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United States v. State of Washington

United States Court of Appeals, Ninth Circuit

May 19, 2017

United States of America; Suquamish Indian Tribe; Sauk-Suiattle Tribe; Stillaguamish Tribe; Hoh Tribe; Jamestown S'Klallam Tribe; Lower Elwha Bank of Klallams; Port Gamble Band Clallam; Nisqually Indian Tribe; Nooksack Indian Tribe; Skokomish Indian Tribe; Squaxin Island Tribe; Upper Skagit Indian Tribe; Tulalip Tribes; Lummi Indian Nation; Quinault Indian Nation; Suquamish Indian Tribe; Puyallup Tribe; Confederated Tribes and Bands of the Yakama Indian Nation; Quileute Indian Tribe; Makah Indian Tribe; Swinomish Indian Tribal Community; Muckleshoot Indian Tribe, Plaintiffs-Appellees,
v.
State of Washington, Defendant-Appellant.

         D.C. Nos. 2:01-sp-00001-RSM 2:70-cv-09213-RSM

         COUNSEL

          Noah G. Purcell (argued), Solicitor General; Laura J. Watson, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Jessica E. Fogel, Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendant-Appellant State of Washington.

          John C. Sledd (argued), Jane G. Steadman, Cory J. Albright, Philip E. Katzen, and Riyaz A. Kanji; Kanji & Katzen, PLLC, Seattle, Washington; for Plaintiffs-Appellees.

          David C. Shilton (argued), Vanessa Boyd Willard, and Evelyn S. Ying, Attorneys; United States Department of Justice, Environment & Natural Resources Division; Washington, D.C., for Plaintiff-Appellee United States.

          Pamela B. Loginsky, Washington Association of Prosecuting Attorneys, Olympia, Washington; Douglas D. Shaftel, Pierce County Deputy Prosecuting Attorney; for Amicus Curiae Washington State Association of Counties.

          Ellen F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor General; Michael A. Casper, Deputy Solicitor General; Stephanie L. Striffler, Senior Assistant Attorney General; Oregon Department of Justice, Salem, Oregon; for Amicus Curiae State of Oregon.

          Colette Routel, Associate Professor and Co-Director, Indian Law Clinic, William Mitchell College of Law, Saint Paul, Minnesota, for Amicus Curiae Indian Law Professors.

          Amanda W. Goodin and Janette K. Brimmer, Earthjustice, Seattle, Washington, for Amicus Curiae Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources.

          Dale Schowengerdt, Solicitor; Timothy C. Fox, Attorney General; United States Attorney's Office, Helena, Montana; for Amicus Curiae State of Montana.

          Clay R. Smith, Deputy Attorney General; Clive J. Strong, Chief of Natural Resources; Lawrence G. Wasden, Attorney General; Office of the Attorney General, Boise, Idaho; for Amicus Curiae State of Idaho.

          Dominic M. Carollo, Yockim Carollo LLP, Roseburg, Oregon, for Amici Curiae Klamath Critical Habitat Landowners, Modoc Point Irrigation District, Mosby Family Trust, Sprague River Water Resource Foundation Inc., and TPC LLC.

          Before: William A. Fletcher and Ronald M. Gould, Circuit Judges, and David A. Ezra, [*] District Judge

          ORDER

         SUMMARY [**]

         Tribal Fishing Rights

         The panel denied a petition for a panel rehearing and denied a petition for rehearing en banc on behalf of the court in an action in which the panel affirmed the district court's injunction directing the State of Washington to correct culverts, which allow streams to flow underneath roads, because they violated, and continued to violate, the Stevens Treaties, which were entered in 1854-55 between Indian tribes in the Pacific Northwest and the Governor of Washington Territory.

         Concurring in the denial of rehearing en banc, Judges W. Fletcher and Gould stated that the district court properly found that Washington State violated the Treaties by acting affirmatively to build state-owned roads, and to build and maintain salmon-blocking culverts under those roads. The Judges stated that there is ample evidence in the record that remediation of the State's barrier culverts will have a substantial beneficial effect on salmon populations, resulting in more harvestable salmon for the Tribes. As an incidental result, there will also be more harvestable salmon for non-Indians. The Judges noted that the United States requested an injunction requiring remediation of all of the State's barrier culverts within five years. The district court crafted a careful, nuanced injunction, giving the United States much less than it requested. The Judges stated that the district court properly found a violation of the Treaties by the State, and that it acted within its discretion in formulating its remedial injunction.

