re-

striking that balance. Although federal law can limit

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

2, stringent preemption standards apply to Congres-

sional action when it legislates “in a field which States

have traditionally occupied.” Rice v. Santa Fe Elevator

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

those here — can alter this standard because they must

“be construed, not according to the technical meaning

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

which they would naturally be understood by the Indi-

ans.” Jones v. Meehan, 175 U.S. 1, 11 (1889). “But 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).

| In compliance with S. Ct. R. 37.2(a), counsel of record for all

parties received notice at least ten days prior to the due date of

this brief of amici curiae’s intention to file it.

2

This case involves, as an immediate matter, the

last of those principles. The Ninth Circuit has plainly

“expanded” the fishing clause in the Stevens treaties

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

this Court in Washington v. Washington State Commer-

cial Passenger Fishing Vessel Association, 443 U.S. 658

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

Circuit panel and commentators characterize as an

“environmental servitude.” It has further placed its im-

primatur on a district court injunction effectively seiz-

ing federal judicial control over the Washington State

culvert system but, of course, leaving the fiscal burden

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

While the Ninth Circuit decision’s immediate im-

pact pretermits the internal governance by one State

over one program, it writes a script for subjecting a

broad swath of regulation by States, including the

amici curiae, to like servitudes. Two-thirds of the

States contain Indian reservations or other Indian

country established by treaty or statute. Conference of

W. Att’ys Gen., American Indian Law Deskbook § 5:16,

at 331 (West 2017). Tribal fishing or other subsistence

rights, both on and off reservation, exist in many of

those States. Under the Ninth Circuit’s reasoning, a

servitude on state land-use (and other) regulation can

be implied to avoid negative impacts on such rights

through generally applicable, non-discriminatory reg-

ulation (as the Washington culvert program conced-

edly is). The amici’s concerns are not apocalyptical.

The Environmental Protection Agency (EPA) has re-

lied on the decision below to impose federal, rather

3

than state, water quality standards (WQS) in Maine

and Washington insofar as they applied to waters

where it deemed subsistence fishing rights existed. If

the Ninth Circuit’s unprecedented foray into comman-

deering state decision-making processes over land use

or other areas of traditional state responsibility charts

the correct path, this Court should say so. The amici

States believe that the Court will say the opposite. Ei-

ther way, the issue has too much importance to be left

for contentious, resource-depleting litigation in judi-

cial and administrative forums across the country.

sd

SUMMARY OF THE ARGUMENT

1. States have a fundamental sovereign interest

in treaty or statutory provisions affecting natural re-

sources being applied consistently with their plain

scope and not expanded to create wholly new rights.

The Ninth Circuit opinion breaks ground by interpret-

ing the fishing clause to prohibit States or presumably

other local governmental entities from taking land-use

or other regulatory actions, or to undo past actions,

that may adversely affect the amount of the harvesta-

ble fish ~ what a prior Ninth Circuit panel and com-

mentators have referred to as an “environmental

servitude.” The court of appeals’ expansive interpreta-

tion takes on added significance for certiorari purposes

because it directly conflicts with Fishing Vessel’s au-

thoritative construction that the treaty provision’s

twin purposes are to provide access to aboriginal fish-

ing grounds and to apportion otherwise available

4

harvestable fish between tribal members and non-

members. Fishing Vessel used the “moderate living”

standard only as an absolute limit on the tribal share,

not a treaty-secured entitlement which Washington

must take remedial action to help achieve. That the de-

cision’s reasoning has general impact is reflected by

EPA’s recent reliance on it in imposing federal water

quality standards under the Clean Water Act (CWA),

33 U.S.C. §§ 1251-1388, based upon statutory and

treaty fishing rights in Maine and Washington.

