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

No. 17-269

IN THE

Supreme Court of the United States

STATE OF WASHINGTON,

Petitioner,

V.

UNITED STATES, ET AL..

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

HON. DANIEL J. EVANS

IN SUPPORT OF RESPONDENTS

JOSEPH P. MENTOR, JR.

MENTOR LAW GROUP PLLC

411 First Avenue S.

Suite 450

Seattle, WA 98104

(206) 838-7650

mentor@mentorlaw.com

Counsel for Amicus Curiae

Hon. Daniel J. Evans

April 2, 2018

QUESTION PRESENTED

The question presented in this case is whether the

State of Washington has an obligation to protect and

restore critical habitat for treaty-protected salmon

runs that is otherwise blocked by actions of a state

agency.

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TABLE OF CONTENTS

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INTRODUCTION AND SUMMARY OF

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1. The State of Washington

Undermines the Efforts of Others —

Including Other State Agencies — By

Failing to Protect and Restore Salmon

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2. The State of Washington's

Recalcitrance to Comply With the

Lower Court’s Injunction Foments

Unnecessary Social Unrest and

Disrespect for the Rule of Law...... .........

3. The State of Washington’s Position

Before This Court Conflicts With Its

Responsibility To All the State’s

Citizens to Protect and Restore Salmon

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IV

TABLE OF AUTHORITIES

Cases Page(s)

Federal Power Commission v. Tuscarora

Indian Nation,

a opeaneacasoters 10

Puget Sound Gillnetters v. U.S. District

Court,

573 F.2d 1123 (9th Cir. 1978)..................... 7,8

United States v. Washington, 520 F.2d 676,

ss scnaepasiensucccens 7

Washington Kelpers Assn. v. State, 81

Wash. 2d 410, 502 P.2d 1170 (1972), cert.

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Bacich v. Huse, 187 Wash. 2d 75, 59 P.2d

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Statutes

Pacific Northwest Electric Power Planning and

Conservation Act, Pub. L. No. 96-501 (1980)......... 3

Endangered Species Act, 16 U.S.C. §§ 1531-

SEES EE a 4-5, 9

Washington State Salmon Recovery Act,

WASH. REV. CODE Ch. 77.85 (1998).................. 3

Puget Sound Partnership Act, WASH. REV.

I ME OI 5 osc cicecasccceseccsccenvenscoccouss 4

Washington State Growth Management

Act, WASH. REV. CODE Ch. 36.70A (1990).......

Other Authorities

J.A. at 487a, Washington v. United States,

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Puget Sound Partnership,

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Washington Department of Natural

Resources, https://www.dnr.wa.gov/fffpp........

Hood Canal Coordinating Council,

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Lower Columbia Fish Recovery Board,

https://www.lcfrb.gen.wa.us/ .........................-.

Forterra, https://forterra.org/ ..........................

Long Live the Kings, https://Iltk.org/..............

Stewardship Partners,

https://www.stewardshippartners.org/ ...........

Washington Wildlife and Recreation

Coalition, http://www/wildliferecreation.org ..

G. Hardin, The Tragedy of the Commons,

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INTEREST OF AMICUS CURIAE

DANIEL J. EVANS'

DANIEL J. EVANS is a former Governor of the

State of Washington, and a former United States

Senator. Senator Evans was a member of the

Washington State House of Representatives from

1957-1965. He served as governor of the State of

Washington from 1965 to 1977. From 1982 to 1983

Senator Evans served as first Chairman of the

Pacific Northwest Electric Power and Conservation

Council, an interstate compact agency established

under the Pacific Northwest Electric Power Planning

and Conservation Act, Pub. L. No. 96-501, with

responsibility to prepare a program to protect,

mitigate and enhance the fish and wildlife resources

of the Columbia River Basin. He was a United

States Senator from Washington from 1983 to 1989.

Senator Evans served as a member of the Senate

Energy and Natural Resources Committee during his

tenure as a United States Senator, and as Vice

Chairman of the Senate Select Committee on Indian

Affairs.

