In July 2016, the U.S. Court of Appeals for the Ninth Circuit held that the state of Washington violated tribal treaty obligations by building and maintaining barrier culverts that block 1,000 linear miles of streams suitable for salmon habitat. United States v. Washington, 853 F.3d 946 (9th Cir. 2017). The state of Washington sought a rehearing. On May 19, 2017, the Ninth Circuit declined Washington’s request and voted unanimously to deny the petition, stating that the prior opinion in this case “speaks for itself.”

However, this decision revealed significant differences in how this case is viewed by the court. Judge O’Scannlain, joined by several other judges, authored an “Opinion Respecting Denial” that takes issue with the ruling of the panel as “fashioning itself as a twenty-first century environmental regulator” and discovering “heretofore unknown duty in the Stevens Indian Treaties of 1854 and 1855.” Judge O’Scannlain further notes: “Given the significance of this case—both in terms of dollars and potential precedential effect—it seemed the ideal candidate for en banc review and, hopefully, correction on the merits. But rather than reining in a runaway decision, our court has chosen to do nothing—tacitly affirming the panel opinion’s erroneous reasoning.” Any further review of this decision, if it is to occur, will depend upon whether it is appealed to the U.S. Supreme Court, and if appealed, whether the Supreme Court grants review.

The case holds that the state violated its treaty obligations by building and maintaining culverts that degrade fish habitat. The court held that the treaties promised that the tribes would have enough harvestable salmon to provide a “moderate living’ and that the state violated this promise by degrading fish habitat. The ruling is limited to its facts. The court stated “[w]e 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.” 

The implications of this case are potentially significant as the “heretofore unknown duty in the Stevens Indian Treaties of 1854 and 1855” is tested in other contexts. This case also raises the following questions:

• Will the duty be extended to political subdivisions of the state that engage in actions that impede fish passages?

This ruling opens the door for additional actions alleging that the state or state agencies have violated tribal treaty rights by despoiling fishing habitat and indicates the court is willing to uphold habitat remediation as a remedy.

• Can this decision be interpreted as requiring the state to protect fish and fish habitat from man-made despoliation?

It is unclear whether that duty would extend to how the state regulates lands and waters subject to the treaties, and the extent to which the state (and its political subdivisions) must protect fish and fish habitat when issuing permits for private development.

There are no clear answers to these questions. It is reasonable to assume, however, that we will see more suits that rely on treaty rights to demand remediation or prevent future development.

© 2017 Perkins Coie LLP