         In an opinion respecting the denial of rehearing en banc, Judge O'Scannlain, joined by Judges Kozinski, Tallman, Callahan, Bea, Ikuta and N.R. Smith, and joined by Judges Bybee and M. Smith as to all but Part IV, stated that the panel opinion's reasoning ignored the Supreme Court's holding in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979), and this Circuit's cases, was incredibly broad, and if left unchecked, could significantly affect natural resource management throughout the Pacific Northwest, inviting judges to become environmental regulators. Judge O'Scannlain stated that by refusing to consider the doctrine of laches, the panel opinion further disregarded the Supreme Court's decision in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), relying instead on outdated and impliedly overruled precedent. Finally, Judge O'Scannlain stated that the panel opinion imposed a poorly-tailored injunction which will needlessly cost the State of Washington hundreds of millions of dollars.

         In a separate statement, Judge Hurwitz stated the dissent from the denial of rehearing en banc unfortunately perpetuated the false notion that the full court's refusal to exercise its discretion under Federal Rule of Appellate Procedure 35(a) is tantamount to the court "tacitly affirming the panel opinion's erroneous reasoning." Judge Hurwitz stated that, like the denial of certiorari by the Supreme Court, the denial of rehearing en banc simply leaves a panel decision undisturbed.

         The panel, as constituted above, has voted unanimously to deny the petition for panel rehearing. Judges Fletcher and Gould have voted to deny the petition for rehearing en banc, and Judge Ezra so recommends.

         A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).

         The petition for rehearing and the petition for rehearing en banc, filed August 11, 2016, are DENIED.

          W. FLETCHER and GOULD, Circuit Judges, concurring in the denial of rehearing en banc: [*]

         The opinion in this case speaks for itself. See United States v. Washington, 853 F.3d 946 (9th Cir. 2017). We write to respond to the views of our colleagues who dissent from the decision of our court not to rehear the case en banc.

         In 1854 and 1855, U.S. Superintendent of Indian Affairs and Governor of Washington Territory, Isaac I. Stevens, negotiated a series of virtually identical Treaties with the Indian Tribes that lived around Puget Sound. In return for their agreement to live on reservations, the Tribes were promised equal access to off-reservation fishing "at all usual and accustomed grounds and stations." The Supreme Court described the importance of the promise:

During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians' assent.

Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n ("Fishing Vessel"), 443 U.S. 658, 676 (1979).

         For more than 100 years, the State of Washington deliberately and systematically prevented the Tribes from engaging in the off-reservation fishing promised under the Treaties. The State eventually came to employ surveillance planes, high powered boats, tear gas, billy clubs and guns against tribal members engaged in off-reservation fishing. In 1970, the United States brought suit against Washington State to enforce the Treaties.

         The district court held that the Treaties promised the Tribes fifty percent of the harvestable salmon in any given year. The Supreme Court affirmed, holding that the Tribes had been promised a "moderate living" from fishing, and that they were entitled to fifty percent of the harvest, up to the point where they were able to catch enough salmon to provide a moderate living. Id. at 686. The district court entered a detailed injunction which the State strenuously resisted. The Supreme Court affirmed the injunction:

It is . . . absurd to argue . . . both that the state agencies may not be ordered to implement the decree and also that the District Court may not itself issue detailed remedial orders as a substitute for state supervision.

Id. at 695.

         The current proceeding is a continuation of the suit brought by the United States in 1970.

         Salmon are anadromous fish-hatching in fresh water, migrating to the ocean to mature, and returning to fresh water to spawn-so access to spawning grounds is essential to their reproduction and survival. For many years, the Tribes had complained that the State had built roads across salmon-bearing streams, and that it had built culverts under the roads that allowed passage of water but not passage of salmon. The United States instituted the current proceeding in 2001 to require the State to modify its culverts to allow passage of salmon.

         The State has fought the proceeding tooth and nail. The State contended, and continues to contend, that it can block every salmon-bearing stream into Puget Sound without violating the Treaties. The district court disagreed and held that the State's affirmative act of building roads with salmon-blocking, or "barrier, " culverts violated the Treaties. The district court sought the State's participation and assistance in drafting a remedial injunction, but the State refused to participate. Despite the State's refusal, the district court entered an injunction that was substantially more favorable to the State than the injunction sought by the United States.

