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

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0776%3A19. Public record. Not legal advice.