2. The question whether the United States is

subject to equitable defenses such as laches, waiver

and estoppel when it enforces treaty rights has now

generated two different answers in the aftermath of

City of Sherrill v. Oneida Indian Nation, 544 U.S. 197

(2005) (Sherrill) — one from the Second Circuit and an-

other from the Ninth Circuit. Sherrill, a): hough aris-

ing in the context of a land claim brought by a tribe,

contains an analytical structure that, as the Second

Circuit has held, admits no distinction between tribes

and the United States. The Second Circuit’s under-

standing of Sherrill makes sense because any other re-

sult allows the federal government to escape the

consequences of its own acts of omission or commission

and to shift all or a portion of liability for them to a

State or local government. The issue’s resolution has

wide importance where treaty or statutory-based

claims are asserted by the United States that threaten

to disrupt long-established state and local government

practices or programs. This case presents an especially

appropriate opportunity for clarifying Sherrill’s scope

5

in light of the United States’ direct involvement in the

construction of myriad culverts that it now demands

Washington to remediate.

3. The district court issued, and the Ninth Cir-

cuit affirmed, an expansive permanent injunction. Its

elaborate detail effectively transformed the trial court

into an administrative agency — a judicial role that a

2009 Ninth Circuit United States v. Washington deci-

sion warned against. Beyond that core flaw, the injunc-

tion departs from settled boundaries on appropriate

coercive relief against States or their officials. First,

the relief ordered massive changes to the state culvert

system under a single, general criterion, not through a

culvert-specific assessment of benefit and cost. Second,

the relief in practical effect supersedes Washington’s

ongoing remediation efforts to lessen its culverts’ im-

pact on salmon passage. The relief ignores limits on the

federal judiciarys injunctive powers to control a

State’s sovereign authority over its governmental pro-

grams and, necessarily, how and when state funds are

expended. This Court should reiterate the core princi-

ples of general equity practice and federalism that un-

dergird its existing precedent if the case is remanded

for further proceedings on the merits.

°

6

ARGUMENT

I. THE NINTH CIRCUIT’S IMPLICATION OF

AN ENVIRONMENTAL SERVITUDE FROM

THE TREATY FISHING PROVISION WITH

RESPECT TO STREAM CULVERTS BOTH

CONFLICTS WITH FISHING VESSEL AND

CREATES THE SPECTER OF SUCH SER-

VITUDE’S APPLICATION TO A BROAD

RANGE OF STATE AND LOCAL GOVERN-

MENT REGULATORY DECISION-MAKING

A. Isaac I. Stevens and Joel Palmer, then Super-

intendents of Indian Affairs for Washington and Ore-

gon Territories, entered into ten treaties with Pacific

Northwest Indian tribes between December 1854

and July 1855,” each of which reserved on- and off-

reservation hunting, fishing and other usufructuary

rights in largely comparable language. See, e.g., Treaty

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

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

fish, at all usual and accustomed grounds and stations,

is further secured to said Indians, in common with all

citizens of the Territory.”). The fishing rights reserved

under the Stevens treaties exist in Idaho, Montana,

Oregon and Washington. Their scope and application

have spawned substantial litigation over the last half

century, with much of it now centered in two federal

district court proceedings — this case and United States

v. Oregon, No. 3:68-cv-513-KI (D. Or.). One Ninth Cir-

cuit panel, comparing the litigation below to the

2 This brief refers to them collectively as the Stevens trea-

ties.

7

generations-long Chancery will dispute in Bleak

House,’ observed that “this case has become a Jarndyce

and Jarndyce, with judges dying out of it and whole

Indian tribes being born into it.” United States v. Wash-

ington, 573 F.3d 701, 709 (9th Cir. 2009). The panel fur-

ther observed that “the Constitution does not establish

the district courts as permanent administrative agen-

cies.” Id.

Notwithstanding the length of the United States v.

Washington proceeding below, this Court has ad-

dressed issues arising from it only in Fishing Vessel.

Six decisions construing the fishing clause, however,

preceded Fishing Vessel. United States v. Winans, 198

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

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

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

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

Puyallup Tribe, 414 U.S. 44, 48 (1973); and Puyallup

Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 177 (1977).