Senator Evans submits this Brief in support of

the Respondents United States, et al. Senator Evans

offers his perspective as a former elected official,

especially as Governor of Washington during earlier

proceedings leading up to the above-captioned

matter. Senator Evans asks the Court to affirm the

decision below.

‘ This brief is filed with the written consent of all parties

through blanket or individual letters of consent on file with the

Clerk. No counsel for either party authored this brief in whole

or in part, nor did any party or other person make a monetary

contribution to the briefs preparation or submission.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

In the 1850s the United States Government

signed treaties with the Indian tribes of Washington

territory to extinguish their land title over most of

territory. Under the treaties the tribes reserved the

right to continue fishing “in common with” the non-

Indian citizens of the territory. The controversy over

allocation of salmon between Indian and non-Indian

fishers has continued intermittently since shortly

after the treaties were signed.

Throughout its history the State of Washington,

through legislative enactment or initiative, has

adopted laws that — intended or not — discriminated

against the exercise by Indian people of their fishing

rights under the treaties. After decades of litigation,

the tribes have, for the most part, prevailed.

Nevertheless, the State has continued to resist the

fulfillment of treaty rights to fish. Generally, the

State and tribes resolve harvest allocation issues

through negotiation. And, for the most part, the

State and tribes have a history of working together

on habitat issues as well.

In the present case, however, the State of

Washington, acting through the Washington

Department of Transportation, has refused to repair

or replace hundreds of culverts under state-

maintained roads. These culverts block access to

important spawning and rearing habitat for several

species of salmon and steelhead, thereby causing

significant harm to these species.

3

ARGUMENT

1. The State of Washington Undermines the

Efforts of Others - Including Other State

Agencies - By Failing to Protect and

Restore Salmon Runs

The commitment of the Pacific Northwest as a

region to protect and restore its salmon runs is

unparalleled. Congress has appropriated hundreds

of millions of dollars on this effort, in the Columbia

River Basin, on Puget Sound and in the region’s

coastal rivers. In 1980, Congress authorized and

directed the four Pacific Northwest states to

establish the Northwest Power Planning Council to

engage in planning for the region’s electric power

and energy needs and to protect, mitigate and

restore fish and wildlife affected by development of

the region’s hydroelectric resources. Pacific

Northwest Electric Power Planning and

Conservation Act. Pub. L. No. 96-501. Amicus

served as the first Chairman of the Northwest Power

Planning Council. During his term as Chairman the

Council adopted its far-reaching Columbia Basin

Fish and Wildlife Program, which calls for further

expenditure of ratepayer funds, collected on the sale

of electric power and energy by the Bonneville Power

Administration.

Likewise, the State of Washington has embarked

on an ambitious effort to protect and restore salmon

runs and salmon habitat. The State enacted the

Salmon Recovery Act, which provides funding

through its Salmon Recovery Funding Board to state,

local and tribal government entities and _ non-

governmental organizations to protect and restore

salmon habitat. WASH REV. CODE Ch. 77.85. In

4

2007, the State of Washington enacted legislation to

create the Puget Sound Partnership, and new state

agency to coordinate and lead the effort to restore

and protect Puget Sound, including its salmon

resources and their habitat. WASH Rev. CODE Ch.

90.71, 2007 Wash. Sess. Laws, Ch. 341. The

Washington Legislature explicitly declared its

intention that all governmental entities, including

federal and state agencies, tribes, cities, counties,

ports, and special purpose districts, support and help

implement the partnership's restoration efforts.

WASH Rev. CODE § 90.71.200. The Puget Sound

Partnership has adopted an aggressive Action

Agenda that calls for significant investments in

salmon habitat restoration. See

http://www.psp.wa.gov/action-agenda-document.php.

Through the Washington Department of Natural

Resources (WDNR), the State provides funding to

replace culverts under local and private roads. The

WDNR’s_ Family Forest Fish Passage Program

(FFFPP) assists private forestland owners in

removing culverts and other stream crossing

structures that keep trout, salmon, and other fish

from reaching upstream habitat. Road culverts and

other structures that are aging, too small, or

improperly installed can block fish from reaching

their spawning grounds, and young rearing salmon

from reaching the ocean. The program funds the

replacement of eligible barriers with new structures.

