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 OF AMERICA, ET AL.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

@

v

BRIEF OF AMICI CURIAE STATES OF

IDAHO, INDIANA, KANSAS, LOUISIANA,

MAINE, MICHIGAN, MONTANA, NEBRASKA,

OKLAHOMA, WISCONSIN AND WYOMING

IN SUPPORT OF PETITIONER

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4

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 Appearances on Inside Cover Page|

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS. COM

Curtis T. HILL, JR.

Attorney General

STATE OF INDIANA

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

JANET T. MILLS

Attorney General!

STATE OF MAINE

BILL SCHUETTE

Attorney General

STATE OF MICHIGAN

Tim Fox

Attorney General

STATE OF MONTANA

DouG PETERSON

Attorney General

STATE OF NEBRASKA

MIKE HUNTER

Attorney General!

STATE OF OKLAHOMA

BrabD D. SCHIMEL

Attorney General

STATE OF WISCONSIN

PETER K. MICHAEL

Attorney General

STATE OF WYOMING

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE STATES ... 1

SUMMARY OF THE ARGUMENT ...................... 3

IIIT \eiisitierigmnbngunennnnctusestdmtessennbindnensaentapeeene 7

|. THE NINTH CIRCUIT'S IMPLICATION

OF AN ENVIRONMENTAL SERVITUDE

FROM THE TREATY FISHING PROVI-

SION BOTH CONFLICTS WITH FISH-

ING VESSEL AND, IF UPHELD, WILL

BE EXTENDED TO A BROAD RANGE

OF STATE AND LOCAL GOVERNMENT

REGULATORY DECISION-MAKING ...... 7

Il. SHERRILL SHOULD BE EXTENDED

TO THE EQUITABLE DEFENSES RAISED

BY WASHINGTON TO THE UNITED

og Ee rae 23

Il. THE MANDATORY INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

WAS NOT NARROWLY TAILORED TO

REMEDYING THE PERCEIVED HARM,

OFFENDED SETTLED FEDERALISM

LIMITATIONS, AND FAILED TO GIVE

ANY CONSIDERATION TO THE EQUI-

TABLE DEFENSES RAISED BY WASH-

ORS Se eee eae Ee 29

I Penaciencrscssnscesntpinsansnescinenptinaorassnnaeeiis 37

ii

TABLE OF AUTHORITIES

Page

CASES

Cappaert v. United States, 426 U.S. 128 (1976) ......... 17

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

AIR TI CEE aE eect RE Cen 5 ale 25

Cent. Pac. Ry. v. Alameda County, 284 U.S. 463

a Suliadl 28

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

TR RRR RE SR aaa 8 SSE AN Ne Ga Ne Sa DER 1

City of Sherrill v. Oneida Indian Nation, 544

Se EE TIEN dnshonsndueressusthaceiinnsbccanoanaces 5, 26, 29, 35

Cramer v. United States, 276 F. 78 (9th Cir.

1921), rev'd on other grounds, 261 U.S. 219

Si nenidbistitsshasdoaeadeenaldatveiagiednnien ten ddimamastnecstieeal 28

Cramer v. United States, 261 U.S. 219

Rui chccneeetnssecsaseaniighinedeisteladatbshicucsiatnkans 5, 24, 27, 28, 29

Dep't of Game v. Puyallup Tribe, 414 U.S. 44

Ti icininniendutiadininettaitbeniabensnadinnddidimensieignetl 8,9, 10

Dickerson v. Colgrove, 100 U.S. 578 (1879) ................ 23

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

RCE LEL ENE RAR TE CaP eRe Se 23

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

Bond Fund, Inc., 527 U.S. 308 (1999) ..................... 14

Johnson v. Zerbst, 304 U.S. 458 (1938)....................... 23

Jones v. Meehan, 175 U.S. 1 (1889)...................2ccccceeeees 1

Lewis v. Casey, 518 U.S. 343 (1996)...............-...0.00c000+ 34

Milliken v. Bradley, 433 U.S. 267 (1977) .............0000 33

TABLE OF AUTHORITIES — Continued

Page

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

Serv., 184 F. Supp. 3d 861 (D. Or. 2016) ................. 15

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

pi Rf Ree re ae 15, 16

Office of Personnel Mgmt. v. Richmond, 496 U.S.

Se ices enalbinadacineeinsibiiednciadensisalpsentpateeinibiinaiasentilinintianticats 26

Oneida Indian Nation v. County of Oneida, 617

Se TN IIIT ocincicincchcpptinoncisncsintepdiaieumicteadcs 25

Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct.

TE isilicensscncuasenatbnidinbnanentendniscetcaicensensinies 35, 36

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

RENEE a Rel ALT Ei SO tL sa 8,9

Puyallup Tribe of Dep't of Game, 433 U.S. 165

gy SEM RARE NES SEROTEC Ee 8,10

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

1 Ta RA RGAE RS 2 SE PARES 2 On ne Se OEE 1

Rizzo v. Goode, 423 U.S. 362 (1976)...................... 34, 35

SCA Hygiene Prods. Aktiebolag v. First Quality

Baby Prods. LLC, 137 8S. Ct. 954 (2017) ................. 23

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

BREE ASED a See a oe. SE 8

Tulee v. Washington, 315 U.S. 681 (1942)..................... 8

United States v. Administrative Enterprises,

Inc., 46 F.3d 670 (7th Cir. 1995).................cccccccceees 25

United States v. Boylan, 256 F. 468 (N.D.N_LY.

1919), aff'd, 265 F. 165 (2d Cir. 1920)............0........ 27

iv

TABLE OF AUTHORITIES — Continued

Page

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

Lee TOR she 5 ae SRE SES ORI APE PCa me SA 7

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

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

Tp ER Spare Cn eer ey eee 14

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

le IE AA A SS ASE 8 IE Note eee s

United States v. Winans, 198 U.S. 371 (1905)........ 8, 16

Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S.