The decisions, while separated by over 70 years and

applying the fishing clause in differing factual con-

texts, share a common thread: All construed the clause

as reserving tribal access to a share of harvestable

anadromous fish runs. The Ninth Circuit thus did not

write on a clean slate. It instead re-wrote this Court’s

construction by imposing a burden on the State to in-

crease the amount of harvestable fish; i.e., it aug-

mented the share-of-the-pie entitlement with a duty to

increase the pie’s size. Only this departure from the

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

8

Court’s consistent construction of the clause allowed

the Ninth Circuit to create the environmental servi-

tude giving rise to the first question presented.

B. Beginning with the Puyallup trilogy, the ac-

cess issue took on its modern shape of accommodating

the competing demands of Indian and non-Indian fish-

ermen to salmon and steelhead runs dramatically de-

creased from their treaty-time populations and

needing conservation protection. As this Court would

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

when the treaties were negotiated, neither party real-

ized or intended that their agreement would determine

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

thought inexhaustible would be allocated between the

native Indians and the incoming settlers when it later

became scarce.” 443 U.S. at 669.

Fishing Vessel built directly upon the Puyallup

trilogy in construing the fishing clause and left no

doubt about its meaning. 443 U.S. at 682-84. This

Court characterized as “totally foreign to the spirit of

the negotiations” the contention, proffered by one state

agency, that the phrase “in common with” simply

meant “[t)hat each individual Indian would share an

‘equal opportunity’ with thousands of newly arrived

settlers” to fish. Jd. at 676. Rather, “the purpose and

language of the treaties are unambiguous; they secure

the Indians’ right to take a share of each run of fish

that passes through tribal fishing areas.” Jd. at 679.

The Court buttressed this conclusion with the

Puyallup cases’ application of the treaty provision that

“clearly establish[ed] the principle that neither party

9

to the treaties may rely on the State’s regulatory pow-

ers or on property law concepts to defeat the other’s

right to a ‘fairly apportioned’ share of each covered run

of harvestable anadromous fish.” Jd. at 682 (emphasis

added). Turning to the question of what the “share”

should be, this Court “agree|d] with the Government

that an equitable measure of the common right should

initially divide the harvestable portion of each run that

passes through a ‘usual and accustomed’ place into ap-

proximately equal treaty and nontreaty shares, and

should then reduce the treaty share if tribal needs may

be satisfied by a lesser amount.” Jd. at 685 (emphasis

added). It even defined the term “harvestable” as the

“amount of fish” remaining after “subtracting from the

total number of fish in each run the number that must

be allowed to escape for conservation purposes.” Jd. at

670 n.15.

This Court then pivoted to determining the “lesser

amount” that would warrant a reduction of the treaty

share of the harvestable anadromous runs. It credited

the federal district court’s basic apportionment for-

mula of “starting with a 50-50 division and adjusting

slightly downward on the Indians’ side when it became

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

The Court stressed “the 50% figure imposes a maxi-

mum but not a minimum allocation.” Jd. at 686. “(T]he

central principle here must be that Indian treaty

rights to a natural resource that once was thoroughly

and exclusively exploited by the Indians secures so

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

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

10

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

point, noting that “[blecause the 50% figure is only a

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

guaranteeing the Indians a specified percentage’ of the

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

circumstances” could warrant a downward adjustment

— a reduction in tribal membership to a level that

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

that passes through [the tribe’s] customary fishing

grounds... manifestly inappropriate because the live-

lihood of the tribe under those circumstances could not

reasonably require an allotment of a large number of

fish.” Id. at 687.