See https://www.dnr.wa.gov/fffpp.

Local governments also are investing millions of

dollars of taxpayer funds and adopting regulations to

protect and restore salmon habitat. Much of this

work is intended to forestall more _ rigorous

protections compelled under the federal Kkndangered

5

Species Act, 16 U.S.C. §§ 1531-1544. Likewise,

Washington's Growth Management Act compels

Washington’s largest and fastest growing counties to

adopt measures to protect critical habitat for salmon.

WASH REV. CODE § 36.70A.710. Some counties and

tribes, such as those who participate in the Hood

Canal Coordinating Council, have accepted

responsibility to serve as lead entities for recovery of

endangered salmon species, and have spent countless

hours and precious resources preparing integrated

watershed management plans for areas within their

jurisdiction. See e.g., http://hece.wa.gov/ (Hood Canal

Coordinating Council). Other organizations, such as

the Lower Columbia Fish Recovery Board, represent

unique partnerships of local governments, Indian

tribes, private companies and non-governmental

entities to protect and restore precious salmon

resources. See e.g., https://www.icfrb.gen.wa.us/

(Lower Columbia Fish Recovery Board).

Finally, several non-governmental organizations

work to protect and enhance salmon _ habitat.

cxamples include the Washington Wildlife and

Recreation Coalition, which Amicus co-founded in

1989 with the late former Governor Mike Lowry,

Forterra, Long Live the Kings, and Stewardship

Partners, all of which promote public-private

partnerships and bipartisan efforts to promote

salmon recovery. See e.g., https://forterra.org/

(Forterra); https://Iltk.org/ (Long Live the Kings);

https://www.stewardshippartners.org/ (Stewardship

Partners); https://wildliferecreation.org/ (Washington

Wildlife and Recreation Coalition).

The people of the Pacific Northwest have

embraced sound science to guide their actions — and

6

investments — to protect and restore salmon and

salmon habitat. Federal, state, local and tribal

entities have prepared limiting factors analyses for

every major watershed in the region. Inadequate or

failing culverts are identified as a significant limiting

factor in almost every watershed. This is further

emphasized in a document that State and federal

fisheries biologists prepared for Judge Boldt in 1973.

It says, simply, “To protect the spawning and rearing

environment while not providing free access for the

adults or unhindered outmigration for the Juveniles

would, of course, be pointless.” Joint Statement

Regarding the Biology, Status, Management, and

Harvest of the Salmon and Steelhead Resources of

the get Sound and Olympic Peninsula Drainage

Areas of Western Washington 17-18 (1973), J.A. at

487a, Washington v. United States, No. 17-269

(2017).

Given this commitment it is astounding that one

entity with responsibility for much of this problem —

the Washington Department of Transportation —

objects to meaningful participation in regional, state

and local salmon recovery. The physical condition of

many State-maintained culverts undermines the

efforts of other entities to protect and restore salmon.

The district court properly directed the State

Department of Transportation to take corrective

action, in a timely manner.

2. The State of Washington’s Recalcitrance to

Comply With the Lower Court’s Injunction

Foments Unnecessary Social Unrest and

Disrespect for the Rule of Law

Sadly, the State of Washington has a long history

of intransigence when it comes to implementation of

‘

the treaties in question in the present case. The

State’s intransigence is documented in United States

v. Washington, 520 F.2d 676, 693 (9th Cir. 1975)

(Burns, J., concurring), cert denied, 423 U.S. 1086

(1976), and in Puget Sound Gillnetters Ass'n v. U.S.

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

latter case, after noting the State’s continued efforts

to attack the judgment in United States v.

Washington, they made the following observation:

The state’s extraordinary machinations

in resisting [the lower court's] decree

have forced the district court to take

over a large share of the management of

the state's fishery in order to enforce its

decrees. Except for some desegregation

cases ... the district court has faced the

most concerted official and _ private

efforts to frustrate a decree of a federal

court witnessed in this century. The

challenged orders in this appeal must be

reviewed by this court in the context of

events forced by the litigants who

offered the court no_ reasonable

alternative.