Be ING tevenccunistncnrthnsbantinetaunicdguniecniinstomnsentons passim

Winters v. United States, 207 U.S. 564 (1908)...... 17,18

CONSTITUTION

ge IEENREETE SSRIS tae ae Posovin Saar SOE 1

Ie ee 1

STATUTES

SO nn IY ho 15

EAS REE RSIS BP Oe Er tein eae 35

el 4

REGULATIONS

81 Fed. Reg. 85,417 (Nov. 28, 2016)...................... 21, 22

81 Fed. Reg. 92,466 (Dec. 19, 2016) .00.0........ccceccecseeeees 21

Vv

TABLE OF AUTHORITIES ~— Continued

Be Oe EET napuissacMcerneticievectundvddsmasbishenduiantdisiontndes

Bee Oe IID pitetrcseviontncdassecimmniaiaapaniinidentohihs

TF aie OE MEIIU seisesrsicmniseniennovnccsniniivsanaceiisanabiinoont

TREATIES

Treaty with Nisquallys (Treaty of Medicine

Creek), 10 Stat. 1132 (Dec. 26, 1854) ................

OTHER AUTHORITIES

Anthony Moffa, The Oil Sands of Time: Pipelines

and Promises, 22 Ocean & Coastal L.J. 111

Charles Dickens, Bleak House (Bradbury &

RGR PN ESE SRE mares SOE ie

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

Law Deskbook (West 2017) ..........:ccccccsseseeseeeeeees

Dale T. White, Indian Country in the Northeast,

44 Tulsa L. Rev. 365 (2006) ...........00..0.cccccccecseeees

George William Van Cleve, Saving the Puget

Sound Wild Salmon Fishery, 2 Seattle J.

SD eis CP bo senndiienssdenscntiosctesnsieaniaaenneneses

John Tahsuda, The Oneida Land Claim: Yester-

day and Today, 46 Buff. L. Rev. 1001 (1998).....

Page

saat 23

vi

TABLE OF AUTHORITIES ~— Continued

Katheryn A. Bilodeau, The Elusive Implied Wa-

ter Right for Fish: Do Off-Reservation In-

stream Water Rights Exist to Support Indian

Treaty Fishing Rights?, 48 Idaho L. Rev. 515

Michael C. Blumm, Z/ndian Treaty Fishing

Rights and the Right to Habitat Protection

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

Michael C. Blumm & Jane G. Steadman, Indian

Treaty Fishing Rights and Habitat Protection:

The Martinez Decision Supplies a Resounding

Judicial Reaffirmation, Nat. Resources J. 653

U.S. Energy Info. Admin., Today in Energy (June

27, 2014), available at https://www.eia.gov/

todayinenergy/detail.php?id=16891 ..................

Wash. Office of Fin. Mgmt., State of Wash. 2017

Population Trends (Table 1), available at

https://www.ofm.wa.gov/sites/default/files/

public/dataresearch/pop/aprill/ofm_ april]

i icctienendisdtncinmstbacderieniedairotanasniseone

Wesley James Furlong, Restoring the Skagit

River Delta: Habitat Restoration and Farm-

land Reclamation on Fir Island, 38 Pub. Land

& Resources L. Rev. 103 (2017)..........................

William Fisher, Note, The Culverts Opinion and

the Need for a Broader Property-Based Con-

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

Page

sala 15

1

INTEREST OF THE AMICI CURIAE STATES

The interest of the amici curiae states rests on per-

haps the most basic tenet of the United States Consti-

tution: the several States retain primary responsibility

in our Union for ensuring that the interests of all their

residents are protected. U.S. Const. amend. X. Dis-

charging that responsibility requires them to make of-

ten difficult choices about how best to use their limited

fiscal resources. Whatever balance they strike inevita-

bly displeases some, with their political and occasion-

ally 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).

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

2

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.” Pet.App. 29a. The Ninth

Circuit approved a district court injunction that effec-

tively seizes federal judicial control over the Washing-

ton State Highway system but leaves the fiscal burden

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

thereby ignoring federalism-based limitations on in-

junctive relief repeatedly endorsed by this Court.

While the Ninth Circuit decision eviscerates inter-

nal governance by one State over one program, it

writes a script for subjecting a broad swath of regula-

tion by States, including the amici curiae, to like servi-

tudes. 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, hunting, and gathering rights,

both on and off reservation, exist in many of them. Un-

der 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 ap-

plicable, non-discriminatory regulation (as the Wash-

ington culvert program concededly is). The amici’s

concerns are not apocalyptical. The Environmental

Protection Agency (EPA) has relied on the decision be-

low to impose federal, rather than state, water quality

standards (WQS) in Maine and Washington insofar as

they applied to waters where it deemed subsistence

3

fishing or sustenance rights existed. The amici States

ask this Court to reject the Ninth Circuit’s unprece-

dented foray into commandeering state decision-mak-

ing processes over land use regulation or other areas

of traditional state responsibility.

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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 Stevens treaties’ fishing clause to prohibit

States or presumably other local governmental enti-

ties from taking land use or other regulatory actions,

or to compel such entities to undo past actions, that

may adversely affect the amount of the harvestable

fish — i.e., imposing an “environmental servitude.” The

Ninth Circuit’s expansive interpretation is doubly

troubling because it directly conflicts with Fishing Ves-

sel’s authoritative construction that the treaty provi-

sion’s twin purposes are to provide access to aboriginal

fishing grounds and to apportion otherwise available

harvestable fish between tribal members and non-

members. Fishing Vessel used the “moderate living”

standard only as a limit on the tribal share, not a

treaty-secured entitlement which Washington must

take remedial action to help achieve. The Ninth Circuit

then compounded its misreading of Fishing Vessel by

failing to identify any standard, other than a

4

subjective ad hoc assessment, against which to deter-

mine the types of state, loca! sovernment or private ac-

tivity that may infringe impermissibly on the fishing

clause. The appropriate standard, however, is clear:

The fishing clause protects tribal fishers from govern-

mental or private conduct that interferes with their op-

portunity to harvest an equitable share of the

otherwise available fish. The Ninth Circuit addition-

ally erred in relying on reserved water right doctrine

as support for its interpretation of the fishing clause.

