Washington v. United States

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Washington v. United States
Term: 2017
Important Dates
Argument: April 18, 2018
Decided: June 11, 2018
Outcome
Ninth Circuit affirmed by an evenly divided court

## Contents

* 1 Background
* 1.1 Legal question
* 2 Case background
* 2.1 Panel opinion
* 3 Petitioner's challenge
* 4 Certiorari granted
* 5 Question presented
* 6 Audio
* 7 Transcript
* 8 Outcome
* 8.1 Decision
* 8.2 Text of the opinion
* 9 See also
* 10 Footnotes

Washington v. United States was a case argued during the October 2017 term of the U.S. Supreme Court. Argument in the case was held on April 18, 2018. The case came on a writA court's written order commanding the recipient to either do or refrain from doing a specified act. of certiorariLatin for "to be more fully informed." It is an "order issued by the U.S. Supreme Court directing the lower court to transmit records for a case it will hear on appeal."[1] to the United States Court of Appeals for the Ninth Circuit.

HIGHLIGHTS

* The case: In long-running litigation, American Indian tribes in Washington state argued that Washington was in violation of the Steven Treaties, which guaranteed certain fishing rights to the tribes. The tribes sought an injunction ordering Washington to remove or correct state-owned culvert barriers that the tribes argued were harming the supply of fish. Washington argued that the treaties did not obligate it to protect the fish supply and further argued that the United States should be required to fix federal government-owned culverts before Washington was required to fix state-owned culverts. The United States Court of Appeals for the Ninth Circuit ruled in favor of the tribes, and Washington appealed.

* The issue: Do the Stevens Treaties require Washington to protect the fish supply to fishing areas in which the tribes hold fishing rights?[2]

* The outcome: With Justice Anthony Kennedy recused, the Supreme Court split 4 - 4, leaving the Ninth Circuit's decision in place.[3]

You can review the lower court's opinion here.[4]

## Background[edit]

### Legal question[edit]

This was a case about Washington State's obligations under the Stevens Treaties, a set of treaties negotiated between the government and American Indian tribes in the state of Washington concerning, in part, the tribes' fishing rights. More specifically, "the fishing clause of the Stevens Treaties guarantees to the Tribes a right to engage in off-reservation fishing." This is the text of the fishing clause:

“  | The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens.[4][5] |  ”

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This case concerned whether the fishing rights provided to the tribes by the treaties included a guarantee that Washington would protect the fish supply to the areas covered by the treaties.

## Case background[edit]

The Ninth Circuit noted, "Washington and the Tribes have been in a more or less continuous state of conflict over treaty-based fishing rights for over one hundred years." During litigation over fishing rights in the 1970s, a federal district court judge in Washington "authorized the parties to invoke the continuing jurisdiction of the district court" to resolve future disputes by filing a Request for Determination with the district court.[4]

The tribes filed a Request for Determination in 2001, "seeking to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat so that adult fish production is reduced.”[4][6] They requested a permanent injunction "requiring Washington to identify and then to open culverts under state roads and highways that obstruct fish passage" in areas of the state where the tribes live and fish. The court referred to those areas collectively as the case area. The United States filed suit on the tribes' behalf, seeking a permanent injunction. In response, Washington argued that "there is no treaty-based right or duty of fish habitat protection." Washington also requested an injunction "that would require the United States to fix and thereafter maintain all culverts built or maintained by [the United States] . . . before the State of Washington is required to repair or remove any of its culverts.”[4][7]

Following a trial, the district court ruled in favor the the tribes and the United States, holding that "the right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon [Washington] to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest.” The district entered a permanent injunction:[4]

“  | The court ordered correction of high-priority culverts — those blocking 200 linear meters or more of upstream habitat — within seventeen years. For low-priority culverts — those blocking less than 200 linear meters of upstream habitat — the court ordered correction only at the end of the useful life of the existing culvert, or when an independently undertaken highway project would require replacement of the culvert. Further, recognizing the likelihood that accelerated replacement of some high-priority culverts will not be cost-effective, the court allowed the State to defer correction of high-priority culverts accounting for up to ten percent of the total blocked upstream habitat, and to correct those culverts on the more lenient schedule of the low-priority culverts.[4][5] |  ”

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Washington appealed. On appeal, Washington argued that there was insufficient evidence that the culverts affected the fish population. Moreover, although Washington agreed that the Steven Treaties guaranteed fishing access to the tribes, it argued that the treaties did not impose on the state the obligation of ensuring fish supply.[4]

### Panel opinion[edit]

On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling. The court concluded, "In building and maintaining barrier culverts within the Case Area, Washington has violated, and is continuing to violate, its obligation to the Tribes under the Treaties."