The powerful nine-judge dissent from the Ninth

Circuit's denial of en banc rehearing rightly reasoned

that “the panel opinion turns Fishing Vessel on its

head” by “impos{[ing] an affirmative duty upon the

State to provide a certain quantity of fish, which reads

out the 50% ceiling entirely.” Pet.App. 24a. This is so

because the 50% limit accommodates the modern era

fact of life that population increases and related eco-

nomic development have caused, and likely will con-

tinue to cause, salmon populations insufficient to

support a moderate living. In defense of the panel rul-

ing, two of its members responded that the decision did

not depart from Fishing Vessel because “there is noth-

ing in the [Supreme] Court’s opinion that authorizes

the State to diminish or eliminate the supply of salmon

available for harvest.” Pet.App. 10a. But that response

misstates the dispositive question: whether the fishing

clause, as definitively construed in Fishing Vessel, does

11

“authorize||” the environmental servitude that the

Ninth Circuit decision creates. It plainly does not. The

rehearing denial concurrence also attempted to limit

the potential breadth of that servitude by disclaiming

“that the Tribes are entitled to enough salmon to pro-

vide a moderate living, irrespective of the circum-

stances,” or any intent to “hold that the promise is

valid against all human-caused diminutions, or even

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

though, it failed to articulate any standard upon which

to distinguish those “diminutions” from Washington’s

culvert system. One can only conclude that the true

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

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

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

* The district court’s rejection of the contention “(t]he State’s

duty to maintain, repair or replace culverts which block passage

of anadromous fish does not arise from a broad environmental

servitude against which the Ninth Circuit Court of Appeals cau-

tioned” in United States v. Washington, 694 F.2d 1374, 1381 (9th

Cir. 1982), vacated on reh’g, 759 F.2d 1353 (9th Cir. 1985) (en

banc), reflects the ipse dixit quality of the Ninth Circuit’s holding

in this case. Pet.App. 178a. “Instead,” the district court explained,

“it is a narrow and specific treaty-based duty that attaches when

the State elects to block rather than bridge a salmon-bearing

stream with a roadbed.” Jd. To be sure, the injunction pertains

only to stream culverts, but the district court’s explanation does

not answer the real question of why stream culverts differ from

other governmental (or non-governmental activities) that may

negatively affect salmonid populations. The district court's failure

to offer a reasoned, genera! standard contrasts sharply with the

analysis in Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791

(D. Idaho 1994). There, a Stevens treaty tribe sought damages

against a power company for construction and maintenance of

12

C. The Ninth Circuit’s construction and applica-

tion of the fishing clause thus have both Stevens

treaty-specific and much wider significance. Its con-

struction transforms the treaty right to a defined share

of available harvestable fish into a right of access to an

amount of harvestable fish sufficient to support a mod-

erate standard of living. It is a short step from the lat-

ter night to creating a claim for injunctive relief against

States or their officials, state political subdivisions and

private parties against any diminishment of fish runs

subject to harvest and human consumption.® From a

dams that diminished anadromous fish runs from their 1855 lev-

els. The court rejected the claim, holding that “Indian tribes do

not have an absolute right to the preservation of the fish runs in

their original 1855 condition, free from all environmental damage

caused by the migration of increasing numbers of settlers and the

resulting development of the land.” Jd. at 808. Rather, “(t]he Ste-

vens treaties require that any development authorized by the

states which injures the fish runs be non-discriminatory in nature

... but does {sic] not, however, guarantee that subsequent devel-

opment will not diminish or eventually, and unfortunately, de-

stroy the fish runs.” Jd. at 814. No evidence here suggests that

discrimination against tribal fishing rights tainted the design and

operation of Washington’s culvert system. The parties’ admitted

facts showed precisely the opposite; i.e., the State has long recog-

nized the impact of culverts on anadromous species’ migration

and taken affirmative action to reduce that impact. Pet.App.

144a-156a. Indeed, the required apportionment between treaty

and non-treaty fishermen serves as a bulwark against such dis-

crimination.