This Court’s relevant precedent leads to precisely the

opposite conclusion because both Fishing Vessel and

the reserved rights doctrine have as their objective eq-

uitable distribution of extant natural resources. Lastly,

the Ninth Circuit’s reasoning has far-reaching impact

as 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 statu-

tory and treaty fishing rights in Maine and Washing-

ton and by the spate of academic commentary on the

district court’s and the Ninth Circuit’s decisions that

recognizes their far-reaching implications.

2. The United States’ pre-2001 conduct plainly

falls within the scope of laches, waiver and estoppel as

those equitable defenses are defined under federal

common law. Washington has constructed culverts as

part of its road building activities for many decades.

In that regard, the Washington State Department of

Transportation (WSDOT) partnered with the Federal

Highway Administration (FHWA) in these activities

and used FHWA culvert design standards as a

5

condition of federal funding. Washington eventually

improved upon those standards, with the FHWA even-

tually adopting the Washington improvements for use

on federal lands. Washington additionally received

CWA permits in connection with its culvert construc-

tion. Notwithstanding this lengthy partnership and

regulatory compliance, the Ninth Circuit rejected as a

matter of law Washington’s waiver and estoppel de-

fenses against the United States as categorically fore-

closed by Cramer v. United States, 261 U.S. 219 (1923).

In so doing, it confined City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197 (2005) (Sherrill), to claims

brought by tribes over long-abandoned lands and cre-

ated a conflict with decisions from the Second Circuit.

The facts here, which involve the attempt by the

United States to impose liability on a State for sover-

eign activity that the federal government had actively

participated in over many years, provide ample justifi-

cation for extending Sherrill beyond claims raised by a

tribal sovereign. This Court’s holding in Cramer, in

contrast, arose from a failure by agency employees to

adhere to established departmental policy in leasing a

parcel of land to a railroad, not from decades-long fed-

eral-state cooperation to further the public interest. If

the first question is resolved negatively to Washing-

ton’s position, this matter should be remanded to the

lower courts for consideration of its equitable defenses

on the basis of a full evidentiary record.

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

cuit affirmed, an expansive permanent injunction that

departs from settled boundaries on appropriate

6

coercive relief against States or their officials for sev-

eral reasons. First, the relief ordered massive changes

to the state culvert system under a single, general cri-

terion, not through a culvert-specific assessment of

benefit and cost. It thus violates the core requirement

that injunctive relief be tailored as narrowly as possi-

ble to remedying the conduct that causes the legal

wrong. Second, the injunction’s elaborate detail, broad

scope and exorbitant cost replace Washington’s ongo-

ing efforts to remediate its culverts’ impact on salmon

passage with ongoing judicial management. The relief

ignores limits on the federal judiciary’s injunctive pow-

ers to control a State’s sovereign authority over its gov-

ernmental programs and, necessarily, how and when

state funds are expended. Third, neither the district

court nor the Ninth Circuit considered the equitable

considerations raised by Washington in its waiver and

estoppel defenses in fashioning the relief. This Court

has made clear that even when such defenses do not

constitute a complete bar to injunctive relief, they re-

tain relevance to the scope of such relief. At the least,

therefore, the permanent injunction should be vacated,

and the case remanded for further proceedings to fash-

ion relief consistent with the Court’s opinion.

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7

ARGUMENT

I. THE NINTH CIRCUIT’S IMPLICATION OF

AN ENVIRONMENTAL SERVITUDE FROM

THE TREATY FISHING PROVISION BOTH

CONFLICTS WITH FISHING VESSEL AND,

IF UPHELD, WILL BE EXTENDED TO A

BROAD RANGE OF STATE AND LOCAL

GOVERNMENT 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-reserva-

tion 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 fur-

ther secured to said Indians, in common with all citi-

zens 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

' Isaac Stevens signed seven of the treaties alone, including

the Treaty of Medicine Creek. Joel Palmer signed one treaty alone.

They jointly signed two treaties. See American Indian Law Desk-

book § 9:13, at 647 n.1. All contain identically or similarly-worded

fishing clauses and are referred to as the Stevens treaties in this

brief.

8

v. Oregon, No. 3:68-cv-513-KI1 (D. Or.). One Ninth Cir-

cuit panel, comparing the litigation below to the gen-

erations-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. Washington,

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

served that “the Constitution does not establish the

district courts as permanent administrative agencies.”

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) (Puyallup 1D; Dep't of

Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973)

(Puyallup IT); and Puyallup Tribe, Inc. v. Dep't of Game,

433 U.S. 165, 177 (1977) (Puyallup I1]). The decisions,

while separated by over 70 years and applying the fish-

ing clause in differing factual contexts, share a com-

mon thread: All construed the clause as reserving

tribal access to historic fishing places and to harvest a

share of available fish. The Ninth Circuit re-wrote this

Court’s construction by imposing a burden on the State

to increase the amount of harvestable fish; i.e., it

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

9

augmented the share-of-the-pie entitlement with a

duty to increase the pie’s size. Only this departure

from the Court's consistent construction of the clause

allowed the Ninth Circuit to create the environmental

servitude that lies at the heart of this case.

B. Beginning with the Puyallup trilogy, the issue

took on its modern shape of accommodating the com-

peting demands of Indian and non-Indian fishermen to

salmon and steelhead runs. As this Court would later

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

the treaties were negotiated, neither party realized 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.

