United States v. Washington, No. 13-35474 (9th Cir. 2016)
Annotate this CaseIn 1854 and 1855, Indian tribes relinquished large swaths of land in the Case Area under the Stevens Treaties. In exchange for their land, the tribes were guaranteed a right to off-reservation fishing. In 2001, twenty-one Indian tribes, joined by the United States, filed a "Request for Determination" in district court contending that the State had violated, and was continuing to violate, the Treaties. In 2007, the district court held that, in building and maintaining culverts that prevented mature salmon from returning from the sea to their spawning grounds, Washington had caused the size of salmon runs in the Case Area to diminish and that Washington thereby violated its obligation under the Treaties. In 2013, the district court issued an injunction ordering Washington to correct its offending culverts. The court concluded that 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; and 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 the culverts' natural life or in the course of a road construction project undertaken for independent reasons. Accordingly, the court affirmed the judgment.
Court Description: Tribal Fishing Rights. The panel affirmed the district court’s order issuing an 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. As part of the Treaties, the Tribes relinquished large swaths of land, watersheds, and offshore waters adjacent to those areas (collectively, the “Case Area”), in what is now the State of Washington. In exchange, the Tribes were guaranteed a right to engage in off-reservation fishing. In 1970, the United States brought suit against the State of Washington on behalf of the Tribes to resolve a persistent conflict over fishing rights; and in a 1974 decision, the district court authorized the parties to invoke its continuing jurisdiction to resolve continuing disputes. The panel held that in building and maintaining barrier culverts within the Case Area, Washington violated, and was continuing to violate, its obligation to the Tribes under the Treaties. The panel also held that because treaty rights belong to the Tribes rather than the United States, it was not the prerogative of the United States to waive them. 4 UNITED STATES V. WASHINGTON Concerning the State of Washington’s cross-request seeking an injunction that would require the United States to fix its culverts before Washington repaired its culverts, the panel held that Washington’s cross-request was barred by sovereign immunity, and Washington did not have standing to assert any treaty rights belonging to the Tribes. Specifically, the panel held that Washington’s cross-request for an injunction did not qualify as a claim for recoupment. The panel also held that the United States did not waive its own sovereign immunity by bringing suit on behalf of the Tribes. The panel further held that any violation of the Treaties by the United States violated rights held by the Tribes rather than the State, and the Tribes did not seek redress against the United States in this proceeding. The panel held that 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 road construction project undertaken for independent reasons. The panel rejected Washington’s objections that the injunction was too broad, that the district court did not defer to the State’s expertise, that the court did not properly consider costs and equitable principles, that the injunction impermissibly intruded into state government operations, and that the injunction was inconsistent with federalism principles.
The court issued a subsequent related opinion or order on March 2, 2017.
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