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

No. 17-269

3n the Supreme Court of the Ginited States

STATE OF WASHINGTON,

Petitioner,

Vv.

Unirep StTates OF AMERICA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE LAW PROFESSORS

IN SUPPORT OF RESPONDENTS

Co.etTre Rouren. BetHaANy Bercer

Counsel of Record University or CONNECTICUT

Mrrcnen.. HAMLINE Scnoo. or Law

Scuoon or Law 65 Elizabeth St.

875 Summit Ave. Hartford, CT 06105

Saint Paul, MN 55105 bethany.berger@law.uconn.edu

(651) 290-6327

Counsel for Amici Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................... ii

INTEREST OF AMICICURIAE ............... 1

INTRODUCTION AND SUMMARY OF

PTE, Wea Sohn bedonepeoveneseasdecns 2

GENTE es ccbechersebevcustesceressores 8

l THE COMMON LAW PROTECTED

FISHERIES FROM OBSTRUCTIONS THAT

IMPEDED FISH PASSAGE ................ 8

A. Fishery Rights Like Those Guaranteed by

the Tribes’ Treaties Were Well-Established

rr a pk adaawsdbaencauce s

B. Obstructions to Fish Passage Were

Prohibited at Common Law ............. 12

Il. U.S. STATES ADOPTED COMMON LAW

PROHIBITIONS ON OBSTRUCTIONS TO

FISH PASSAGE THROUGH CASELAW AND

DEED. cvcecdcbenddéervacaasesdeens 21

SE, de a a xbae wes adie css 04s the aaere 31

APPENDIX - List of Amici Curiae .......... App. 1

il

TABLE OF AUTHORITIES

CASES

Adams v. Pease,

SED ccc ecéndbecnéwebecneenas 21

Bailie v. Lady Saltoun,

1821 Sess. Cas. 216 (Scot. 2d Div),

reprinted in Cases Decided in The Court of

Session From May 12, 1821 to July 11, 1822,

Wis FET CEIEE cc civesecocesrnites 19, 20

Bearce v. Fossett,

ED vc é vac dcectsrsvpcgicabec 24

Bibb v. Montjoy,

De CLD Aue pannnecteuseecaneteaed 24

Boatright v. Bookman,

1 Rice 447 (S.C. Ct. App. 1839) ........... 6, 25

Carson v. Blazer,

a ee rs ED oe ce eeevessexenussden 21

Countess Dowager of Seafield v. Kemp,

96 8.L.R. 363 (B.C. 1808)... ccc cece nes 20

Dep't of Game of Washington v. Puyallup Tribe,

Cee CRMs bc cdavcedeusenbokerees 5

Dunn v. Stone,

RED ch eiwdnded sd odees dee canes 25

Earl of Kintore v. Pirie,

UKHL 838, 839, 43 S.L.R. 838 (1906) ........ 20

Hamilton v. Marquis of Donegall,

3 Ridgeway’s Parl Cases 267

ee a ee ha ae hk ow dveded oS 17, 18, 22

Holyoke Co. v. Lyman,

EE a ti lee eee 6, 7

Little v. Perkins,

Eg A eR a 24

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) ............... 27

Parker v. People,

Se Dé Gib cncebdeeV ee beeune 6, 29

Peables v. Hannaford,

Cs Se past ew sen es bend bien 24

State v. Beardsley,

79 N.W. 138 (lowa 1899) ..........60500055 30

State v. Franklin Falls,

OED © cc diaweead csesesesves 29

State v. Roberts,

co hc tanesadevevboeen 23

State v. Theriault,

er re re. Ce nei be cadacwuerts 25

Stoughton v. Baker,

ee os os ales ou eb eee see 7,29

Summers v. People,

29 Ill. App. 170 (Ill. Ct. App. 1888) ........... 7

Tarrar & Miller v. Nunamaker,

39 S.C.L. (5 Rich.) 484 (S.C, Ct. App. 1852) ... 25

iv

The King v. Ward,

CO ae ee ROE ccs didecaceewh nan peebs 17

Tulee v. Washington,

ee SPEED. «d 0:6 oes Cele tiace 60 ee a ewses 5

United States v. Washington,

384 F. Supp. 312 (W.D. Wash. 1974) ......... 2

United States v. Winans,

Dae PCED fo tebe ea k's ceiees bares 2,5, 8

Viscount Arbuthnott v. Scott,

Soe Se I ee CD 6 8 ic 0n.0.0 6c ad eaa es 19

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

OO Uae ET Wave cnc etueweaa 2, 3, 5, 12

Weld v. Hornby,

103 Eng. Rep. 75, 7 East 196

OED Ga RG se a on a ae na 6, 16, 21, 22

West Point Water Power & Land Imp. Co. v. State,

es ein Se ee ide nes be dtes els 30

Williams v. Wilcox,

ee Oe ey EI Ck ceheieGsedenveses 13, 14

ACTS, STATUTES, TREATIES

Act of Aug. 14, 1848, § 12,9 Stat. 323 ....... 26, 28

Act of Mar. 2, 1863, § 12, 10 Stat. 172 .......... 28

Treaty of Point-No-Point, art. I, 12 Stat. 933

EE ca Lo EN OU EE Oe CREEPERS STATE OrVR 2,3

Act of May 1798, 1798 Conn. Pub. Acts 488 ..... 23

Vv

Act of Oct. 1785, 1785 Conn. Pub. Acts 330 ...... 23

Act of Feb. 10, 1832, Fla. Stat. Ann. § 861.02

PURGE a baecidek ere cebad Aiea eae k ae 24

Act of Feb. 15, 1799, 1799 Ga. Laws 141 ........ 24

Act of March 1, 1799, 1799 Ga. Laws 280 ....... 24

Act of February 27, 1849, 1849 Ky. Acts 37 ...... 24

Act of Feb. 28, 1821, 1874 Me. Laws 46......... 24

Act of Mar. 17, 1821, 1874 Me. Laws 84 ........ 24

Act of Mar. 1, 1799, 1799 Mass. Acts 281 ....... 24

Act of Mar. 7, 1844, 1852 Mass. Acts 92, reprinted

in Laws relating to Inland Fisheries in

Massachusetts 229 (Wright & Potter 1887). .. 24

Act of June 18, 1790, 1790 N.H. Laws 527, reprinted in

5 Laws of New Hampshire 527 (Henry Harrison

es ks Ss sks. wer 'ebeecdeé dbees 24

Act of Mar. 28, 1800, 1800 N.Y. Laws 522,,

reprinted in Laws of the State of New York

(Loring Andrews ed., 1800). ......ccssececs 25

Act of Apr. 15, 1835, 1836 Pa. Laws 138 ........ 25

Se Pe, SN, SO SE vce Sane ein teaser e ee 25

Act of Oct. 1785, ch. LXXXII, 1785 Vt. Acts 62 ... 25

Act of Mar. 8, 1787, 1787 Vt. Acts & Resolves 72 . 25

OTHER AUTHORITIES

Joseph K. Angell, Treatise on the Law of

Watercourses (5th ed. 1854) ........... 6, 22, 23

vi

William Blackstone, Commentaries on the Laws of

PE CUE s pvc bet deeseveevevsepedens 4

William Blackstone, 2(2) Commentaries on the Laws

BE SEED nee ee ny drone 10, 11, 15

Archibald Brown, Scriven on Copyholds 243 (6th ed.

