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,
State of Washington, Defendant-Appellant.
Nos. 2:01-sp-00001-RSM 2:70-cv-09213-RSM
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
C. Sledd (argued), Jane G. Steadman, Cory J. Albright, Philip
E. Katzen, and Riyaz A. Kanji; Kanji & Katzen, PLLC,
Seattle, Washington; for Plaintiffs-Appellees.
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.
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.
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.
W. Goodin and Janette K. Brimmer, Earthjustice, Seattle,
Washington, for Amicus Curiae Pacific Coast Federation of
Fishermen's Associations and Institute for Fisheries
Schowengerdt, Solicitor; Timothy C. Fox, Attorney General;
United States Attorney's Office, Helena, Montana; for
Amicus Curiae State of Montana.
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
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
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.
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
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
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.
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).
petition for rehearing and the petition for rehearing en
banc, filed August 11, 2016, are DENIED.
FLETCHER and GOULD, Circuit Judges, concurring in the denial
of rehearing en banc: [*]
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.
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
Washington v. Washington State Commercial Passenger
Fishing Vessel Ass'n ("Fishing Vessel"),
443 U.S. 658, 676 (1979).
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.
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.
current proceeding is a continuation of the suit brought by
the United States in 1970.
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.
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.
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.
dissenting colleagues object to our decision on four grounds.
We respond to the objections in turn.
Violation of the Treaties
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.
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.
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.
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.
Effect and Scope of the Holding
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
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.
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.
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 ...