Puget Sound Gillnetters Ass’n., 573 F.2d at 1126. At

the time, the State's well-publicized reluctance

fomented resistance by non-Indian citizens to

enforcement of the treaties. Puget Sound Gillnetters

Ass'n, 573 F.2d at 1128.

Amicus served as governor of Washington State

during the years immediately following the first

lower court decision in United States v. Washington.

Amicus experienced first-hand the tension between

Indian and non-Indian fishers. This tension is an

8

understandable result of conflict over a dwindling

resource. But conflicts between these two groups

lead to serious racial tension that the State should

strive to avoid. The Ninth Circuit has noted on

several occasions that the treaties established

something analogous to a cotenancy in the off-

reservation fishery. The Court also has noted that

the distinction between the members of each groups

of persons with shared ownership is political rather

than racial. As the Court explained, “ethnic origin is

relevant only to the degree it happens to define

tribal, and their political, status.” Puget Sound

Gillnetters Ass'n, 573 F.2d at 1130. Nevertheless,

racial tension is unavoidable since one group shares

a racial characteristic that the other group does not.

In its brief the State makes several arguments to

avoid responsibility for its part in protecting and

recovering salmon and their habitat. The philosophy

is referred to in literature as “the tragedy of the

commons.” E£.g., G. Hardin, The Tragedy of the

Commons, 162 Science 1243 (1968). It is

inappropriate fer the State of Washington, which is

the owner of the resource, to argue that it has no

responsibility to protect treaty resources since others

too are causing harm.

In the treaties the tribes agreed to share, “in

common with the citizens of the territory,” the

abundant fishery resources of the territory, and they

reserved for themselves the right to continue fishing

at their “usual and accustomed” fishing places. Thus

the tribes and their non-Indian neighbors — and their

relationship to the region’s salmon and steelhead —

were inextricably linked. For this reason, it is

patently unfair, and inappropriate, for the State to

9

attempt to blame Washington's Indian tribes for

imposing an unreasonable economic burden on the

State.

3. The State of Washington’s Position Before

This Court Conflicts With Its Responsibility To

All the State’s Citizens to Protect and Restore

Salmon and Salmon Habitat

The State of Washington has an obligation to

protect and restore the State’s salmon and their

habitat. The Washington courts hold that fish

within the State’s borders, so far as title can be

asserted, belong to the state in its sovereign capacity

in trust for its citizens. See e.g., Washington Kelpers

Assn. v. State, 81 Wash. 2d 410, 414-15 502 P.2d

1170, 1172-73 (1972), cert. denied 411 U.S. 982

(1973); Bacich v. Huse, 187 Wash. 2d 75, 79-80, 59

P.2d 1101, 1103-04 (1936). Many stocks of salmon in

the Puget Sound are listed under the Endangered

Species Act. The Act prohibits the State from

causing a taking of any listed species 16 U.S.C. §

1538.

The State of Washington has a_ stewardship

responsibility to its citizens — Indian and non-Indian

alike — to protect and conserve its natural resources

for the benefit of future generations. There is no

question under the facts of this case that the current

condition of the State’s road culverts is causing

serious harm to its salmon resources. The State's

position in this case is inconsistent with its

stewardship responsibility.

CONCLUSION

When considering the obligations of the federal

government to our native people, a Justice of this

10

Court once observed that “Great nations, like great

men, should keep their word.” Federal Power

Commission v. Tuscarora Indian Nation, 362 U.S.

99, 142 (1960) (Black, J. dissenting). The same is

true with States, which have a solemn obligation to

protect the rights of native citizens. Furthermore,

the State of Washington — including all its elected

officials and other officers — is responsible to all its

citizens — Indian and non-Indian alike — to protect

our natural resources for the benefit of future

generations.

Respectfully submitted,

JOSEPH P. MENTOR, JR.

MENTOR LAW GROUP PLLC

411 First Avenue S.

Suite 450

Seattle, WA 98104

(206) 838-7650

mentor@mentorlaw.com

Counsel for Amicus Curiae

Hon. Daniel J. Evans