SED Guccet sce cues de wakue areas eaa wets 9

Joseph Chitty, A Treatise on the Game Laws and on

Puree Ce GE. BEEP ccc vavccsesccsys passim

Code of Washington 1881, available at

http://leg.wa.gov/CodeReviser/documents/sessi

PP rrr ere 28

Cong. Globe, 30th Cong., Ist Sess. 1020 (1848) ... 27

George Wingrove Cooke, A Treatise on the Law of

Rights of Commons (1856) ................. 11

Henry Philip Farnham, Law of Waters and Water

SEED 5 Db wad cus 004 0545 44d eaten 22

John Edward Hall, A Treatise on the Law Relating

to Profits A Prendre and Rights of Common

ee er ee ge re ne eee 11

2 Historic Georgia Digests and Codes (Thomas R. R.

Ce ED 2S ia Wass dan oreo eho oh ears 24

Leonard A. Jones, A Treatise on the Law of

Fn ten ia ttn, aR ga i he Sl ae 23

James Kent’s Commentaries on American Law

Biss Soictete tide sae One each Secuaws 4

James Kent, 3 Commentaries on American Law,

ee ee Es 5 a 0 ass Suen ek es caenns 21

vii

Laws of a General and Local Nature Passed by the

Legislative Committee and Legislative Assembly

Collected and Published (1853) ............. 26

| Laws of the State of Tennessee (Edward Scott ed.,

Be cb cvectwarusansesreuseceosanea aon 25

REE EEED 6 dina yaie ess aneed eae 5,14

J.B. Phear, A Treatise on Rights of Water (1859) . 22

Darius H. Pingrey, Treatise on the Law of Real

Ney I Sata ina use Gar tana ene Simian SPT 21

I Private and Special Statutes of the Commonwealth

of Massachusetts (Manning & Loring 1805) ... 24

The Public Statute Laws of the State of Connecticut

(John S. Boswell ed., 1839) ............. 23, 24

The Public Laws of the State of Rhode Island and

Providence Plantations (Carter & Wilkinson

a i re a ae i ee ot ot 25

The Records of the Parliaments of Scotland to 1707

http://www.rps.ac.uk/search.php?action=print

&id=304&filename=roberti_trans&type=trans

(last visited Mar. 29, 2018) ................ 19

Henry Roscoe, 1 A Treatise on the Law of Actions

Relating to Real Property (1825) ............. )

Henry Schultes, An Essay on Aquatic Rights

ME cine cea Civaeananen eves 8,9, 10, 11

2 Statute Law of Kentucky (Act of Feb. 10, 1816)

(William Littell & Jacob Swigert 1822) ...... 24

viii

8 The Statutes At Large of Pennsylvania (James T.

Mitchell & Henry Flanders eds., 1902)....... 25

5 The Statutes at Large of South Carolina (Thomas

GGG GEE! Sica cduceescadendunpediac 25

7 The Statutes At Large of South Carolina (David J.

PR, ED os n64 64 +80 ceetrseesoncs 25

3 Statutes at Large of Virginia (Samuel Shepherd

ACY APRS Ae Rar Petree ey 25

Charles Stewart, A Treatise on the Laws of Scotland

Relating to Rights of Fishing ............... 20

William Wait, 3 A Treatise upon some of the General

Principles of the Law (1885) ............44. 22

Emory Washburn, Treatise on the American Law of

Easements and Servitudes (1863) ........... 29

Humphrey W. Woolrych, A Treatise of the Law of

PCED, dg cron secdeeseccseuecccee passim

1

INTEREST OF AMICI CURIAE

Amici curiae, listed in the Appendix, are law

professors who teach and write in the areas of property,

natural resources, and federal Indian law. They file

this brief to explain the development of English

common law rules preventing persons from erecting

artificial obstructions in navigable and non-navigable

waterways. Such obstructions were actionable if they

precluded fish from swimming upstream, thereby

disrupting the rights held by the general public and/or

private property holders to harvest those fish.

This common law prohibition on obstruction of

waterways was incorporated, with only slight

modifications, by federal, state and local governments

throughout the United States. Indeed, it formed the

basis of court decisions and legislation in the

eighteenth and nineteenth centuries that conditioned

the erection of mills, dams, and other artificial

structures on assurance of reasonable fish passage.

The amici curiae have an interest in ensuring that this

information, which is entirely absent from the briefs

submitted by the Petitioner and its amici curiae, is

available to the Court.’

' No counsel for any party authored this brief in whole or in part,

and no person other than amici or their counsel made a monetary

contribution intended to fund the preparation or submission of this

brief. All parties have consented to the filing of this amicus brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

In the 1850s, the United States entered into a series

of treaties with Indian tribes in the Pacific Northwest.

In these treaties, the tribes agreed to cede large swaths

of land to the United States. See, e.g., Treaty of Point-

No-Point, art. I, 12 Stat. 933, 934 (1855). In exchange,

however, they demanded assurances that they could

continue to take fish within the territory they were

ceding. Fish “were not much less necessary to the

existence of the Indians than the atmosphere they

breathed.” United States v. Winans, 198 U.S. 371, 381

(1905). They were important not only for subsistence

and commercial purposes; fish were an integral part of

tribal culture and _ religion. United States v.

Washington, 384 F. Supp. 312, 350 (W.D. Wash. 1974)

(noting that “one common cultural characteristic

among all of these Indians was the almost universal

and generally paramount dependence on . .

anadromous fish,” which were “vital to the Indian diet,

played an important role in their religious life, and

constituted a major element of their trade and

economy”).

The federal government acceded to this Tribal

demand. Governor Isaac Stevens, the lead negotiator

for the United States, stood before tribal

representatives, holding the treaty, and promised them

that “[t}his paper secures your fish.” Washington v.

Washington State Commercial Passenger Fishing

Vessel Ass’n, 443 U.S. 658, 667 n.11 (1979) (hereinafter

Fishing Vessel). As signed and ratified, these treaties

explicitly stated that “[t]he right of taking fish, at all

usual and accustomed grounds and stations, is further

3

secured to said Indians in common with all citizens of

the Territory.” See, e.g., Treaty of Point-No-Point, art.

IV, 12 Stat. 933, 934 (1855).’

But for these treaties, the State of Washington

would not exist. Yet the Tribes are no longer secured in

their fisheries. The State has built numerous roads

that traverse waterways within the ceded territory.

Underneath those roads it has constructed culverts

that allow the water to continue to flow. The State

readily admits that many of these culverts completely

obstruct the passage of fish upstream. Pet. Br. at 19.

In fact, within the ceded territory, there are more than

800 culverts that block fish passage. /d. This is

particularly problematic for anadromous fish such as

salmon, because of their life cycle. They hatch in fresh

water rivers, migrate to the ocean where they remain

for most of their life, and return to their fresh-water

place of origin to spawn. Fishing Vessel, 443 U.S. at

662. Blocking their passage prevents them from

entering the ocean as juveniles and from reaching their

spawning grounds as adults.

Lower federal courts concluded that these culverts

violated the Tribes’ treaty rights and must be removed.