*° Commentary on the Ninth Circuit’s decision is limited thus

far but recognizes its implications with respect to, inter alia,

dams, water diversions increasing stream temperatures, timber

harvests, grazing practices and sediment-producing construction

projects. Michael C. Blumm, Indian Treaty Fishing Rights and the

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

13

Stevens treaty perspective, this expansion of the fish-

ing clause’s scope has immense consequences given the

treaties’ geographical reach throughout the Pacific

Northwest. But the Ninth Circuit’s reasoning logically

extends beyond the fishing clause to any usufructuary

entitlement in those treaties. So, to use the Treaty of

Medicine Creek, fishing is only one of several rights re-

served under Article III. The entire article provides:

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

~~

27-33 (2017). Various commentators have discussed the potential

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

the predicate for the 2013 injunction. See, e.g., Katheryn A. Bilo-

deau, Comment, The Elusive Implied Water Right for Fish: Do Off-

Reservation Instream Water Rights Exist to Support Indian Treaty

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

Culverts added a new dimension to the fishing litigation. With a

sufficiently defined scope, treaty fishing language includes a right

to protection from environmental degradation.”); Michael C.

Blumm & Jane G. Steadman, Indian Treaty Fishing Rights and

Habitat Protection: The Martinez Decision Supplies a Resounding

Jucicial Reaffirmation, 49 Nat. Resources J. 653, 695-96 (2009)

(“An ‘unreasonable interference’ in the context of the Stevens

treaties is habitat degradation that results in decreased fish pop-

ulations, which, in turn, prevents tribes from being able to make

a moderate living from fishing. [{] Thus, only activities that re-

strict tribes’ ability to earn a moderate living from fish unreason-

ably interfere with the tribes’ piscary profit.”) (footnote omitted);

William Fisher, Note, The Culverts Opinion and the Need for a

Broader Property-Based Construct, 23 J. Envtl. L. & Litig. 491, 511

(2008) (“This case can also be viewed as a stepping stone toward

the establishment of either: (1) a broad duty, such as that origi-

nally established by the district court in Phase II, or (2) several

narrow duties (such as this one) directed at specific activities that

harm fish passage and habitat.”).

14

citizens of the Territory, and of erecting tem-

porary houses for the purpose of curing, to-

gether with the privilege of hunting,

gathering roots and berries, and pasturing

their horses on open and unclaimed lands:

Provided, however, That they shall not take

shellfish from any beds staked or cultivated

by citizens, and that they shall alter all stal-

lions not intended for breeding-horses, and

shall keep up and confine the latter.

10 Stat. at 1133. Although certain other Stevens trea-

ties do not include the proviso, they contain the re-

maining rights. Carried to its natural conclusion, the

Ninth Circuit’s reasoning imposes an environmental!

servitude that prevents States or their political subdi-

visions from taking actions that negatively affect hunt-

ing, gathering or pasturing privileges on “open and

unclaimed lands” or failing to remediate past actions

that did. Requiring the United States or tribes to liti-

gate with a scalpel, not a broadsword, does not lessen

the range of activities subject to servitude.

Beyond the Stevens treaties lies the effect of the

Ninth Circuit’s decision in other contexts. Recent EPA

actions and final rules declining to approve Maine and

Washington WQS and imposing federal WQS in their

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

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

2016) (Washington). Maine has a nationally unique

tribal-state relationship with four tribes as a result of

a 1980 settlement reflected in federal and state stat-

utes (the Maine Indian Settlement Acts). See id. at

92,467. In February 2015, EPA interpreted those acts

15

as implicitly requiring a new CWA tribal sustenance

fishing designated use for unspecified Maine waters

that Maine itself never adopted. See id. at 92,472,

92,478. In subsequent rulemaking, EPA built on this

new interpretation and cited the Ninth Circuit’s deci-

sion for the proposition that “it would defeat the pur-

poses of the [settlement acts] for the tribes in Maine to

be deprived of the ability to safely consume fish from

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

(T)}he Ninth Circuit Court of Appeals recently

determined that the right of tribes in the

State of Washington to fish for their subsist-

ence in their “usual and accustomed” places

necessarily included the right to an adequate

supply of fish, despite the absence of any ex-

plicit language in the applicable treaties to

that effect. Specifically, the Court held that

“the Tribes’ right of access to their usual and

accustomed fishing places would be worthless

without harvestable fish.”