Puyallup I addressed Washington's power to en-

force against treaty fishermen a generally applicable

prohibition of using set nets in fresh water streams or

their mouths where, as one state expert testified, re-

turning adults often milled and entire runs became

vulnerable to harvest. 391 U.S. at 401. This Court up-

held the State’s right to establish “‘reasonable and

necessary’” conservation measures but left to Wash-

ington state courts resolution in the first instance of

whether the net prohibition satisfied that standard

consistently with the “in common with” requirement of

the treaty fishing clause. Jd. at 401-02. When the dis-

pute returned in Puyallup II, the conservation issue

had been winnowed down to whether a prohibition of

all set net fishing — a traditional form of tribal fishing

10

~ on the Puyallup River violated the “in common with”

requirement. The Court found discrimination “because

all Indian net fishing is barred and only hook-and-line

fishing, entirely pre-empted by non-Indians, is al-

lowed.” 414 U.S. at 48. It remanded for expert estima-

tion of “what degree of net fishing plus fishing by hook

and line would allow the escapement of fish necessary

for perpetuation of the species” and counseled that “lilf

hook-and-line fishermen now catch all the steelhead

which can be caught within the limits needed for es-

capement, then that number must in some manner be

fairly apportioned between Indian net fishing and non-

Indian sports fishing so far as that particular species

is concerned.” Jd. Puyallup II completed the litiga-

tion's cycle, affirming a state court judgment that lim-

ited the number of steelhead available for harvest by

Indian net fishing as the river passed through the

Puyallup Reservation. 433 U.S. at 176 (“Though it

would be decidedly unwise, if Puyallup treaty fisher-

men were allowed untrammeled on-reservation fishing

rights, they could interdict completely the migrating

fish run and ‘pursue the last living (Puyallup River)

steelhead until it enters their nets.’. . . In this manner

the treaty fishermen could totally frustrate both the

jurisdiction of the Washington courts and the rights of

the non-Indian citizens of Washington recognized in

the Treaty of Medicine Creek.”) (citation and footnote

omitted).

Fishing Vessel built directly upon the Puyallup

trilogy in construing the fishing clause and left no

doubt about the clause’s meaning. 443 U.S. at 682-84.

11

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. /d. at 676. Rather, “the purpose

and language of the treaties are unambiguous; they se-

cure 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, explaining

that the Puyallup cases “clearly establish|ed| the prin-

ciple that neither party to the treaties may rely on the

State’s regulatory powers or on property law concepts

to defeat the other’s right to a ‘fairly apportioned!’ share

of each covered run of harvestable anadromous fish.”

Id. 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 com-

mon right should initially divide the harvestable por-

tion of each run that passes through a ‘usual and

accustomed’ place into approximately equal treaty and

nontreaty shares, and should then reduce the treaty

share if tribal needs may be satisfied by a lesser

amount.” Jd. at 685 (emphasis added). It even defined

the term “harvestable” as the “amount of fish” remain-

ing after “subtracting from the total number of fish in

each run the number that must be allowed to escape

for conservation purposes.” /d. at 670 n.15.

This Court then turned to determining the “lesser

amount” that would warrant a reduction of the treaty

share of the harvestable anadromous runs. It credited

12

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.” /d. at 686. “|Tlhe

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

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

point, noting that “|bjlecause 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.” Jd. 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 an entire run

that passes through its customary fishing grounds .. .

manifestly inappropriate because the livelihood of the

tribe under those circumstances could not reasonably

require an allotment of a large number of fish.” Jd. at

687.

Here, the nine-judge dissent from the Ninth Cir-

cuit’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 pro-

vide 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 reality that

13

population increases and related economic develop-

ment have caused, and likely will continue to cause,

salmon populations insufficient to support a “moderate

living” for treaty fishers, thereby necessitating an

equal division of the diminished populations between

non-treaty fishers and them. Implicit in the 50% ceil-

ing is the absence of a treaty right to a specific supply

of fish. Two panel-opinion members retorted that

“there is nothing in the |Fishing Vesse/| opinion that

authorizes the State to diminish or eliminate the sup-

ply of salmon available for harvest.” Pet.App. 10a. But

that response misstated the dispositive issue: Whether

the fishing clause, as definitively construed in Fishing

Vessel, requires Washington to carry out its govern-

mental functions so as not to adversely affect the sup-

ply of salmon. It plainly did not for the very reason that

the rehearing dissent gave; i.e., the clause reserves to

treaty fishers only an equitable share of the fishery

otherwise available to all fishers in light of current day

conditions, not a particular supply of fish.

The rehearing denial concurrence attempted to

limit the potential breadth of the equitable servitude

by disclaiming “that the Tribes are entitled to enough

salmon to provide a moderate living, irrespective of the

circumstances,” or any intent to “hold that the promise

is valid against all human-caused diminutions, or even

against all State-caused diminutions.” /d. Tellingly,

though, the concurrence failed to articulate any stand-

ard upon which to distinguish those “diminutions”

from Washington's culvert system. The panel opinion

was equally unhelpful. See Pet.App. 95a (“The

14

‘measure of the State's obligation’ . .. depends ‘on all

the facts presented’ in the ‘particular dispute’ now be-

fore us.”). 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,

Ine., 527 U.S. 308, 332-33 (1999).

The district court’s labored analysis reflects the

ipse dixit quality of the Ninth Circuit’s approach. The

trial court reasoned that “|t|he State’s duty to main-

tain, repair or replace culverts which block passage of

anadromous fish [did] not arise from a broad environ-

mental servitude against which the Ninth Circuit

Court of Appeals cautioned” in United States v. Wash-

ington, 694 F.2d 1374, 1381 (9th Cir. 1982), vacated on

reh'g, 759 F.2d 1353 (9th Cir. 1985) (en banc), because

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

taches when the State elects to block rather than

bridge a salmon-bearing stream with a roadbed.”