The State argues, however, that these decisions have

created an “extraordinarily broad new treaty right”

that “has no basis in .. . history or precedent” and is

* Since federal negotiators used the Chinook jargon, a trade

language limited to only 300 words, it would have been hard to

precisely translate this provision. Fishing Vessel, 443 U.S. at 667,

n.10. Instead, as this Court has previously noted, the Indians

“were invited by the white negotiators to rely on and in fact did

rely heavily on the good faith of the United States to protect {their

fishing] right.” Jd. at 667.

4

“unworkable.” Pet. Br. at 27, 35. It claims that both

the United States and the Tribes “assumed that

guaranteeing access to usual and accustomed fishing

places would suffice to guarantee the Tribes’ access to

salmon,” and that this assumption was “mistaken;” in

other words, since the “impact of development on

salmon” is not something that the parties specifically

contemplated, no such right exists. /d. at 35. The

State also asserts that it should have an equitable

defense, because the federal government granted

permits enabling the construction of the culverts in the

first place. Id. at 29.

The State is supported by amici curiae Association

of Washington Business et. al. (“AWB”), which argues

in its brief that the Tribes’ treaty right only provided

Tribal members with the opportunity to fish, because

“la]t common law, fishing rights were understood to be

interests in real property tied to particular locations,

not rights in the fish themselves.” AWB Br. at 5, 9.

Citing William Blackstone’s Commentaries on the Laws

of England (1766) and James Kent’s Commentaries on

American Law (1828), AWB claims that fish are wild

animals, and a property interest in them could only be

acquired by possession. /d at 5, 10. The treaty right

retained by the Tribe was thus supposedly nothing

more than the common law right of the public to fish in

navigable waterways, a right that could be regulated by

the State pursuan: to the public trust doctrine. /d. at

10. Reviving the oft-argued and routinely rejected

“equal opportunity” argument,’ AWB concludes that

* Throughout the twentieth century, the State argued that the

treaty right granted the Tribes’ nothing more than the rights State

citizens enjoy in the fishery. This Court has repeatedly rejected

5

interpreting the treaty right in this manner would not

render it meaningless, because it guaranteed the

Tribes the right to fish off-reservation in the same

manner as all other citizens of the territory. Jd. at 11.

The arguments advanced by the State and its amici

curiae are rather remarkable because they would

actually guarantee tribes fewer rights than even

private individuals had at treaty times. The

prohibition on blocking fish passage was well-

established in Anglo common law. No less a document

than the Magna Carta embodied the barons’ demand

that “lajll fish-weirs shall be removed from the

Thames, the Medway, and throughout the whole of

England, except on the sea coast.” Magna Carta { 33

(1215). By the 1850s, when Governor Stevens was

negotiating with the Pacific Northwest tribes, English

law was clear that it was illegal “to obstruct the

passage of fish into the upper fishery,” particularly if it

was prejudicial to those with downstream fishery

rights. See, e.g., Humphrey W. Woolrych, A Treatise of

the Law of Waters 170-71 (1853) (“the state or condition

of a fishery low down a stream, cannot be so altered as

this argument. In doing so, it has prohibited the State from

licensing fish wheels and implied an easement across all land —

both public and private — as necessary to ensure that Indians are

not excluded from their fishery. Winans, 198 U.S. at 380-81. It

has prohibited the State from charging tribal members a license

fee when exercising their treaty rights. Tulee v. Washington, 315

U.S. 681, 685 (1942). It has precluded enforcement of

discriminatory State regulations that favor sports fisherman over

tribal subsistence fisherman. Dep't of Game of Washington v.

Puyallup Tribe, 414 U.S. 44, 48 (1973). And it has held that the

treaty right guarantees Indian tribes up to one-half of the

harvestable fish at their usual and accustomed places. Fishing

Vessel, 433 U.S. at 684-87.

6

to obstruct the passage of fish into the upper fishery,

especially if it be done in such a manner as may be

prejudicial to the fair exercise of the right of catching

fish in the lower fishery”); see also Weld v. Hornby, 103

Eng. Rep. 75, 7 East 196 (K.B. 1806) (declaring stone

weir a public nuisance because it blocked the passage

of fish upstream); Parker v. People, 111 Ill. 581, 591-92

(1884) (noting that more than 30 acts of parliament

forbade obstructions that prevented fish from

swimming upstream).

The U.S. states adopted the prohibition on

obstructing fish passage from the very beginning.

E.g., Joseph K. Angell, Treatise on the Law of

Watercourses 82-83 (5th ed. 1854) (“The right of several

fishery is clearly limited to the right of taking fish, and

does not carry with it the right to hinder the passing of

them above, and of preventing the suprariparian

proprietors from enjoying a similar privilege”). They

did so both through common law nuisance doctrines

and statutory prohibitions. E.g., Boatright v. Bookman,

1 Rice 447 (S.C. Ct. App. 1839) (noting that

obstructions to the passage of fish may constitute a

public or private nuisance, and describing an 1827 Act

passed to prevent such on specific rivers).

Both legislation and common law also authorized

exactly the remedy ordered by the courts below: that

the offending obstacle be modified or removed.

Legislation established fish committees authorized to

inspect obstructions and ensure that fish passage was

maintained. Such committees were empowered to

order that remedial actions be taken, and if necessary,

enter private property and tear down the offending

structure. See, e.g., Holyoke Co. v. Lyman, 82 U.S. 500,

7

509 (1872) (describing 1866 Massachusetts statute

authorizing state fisheries commissioners to examine

dams, determine the fishways that should be

constructed, and, if the dam owner refused to agree to

the remediation plan, authorize the commissioners to

make physical modifications and charge the cost to the

owner).

Thus, the supposedly “extraordinary” action of the

lower federal courts in demanding that the State

remove its obstructions from waterways within the

ceded territory, is no different than the result that

would lie at common law. Accord Resp. Br. at 34-35.

Further, while the State claims that equitable relief is

not proper because the federal government approved its

culverts when they were constructed, this same

argument routinely failed at common law. Courts

repeatedly rejected defenses by mill owners that they

had been authorized to construct their obstruction by

a royal grant (in England) or a legislative act (in the

United States). See, e.g., Stoughton v. Baker, 4 Mass.

522 (1808) (holding authorization to create a dam did

not preclude the more recently created fishery

committee from ordering modifications to provide for

fish passage). Although the criteria for determining

whether a particular weir, mill or dam violated the

prohibition on obstructions varied from jurisdiction to

jurisdiction, none of the tests appear to have been

“unworkable,” nor did they produce « ‘loodgate of

litigation. See, e.g., Summers v. People, 29 Ill. App.

170, 172 (Ill. Ct. App. 1888) (precluding any obstruction

that “substantially and materially interferes” with fish

passage).

8

The Tribes have a federally protected treaty right,

not one based on the vagaries of State common law.

Winans, 198 U.S. at 380. But surely the treaty right of

taking fish contains at least the protections against

direct obstructions of waterways that the common law

rights in a fishery would include. When the treaty was

negotiated and signed, those rights prevented blocking

fish passage as the State’s culverts do here.