         The State appealed, objecting to the district court's holding that its affirmative acts in building roads with barrier culverts violated the Treaties. Without conceding that it violated the Treaties, the State also objected to the scope of the injunction in whose formulation it had declined to participate. We affirmed.

         Our dissenting colleagues object to our decision on four grounds. We respond to the objections in turn.

         I. Violation of the Treaties

         First, our colleagues contend that we have misread the Supreme Court's 1979 decision in Fishing Vesssel. They contend that fifty percent of the harvestable salmon is an absolute "ceiling" on the amount of fish the Tribes have been promised. They contend that the Treaties promised only that the Tribes will get fifty percent of the harvestable salmon, and that Treaties permit the State to take affirmative acts that have the effect of diminishing the supply of salmon below the amount necessary to provide a moderate living. According to our colleagues, if the State acts affirmatively to entirely eliminate the supply of harvestable salmon, the Tribes get fifty percent of nothing.

         Our colleagues misread Fishing Vessel. The Court recognized that the Treaties promised that the Tribes would have enough salmon to feed themselves. In the words of the Court, the Treaties promised that the Tribes would have enough harvestable salmon to provide a "moderate living." Fishing Vessel, 433 U.S. at 686. The Tribes get only fifty percent of the catch even if the supply of salmon is insufficient to provide a moderate living. However, there is nothing in the Court's opinion that authorizes the State to diminish or eliminate the supply of salmon available for harvest.

         It is undisputed that at the present time fifty percent of the harvestable salmon in Puget Sound does not provide a moderate living to the Tribes. It is also undisputed that the State has acted affirmatively to build roads with barrier culverts that block the passage of salmon, with the consequence of substantially diminishing the supply of harvestable salmon. Evidence at trial showed that remediation of the State's barrier culverts will increase the yearly supply of salmon by several hundred thousand adult salmon. Half of the newly produced harvestable salmon will be available to the Tribes. The other half will be available to non-Indians.

         Our opinion does not hold that the Tribes are entitled to enough salmon to provide a moderate living, irrespective of the circumstances. We do not hold that the Treaties' promise of a moderate living is valid against acts of God (such as an eruption of Mount Rainier) that would diminish the supply of salmon. Nor do we hold that the promise is valid against all human-caused diminutions, or even against all State-caused diminutions. We hold only that the State violated the Treaties when it acted affirmatively to build roads across salmon bearing streams, with culverts that allowed passage of water but not passage of salmon.

         II. Effect and Scope of the Holding

         Second, our colleagues contend that our decision may open the door to "a whole host of future suits, " and that we do "nothing to cabin [our] opinion." We are not sure what the hypothesized future suits would be. But we are sure that we have not opened the floodgates to a host of future suits.

         Because of the Eleventh Amendment, a further suit against Washington State seeking enforcement of the Treaties cannot be brought by the Tribes. Nor can it be brought by non-Indians who would benefit from an increase in harvestable salmon (recall that 50% of any increased salmon harvest will go to non-Indians). Nor can it be brought by environmental groups. The only possible plaintiff is the United States. The United States is a responsible litigant and is not likely to burden the States without justification. The history of this litigation demonstrates that it was no easy thing for the Tribes to persuade the United States to institute proceedings against the state of Washington to seek remediation of the State's barrier culverts, and will be no easy thing for other Northwest tribes to persuade the United States to bring comparable suits against other States.

         Our opinion describes the facts of this litigation carefully and in detail, as required by our decision in United States v. State of Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) ("[T]he measure of the State's [Treaty] obligation will depend for its precise legal formulation on all of the facts presented by a particular dispute."). Cabining our opinion by means other than a careful, detailed description of the facts presented would have entailed positing hypothetical facts in cases not before us and giving an improper advisory opinion. On the facts presented to us, we held that the State violated the Treaties when it acted affirmatively to block salmon-bearing streams by building roads with culverts that protected the State's roads but killed the Tribes' salmon. Other cases with different facts might come out differently, but we did not decide-and should not have decided-such cases.

         III. Laches

         Third, our colleagues contend that the United States' suit on behalf of the Tribes is barred by laches. There is an established line of cases holding that the United States cannot, based on laches or estoppel, render unenforceable otherwise valid Indian treaty rights. Our colleagues contend that these cases have been overruled by City of ...


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