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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional 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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