ARGUMENT

I. THE COMMON LAW PROTECTED

FISHERIES FROM OBSTRUCTIONS THAT

IMPEDED FISH PASSAGE

A. Fishery Rights Like Those Guaranteed by

the Tribes’ Treaties Were Well-Established

at Common Law

The common law recognized both public and private

fisheries. Joseph Chitty, A Treatise on the Game Laws

and on Fisheries 239 (2d ed. 1826). Public fisheries

existed in the ocean and on navigable waters, the latter

of which were defined to include all waterways that

were “arms of the sea” because they were subject to the

ebb and flow of the tide. Chitty, supra, at 239, 269,

276. Private fisheries existed in non-navigable rivers,

lakes and streams.

In the ocean and other navigable waters, while the

king was entitled to take certain species denominated

“royal fish” (e.g., whales and sturgeon), the privilege of

fishing for other species belonged to all British subjects

in common. Woolrych, supra, at 92, 98-99. See also

Henry Schultes, An Essay on Aquatic Rights 4-5, 10,

13, 15, 17 (1831) (discussing the development of these

principles from Roman law to the early English

9

common law scholars). In waters that were not

navigable, however, the presumption was that the

public had no right to fish there, Instead, the owners

of the riparian lands owned the fishery. Chitty, supra,

at 276-77. If one person owned both sides of a non-

navigable river, he would acquire the exclusive right of

fishing in the waters between. Otherwise, a riparian

owner gained the right to fish to the middle of the

waterway. /d. at 276-77; Archibald Brown, Scriven on

Copyholds 243 (6th ed. 1882); Woolrych, supra, at 30,

124.

These default rules could be modified by obtaining

rights in a fishery through royal grant (i.e., franchise),

private grant, custom, or prescription. Woolrych,

supra, at 30, 91, 92, 139, 141. The extent to which

these rules could be used to modify the rights in public

fisheries, however, was hotly debated. Scholars

disagreed about whether the public’s rights in

navigable waters could be abrogated through royal

grant. See Schultes, supra, at 4-18, 68-69, 80 (arguing

that the king could only grant an exclusive franchise in

navigable waters for royal fish). And while some

scholars claimed that a person could obtain an

exclusive private fishery in navigable waters through

prescription after 20 years, others argued that public

fisheries could not be appropriated by individuals in

this manner. Compare see Henry Roscoe, 1 A Treatise

on the Law of Actions Relating to Real Property 372

(1825), with Scriven on Copyholds, supra, at 242. See

also Schultes, supra, at 4, 10 (noting that under Roman

law, public rights were “incapable of individual

exclusive appropriation”).

10

Because grants, custom and prescription could

modify the rights to private fisheries, and potentially

public fisheries (subject to the above limitations),

courts and scholars referred to the resulting fisheries

as “territorial fisheries,” “several fisheries,” “free

fisheries,” “common fisheries,” and “commons of

piscary.” Woolrych, supra, at 30, 123-24.

Unfortunately, there was never complete agreement on

the definition of each of these terms, which overlapped.

Chitty, supra, at 280-81 (noting that “lflrom the

earliest cases that can be found upon this subject, the

distinctions between these various fisheries seem to

have been much disputed”); William Blackstone 2(2)

Commentaries on the Laws of England 40 (claiming

that there were three different types of fisheries, and

“the rights and distinctions lof these fisheries is] . . .

very much confounded in our law-books”); Schultes,

supra, at 32-33 (claiming that there were four different

types of fisheries and “a considerable contrariety of

sentiment has prevailed in regard to their distinct

definitions”).

Regardless of the nuances, most courts and scholars

agreed that a “several fishery” was an exclusive right

to take fish within an area.‘ Woolrych, supra, at 126,

‘ Differences arose as to whether the possessor of a several fishery

was required to be a riparian landowner. For example, Blackstone

believed that a several fishery was the exclusive right of fishing

possessed by a riparian landowner, and that a free fishery was the

exclusive right of fishing in public waters, pursuant to a royal

franchise. Blackstone, supra, at 39-40. But Schultes believed that

a several fishery was an exclusive right to fish, and that while this

right could not exist in navigable waterways, in private waters, it

was not limited to riparian landowners. Schultes, supra, at 33, 36,

44, 85.

11

134, 137; Chitty, supra, at 281-83, 303. This was in

contrast with a “common of piscary,” which was a type

of profit-a-prendre — a non-exclusive right to take fish

in a private waterway, typically as a non-riparian

landowner. Blackstone, 2(2), supra, at 30 (noting that

a “common of piscary is a liberty of fishing in another

man’s water” and discussing other profits such as the

common of turbary (turf), and estover (fallen wood));

John Edward Hall, A Treatise on the Law Relating to

Profits A Prendre and Rights of Common 307 (1871).

Cf. George Wingrove Cooke, A Treatise on the Law of

Rights of Commons 7, 37 (1856) (concluding that a

common of piscary could, like other profits, be

appurtenant (benefiting and transferring with land) or

in gross (benefiting a person)). Definitions of a “free

fishery” were more disparate. Compare Schultes,

supra, at 61-62 (concluding that a free fishery was

synonymous with a common of fishery; it was a non-

exclusive right to fish in navigable and non-navigable

waters), with Blackstone, supra, at 39 (asserting that

a free fishery was the exclusive right of fishing in a

public river and was also known as a royal franchise).

The rights belonging to the Tribes bear hallmarks

of several of these common law fisheries, a fact glossed

over by amici curiae AWB in its brief discussion of the

common law. AWB Br. at 10-11. For example, as the

former owners of riparian land on both sides of non-

navigable waterways, the Tribes, under a common law

regime, would have originally possessed an exclusive

several fishery. In their treaties, the Tribes retained

the right to take fish at all of their “usual and

accustomed fishing places,” but they did so “in common

with the citizens of the territory.” Therefore, the

Tribes’ rights bear some resemblance to both a free

12

fishery and a common of piscary. But neither of these

categories fits precisely, because as this Court has

previously held, the Tribes did not simply retain the

right to compete equally with other fisherman. Their

treaties guarantee tribal members the right to take up

to one half of the harvestable fish at their traditional

fishing locations. Fishing Vessel, 433 U.S. at 684-87.

Regardless, the precise categorization of these

Tribal rights would not have mattered at common law.

Whatever their characterization, the Tribes’ rights

would have been understood as valuable property

interests, entitled to protection from interference. In

particular, as discussed in the next section,

obstructions that blocked fish passage to any of those

fisheries were prohibited.

B. Obstructions to Fish Passage Were

Prohibited at Common Law

At common law, obstructions in navigable

waterways were considered “purprestures,” or public

nuisances. This rule was originally developed, in part,

because obstructions hindered navigation, and

historically, rivers were the equivalent of today’s

highways. But obstructions were also prohibited if

they impeded the passage of fish upstream. Chitty

explains the reasoning behind this rule as follows:

Public fisheries, as a matter of national concern,

are of great importance, since they are not only

the source of considerable sustenance for the

population of the country, but constitute a

nursery for our seamen. We therefore find that

the common law has, in various instances,

particularly protected such fisheries . . .

13

Chitty, supra, at 239. Woolyrch agreed in particularly

strong language: “|T|he erection of wears, so as to

injure the fish, is a public nuisance, it is itself illegal,

and against the rules of the common law; and no length

of time will legitimate or sanction the continuance of

such an obstruction.” Woolrych, supra, at 217.

This rule was so strong, that “|njot even a legal

grant by the Crown can make a nuisance of this kind

lobstructing a public waterway] legitimate. The right

of the public is paramount.” Woolrych, supra, at 194.