The court dismissed Washington's argument that the treaties did not impose any duty to ensure the supply of fish in the case area. Citing Supreme Court precedent, the court explained its approach to interpreting treaty provisions:

“  | Because treaty negotiations with Indians were conducted by 'representatives skilled in diplomacy,' because

negotiators representing the United States were 'assisted by . . . interpreter[s] employed by themselves,' because the treaties were 'drawn up by [the negotiators] and in their own language,' and because the 'only knowledge of the terms in which the treaty is framed is that imparted to [the Indians] by the interpreter employed by the United States,' a 'treaty must. . . be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.'

The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs. Governor Stevens did not make, and the Indians did not understand him to make, such a cynical and disingenuous promise. The Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them.[4][5]

|  ”

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Therefore, the court wrote, the treaties required not only that the tribes be allowed fishing access, but also that Washington would not impede the fish supply. Contrary to Washington's argument, the court continued, "the Tribes presented extensive evidence in support of the court’s conclusion that state-owned barrier culverts have a significant adverse effect on salmon" such that "salmon now available for harvest are not sufficient to provide a 'moderate living' to the Tribes." Based on that evidence, the court ruled, Washington was in violation of the treaties.[4]

The court also addressed Washington's request for an injunction against the United States. The district court had denied that request, and the Ninth Circuit affirmed. The NInth Circuit agreed with the district court that 1) sovereign immunity barred Washington's request, and 2) Washington did not have standing to make a request based on the treaties, as rights under the treaties belonged to the tribes alone.[4]

The court concluded:

“  | We conclude that in building and maintaining barrier culverts Washington has violated, and continues to violate, its obligation to the Tribes under the fishing clause of the Treaties. The United States has not waived the rights of the Tribes under the Treaties, and has not waived its own sovereign immunity by bringing suit on behalf of the Tribes. The district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of their natural life or in the course of a road construction project undertaken for independent reasons.[4][5] |  ”

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Washington then appealed to the United States Supreme Court.

## Petitioner's challenge[edit]

The petitionerA party petitioning an appellate court to consider its case., the state of Washington, challenged the holding of the United States Court of Appeals for the Ninth Circuit. Washington argued that the Ninth Circuit erred in upholding an injunction requiring the state to correct or remove culvert barriers in areas covered by the Stevens Treaties.[4]

## Certiorari granted[edit]

On August 17, 2017, the petitionerA party petitioning an appellate court to consider its case. initiated proceedings in the Supreme Court of the United States in filing a petition for a writA court's written order commanding the recipient to either do or refrain from doing a specified act. of certiorariLatin for "to be more fully informed." It is an "order issued by the U.S. Supreme Court directing the lower court to transmit records for a case it will hear on appeal."[1] to the United States Court of Appeals for the Ninth Circuit. The U.S. Supreme Court granted the petitioner's request for certiorari on January 12, 2018. Argument in the case was held on April 18, 2018.[2]

## Question presented[edit]

Question presented:

"1. Whether the treaty 'right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens' guaranteed 'that the number of fish would always be sufficient to provide a "moderate living" to the Tribes.'
2\. Whether the district court erred in dismissing the State's equitable defenses against the federal government where the federal government signed these treaties in the 1850's, for decades told the State to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed.
3\. Whether the district court's injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and Plaintiffs showed no clear connection between culvert replacement and tribal fisheries."[2]

## Audio[edit]

* Audio of oral argument:[8]

Your browser doesn't support the audio tag.

## Transcript[edit]

* Transcript of oral argument:[9]

## Outcome[edit]

### Decision[edit]

The Supreme Court issued a one-sentence per curiam opinion announcing that the Ninth Circuit's judgment was "affirmed by an evenly divided court." Justice Anthony Kennedy was recused from this case. Although the vote tally was not revealed, the language of the opinion means that the eight remaining justices were split in a 4 - 4 vote. In the event of a 4 - 4 tie, the lower court's judgment is affirmed.[3]

### Text of the opinion[edit]

## See also[edit]

* Supreme Court cases, October term 2017-2018

* Supreme Court of the United States

* History of the Supreme Court

## Footnotes[edit]

1. ↑ Administrative Office of the U.S. Courts, "Understanding the Federal Courts," accessed May 23, 2019
2. ↑ 2.0 2.1 2.2 Supreme Court of the United States, "Washington v. United States Question Presented," January 12, 2018
3. ↑ 3.0 3.1 United States Supreme Court, "Washington v. United States Opinion," June 11, 2018
4. ↑ 4.00 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 4.12 United States Court of Appeals for the Ninth Circuit, "Washington v. United States Opinion," March 2, 2017
5. ↑ 5.0 5.1 5.2 5.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
6. ↑ Internal citations omitted.
7. ↑ Internal quotations omitted.
8. ↑ Supreme Court of the United States, Washington v. United States, argued April 18, 2018
9. ↑ Supreme Court of the United States, Washington v. United States, argued April 18, 2018

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