United States v. State of Washington
853 F.3d 946
| 9th Cir. | 2016Background
- The Stevens Treaties (1854–55) guaranteed Pacific Northwest tribes the right to "take fish, at all usual and accustomed grounds and stations, in common with all citizens." Tribes ceded large land areas in exchange for those rights.
- Longstanding conflict over treaty fishing rights led the United States to sue Washington in 1970; Judge Boldt (1974) and later decisions established continued federal jurisdiction to resolve related disputes.
- Tribes (joined by the U.S.) challenged Washington’s construction and maintenance of road culverts that block salmon passage, alleging culverts diminish fish runs and thus violate treaty-protected fishing rights.
- The district court found state-owned barrier culverts significantly reduce salmon habitat/harvest; it entered a remedial injunction requiring identification and staged correction of state culverts (most WSDNR/State Parks/WDFW culverts by 2016; most WSDOT high-priority culverts within 17 years; others at end of life or with unrelated road projects).
- Washington appealed, arguing (inter alia) the treaties impose no duty to prevent habitat-blocking culverts, the U.S. had waived objections, its cross-request against the U.S. should be allowed, and the injunction unlawfully intrudes on state operations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Stevens Treaties impose a duty on Washington to refrain from building/maintaining culverts that diminish fish runs | Tribes/U.S.: treaty protects a fisheries supply sufficient for a "moderate living," so state actions that diminish fish (including barrier culverts) violate the treaties | Washington: treaty only guarantees access to fishing places, not a duty to prevent land-use impacts like culverts; State could lawfully block streams | Court: treaty construed for Indians’ understanding; State violated and continues to violate treaty by building/maintaining barrier culverts that reduce harvestable fish |
| Whether the U.S. waived tribal treaty rights or its own immunity such that those defenses bar relief | Tribes/U.S.: treaty rights belong to Tribes; U.S. cannot unilaterally waive or bar them by laches/estoppel/waiver | Washington: relied on federal approvals and inaction to argue waiver/estoppel; also argued U.S. sued, so it waived sovereign immunity to counterclaims | Court: U.S. cannot waive tribal treaty rights; laches/estoppel/waiver unavailable to defeat Indian treaty rights; U.S. sovereign immunity bars Washington’s cross-request for injunctive relief against the U.S. |
| Whether Washington’s cross-request (seeking an injunction forcing the U.S. to fix federal culverts first) is permitted despite sovereign immunity | Washington: cross-request is necessary and effectively offsets state burden if U.S. culverts also violate treaty | U.S.: sovereign immunity protects it from such affirmative relief; at most recoupment setoff permitted | Court: cross-request is not recoupment (seeking non-monetary affirmative injunction) and is barred by sovereign immunity; Washington also lacks standing to assert tribal rights against the U.S. |
| Whether the district court abused discretion in scope/timing of injunction (breadth, deference, costs, federalism) | Washington: injunction too broad, insufficient deference to state expertise, ignored costs/equity, intrudes on state governance and federalism | Tribes/U.S.: injunction tailored to evidence; prioritized high-benefit culverts; allows deferrals and consultation; equitable factors support relief | Court: injunction supported by record; distinctions for high/low priority culverts, 17-year schedule, deferrals, and design standards were reasonable; costs were considered and not an abuse; federalism concerns do not bar detailed relief enforcing treaties |
Key Cases Cited
- United States v. Winans, 198 U.S. 371 (1905) (treaty easements and construction of treaties in favor of tribes)
- Tulee v. Washington, 315 U.S. 681 (1942) (state regulatory fees cannot abrogate treaty fishing rights beyond conservation needs)
- Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) (affirming tribal share and that treaties protect an adequate supply to provide a moderate living)
- United States v. State of Washington (Washington III), 759 F.2d 1353 (9th Cir. 1985) (vacating broad environmental declaratory relief; confirming continuing treaty obligations to be resolved on concrete facts)
- Winters v. United States, 207 U.S. 564 (1908) (inference of water rights to effectuate treaty/reservation purposes)
- United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) (inferring water/habitat-related rights to preserve treaty purposes)
- City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005) (limits on unilateral revival of sovereign rights over reacquired ancestral lands)