For example, in Williams v. Wilcox, 8 Ad. & E. 315

(1838), the plaintiff brought a trespass action against

the defendant, who had torn down a weir appurtenant

to the plaintiffs fishery. The plaintiff, similar to the

Petitioners here, claimed that his weir was legal

because the Crown had granted his predecessors in

interest the right to erect it generations ago.

Additionally, at the time of its original construction,

the weir blocked only part of the river; it was only

much later, when the river changed course and became

congested with debris, that passage was completely

obstructed.

The court rejected this defense, noting that such

obstructions were always nuisances:

It is difficult, therefore, to see how any such

grant made in derogation of the public right

previously existing, and in direct opposition to

that duty, which the law casts on the Crown, of

reforming and punishing all nuisances which

obstruct the navigation of public rivers, could

have been in its inception valid at common

law. ... We are, therefore, of opinion that the

legality of this weir cannot be sustained on the

14

supposition of any power existing by law in the

Crown in the time of Edward I, which is now

taken away.

Wilcox, 8 Ad. & E. at 333-34.”

Obstructions to fish passage were not only protected

by common law nuisance actions, but by legislation.

The Magna Carta provided “that all weirs from

henceforth shall be utterly pulled down by Thames and

Medway, and through all England except by the sea-

coast.” Chitty, supra, at 246, 351. Lord Coke and

others interpreted this provision to require that the

owners of river banks keep the rivers open for both

navigation and fish. /d. at 246.

The Magna Carta was followed by a long series of

statutes that treated obstructions to waterways as

public nuisances, forbidding the erection of new weirs,

and the enhancing or enlarging of those which had

existed prior to its adoption. Chitty, supra, at 248, 249

(discussing various acts); Woolrych, supra, at 193

(same). For example, a 1393 statute granted the

citizens of London the right to “remove and take away

all the weirs in the waters of the Thames and Medway”

to ensure safe fish passage. Chitty, supra, at 372-73.

Similarly, a law enacted during the reign of Edward IV

declared that mill dams and other obstructions “had

* Ultimately, however, the court sided with the plaintiff in Wilcox

because it concluded that balance struck in the Magna Carta

provided that all obstructions erected prior to its adoption in 1215

A.D., would be permitted to continue in their present form, even as

new barriers were prohibited. Protection for these ancient

obstructions was a carefully constructed compromise, which

ensured that all future weirs and dams would guarantee the free

passage of fish. Wilcox, 8 Ad. & E. at 335-36.

15

been enhanced, levied, and enlarged, so as to destroy

the fish, and endanger the navigation,” and so a

penalty of one hundred marks was applied to offenders

for every month that such obstructions remained

unrectified. Woolrych, supra, at 193.

Later, Parliament enacted statutes that prohibited

dams, steps, mills and other obstructions unless their

design was approved by designated persons or

committees, which were charged with ensuing proper

fish passage. For example, the commissioners of sewers

had authority, under certain circumstances, to abate

mills, mill stanks and other obstructions by virtue of

the powers extended to them by the statute of sewers.

Woolrych, supra, at 243; see also Blackstone, supra, at

39, n.13 (discussing 1785 act preventing the erection

hedges, stone steps, mills and other obstructions in

waterways, except if leave was given by the court

“under such conditions for preventing the obstruction

of fish passage and ordinary navigation”). These laws

were enacted with particular regard to the life cycle of

salmon and other anadromous fish. Woolrych, for

example, discusses a statute that required all mill-

owners to keep open a sufficient space “for the salmon

to pass and repass freely up and down the said rivers”

between November and May of each year. Woolrych,

supra, at 173.

Those blocking fish passage were liable in civil and

criminal proceedings and were often required to modify

the structure or have it torn down. Woolrych, surpa, at

228-30. The public itself had a “right to remove

obstructions which impede the enjoyment of their

common privileges” so long as they could do so without

breach of the peace. Woolrych, supra, at 222. The

16

court also could order that structures preventing fish

passage, such as those “preventling] salmon from

coming up river to spawn” be “cut and destroyed .. .

and demolished.” Jd. at 222-23.

These rules prohibiting obstructions were not

limited to navigable waters. Private fisheries were also

to remain unobstructed under English common law.

For example, Woolrych states that “the possessor of

such a [private fishery] right cannot use it to the

detriment of his neighbor.” Woolrych, supra, at 30-31.

Individuals who owned an interest in a private fishery

(e.g., several fishery, common of piscary), through

riparian land ownership, grant, custom, or

prescription, possessed several remedies against

persons who placed obstructions in the water that

impeded fish passage.

The prohibition on obstructions of non-navigable

waterways was discussed at length in the oft-cited case

of Weld v. Hornby, 103 Eng. Rep. 75, 7 East 196 (K.B.

1806). In Weld, the plaintiff possessed private fishing

interests for the past several decades in parts of the

Ribble River. The defendant’s predecessors had erected

a weir across the river near their mill under authority

of deeds that were more than 200 years old. Prior to

1766, however, the weir was constructed entirely of

brushwood. After that date, the owner of the mill

erected a solid stone weir across two-thirds of the river,

leaving the other one third composed of brushwood.

None of the upstream fishery owners made an objection

to this change. Then in 1784, the defendant removed

the remaining third of the brushwood weir and

extended the stone weir completely across the river.

Nearly 20 years later, the plaintiff filed suit, arguing

17

that the weir almost completely blocked the passage of

fish and was therefore a nuisance. The jury concluded

that the weir was prejudicial to the plaintiff, but it

found for the defendant based on the length of time

that the weir had existed. The court set aside that jury

verdict, however, holding that the weir constituted a

public nuisance.°

The same rules appear to have existed throughout

the United Kingdom. In an early Irish case, for

example, an individual who obstructed the river Bann

with weirs and traps made of wood, stone, and other

substances, was charged with trespass. Hamilton v.

Marquis of Donegall, 3 Ridgeway’s Parl Cases 267, 268

(Ire. 1795). The river was 158 feet wide, and the

* This prohibition against obstructions to waterways is analogous

to such prohibitions for land-based easements. The typical

common law rule prevented a landowner from erecting an

obstruction within the easement of another. For example, in The

King v. Ward, 4 Ad. & E. 335 (1836), the defendant erected a

causeway to make it easier for ship passengers to embark and

disembark ships. But the causeway partially obstructed the

Medina River, and the causeway builder was charged with

criminal negligence. The builder argued that the inconvenience of

the obstruction was justified by the resulting public benefit, but

the court rejected his argument as irrelevant and found him guilty.

In doing so, the Ward court analogized to other cases, both real

and hypothetical, involving obstructions of easements. For

example, the court stated that a properly constructed hoard (a

temporary solid structure at a construction site that prevents

unauthorized access) erected in a street while building repairs

were ongoing, would not create nuisance liability, because it “was

placed for the safety of those possessing the right of way: it

protects them from inevitable danger” while still “leav{ing) them

a free passage, and sends them another way if the whole street is

necessarily obstructed.” /d. at 405. On the other hand, “la!

permanent hoard would be abatable as a nuisance.” /d.

18

defendant’s obstructions occupied just 48 feet. Jd. at

286. Statutes required only 21-foot openings in rivers

to allow for boat and fish passage, and the defendant

argued that, as a result, no error had been committed.