Pet.App. 178a. To be sure, the injunction pertains only

to stream culverts, but the district court’s explanation

did not answer the real question of why stream cul-

verts differ from other governmental (or non-govern-

mental) activities that may negatively affect salmonid

populations. For example, dams and related power-

generating facilities exist throughout the Columbia

River Basin and, according to federal government esti-

mates, account for more than 40% of this Nation’s

total hydroelectric generation. U.S. Energy Info. Ad-

min., Today in Energy (June 27, 2014), available at

https://www.eia.gov/todayinenergy/detail. php?id= 1689 1

(last visited Jan. 31, 2018). These facilities have

15

contributed significantly to the decrease in salmon and

steelhead runs since pre-treaty times and to the listing

of 13 salmonid evolutionarily significant units as

threatened or endangered under the Endangered Spe-

cies Act, 16 U.S.C. §§ 1531-1544. See, e.g., Nat'l Wildlife

Fed’n v. Nat'l Marine Fisheries Serv., 184 F. Supp. 3d

861, 869-70 (D. Or. 2016). So, too, during the 90-year

period between 1920 and 2010, the State of Washing-

ton’s population grew from approximately 1.2 million

to 6.7 million — or over 550% — with attendant infra-

structure development and habitat loss. Wash. Office

of Fin. Mgmt., State of Wash. 2017 Population Trends

at 7 (Table 1), available at https://www.ofm.wa.gov/

sites/default/files/public/dataresearch/pop/april1/ofm _

aprill_poptrends. pdf (last visited Jan. 31, 2018). Noth-

ing in the lower courts’ lengthy decisions suggests how

to separate the wheat from the chaff.

C. The failure of the Ninth Circuit and the dis-

trict court to offer a reasoned, general standard con-

trasts 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

dams that diminished anadromous fish runs from

their 1855 levels. The court rejected the proposition

that “Indian tribes ... have an absolute right to the

preservation of the fish runs in their original 1855 con-

dition, 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,

“It|he Stevens treaties require that any development

16

authorized by the states which injures the fish runs be

non-discriminatory in nature ... but does not, how-

ever, guarantee that subsequent development will not

diminish or eventually, and unfortunately, destroy the

fish runs.” /d. at 814.

The non-discriminatory standard applied in Idaho

Power derives directly from this Court’s decisions in

the Puyallup trilogy and Fishing Vessel and supplies

the level of analytical certainty essential to eccommo-

dating the Stevens treaties’ fishing clause with the de-

mographic and land use changes that would and did

accompany non-Indian settlement of the Pacific North-

west. It also comports with this Court’s construction of

that clause in Fishing Vessel which fashioned an ap-

portionment of fisheries severely diminished over time

precisely because of those changes. A necessary predi-

cate for the apportionment was recognition that the

treaties reserved to the tribes not a specific supply of

fish but an equitable share of the fish otherwise avail-

able for harvest. The fishing clause, in sum, protects

tribal fishers from governmental or private conduct

that interferes with their opportunity to capture an eq-

uitable proportion of extant fish runs. See Fishing Ves-

sel, 443 U.S. at 681 (deeming “even more significant”

than the access issue in Winans the case’s “actual dis-

position” that involved, at least in the Government’s

briefing, proposed removal of fishing wheels used by

non-Indian fishers to capture virtually the entire har-

vestable run). No evidence here suggests that discrim-

ination against tribal fishing rights tainted the design

and operation of Washington’s culvert system. The

17

parties’ admitted facts showed precisely the opposite;

i.e., the State has long recognized the impact of cul-

verts on anadromous species’ migration and taken af-

firmative action through culvert design improvements

to reduce that impact. Pet.App. 144a-156a. The court

of appeals itself acknowledged this fact. Pet.App. 95a.

Nor does the reserved water rights doctrine enun-

ciated initially in Winters v. United States, 207 U.S. 564

(1908), which the Ninth Circuit relied on for inferring

a right to a supply of fish unaffected by subsequent de-

mographic or land use changes, counsel a different

standard. Pet.App. 92a-94a. Winters turned on the de-

termination that the 1888 statute creating the Fort

Belknap Indian Reservation impliedly reserved a wa-

ter right adequate to effectuate the reservation’s

agrarian purposes and assigned the statute’s enact-

ment date as the priority date for prior appropriation

purposes. See Cappaert v. United States, 426 U.S. 128,

138 (1976) (“This Court has long held that when the

Federal Government withdraws its land from the pub-

lic domain and reserves it for a federal purpose, the

Government, by implication, reserves appurtenant wa-

ter then unappropriated to the extent needed to accom-

plish the purpose of the reservation.”). Here, in

contrast, the question is whether a right to take fish

from streams outside of a reservation imposes an af-

firmative duty upon a non-party to the treaty to re-

store some unknown number of salmon to the

ecosystem. Fishing Vessel answers that question “no”

because, as discussed above, it construed the fishing

clause as reserving to the tribes only an entitlement to

18

an equitable share of available fish. Indeed, Winters

and Fishing Vessel are entirely consistent in that re-

gard because both addressed the appropriate distribu-

tion of an otherwise extant natural resource between

Indian and non-Indian uses; i.e., Winters did not re-

quire Montana to create more water, just as Fishing

Vessel did not require Washington to create more fish.

D. The Ninth Circuit’s construction and applica-

tion of the fishing clause have not only a Stevens

treaty-specific impact but also substantially wider sig-

nificance. The court’s reasoning will lead inevitably to

one result: claims for injunctive or other relief against

States or their officials, state political subdivisions and

private parties for any diminishment of anadromous

fish runs, or other fish, shellfish, and wildlife har-

vested by tribal members. Commentary on the Ninth

Circuit’s decision leaves no doubt about its implica-

tions with respect to, inter alia, dams, water diversions

increasing stream temperatures, timber harvests,

grazing practices and sediment-producing construc-

tion projects.’ Various commentators discussed in

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

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

30 (2017) (“Diversions that dewater streams can have much the

same effects on fish migration as barrier culverts or dams. The

dewatering of a tribe’s usual and accustomed fishing ground

would seem to be no less a treaty right violation as migration

blockage by a structure in the stream.”); Wesley James Furlong,

Restoring the Skagit River Delta: Habitat Restoration and Farm-

land Reclamation on Fir Island, 38 Pub. Land & Resources L. Rev.

