Washington v. United States et al.

(1) Whether the Northwest Indian tribes’ right by treaty to “tak[e] fish at the usual and accustomed grounds...in common with all citizens” guarantees that the tribes’ share of the take is “sufficient to provide a moderate living to the tribes”; (2) whether the State may assert equitable defenses in response to the Federal Government’s demand that the state replace hundreds of culverts whose design allegedly violates treaties between the United States and the tribes, when the United States previously mandated the current culvert design (3) whether the Ninth Circuit erred by granted in the United States’ injunction and declaratory relief thus requiring the State to replace hundreds of culverts when the United States showed no clear connection between the replacement of the culverts and an increased take at tribal fisheries.

Between 1854 and 1855 the United Stated signed treaties with 11 Indian tribes in the Pacific Northwest, the tribes forfeited the title and rights to their lands to the United States, but retained the right to harvest fish at all traditional locations. These treaties did not foresee the eventual overharvesting of fish in the Pacific Northwest and therefore did not include any enumerated protections for the tribes’ yearly harvest. Petitioner appeals a decision of the U.S. Court of Appeals for the Ninth Circuit, which held that the treaty rights of Pacific Northwest Tribes to fish guarantees a take which is “sufficient to provide a moderate living.” On petition to the Court, Petitioner asserts that the tribes were not guaranteed a minimum allocation of fish under the Supreme Court’s prior interpretation of the treaties, nor were they guaranteed an amount “sufficient to provide a moderate living” and that the Ninth Circuit’s decision is in direct conflict with the Supreme Court’s prior decision in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979), where the Court held that the applicable treaties entitled the tribes to “a 50% share of the ‘harvestable’ fish [passing through their fisheries], or to their needs, whichever [is] less.” Further, Petitioner asserts that the Ninth Circuit erred by denying its equitable defenses to the United States’s request for injunction and declaratory relief, which requires Petitioner to remove and replace over 800 culverts. Petitioner asserts that its culverts comply with federal standards and that Petitioner should not be required to replace hundreds of culverts, without notice, due to the government’s failure to promulgate regulations that comply with tribal rights under the treaties. Finally, Petitioner asserts that the number of private and non-state culverts within Washington State significantly outnumber state-owned culverts, so the replacement of many of the requisite culverts will not result in an increased passage of fish because barrier culverts exists up or down stream from the state-owned culvert that will prevent the passage of fish through the upgraded culvert. For this reason, Petitioner asserts that the United States failed to prove a clear connection between the replacement of state-owned culverts and an increased availability of fish to the tribes.