Id. But the plaintiff claimed that the common law still

compelled liability for obstructing the river, because

those portions of the river that were not occupied by

the defendant's structures developed currents that

were too fast for the salmon, trout and other fish to

migrate. Id. at 286-87. As a result, fish were

prevented from swimming upstream to the plaintiff's

fishery. Id. at 269, 281.

The jury found for the plaintiff, and the defendant

appealed to the Court of Exchequer and the House of

Lords, both of which affirmed the jury verdict. /d. at

328. Woolrych summarized the latter decision in his

famous treatise as concluding that the “owner of the

lower fishery [could not] make such an alteration in the

stream, the common medium of both fisheries, as to

destroy the rights of the upper one,” “|flor it was not

competent to the plaintiff in error to alter the condition

of the fishery, nor to obstruct the passage of fish from

the sea into the plaintiffs fishery in any manner not

essentially necessary to enable her to exercise her right

of catching fish, in their passage up the river.”

Woolrych, supra, at 230.

The law was similar in Scotland. As in England,

Parliament acted early on to prohibit obstructions to

navigable waterways. For example, a statute enacted

in 1318 provided “that all those who have cruives,

fisheries, ponds or water-mills” in navigable waterways

“where young salmon, smolts or the fry of other kinds

of fish of the sea or fresh water descend and ascend,”

19

must position such machinery to ensure that “no fry of

fish are impeded from ascending and descending.”

English precedent was also consonant with Scottish

judicial decisions. For example, in Viscount Arbuthnott

v. Scott, UKHL 4 Paton 337 (1802), upper riparian

owners who held a several fishery along the North Esk

River complained that a lower riparian property

owner’s dam dyke was obstructing the passage of fish.

The structure was constructed without leaving any

gaps, and the top of the dyke was very broad,

completely dry, and of great height, leaving no possible

chance of the fish swimming upstream except during

floods. Jd. at 341, 343. The appellants argued that this

was a nuisance under the common law, because “the

respondent can only exercise his own right of fishing in

such a manner as not to injure the interests or rights

of fishing of the upper heritors,” yet his dam dyke was

creating a “total obstruction to the passage of the fish.”

Id. at 341.

The House of Lords agreed with the appellants,

concluding that “|t|he law, as to nuisances, must be the

same in both countries” — England and Scotland. /d. at

343. Although the respondents had an easement, “it

must be enjoyed and exercised so as not to prejudice

other rights on the same river, emulously, negligently,

or otherwise.” Jd. at 245. The respondents had

violated that maxim here. See also Bailie v. Lady

’ The school of history at the University of St. Andrews has

digitized The Records of the Parliaments of Scotland to 1707 and

has made this resource available on-line. This particular 1318 Act

can be found at http://www_rps.ac.uk/search.php?action=print&id

=304&filename=roberti_ trans&type=trans (last visited Mar. 29,

2018).

20

Saltoun, 1821 Sess. Cas. 2016 (Scot. 2d Div), reprinted

in Cases Decided in The Court of Session From May 12,

1821 to July 11, 1822, Vol. 1 216-17 (1834) (approving

an action to enjoin a weir because it was weir

“injurious to . . . his rights of fishing”). By 1869,

Charles Stewart's A Treatise on the Laws of Scotland

Relating to Rights of Fishing could declare confidently

that all artificial structures “which form even a partial

obstruction, or tend to frighten the fish, are illegal .. .

and it is no defence to an action for the removal of such

contrivances, that the right to use them has been

expressly conveyed by grant, or that they have been in

use for the prescriptive period, or for time

immemorial.” /d. at 167-68. See also Countess

Dowager of Seafield v. Kemp, 36 8.L.R. 363 (S.C. 1899)

(“Every proprietor of salmon-fishings is injured if the

spawning beds are spoiled”); Earl of Kintore v. Pirie,

UKHL 838, 839, 43 S.L.R. 838 (1906) (stating that no

interference shall be made which materially obstructs

the passage of fish”).

The law was clear across the United Kingdom. No

one could obstruct fish passage so as to interfere with

a public or private fishing right. If they did, the

obstacle must be modified or removed at the owner's

expense.

21

ll. U.S. STATES ADOPTED COMMON LAW

PROHIBITIONS ON OBSTRUCTIONS TO

FISH PASSAGE THROUGH CASELAW AND

STATUTES

Early in U.S. history, the states adopted English

common law on fisheries. Of course, some states made

modifications to English law, especially to take into

account the different geography in this country.” These

modifications tended to be modest, however, producing

only minor differences between U.S. and English law.

Importantly, English common law precluding the

obstruction of fish passage in navigable and non-

navigable waterways was almost universally adopted

in the United States. Scholars and courts often stated

that private parties could not exercise their rights in a

manner that would cause “injury to the private rights

of others,” and therefore, “imped|ing| the passage of

fish up the river by means of dams or other

obstructions” was prohibited. Darius H. Pingrey,

Treatise on the Law of Real Property 115 (1895); see

also James Kent, 3 Commentaries on American Law,

411 (2d ed. 1832) (citing the English decision in Weld

"For example, while many states retained the distinction found in

England limiting public fishing rights to waterways that were

affected by the ebb and flow of the tides, some states, such as

Pennsylvania, decided to depart from English common law on this

point and hold that public rights existed on all waterways that

were navigable by boat, even if they were not affected by the tides.

Compare Adams v. Pease, 2 Conn. 481, 482-84 (1818) (adopting the

English common law test), with Carson v. Blazer, 2 Binn. 475, 477-

78 (Pa. 1810) (expanding the common law test by finding that the

public maintained fishing rights on inland rivers such as the

Susquehanna, which were navigable by boat but not affected by

the tides).

22

and noting that “|t|his right of fishery in rivers not

navigable, is also subject to the qualification of not

being so used as to injure the private rights of others;

and it does not extend to impede the passage of fish up

the river by means of dams or other obstructions”); J.B.

Phear, A Treatise on Rights of Water 26-28 (1859)

(citing decisions from the United Kingdom in Weld and

Marquis of Donegall while noting that U.S. riparian

landowners cannot “work any material injury to the

rights of other proprietors above or below on the

stream”); William Wait, 3 A Treatise upon some of the

General Principles of the Law 363 (1885) (stating that

a fishing right is “subject to the reasonable

qualification of not being so used as to injure the

private rights of others; and it does not, therefore,

extend to impede the passage of fish up the river by

means of dams or other obstructions”); Henry Philip

Farnham, Law of Waters and Water Rights 1405-10

(1904) (“No riparian owner has a right to place an

obstruction in a stream which will interfere with the

passage of fish to land of owners living further up. And

this rule applies to the erection of dams. . . |which|

must contain ways through which the fish can pass”).

The leading American treatise in this area of the

law, Joseph K. Angell’s Treatise on the Law of

Watercourses (5th ed. 1854), explained:

Even the exclusive right of fishery in rivers not

navigable, is subject to a_ reasonable

qualification, in order to protect the rights of

others, who have a similar interest, but might

lose all advantage from it, if their neighbors

below them could with impunity wholly impede

the passage of fish. The right of several fishery

23

is clearly limited to the right of taking fish, and

does not carry with it the right to hinder the

passing of them above, and of preventing the

suprariparian proprietors from enjoying a

similar privilege.