103, 132-33 (2017) (“Without interpreting the treaties as implying

a proactive right to habitat protection, courts have nevertheless

interpreted them as implying a retroactive right to remedy state

19

similar fashion the potential reach of the district

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

predicate for the 2013 injunction.‘ The expansive scope

of the Ninth Circuit’s decision thus cannot be denied.

actions that have degraded habitat necessary for salmon survival

to satisfy treaty tribes’ moderate living needs. Seen another way,

courts have imposed a duty on the State to remedy degraded hab-

itats where tribes can show concrete evidence that the loss of hab-

itat affects their right to take fish.”) (footnote omitted); Anthony

Moffa, The Oil Sands of Time: Pipelines and Promises, 22 Ocean

& Coastal L.J. 111, 124-25 (2017) (“the United States, or at least

the Ninth Circuit, has thus provided a model for the adjudication

of situations where government projects come into conflict with

indigenous rights to natural resources”).

* See George William Van Cleve, Saving the Puget Sound

Wild Salmon Fishery, 2 Seattle J. Envtl. L. 85, 118 (2012) (“Be-

cause the tribes could contend that each defendant government

has an independent legal duty to observe and enforce tribal fish-

ing rights, each government would, arguably, also have the re-

sponsibility to take steps to compensate for either inaction or

inadequate action under the ESA by any other government en-

gaged in ESA permit review, or related actions such as the provi-

sion of flood insurance, in order to ensure that treaty rights are

adequately protected.”); Katheryn A. Bilodeau, Comment, The

Elusive Implied Water Right for Fish: Do Off-Reservation In-

stream 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 suffi-

ciently defined scope, treaty fishing language includes a right to

protection from environmental degradation. A right to protection

from the degradation of water quality in fish passages compels

the presumption of water in fish passes. This is essentially an im-

plied instream right.”); Michael C. Blumm & Jane G. Steadman,

Indian Treaty Fishing Rights and Habitat Protection: The Mar-

tinez Decision Supplies a Resounding Judicial Reaffirmation,

Nat. Resources J. 653, 695-96 (2009) (“An ‘unreasonable interfer-

ence’ in the context of the Stevens treaties is habitat degradation

that results in decreased fish populations, which, in turn,

20

From a Stevens treaty perspective, this expansion

of the fishing clause’s scope has immense conse-

quences given the treaties’ geographical reach

throughout the Pacific Northwest. But the Ninth Cir-

cuit’s reasoning logically extends beyond the fishing

clause to any usufructuary entitlement in those trea-

ties. So, to use the Treaty of Medicine Creek, fishing is

only one of several rights reserved 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

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.

prevents tribes from being able to make a moderate living from

fishing. [{) Thus, only activities that restrict tribes’ ability to earn

a moderate living from fish unreasonably 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 originally 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.”).

21

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.

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. For the first time in February 2015, EPA inter-

preted those acts as implicitly requiring a new CWA

tribal sustenance fishing designated use for unspeci-

fied Maine waters that Maine itself never adopted. See

id. at 92,472, 92,478. In subsequent rulemaking, EPA

built on this new interpretation as a basis for imposing

federal WQS and cited the Ninth Circuit’s decision for

the proposition that “it would defeat the purposes of

the [settlement acts] for the tribes in Maine to be de-

prived of the ability to safely consume fish from their

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

22

|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 both Maine

and Washington, EPA found the decision below, along

with other cases, consistent with a Department of the

Interior legal opinion “conclud|[ing| that ‘fundamental,

longstanding tenets of federal Indian law support the

interpretation of tribal fishing rights to include the

right to sufficient water quality to effectuate the fish-

ing right.” Jd. at 85,423 n.39, 92,479.

Proper application of Fishing Vessel, in sum, will

remove the Ninth Circuit's decision as justification for

this misunderstanding of Indian law generally and the

Indian canons specifically. Treaties may reserve and

statutes may create certain rights. The canons serve

only to determine those rights, not to establish them

where the parties or Congress has not. The Ninth Cir-

cuit in ignoring Fishing Vessel did the latter.

23

Il. SHERRILL SHOULD BE EXTENDED TO

THE EQUITABLE DEFENSES RAISED BY

WASHINGTON TO THE UNITED STATES’

CLAIM

“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, 1378. 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

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, WSDOT adhered to hydraulic culvert de-

signs published by the FHWA as a condition of federal

funding until Washington itself developed design

methods that improved upon the federal model. Fed-

eral agencies subsequently adopted the Washington

design improvements for their own projects. Pet.App.

137a-139a. WSDOT has an ongoing program to reme-

diate its salmon barrier culverts for which it has received

excellence awards from the FHWA. Pet.App. 144a-

155a; J.A. 224a, 390a. Washington also has received

CWA permits under 33 C.F.R. § 323 with respect to its

24

culvert construction activities under which impacts to

endangered or other fish must be considered. J.A. 78a-

80a; see 40 C.F_R. §§ 230.30, 230.31. There is, as well,

no dispute that Washington's road building activities,

including culvert construction, have been ongoing for

many decades. Pet.App. 139a-144a. Needless to say,

tribal members and other state residents directly ben-

efitted, and continue to benefit, from the state road in-

frastructure. 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 government-

to-government collaboration or asserted claims under

statutes such as the CWA or the ESA.