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

EPA found the decision, along with other cases, to sup-

port a Department of the Interior legal opinion “con-

clud[ing] that ‘fundamental, longstanding tenets of

federal Indian law support the interpretation of tribal

fishing rights to include the right to sufficient water

6 Maine has requested repeal or withdrawal of EPA’s Febru-

ary 2015 action underlying EPA’s final rule. That request is pres-

ently pending before EPA, and Maine’s pending appeal of that

action has been stayed for 120 days by order entered on August

29, 2017. Maine v. McCarthy, No. 1:14-cv-00264-JDL (D. Me.)

(ECF No. 108).

16

quality to effectuate the fishing right.’” Jd. at 85,423

n.39. The same rationale has potential application to

myriad treaty and statutory provisions that have sub-

sistence-related purposes and therefore raises the

specter of resource-depleting litigation like the long-

lived litigation below. The petition should be granted

to reaffirm the fishing clause’s scope as determined in

Fishing Vessel and remove that specter or, alterna-

tively, to establish a standard leaving intact non-

discriminatory state land-use programs, like Washing-

ton’s culvert system, or other non-discriminatory reg-

ulatory measures that may have an effect on waters in

which tribes have statutory or treaty fishing rights.

Il. THE SECOND AND NINTH CIRCUITS’

CONFLICTING DECISIONS OVER SHER-

RILL’S APPLICABILITY TO CLAIMS BY

THE UNITED STATES TO VINDICATE A

TRIBE’S TREATY RIGHTS SHOULD BE

RESOLVED IN THIS CASE

“Laches is ‘a defense developed by courts of equity

to protect defendants against unreasonable, prejudi-

cial delay in commencing suit.’” SCA Hygiene Prods.

Aktiebolag v. First Quality Baby Prods., LLC, 1375S. Ct.

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

relinquishment or abandonment of a known right or

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

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

who by his language or conduct leads another to do

what he would not otherwise have done, shall not sub-

ject such person to loss or injury by disappointing the

17

expectations upon which he acted.” Dickerson v. Col-

grove, 100 U.S. 578, 560 (1879); see also Glus v. Brook-

lyn E. Dist. Terminal, 359 U.S. 231, 233-34 (1958).

These equitable defenses have clear relevance here

given the United States’ pre-2001 conduct.

To start, the Washington State Department of

Transportation (WSDOT) adhered to hydraulic culvert

designs published by the Federal Highway Admin-

istration (FHWA) until Washington itself developed a

stream simulation design that improved upon the fed-

eral model. Federal agencies have used the Washing-

ton design to modify their own practices. Pet.App.

137a-139a. WSDOT also has an ongoing program to re-

mediate its salmon barrier culverts for which it has re-

ceived excellence awards from the FHWA. Pet.App.

144a-155a. There is, as well, no dispute that Washing-

ton’s road building activities, including culvert con-

struction, have been ongoing for many decades.

Pet.App. 139a-144a. Needless to say, tribal members

and other state residents directly benefitted, and con-

tinue to benefit, from the state road infrastructure. The

United States and the tribes could have challenged the

State’s actions as they were being undertaken or to

bring proposed ameliorative measures to the state

agencies’ attention through sovereign-to-sovereign col-

laboration or asserted claims under statutes such as

the CWA or the Endangered Species Act, 16 U.S.C.

$§ 1531-1544.

The trial record thus contained substantial evi-

dence that the United States partnered with Washing-

ton over many decades in culvert construction and

18

maintenance. The Ninth Circuit nonetheless deemed

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

partnership unavailable “[blecause the treaty rights

belong to the Tribes rather than the United States”

and thus outside the federal government’s prerogative

to waive. Pet.App. 98a. Sherrill, it further held, “radi-

cally” differed insofar as this case did not involve a

tribal claim to sovereignty over abandoned lands, a sit-

uation where the tribes had authorized the state cul-

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

been left dormant.” Pet.App. 99a. The Ninth Circuit’s

attempt to distinguish the two cases on their particu-

lar facts served at most rhetorical ends; the controlling

question is whether Sherrill makes equitable defenses

like laches, waiver and estoppel available against the

United States based on its conduct. The Ninth Circuit

answered that question with a categorical “no.”