Id. at 82-83." See also State v. Roberts, 59 N.H. 256,

257 (1879) (noting that “while the riparian owner has

the exclusive right of fishery upon his own land, he

must so exercise that right as not to injure others in

the enjoyment of a similar right upon their lands upon

the stream above and below. He must not, by means of

dams or other artificial obstructions, prevent the

passage of fish up and down the stream, nor can a

prescriptive right to maintain such obstructions be

acquired in any of the waters of this state”).

As in England, a public or private nuisance suit

could be brought against persons who obstructed the

passage of fish to upstream users. Additionally, just as

England enacted statutes regulating obstructions of

waterways, by the mid-1850s when the Stevens

treaties were negotiated, more than a dozen states had

passed legislation prohibiting obstructions in

waterways that could impact fish passage including

Connecticut,” Florida,'' Georgia,'* Kentucky,'* Maine,"

" As in England, this prohibition on obstructions of waterways is

similar to the prohibition on such obstructions for easements in

general. When an casement is present, the servient estate holder

“may be enjoined from placing obstructions upon the way which

materially interfere with the grantee’s use of it.” Leonard A.

Jones, A Treatise on the Law of Easements 314 (1898).

" Act of Oct. 1785, 1785 Conn. Pub. Acts 330; Act of May 1798,

1798 Conn. Pub. Acts 488; The Public Statute Laws of the State of

Connecticut 269 (Act of 1824 for encouraging and regulating

24

Massachusetts,'° New Hampshire,'* New York,'’ North

Fisheries), 278 (Act of 1824 in addition to an Act entitled “an Act

for encouraging and regulating Fisheries”), 479 (An Act of 1838 to

prevent and remove Nuisances in Highways, Rivers, and Water-

courses) (John S. Boswell ed., 1839).

" Act of Feb. 10, 1832, Fla. Stat. Ann. § 861.02 (West 2017).

™ Act of Feb. 15, 1799, 1799 Ga. Laws 141; Act of March 1, 1799,

1799 Ga. Laws 280; 2 Historic Georgia Digests and Codes 905 (Act

of Dec. 15, 1809), 906 (Act of Dec. 18, 1816), 923 (Act of Dec. 9,

1824), 907 (Act of Dec. 18, 1824; Act of Dec. 24, 1825; Act of Dec.

22, 1829), 925 (Act of Dec. 26, 1835), 917 (Act of Dec. 28, 1836), 940

(Act of Dec. 21 1839), 919 (Act of Dec. 23, 1839), 936 (Act of Dec.

23, 1839), 914 (Act of Dec. 25, 1842), 930 (Act of Jan. 26, 1850)

(Thomas R. R. Cobb ed., 1851).

“ Bibb v. Montjoy, 5 Ky. 1(2 Bibb.) 3—4 (1810) (discussing 1797 law

requiring persons desiring to construct mill dams across

waterways to receive approval for such dams to ensure no

obstruction to fish passage); 2 Statute Law of Kentucky 948 (Act of

Feb. 10, 1816) (William Littell & Jacob Swigert 1822); Act of

February 27, 1849, 1849 Ky. Acts 37.

“* Peables v. Hannaford, 18 Me. 106 (1841) (interpreting 1839 Act

requiring fish committee to remove all incumbrances from certain

waterways during spawning season, where fish run from May 5th

through July 5th each year); Bearce v. Fossett, 34 Me. 575 (1852)

(discussing 1789 and 1826 Acts mandating fish passage); Act of

Feb. 28, 1821, 1874 Me. Laws 46; Act of Mar. 17, 1821, 1874 Me.

Laws 84.

" | Private and Special Statutes of the Commonwealth of

Massachusetts 272 (Act of Mar. 4, 1790) (Manning & Loring 1805);

Act of Mar. 1, 1799, 1799 Mass. Acts 281; Act of Mar. 7, 1844, 1852

Mass. Acts 92, reprinted in Laws relating to Inland Fisheries in

Massachusetts 229 (Wright & Potter 1887).

° Little v. Perkins, 3 N.H. 469 (1826) (discussing 1824 Act that

prohibited dams from obstructing fish passage between May and

October each year); Act of June 18, 1790, 1790 N.H. Laws 527,

reprinted in 5 Laws of New Hampshire 527 (Henry Harrison

Metcalfe ed., 1916).

25

Carolina,'* Pennsylvania,’* Rhode _ Island,*°

South Carolina,”* Tennessee,” Vermont,”* Virginia,”

and Wisconsin.”

” Act of Mar. 28, 1800, 1800 N.Y. Laws 522, reprinted in Laws of

the State of New York (Loring Andrews ed., 1800).

' Dunn v. Stone, 4 N.C. 241 (1815) (discussing 1787 statutes

requiring dams to leave one-quarter of width of rivers open for fish

passage).

See 8 The Statutes At Large of Pennsylvania 36 (Act of Mar. 9,

1771, ch. 627), 386 (Act of Jan. 22, 1774, ch. 642) (James T.

Mitchell & Henry Flanders eds., 1902); Act of Apr. 15, 1835, 1836

Pa. Laws 138.

” The Public Laws of the State of Rhode Island and Providence

Plantations 490 (Act of 1735), 494 (ACT OF 1779 & 1792), 496 (AcT

OF 1736; 1743; 1798), 498 (Act of 1798), 499 (Act of 1798) (Carter &

Wilkinson 1798).

* Boatright, 24 S.C.L. (Rice) at 451 (discussing 1827 law designed

to prevent obstructions to the passage of fish up several rivers and

appointiag board of commissioners to ensure the same); Tarrar &

Miller v. Nunamaker, 39 8.C.L. (5 Rich.) 484 (S.C. Ct. App. 1852)

(same); 7 The Statutes At Large of South Carolina 531 (Act of Mar.

26, 1784) (David J. McCord ed., 1840); 5 The Statutes at Large of

South Carolina 82 (Act of Feb. 29, 1788), 93 (Act of Nov. 4, 1788),

217 (Act of Dec. 21, 1792), 508 (Act of Dec. 19, 1805), 579 (Act of

Dec. 15, 1808) (Thomas Cooper ed., 1839).

“ | Laws of the State of Tennessee 384 (Act of 1787) (Edward Scott

ed., 1821).

* State v. Theriault, 41 A. 1030 (Vt. 1898) (applying 1797 Act,

which makes the erection of any artificial structure “whereby

navigation or the passage of fish may be obstructed, a nuisance,”

and punishes the same); Act of Mar. 8, 1787, 1787 Vt. Acts &

Resolves 72.

* Act of Oct. 1785, ch. LXXXII, 1785 Vt. Acts 62; 3 Statutes at

Large of Virginia 409 (Act of Jan. 15, 1808) (Samuel Shepherd ed.,

1836).

* An Act regulating fisheries, 1839 Wis. Sess. Laws 121.

26

The Territories of Oregon (from which the

Washington Territory was separated out) and

Washington, where treaties protecting the tribal right

to “take fish at all usual and accustomed grounds and

stations” were negotiated,” also prohibited persons

from obstructing rivers in a manner that would impede

fish passage. The Oregon Territorial Act adopted by

Congress in 1848, provided as follows:

That the rivers and streams of water in said

Territory of Oregon in which salmon are found,

or to which they resort, shall not be obstructed

by dams or otherwise, unless such dams or

obstructions are so constructed as to allow

salmon to pass freely up and down such rivers

and streams.

