NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate provides the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Tuesday, April 17th, 2018

Washington State squares off at the Supreme Court with tribes, feds over culvert removal

Tomor­row morn­ing, the Unit­ed States Supreme Court will hear oral argu­ment in Wash­ing­ton State v. Unit­ed States of Amer­i­ca, a case that con­cerns treaty-grant­ed trib­al fish­ing rights and bar­ri­ers to the exer­cise of those treaty rights… specif­i­cal­ly, cul­verts that impede salmon from spawn­ing in North­west streams and rivers.

This is a case that goes back many years — a case that has been a los­ing one for the State of Wash­ing­ton — but which is still being lit­i­gat­ed because Attor­ney Gen­er­al Bob Fer­gu­son does­n’t want to throw in the tow­el, even though he should.

Here, cour­tesy of SCO­TUS­Blog, is a basic syn­op­sis of the dis­pute, which pits Wash­ing­ton against the fed­er­al gov­ern­ment and sov­er­eign trib­al nations:

Do trib­al fish­ing rights guar­an­tee some degree of pro­tec­tion of salmon pop­u­la­tions — thus pre­clud­ing actions, like the state of Washington’s main­te­nance of under-road cul­verts, that may harm salmon runs — or do the treaties mere­ly guar­an­tee a share of oth­er­wise avail­able fish? Because the case dates all the way back to Jus­tice Antho­ny Kennedy’s time on the U.S. Court of Appeals for the 9th Cir­cuit in the 1980s, Kennedy is recused, and only eight jus­tices will participate.

The 9th Cir­cuit ruled against the state, uphold­ing an injunc­tion requir­ing cul­vert removals — to the tune of over $2 bil­lion, accord­ing to Wash­ing­ton, though that amount is contested.

Before the Supreme Court, both sides’ briefs are strong­ly writ­ten, and each casts the other’s posi­tion as out­landish. Wash­ing­ton, echoed by oth­er states and busi­ness­es, decries the 9th Cir­cuit rul­ing as a threat to com­merce and a blow to federalism.

It argues that the 9th Cir­cuit cre­at­ed an “extra­or­di­nar­i­ly broad new treaty right” that will “make vir­tu­al­ly any sig­nif­i­cant future land use deci­sion in the Pacif­ic North­west sub­ject to court over­sight,” and adds that the state ought not be liable for cul­verts that the fed­er­al gov­ern­ment itself approved decades ago, par­tic­u­lar­ly when many of the cul­vert removals “will have no effect on salmon.”

A group of 21 tribes, joined by the fed­er­al gov­ern­ment as their trustee, argue that Wash­ing­ton far over­states the harm it will face, and that the state’s inter­pre­ta­tion would ren­der the treaties mean­ing­less. The treaties, they argue, did not mere­ly pro­vide the tribes with “the oppor­tu­ni­ty to ‘dip their nets’ into emp­ty waters.”

“Trib­al treaty rights are vital­ly impor­tant,” Fer­gu­son said last year when he announced he would appeal the deci­sion of the Ninth Cir­cuit to the U.S. Supreme Court. “I appre­ci­ate and share the goal of restor­ing salmon habi­tat, but the State has strong legal argu­ments that the Ninth Cir­cuit deci­sion is over­broad. We are work­ing with tribes to resolve this mat­ter, but we need­ed to file this appeal today to pre­serve our abil­i­ty to chal­lenge aspects of the Ninth Circuit’s opinion.”

Wash­ing­ton Solic­i­tor Gen­er­al Noah Pur­cell will rep­re­sent the Ever­green State before the Supreme Court, while Assis­tant to the U.S. Solic­i­tor Gen­er­al Allon Kedem will rep­re­sent the Unit­ed States. Attor­ney William M. Jay will rep­re­sent the tribes.

The briefs, includ­ing the many ami­cus briefs, are avail­able through SCO­TUS­Blog, which is (for those unfa­mil­iar) an indis­pens­able resource for fol­low­ing the Supreme Court of the Unit­ed States, which is where the “SCOTUS” acronym comes from.

In our view, the state’s legal argu­ments are not par­tic­u­lar­ly com­pelling, and we dis­agree with Attor­ney Gen­er­al Fer­gu­son’s deci­sion to appeal this case to our nation’s high­est court. We ought to get on with the work of replac­ing the cul­verts that we know are a prob­lem instead of pro­long­ing a fight with our sov­er­eign tribes. Our fish­eries are one of our region’s great­est resources, but they are threat­ened. If we don’t act swift­ly to pro­tect them, we could lose them. That would be tragic.

As Lor­raine Loomis wrote back in 2016:

The state has a duty to pro­tect and restore habi­tat for the salmon, treaty tribes and every­one else who lives here. Deny­ing that respon­si­bil­i­ty, and the treaty rights it rep­re­sents, hurts trib­al and state efforts to work togeth­er for salmon recov­ery. We ask Inslee and Fer­gu­son to take a stand in the best inter­ests of all cit­i­zens in the state and end the long, mis­guid­ed attempts to deny our treaty rights.

Unfor­tu­nate­ly, Fer­gu­son did not heed that request.

But at least Gov­er­nor Inslee lis­tened.

Gov. Jay Inslee does not sup­port the appeal to the U.S. Supreme Court, his spokes­woman, Tara Lee, wrote in an email to The Seat­tle Times. “Gov. Inslee and Attor­ney Gen­er­al Fer­gu­son dis­cussed this case and they don’t agree … the gov­er­nor sup­ports dis­cus­sions to settle.”

And the state’s lands chief gets it, too.

Hilary Franz, com­mis­sion­er of pub­lic lands at the Depart­ment of Nat­ur­al Resources, filed an ami­cus brief with the court call­ing for respect for the tribes’ treaty rights and step­ping for­ward with habi­tat repairs to sus­tain salmon runs not only for trib­al fish­eries, but for all Washingtonians.

Tomor­row’s oral argu­ment will pro­vide a win­dow of sorts into the jus­tices’ think­ing about the case. Attor­neys like to say that nine­ty per­cent of a case comes down to the briefs, but some­times inter­est­ing tid­bits can be gleaned from observ­ing oral argu­ment. Unfor­tu­nate­ly, the Unit­ed States Supreme Court does not allow its pro­ceed­ings to be tele­vised, so there’s no way to watch with­out being there.

How­ev­er, a tran­script is expect­ed to be pub­lished fair­ly quick­ly after­wards. We’ll let you know when that tran­script is avail­able for download.

WEDNESDAY POSTSCRIPT: Here’s the tran­script.

There’s also an audio record­ing with tran­script if you’d rather lis­ten as you read.

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