GM 18-024

The Culverts Case: Split Supreme Court Affirms Ninth Circuit

On June 11, 2018, the U.S. Supreme Court issued a one-sentence per curiam opinion in United States v. Washington, regarding the phase of the treaty fishing rights case commonly known as the “Culverts” case. The opinion states that the judgment of the Court of Appeals for the Ninth Circuit “is affirmed by an equally divided Court.” In the ruling below, the Ninth Circuit Court of Appeals affirmed the 2007 decision of the federal district court holding that the State of Washington, in building and maintaining culverts under state roads, had diminished the salmon populations and thereby violated its obligations under treaties with Indian tribes. The Ninth Circuit also affirmed the district court’s 2013 issuance of an injunction ordering the State to take corrective action.

The Culverts case is part of the ongoing litigation involving tribal fishing rights under a series of treaties entered into in 1854 and 1855, often referred to as the “Stevens Treaties,” negotiated for the United States by the Superintendent of Indian Affairs, Isaac Stevens. Each of the treaties has nearly identical “fishing clauses” that guarantee “the right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens of the Territory.”

Litigation over treaty fishing rights in the Pacific Northwest has been ongoing for more than 100 years, and the original complaint in U.S. v. Washington was filed by the United States as trustee for the treaty tribes in 1970. In a ruling issued in 1974, often referred to as the “Boldt decision,” District Judge George H. Boldt divided the case into two phases. United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974). In Phase I, the court addressed the issue of the amount of annually harvestable fish the tribes have rights to catch by virtue of the treaties, and ruled that the tribes have a right to take up to fifty percent of the harvestable fish within certain areas. Id. at 343. This ruling was eventually affirmed by the Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979).

In Phase II, the district court addressed two issues that had not been resolved in Phase I: (1) whether the fishing clauses in the treaties apply to hatchery fish; and (2) whether the fishing clauses impose a duty on the State of Washington to prevent environmental degradation. U.S. v. Washington, 506 F. Supp. 187 (W.D. Wash. 1980). The district court ruled in the tribes’ favor on both issues, but the Ninth Circuit vacated the holding on the environmental issue, saying that legal standards to govern the State’s obligations and duties under the treaties with respect to the environment of the treaty areas “will depend for their definition and articulation upon concrete facts which underlie a dispute in a particular case.” U. S. v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc).

In 2001, twenty-one tribes invoked the district court’s continuing jurisdiction to resolve such “a dispute in a particular case.” The tribes contended that the State, in building and maintaining culverts under state roads, had violated, and was continuing to violate, the tribes’ treaties because the culverts prevented mature salmon from returning from the sea to their spawning grounds, prevented juvenile salmon from moving downstream and out to sea, and interfered with the movement of very young salmon seeking food and escaping from predators. As previously noted, the district court ruled in the tribes’ favor and issued an injunction requiring the State 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.” U.S. v. Washington, 853 F.3d at 980 (9th Cir. 2017).

Considering equitable principles, the Ninth Circuit affirmed the district court’s decision and upheld the injunction, quoting the following passage from the district court’s opinion:

[I]t is in the public’s interest, as well as the Tribes’ to accelerate the pace of barrier correction. All fishermen, not just Tribal fishermen, will benefit from the increased production of salmon…. The general public will benefit from the enhancement of the resource and the increased economic return from fishing in the State of Washington [and] will also benefit from the environmental benefits of salmon habitat restoration.

Id. at 977.

Given the 4-4 split in the U.S. Supreme Court in its per curiam opinion in the Culverts case, the Ninth Circuit’s decision stands. Please let us know if we may provide additional information or assistance.