Act of Aug. 14, 1848, § 12, 9 Stat. 323, 328.

This provision was not in the original bill. Rather,

it was added on the floor of the House at the request of

Massachusetts Representative Joseph Grinnell.

Grinnell was well acquainted with the drastic

reductions in fish populations that could occur if

waterway obstructions were not prohibited, as his own

state had struggled with this issue for nearly a century.

On the floor of Congress, the discussion was

summarized as follows:

* Tribal fishing rights were protected by federal law even prior to

the negotiation and ratification of these treaties in the 1850s. For

example, a December 23, 1844 act “[i]n relation to Indians” in the

Oregon Territory provided “|t|hat the Indians shall be protected in

the free use of . . . such fisheries as they have heretofore used.”

Laws of a General and Local Nature Passed by the Legislative

Committee and Legislative Assembly Collected and Published 70

(1853).

27

Mr. GRINNELL moved a new section, to

come in between the 11th and 12th sections,

providing that the rivers and streams in the

Territory in which salmon are found shall not be

obstructed by dams or otherwise unless so made

as to allow said fish to pass freely.

He said there was now a valuable fishery in

Oregon, and unless some care was taken of it, it

would be lost. For the want of care, by the

erection of a dam, &c., in the Connecticut river,

the salmon, which formerly had been very

valuable there, had been driven out. This might

be avoided in this Territory, with care, without

expense.

The amendment was agreed to.

Cong. Globe, 30th Cong., lst Sess. 1020 (1848). This

statement directly contradicts the claims of the

Petitioner and its amici that salmon were considered

“inexhaustible” at treaty times, and that neither treaty

party could have envisioned a drastic reduction in their

supply.”’

The Territory of Washington was established in

1853. In the Washington Territorial Government Act

* Federal negotiators surely knew that wildlife was not an

inexhaustible resource. The fur trade had drastically reduced

many species by the middle of the nineteenth century, and

resource conflicts between Indian tribes and white settlers were

already occurring. For example, in 1855, the same year that many

of the Stevens Treaties were negotiated, the Mille Lacs Band in

Minnesota was locked in a contentious dispute with lumberman

who had erected a dam on the Rum River that was destroying the

Tribe's wild rice beds. The Tribe actively asserted that their treaty

rights precluded such obstructions. See, e.g., Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 182 (1999).

28

of that same year, Congress provided that “legislation

of Congress in reference to the Territory of Oregon,”

along with “legislative enactments of the Territory of

Oregon” would apply within the Territory of

Washington so long as they were “not inconsistent

with, the provisions of this act.” Act of Mar. 2, 1853,

§ 12, 10 Stat. 172, 177. As a result, the requirement

that dams or other obstructions be constructed “to

allow salmon to pass freely up and down such rivers

and streams” was the law in the Territory of

Washington from its very inception, including at the

time the treaties in this case were negotiated. Act of

Aug. 14, 1848, § 12, 9 Stat. 323, 328. Ultimately, the

Washington Territory both explicitly received English

common law and enacted its own prohibition on

obstructing the passage of salmon during spawning

season. See Code of Washington 1881, available at

http:/Aeg.wa.gov/CodeReviser/documents/sessionlaw/

1881Code.pdf , Ch. 1, § 1 (“The common law of

England, so far as it is not repugnant to, or

inconsistent with the constitution and laws of the

United States and the organic act and laws of

Washington territory, shall be the rule of decision in all

the courts of this territory”) and Ch. 411, § 1173

(requiring any person who may build an obstruction in

any river in the Territory to “construct a suitable fish

way by which [salmon] may reach the water above said

dam, or obstruction” and providing that any person

who creates an obstruction that “may prove an absolute

bar to the passage of fish frequenting the same for the

purpose of spawning” may be fined or sentenced to up

to one year in county jail).

By the end of the nineteenth century, this web of

common law and statutory law had generated a robust

29

body of caselaw in the United States ensuring that

waterway obstructions did not impede the passage of

fish. Emory Washburn, Treatise on the American Law

of Easements and Servitudes 330 (1863). Many of the

cases litigated involved dams or mills that had been

authorized by legislative acts, and years after their

construction, the current owner was being pressed to

alter that structure to ensure fish passage upstream.

Courts consistently concluded that these obstructions

created a nuisance.

For example, in Stoughton v. Baker, 4 Mass. 522

(1808), the Massachusetts Supreme Court held that the

town of Dorchester, in authorizing the construction of

a dam on the Neoponset River a century earlier, did not

preclude its more recently created fishery committee

from requiring modification to the dam to provide for

fish passage. The court stated that:

every owner of a watermill or dam holds it on

the condition, or perhaps under the limitation,

that a sufficient and reasonable passage-way

shall be allowed for the fish. This limitation,

being for the benefit of the public, is not

extinguished by any inattention or neglect, in

compelling the owner to comply with it. For no

laches can be imputed to the government, and

against it no time runs so as to bar its rights.

Id. at 528; see also, State v. Franklin Falls, 49 N.H.

240, 250 (1870) (holding that criminal indictment for

maintaining a nuisance was proper where the

defendant’s dams obstructed the passage of fish, even

though the dams were constructed more than 20 years

ago); Parker, 111 Ill. at 586, 590 (concluding that dam,

which was first built in 1836, modified with legislative

30

authorization, and had always obstructed the passage

of fish, was required to be remediated because “[u|nder

the common law, obstructions to the passage of fish

were held to be public nuisances, and subject to

legislative control”); West Point Water Power & Land

Imp. Co. v. State, 66 N.W. 6, 7 (Ne. 1896) (enforcing

state statute requiring artificial structures in

waterways to be modified to create “a suitable and

substantial fishway” even though the territorial

legislature had previously authorized the defendant’s

milldam); State v. Beardsley, 79 N.W. 138, 140 (lowa

1899) (requiring defendant to modify his dam

constructed more than 20 years earlier, noting that

“It]he law seems to be . . . definitely settled in favor of

the public, to protect fish, and provide for their passage

along the streams, as well in unnavigable as in

navigable waters”)

As the preceding discussion establishes, when the

Stevens treaties were being negotiated, obstructions to

waterways that impeded the passage of fish were

actionable public or private nuisances in both the

United Kingdom and the United States. The federal

drafters of the Stevens treaties would have fully

understood this, and the words they chose prevent the

State from blocking fish passage. In arguing that it

may maintain barrier culverts that prevent

anadromous fish from traveling from freshwater to sea

and back, the State takes the untenable position that

the treaties provide tribes with even fewer rights than

those same words would provide at common law. This

Court should reject such an unjust and narrow

interpretation of these federally protected rights.

31

CONCLUSION

The judgment of the United States Court of Appeals

for the Ninth Circuit should be affirmed.

Respectfully submitted,

COLETTE ROUTEL

Counsel of Record

F MITCHELL HAMLINE

° SCHOOL OF LAW

875 Summit Ave.

P Saint Paul, MN 55105

(651) 290-6327

colette.routel@mitchellhamline.edu

BETHANY BERGER

UNIVERSITY OF CONNECTICUT

SCHOOL OF LAW

65 Elizabeth St.

Hartford, CT 06105

bethany. berger@law.uconn.edu

Counsel for Amici Curiae