The trial record thus contained substantial evi-

dence that the United States partnered with Washing-

ton over many decades in culvert construction and

maintenance. The Ninth Circuit nonetheless deemed

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

partnership precluded as a matter of law “|blecause

the treaty rights belong to the Tribes rather than the

United States” and thus outside the federal govern-

ment’s prerogative to waive, relying on Cramer v.

United States, 261 U.S. 219 (1923). Pet.App. 98a. It

deemed this Court's decision in Sherrill inapposite be-

cause the present dispute did not involve a tribal claim

to sovereignty over abandoned lands, a situation where

the tribes themselves had authorized the state culvert

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

left dormant.” Pet.App. 99a.

25

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.” /d. 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’;

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.

26

This Court has declined thus far to adopt “‘a flat

rule that estoppel may not in any circumstances run

against the Government.’” Office of Personnel Mgmt. v.

Richmond, 496 U.S. 414, 423 (1990). In Richmond, it

chose to “leave for another day whether an estoppel

claim could ever succeed against the Government” be-

cause “a narrower ground for decision” was adequate

to resolve the case: Equitable estoppel can never serve

as a basis to recover a “payment of money from the

Public Treasury contrary to a statutory appropriation.”

Id. at 423-24. The present dispute, however, does not

involve an affirmative attempt to gain some economic

or other benefit from the United States or even Stevens

treaties tribes. It arises from the United States’ use of

the Supremacy Clause to vindicate third-party rights

against a sovereign State for conduct previously au-

thorized by the federal government. Although the

United States does not seek to restore tribal “sover-

eignty over land within the boundaries of an aban-

doned reservation|,|” it does raise “claims that have

long been left dormant.” Pet.App. 99a. Indeed, the facts

here are more egregious than those in Sherrill because

the government predicates its Supremacy Clause

claim on culvert construction that it not only encour-

aged but affirmatively approved.

Nor does the Ninth Circuit's observation that this

controversy differs from Sherrill because “Washington

and the Tribes have been in a more or less continuous

state of conflict over treaty-based rights for over one

hundred years” pass the historical plausibility test.

“From the very beginning of their dispossession in the

27

nineteenth century, the Oneidas unsuccessfully sought

federal intervention to recover lands illegally taken by

the State of New York.” John Tahsuda, The Oneida

Land Claim: Yesterday and Today, 46 Buff. L. Rev.

1001, 1004 (1998). The Oneida Nation filed its action

seeking recovery of 250,000 acres of treaty-reserved

land in 1970, the same year as this case began and over

30 years before the request for determination resulting

in the present appeal. See generally Dale T. White, /n-

dian Country in the Northeast, 44 Tulsa L. Rev. 365,

375 & n.69 (2008). Fifty years earlier, the United

States on behalf of certain Oneida Nation members

had filed successful ejectment action to recover 32

acres of improperly conveyed land. United States v.

Boylan, 256 F. 468 (N.D.N.Y. 1919), aff'd, 265 F. 165 (2d

Cir. 1920). The panel opinion’s “continuous state of con-

flict” comment simply failed to take account of the con-

tentious relationship between the Oneidas and New

York since the late Eighteenth Century.

Lastly, the Ninth Circuit’s reliance on Cramer as

establishing a per se rule against the availability of eq-

uitable estoppel against the federal government where

it asserts a claim on a tribe's or tribal member's behalf

in its trustee role reads too much into too little.

Pet.App. at 97a. The United States there sought can-

cellation of a 1904 patent issued to a railroad insofar

as it included land occupied by several Indians since

1859. This Court held that “settled government policy”

supported the Indians’ right of occupancy that “was

definite and substantial in character and open to ob-

servation when the railroad grant was made.” /d. at

28

229-30. It rejected the railroad’s defense that “govern-

ment |was] estopped from maintaining this suit by rea-

son of any act or declaration of its officers or agents” in

issuing the patents, reasoning that “since these Indi-

ans with the implied consent of the government had

acquired such rights of occupancy as entitled them to

retain possession as against the defendants, no officer

or agent of the government had authority to deal with

the land upon any other theory.” /d. at 234, Washing-

ton’s defenses, however, arise out of a relationship in

which the United States worked cooperatively over

decades to foster state culvert construction activity —

with the tribes’ knowledge — because the culverts and

related road system “were necessary aids to the devel-

opment of the public lands” ~ i.e., they “facilitated com-

munication between settlements already made, and

encouraged the making of new ones, increased the de-

mand for additional lands, and enhanced their value.”

Cent. Pac. Ry. v. Alameda County, 284 U.S. 463, 473

(1932). The government, moreover, engaged in pre-

cisely the same activity on federal lands, employing

(like Washington) FHWA design standards before

adopting the State’s improved standards. This case

thus differs radically from the Cramer situation in

which agency employees acted in violation of

longstanding administrative circulars and land deci-

sions by issuing leases that effectively dispossessed In-

dians from their openly enclosed, improved property.

See Cramer v. United States, 276 F. 78, 80 (9th Cir.

1921) (discussing Interior Department policies and

rulings), rev'd on other grounds, 261 U.S. 219 (1923),

29

To paraphrase Sherrill, “|w|hen a party belatedly

asserts a |treaty] right to {control sovereign activity},

longstanding observances and settled expectations are

prime considerations.” 544 U.S. at 218. The Ninth Cir-

cuit erred in holding that Cramer stands as a categor-

ical bar to Washington’s waiver and estoppel defenses.

If this Court resolves the first question presented

against Washington, it therefore should remand for de-

termination of those defenses with reference to a full

factual record.

Ill. THE MANDATORY INJUNCTIVE RELIEF

AWARDED BY THE DISTRICT COURT

WAS NOT NARROWLY TAILORED TO

REMEDYING THE PERCEIVED HARM,

OFFENDED SETTLED FEDERALISM LIM-

ITATIONS, AND FAILED TO GIVE ANY

CONSIDERATION TO THE EQUITABLE

DEFENSES RAISED BY WASHINGTON

The district court’s March 2013 permanent injunc-

tion requires Washington, inter alia, to

® 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;

30

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

standards 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

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.”