The Second Circuit, however, has reached the op-

posite conclusion. As it stated in Cayuga Indian Nation

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

that the United States has traditionally not been sub-

ject to the defense of laches” but immediately added

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

278. The Cayuga court then endorsed a set of factors

formulated by the Seventh Circuit in United States v.

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

1995), governing application of laches to the United

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

of laches can be used to abate a government suit’; sec-

ond, ‘to confine the doctrine to suits against the gov-

ernment in which. . . there is no statute of limitations’;

19

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

which the government is seeking to enforce either on

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

nature of private rights, and government suits to en-

force sovereign rights, and to allow laches as a defense

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

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

Oneida, 617 F.3d 114, 129 (2d Cir. 2010) (“Cayuga ex-

pressly concluded that the United States is subject to

such defenses under circumstances like those pre-

sented here (i.e., a lengthy delay in asserting the rele-

vant cause of action, the absence of an applicable

statute of limitations for the great majority of this de-

lay, and an intervention to vindicate the interests of an

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

Circuit panel did not even acknowledge those deci-

sions’ contrary holding — as the opinion dissenting

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

This Court should grant certiorari to resolve the inter-

circuit conflict.

lil. THE EXPANSIVE INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

AND AFFIRMED BY THE NINTH CIRCUIT

MISAPPLIED STRINGENT STANDARDS

ESTABLISHED BY THIS COURT AND

WARRANTS REVIEW TO REITERATE THE

NEED FOR CAREFUL COMPLIANCE WITH

THEM

The district court’s March 2013 permanent injunc-

tion requires Washington, inter alia, to:

20

prepare within six months a list of all cul-

verts under state-owned roads that are

salmon barriers;

assess and identify, on an ongoing basis,

culverts under state-owned roads that be-

come salmon barriers after the injunc-

tion’s issuance;

construct new culverts on case-area

“salmon waters” in compliance with the

injunction’s standards;

require by October 31, 2016 three of the

four state agencies managing culverts to

provide fish passage in compliance with

the injunction’s standards;

require WSDOT within 17 years to pro-

vide fish passage in compliance with the

injunction’s standards on all culverts “if

the barrier culvert has 200 lineal meters

or more of salmon habitat upstream in

the first natural passage barrier”;

require WSDOT to provide fish passage

in compliance with the injunction’s stan-

dards on culverts “having less than 200

lineal meters of upstream salmon habitat

at the end of the culvert’s useful life, or

sooner as part of a highway project, to the

extent required by other applicable law”;

provide fish passage when a corrected

culvert fails to provide such passage or a

new culvert is added to the list of salmon

barrier culverts; and

21

e provide tribes with sufficient notice of the

salmon barrier culvert inventory, newly

identified barrier culverts and correction

activities “to monitor and provide effec-

tive recommendations for compliance

with the [injunction’s] requirements.”

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

summary indicates, specifies not only what must be

done but also dictates the culvert remediation stand-

ards themselves. Pet.App. 238a-239a. The district

court, finally, retains “continuing jurisdiction over this

subproceeding for a sufficient period to assure that the

Defendants comply with the terms of this injunction.”

Pet.App. 240a-241a.

The injunction fits seamlessly within not only the

2009 Ninth Circuit panel’s reference to Jarndyce and

Jarndyce but also its concern over federal district

courts taking on the role of an administrative agency.

It subjects Washington’s sovereign management of

its culvert system to tribal oversight and federal judi-

cial control for potentially decades. The district court’s

coercive relief exacts a heavy toll from both state sov-

ereignty and public coffers. The latter toll is stagger-

ing. The district court’s findings on the remediation

costs for WSDOT projects, while spare, suggest that

they could range between $658,639 (for projects

completed before the 2009 trial) and an estimated

$1,827,168 (state expert estimate identified in the 2013

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

culverts under state roads had more than 200 meters

of anadromous salmon habitat upstream. Pet.App. 142a.

