827 F.3d 836
9th Cir.2016Background
- The United States and 21 Pacific Northwest tribes sued Washington under the 1854–55 Stevens Treaties, alleging state-owned road culverts block salmon passage and thereby violate the tribes’ treaty right to take fish at usual and accustomed places.
- The district court (after bench trial) found Washington’s culverts significantly reduced salmon runs, harming tribal harvests, and entered a permanent injunction requiring identification and staged correction of state-owned barrier culverts (different timelines for WSDOT vs. other state agencies).
- Washington cross-requested relief against the United States, seeking an injunction requiring federal culverts be fixed and, arguable in some filings, contribution toward state culvert costs; the district court struck the cross-request on sovereign immunity and standing grounds.
- On appeal, the Ninth Circuit affirmed: (1) Washington violated the Treaties by building/maintaining barrier culverts; (2) the United States had not waived tribes’ treaty rights; (3) Washington’s cross-request for injunctive relief against the U.S. was barred by sovereign immunity and Washington lacked standing to assert tribal rights against the U.S.; and (4) the injunction as tailored was not an abuse of discretion.
- The court addressed (and rejected) Washington’s objections about breadth, deference to state expertise, costs/equity, intrusion into state operations, and federalism, noting factual record (including state-supplied studies) supported the remedy and that prior precedent allows detailed remedial decrees enforcing treaty rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washington has a treaty-based duty to avoid constructing/maintaining culverts that diminish tribal harvests | U.S./Tribes: Stevens Treaties guarantee a protected supply of fish; state actions that diminish fish runs violate the treaty | Washington: treaty protects access but imposes no affirmative duty on state land-use decisions; state may block streams | Held: State violated treaty — treaties construed in tribes’ favor and purpose implies obligation to avoid actions that defeat the treaty’s object (sufficient fish for a moderate living) |
| Whether the United States waived tribes’ treaty rights by agency actions/inaction | Washington: federal approvals and participation led state to rely and thus waived enforcement | U.S.: treaty rights belong to tribes; U.S. (as trustee) cannot waive or diminish tribal rights absent clear congressional intent | Held: No waiver/estoppel; federal entities cannot extinguish tribal treaty rights by laches/estoppel/waiver absent statute |
| Whether Washington’s cross-request for injunctive relief against the U.S. is permitted despite sovereign immunity; and whether recoupment of costs is allowed | Washington: cross-request sought injunction and (on rehearing) recovery/recoupment of some state culvert costs from U.S. | U.S.: sovereign immunity bars affirmative relief against it; recoupment only allows monetary setoff tied to plaintiff’s monetary claim | Held: Cross-request for injunction is barred by sovereign immunity; monetary recoupment argument waived on appeal and, on merits, inapplicable because plaintiff sought injunctive relief, not money (recoupment must be monetary and same kind as plaintiff’s relief) |
| Whether district court injunction was overbroad, failed to defer to state expertise, ignored costs/equity, or violated federalism | Washington: injunction too broad, ignored state expertise, imposed large costs on state budget, and intruded impermissibly on state operations | U.S./Tribes: injunction is tailored (priority distinctions, deferral options, timelines), based on extensive record including state data; equitable factors and precedent support remedies enforcing treaty rights | Held: Injunction was not an abuse of discretion—record supports findings; costs were considered and marginal/accelerated costs credited; federalism concerns overcome by treaty-enforcement precedents (e.g., Fishing Vessel) |
Key Cases Cited
- United States v. Washington, 443 U.S. 658 (1979) (affirming broad remedial decrees enforcing Stevens Treaties and permitting detailed federal court supervision when needed)
- United States v. Winans, 198 U.S. 371 (1905) (treaties construed to protect tribal fishing rights; easement/access affirmed)
- Tulee v. Washington, 315 U.S. 681 (1942) (state license fee incompatible with treaty fishing rights)
- Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (treaties with Indians construed liberally in their favor)
- Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (federal abrogation of Indian treaties requires clear congressional intent)
- Winters v. United States, 207 U.S. 564 (1908) (treaty purpose may imply necessary water rights to effectuate treaty)
- United States v. State of Washington, 759 F.2d 1353 (9th Cir. 1985) (en banc) (Phase II progeny; environmental obligations must be resolved with concrete facts)
- County of Oneida v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985) (recognition of monetary relief for historic dispossession of tribal land)
- City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005) (limits on reviving ancient sovereignty over reacquired parcels; distinguishable here)