31

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.® 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-24 1a.

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.

* Paragraph 10 of the injunction thus provides:

In carrying out their duties under this injunction, the

Defendants shall design and build fish passage at each

barrier culvert on the List in order to pass all species

of salmon at all life stages at all flows where the fish

would naturally seek passage. In order of preference,

fish passage shall be achieved by (a) avoiding the ne-

cessity for the roadway to cross the stream, (b) use of a

full span bridge, (c) use of the “stream simulation”

methodology described in Design of Road Culverts for

Fish Passage (WDFW, 2003) or Stream Simulation: An

Ecological Approach to Providing Passage for Aquatic

Organisms at Road-Stream Crossings (U.S. Forest Ser-

vice, May 2008), which the parties to this proceeding

have agreed represents best science currently available

for designing culverts that provide fish passage and al-

low fluvial processes. Nothing in this injunction shall

prevent the Defendants from developing and using de-

signs other than bridges or stream simulation in the

future if the Defendants can demonstrate that those fu-

ture designs provide equivalent or better fish passage

and fisheries habitat benefits than the designs re

quired in this injunction.

Pet.App. 238a-239a.

32

It subjects Washington’s sovereign management of its

highway culverts to tribal oversight and federal judi-

cial control for potentially decades. The district court’s

coercive relief exacts a heavy toll from both state

sovereignty and public coffers. The latter toll is stag-

gering. The district court’s findings on the remediation

costs for WSDOT projects, while spare, suggest that

they could range between $658,639 (for projects com-

pleted 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 anad-

romous salmon habitat upstream. Pet.App. 142a. Wash-

ington can expect, therefore, to spend in excess of one

billion dollars under even a conservative assumption

that actual per-culvert cost falls within the average

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

tion.

Washington’s brief, like the opinion dissenting from

en banc rehearing, summarizes the injunction’s palpa-

ble overbreadth. Br. of Petitioner at 53-54, 56-58; Pet.App.

36a-41a. Amici States believe that several points bear

particular emphasis. First, the district court’s findings

effectively attribute to state culverts salmon popula-

tion impacts even though (1) those pculverts constitute

a small percentage of all salmon barrier culverts in the

case area and (2) no evidence exists as to the ultimate

increase in returning 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

33

available harvest. As the rehearing dissent observed,

“Igliven 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 unjustified burden.” Pet.App. 39a. Obviously

enough, respondents focused on state culverts because

they perceived them in gross as easy targets. But the

federal court’s extraordinary power to issue coercive

relief against States and their officials must be tai-

lored narrowly to matching every element of the relief

to an identifiable and proportionate benefit. The dis-

trict court simply did not engage in the requisite

cost-benefit analysis on a culvert-by-culvert basis. See

Milliken v. 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 ad-

dress and relate to the constitutional violation itself.

Because of this inherent limitation upon federal judi-

cial authority, federal-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 gov-

ernmental units that were neither involved in nor af-

fected by the constitutional 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

34

accelerated the rate of correction of such barriers.”

Pet.App. 147a (admitted facts | 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 1 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 ‘n 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

“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

35

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). The highly

prescriptive and extraordinarily costly mandatory in-

junction here embodies precisely the evils counseled

against by the Court in Rizzo and Justice Thomas in

Casey. It largely strips Washington of the sovereign

power not only to balance competing fiscal demands

but also to determine how best to carry out its culvert

remediation process without officious oversight by the

federal judiciary. See supra 31 n.5.

Third, the equitable considerations related to ap-

plication of Sherrill carry significant weight even if not

a complete bar to the United States’ claim. Petrella v.

Metro-Goldwyn-Mayer, Inc., 134 8. Ct. 1962 (2014), il-

lustrates the point. There, this Court declined to recog-

nize the availability of a laches as a complete defense

to a Copyright Act claim for damages brought within

the three-year limitation period in 17 U.S.C. § 507(b).

Reversing the Ninth Circuit, it held:

Laches .. . cannot be invoked to preclude ad-

judication of a claim for damages brought

within the three-year window. As to equitable

relief, in extraordinary circumstances, laches

36

may bar at the very threshold the particular

relief requested by the plaintiff. And a plain-

tiff’s delay can always be brought to bear at

the remedial stage, in determining appropri-

ate injunctive relief, and in assessing the

“profits of the infringer . . . attributable to the

infringement.”

134 S. Ct. at 1967. It added later that “li)n extraordi-

nary circumstances, however, the consequences of a de-

lay in commencing suit may be of sufficient magnitude

to warrant, at the very outset of the litigation, curtail-

ment of the relief equitably awardable.” Jd. at 1977; see

also id. at 1978 (“Should Petrella ultimately prevail on

the merits, the District Court, in determining appro-

priate injunctive relief and assessing profits, may take

account of her delay in commencing suit.”). Neither the

district court in fashioning the sweeping injunction nor

the Ninth Circuit in approving it gave any thought,

much less weight, to the federal government's involve-

ment in the state culvert system’s development or the

unexplained delay in asserting a treaty violation. In-

stead, conversely to the Petrella Ninth Circuit panel,

the lower courts simply ignored the equitable consid-

erations raised by Washington once they found waiver

and estoppel unavailable as complete defenses.

The district court injunction, in sum, should be

vacated even if this Court resolves the first two ques-

tions presented against Washington. Its overbreadth

trenches deeply upon settled federalism-based limits

on such relief, and the lower courts failed to consider

the appropriate scope of relief in light of the equitable

37

factors identified with respect to Washington's waiver

and estoppel defenses.

°

CONCLUSION

The Court of Appeals’ judgment should be re-

versed.

Respectfully submitted,

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

Cray R. Suir

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

March 2018