22

Washington can expect, therefore, to spend in excess of

one billion dollars under even a conservative assump-

tion that actual per-culvert cost falls within the aver-

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

inflation.

The petition, like the opinion dissenting from en

banc rehearing, summarizes the injunction’s palpable

overbreadth. Pet. 28-32; Pet.App. 36a-4la. The amici

States believe that two points bear particular empha-

sis. First, the district court’s findings effectively attrib-

ute to state culverts salmon population impacts even

though (1) those culverts constitute a small percentage

of all salmon barrier culverts in the case area and (2)

no evidence exists as to the ultimate increase in re-

turning harvestable fish that the State’s billion-dollar

plus expenditure will generate. Multiple factors — e.g.,

ocean conditions, non-case area harvest and non-

culvert-related habitat constraints — affect available

harvest. As the rehearing dissent observed, “[gliven

the significant cost of replacing barriers, ... being

forced to replace even a single barrier that will have

no tangible impact on the salmon population is an un-

justified burden.” Pet.App. 39a. Obviously enough, re-

spondents focused on state culverts because they

perceived them in gross as easy targets. But the federal

courts extraordinary power to issue coercive relief

against States and their officials must be tailored nar-

rowly to matching every element of the relief to an

identifiable and proportionate benefit. The district court

simply did not engage in the requisite cost-benefit

analysis on a culvert-by-culvert basis. See Milliken v.

23

Bradley, 433 U.S. 267, 281-82 (1977) (“The well-settled

principle that the nature and scope of the remedy are

to be determined by the violation means simply that

federal-court decrees must directly address and relate

to the constitutional! violation itself. Because of this in-

herent limitation upon federal judicial authority, fed-

eral-court decrees exceed appropriate limits if they are

aimed at eliminating a condition that does not violate

the Constitution or does not flow from such a violation,

. or if they are imposed upon governmental units

that were neither involved in nor affected by the con-

stitutional violation|[.]”) (citation omitted).

Second, Washington has not ignored, and is not ig-

noring, improving culvert fish passage. In 1997, the

state legislature established the Fish Passage Task

Force, and since then “the state agencies have identi-

fied fish passage barriers under their roads and have

accelerated the rate of correction of such barriers.”

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

agencies had “a goal of correcting their barrier culverts

by July 2016[,]” with “the level of funding” as “|t|he pri-

mary factor determining the rate at which the State

can correct fish barrier culverts.” Pet.App. 148a (ad-

mitted facts 17 3.90 and 3.92). The district court’s fail-

ure to defer to the state process does not square with

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

423 U.S. 362 (1976):

When a plaintiff seeks to enjoin the activ-

ity of a government agency, even within a uni-

tary court system, his case must contend with

24

“the well-established rule that the Govern-

ment has traditionally been granted the wid-

est latitude in the ‘dispatch of its own internal

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

order here, significantly revising the internal

procedures of the Philadelphia police depart-

ment, was indisputably a sharp limitation on

the department’s “latitude in the ‘dispatch of

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

of reference moves from a unitary court sys-

tem, governed by the principles just stated, to

a system of federal courts representing the °

Nation, subsisting side by side with 50 state

judicial, legislative, and executive branches,

appropriate consideration must be given to

principles of federalism in determining the

availability and scope of equitable relief.

Id. at 378-79 (citations omitted); see Lewis v. Casey, 518

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

(“Broad remedial decrees strip state administrators of

their authority to set long-term goals for the institu-

tions they manage and of the flexibility necessary to

make reasonable judgments on short notice under dif-

ficult circumstances. ... At the state level, such de-

crees override the ‘State’s discretionary authority over

its own program and budgets and forcle] state officials

to reallocate state resources and funds to the [district

court’s} plan at the expense of other citizens, other gov-

ernment programs, and other institutions not repre-

sented in court.’”) (citations omitted). This Court

should grant certiorari as to the third question pre-

sented to reiterate clearly-established equity and

25

federalism principles in the event that remand pro-

ceedings on the merits are ordered.

-— ¢--

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

Cay R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amici Curiae States

September 2017