Washington v. United States

DO THE TREATIES REQUIRE WASHINGTON TO PROTECT THE SALMON POPULATION FROM LAND DEVELOPMENT?

Washington agrees that the treaties guarantee the Tribes the right to fish, but asserts that the treaties do not require Washington to guarantee a specific number of fish sufficient to guarantee a “moderate standard of living.” Washington notes that neither party to the treaties, at the time of drafting, intended the treaties to prohibit land development that affects the salmon population, because the original parties to the agreement could not imagine the salmon population declining. Moreover, Washington asserts that, in the treaties, the Tribes fully relinquished the right to develop the land. As Washington observes, the treaties provide that the Tribes “cede, relinquish, and convey to the United States, all their right, title, and interest in and to the land and country occupied by them.” Washington claims that this broad grant of title to the land is inconsistent with a limitation on the development of land, such as a negative easement. Washington then asserts that the treaties impose a single limitation on the title to the land: The Tribes retain the right to access the fishing sites, which is a positive easement. Furthermore, Washington argues that the treaties have never been interpreted as guaranteeing a standard of living, because no party or court has previously adopted such an interpretation. Specifically, Washington argues that if the treaty requires the salmon population to be protected, then the United States has been breaching the treaty for decades with policies that destroy salmon. Finally, Washington observes that the Supreme Court has never before interpreted the treaties to require Washington to provide the Tribes a moderate standard of living from fishing.

The United States and the Tribes argue that the language of the treaties requires Washington to replace the barrier culverts. The United States also contends that treaties should be interpreted like contracts to give meaning to the intent of the parties, interpreting words in the way they were understood by the Tribes. The United States and the Tribes assert that, historically, the Tribes acted as stewards of the salmon population and adopted fishing methods that would not discourage salmon from returning to their waters of origin. The United States and the Tribes further contend that Washington, in negotiating with the Tribes, was cognizant of the Tribes’ approach to salmon and negotiated with the intent to preserve the Tribes’ relationship with salmon. The Tribes also cite to local mythology in which evil people blocked streams and prevented salmon re-entry as evidence that the Tribes were always concerned about loss of salmon. Moreover, the United States and the Tribes contend that the treaties could not be read to guarantee the Tribes’ the right to fish but also permit the complete destruction of the fish, because such despoliation would render the guarantee meaningless. The United States also points to other laws passed at the time which protected the fisheries from man-made obstruction as evidence that the parties were cognizant of the effects of land development. Finally, the United States and the Tribes contend that prior Supreme Court cases involving the treaties recognized that the treaties were intended to protect against man-made depletion of the salmon and thus prohibited fishing practices that would monopolize the salmon.

MUST WASHINGTON REPLACE THE BARRIER CULVERTS EVEN THOUGH IT FOLLOWED U.S. GOVERNMENT’S ORDERS IN BUILDING THEM?

Washington also seeks to raise an equitable defense—that it should not be forced to replace the culverts because the federal government is at fault for their creation and design. Washington observes that only the United States could sue Washington because Washington has sovereign immunity against suits by the Tribes. The United States, however is suing Washington for implementing a roadbuilding program the United States created pursuant to standards the United States prescribed. In fact, Washington points out that the United States designed the very culverts it is now suing Washington over. Thus, Washington complains that the United States is suing Washington for obeying the United States’ instructions. Washington then asserts that the Court of Appeals erred in rejecting this equitable defense on the grounds that it limits treaty rights that only Congress can limit. Washington claims that allowing it to assert this equitable defense does not limit the rights under the treaties, but only prohibits the United States and the Tribes from obtaining relief pursuant to the treaty. Finally, Washington contends that the Supreme Court has already allowed equitable defenses to be raised in cases involving treaties with Native Americans. Specifically, Washington points to City of Sherrill v. Oneida Indian Nation of New York. Washington explains that in Sherrill a tribe purchased land New York had previously taxed and attempted to argue that New York could no longer tax the land. Washington points to the fact that the Supreme Court in Sherrill allowed New York to prevail on an equitable defense and continue to tax the land now owned by a tribe. For these reasons, Washington contends that it should be allowed to assert an equitable defense.

In response, the United States observes that Washington never specified what equitable defenses it wishes to assert. The United States contends that if Washington asserts waiver—that the parties gave up their legal rights—the defense is not an equitable defense as a matter of law and no federal agent could waive the Tribes’ rights under the treaty. Furthermore, the United States claims that the defense of estoppel would not succeed because Washington had already abandoned this defense and such a defense would be meritless. Specifically, the United States and the Tribes point to Supreme Court precedent holding that the United States is not estopped by any act of federal agents—i.e., a party cannot claim authorization by officer or agent as a defense. Moreover, according to the United States, the Supreme Court has applied the same principle in cases interpreting Native American treaties, finding that a person violated a treaty even when directed to act by an agent of the U.S. government. Furthermore, the United States contends that to the extent that Washington seeks to assert laches—that it did nothing wrong because the United States has not objected to the culverts for numerous decades—laches cannot be used against the U.S. government. The United States also argues that Washington erroneously relies on Sherrill because the case did not involve asserting an equitable defense against the U.S. Government. Finally, the United States and the Tribes claim that any equitable defense is meritless, because the federal government did not design the culverts at issue. According to the United States and the Tribes, although the culvert design comes from a nationwide manual, the manual illustrated an industry standard, and Washington could have revised the design to accommodate local conditions including the salmon population.

IS AN ORDER FORCING WASHINGTON TO REPLACE CULVERTS NECESSARY?

Washington asserts that the lower courts erred by entering an injunction, which ordered it to replace the barrier culverts, because an injunction is not allowed in this case. Washington contends that injunctions are extraordinary orders that must be narrow and require consideration of the principles of federalism. Washington asserts that the injunction is not appropriate here because it will have no effect. According to Washington, the injunction forces it to replace barrier culverts even if non-state culverts and other constructions upstream will continue to prevent fish from reaching the fishing sites. Similarly, Washington contends that the Tribes and the United States have failed to show that the culverts affected the Tribes’ salmon harvest. Washington asserts that rather than spending money on replacing the barrier culverts, the state could better spend its money on other salmon-recovery methods.

The United States and the Tribes disagree with Washington, arguing that the record shows that replacing the culverts will significantly affect salmon. Specifically, the United States and the Tribes contend that non-state culverts are highly clustered upstream, such that replacing Washington’s culverts will allow salmon access to a significant portion of the upstream habitat. Moreover, the United States and the Tribes claim that a majority of non-state culverts permit at least some fish to pass through. Thus, the United States and the Tribes assert that there is no evidence that replacing the culverts will be futile. The United States and the Tribes maintain that the injunction recognizes the existence of upstream culverts and thus grants Washington discretion in deciding which culverts to replace first. Finally, the United States and the Tribes claim that upstream culverts will not be problematic because state law already requires them to be replaced and many are currently being replaced.