United States v. State of Washington ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA; No. 13-35474
SUQUAMISH INDIAN TRIBE;
SAUK-SUIATTLE TRIBE; D.C. Nos.
STILLAGUAMISH TRIBE; HOH 2:01-sp-00001-RSM
TRIBE; JAMESTOWN S’KLALLAM 2:70-cv-09213-RSM
TRIBE; LOWER ELWHA BAND OF
KLALLAMS; PORT GAMBLE
BAND CLALLAM; NISQUALLY ORDER AND
INDIAN TRIBE; NOOKSACK AMENDED
INDIAN TRIBE; SKOKOMISH OPINION
INDIAN TRIBE; SQUAXIN ISLAND
TRIBE; UPPER SKAGIT INDIAN
TRIBE; TULALIP TRIBES; LUMMI
INDIAN NATION; QUINAULT
INDIAN NATION; PUYALLUP
TRIBE; CONFEDERATED TRIBES
AND BANDS OF THE YAKAMA
INDIAN NATION; QUILEUTE
INDIAN TRIBE; MAKAH INDIAN
TRIBE; SWINOMISH INDIAN
TRIBAL COMMUNITY;
MUCKLESHOOT INDIAN TRIBE,
Plaintiffs-Appellees,
v.
STATE OF WASHINGTON,
Defendant-Appellant.
2 UNITED STATES V. WASHINGTON
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted October 16, 2015
Seattle, Washington
Filed June 27, 2016
Amended March 2, 2017
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and David A. Ezra,* District Judge.
Opinion by Judge W. Fletcher
*
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawai’i, sitting by designation.
UNITED STATES V. WASHINGTON 3
SUMMARY**
Tribal Fishing Rights
The panel amended the opinion filed on June 27, 2016;
and affirmed the district court’s order issuing an injunction
directing the State of Washington to correct culverts, which
allow streams to flow underneath roads, because they
violated, and continued to violate, the Stevens Treaties, which
were entered in 1854–55 between Indian tribes in the Pacific
Northwest and the Governor of Washington Territory.
As part of the Treaties, the Tribes relinquished large
swaths of land, watersheds, and offshore waters adjacent to
those areas (collectively, the “Case Area”), in what is now the
State of Washington. In exchange, the Tribes were
guaranteed a right to engage in off-reservation fishing.
In 1970, the United States brought suit against the State
of Washington on behalf of the Tribes to resolve a persistent
conflict over fishing rights; and in a 1974 decision, the
district court authorized the parties to invoke its continuing
jurisdiction to resolve continuing disputes.
The panel held that in building and maintaining barrier
culverts within the Case Area, Washington violated, and was
continuing to violate, its obligation to the Tribes under the
Treaties. The panel also held that because treaty rights
belong to the Tribes rather than the United States, it was not
the prerogative of the United States to waive them.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. WASHINGTON
Concerning the State of Washington’s cross-request
seeking an injunction that would require the United States to
fix its culverts before Washington repaired its culverts, the
panel held that Washington’s cross-request was barred by
sovereign immunity, and Washington did not have standing
to assert any treaty rights belonging to the Tribes.
Specifically, the panel held that Washington’s cross-request
for an injunction did not qualify as a claim for recoupment.
The panel also held that the United States did not waive its
own sovereign immunity by bringing suit on behalf of the
Tribes. The panel further held that any violation of the
Treaties by the United States violated rights held by the
Tribes rather than the State, and the Tribes did not seek
redress against the United States in this proceeding.
The panel held that the district court did not abuse its
discretion in enjoining Washington to correct most of its
high-priority barrier culverts within seventeen years, and to
correct the remainder at the end of their natural life or in the
course of a road construction project undertaken for
independent reasons. The panel rejected Washington’s
objections that the injunction was too broad, that the district
court did not defer to the State’s expertise, that the court did
not properly consider costs and equitable principles, that the
injunction impermissibly intruded into state government
operations, and that the injunction was inconsistent with
federalism principles.
Addressing the State of Washington’s petition for panel
rehearing and for rehearing en banc, the panel rejected
Washington’s argument that it should have been awarded, as
recoupment or set-off, a monetary award from the United
States. The panel also rejected Washington’s contention that
because of the presence of non-state-owned barrier culverts
UNITED STATES V. WASHINGTON 5
on the same streams as state-owned barrier culverts, the
benefits obtained from remediation of state-owned culverts
would be insufficient to justify the district court’s injunction.
COUNSEL
Noah G. Purcell (argued), Solicitor General; Laura J. Watson,
Deputy Solicitor General; Robert W. Ferguson, Attorney
General; Jessica E. Fogel, Assistant Attorney General; Office
of the Attorney General, Olympia, Washington; for
Defendant-Appellant State of Washington.
John C. Sledd (argued), Jane G. Steadman, Cory J. Albright,
and Philip E. Katzen; Kanji & Katzen, PLLC, Seattle,
Washington; for Plaintiffs-Appellees.
David C. Shilton (argued), Vanessa Boyd Willard, and
Evelyn S. Ying, Attorneys; United States Department of
Justice, Environment & Natural Resources Division;
Washington, D.C., for Plaintiff-Appellee United States.
Pamela B. Loginsky, Washington Association of Prosecuting
Attorneys, Olympia, Washington; Douglas D. Shaftel, Pierce
County Deputy Prosecuting Attorney; for Amicus Curiae
Washington State Association of Counties.
Ellen F. Rosenblum, Attorney General; Anna M. Joyce,
Solicitor General; Michael A. Casper, Deputy Solicitor
General; Stephanie L. Striffler, Senior Assistant Attorney
General; Oregon Department of Justice, Salem, Oregon; for
Amicus Curiae State of Oregon.
6 UNITED STATES V. WASHINGTON
Colette Routel, Associate Professor and Co-Director, Indian
Law Clinic, William Mitchell College of Law, Saint Paul,
Minnesota, for Amicus Curiae Indian Law Professors.
Amanda W. Goodin and Janette K. Brimmer, Earthjustice,
Seattle, Washington, for Amicus Curiae Pacific Coast
Federation of Fishermen’s Associations and Institute for
Fisheries Resources.
Stephanie L. Striffler, Senior Assistant Attorney General;
Michael A. Casper, Deputy Solicitor General; Anna M.
Joyce, Solicitor General; Ellen F. Rosenblum, Attorney
General; Office of the Attorney General, Salem, Oregon; for
Amicus Curiae State of Oregon.
Dale Schowengerdt, Solicitor; Timothy C. Fox, Attorney
General; Attorney General’s Office, Helena, Montana; for
Amicus Curiae State of Montana.
Clay R. Smith, Deputy Attorney General; Clive J. Strong,
Chief of Natural Resources; Lawrence G. Wasden, Attorney
General; Office of the Attorney General, Boise, Idaho; for
Amicus Curiae State of Idaho.
Dominic M. Carollo, Yockim Carollo LLP, Roseburg,
Oregon, for Amici Curiae Klamath Critical Habitat
Landowners Inc., Modoc Point Irrigation District, Mosby
Family Trust, Sprague River Water Resource Foundation
Inc., and TPC LLC.
UNITED STATES V. WASHINGTON 7
ORDER
The opinion filed on June 27, 2016 is amended as
follows:
At 855 of the published opinion, U.S. v. Washington,
827 F.3d 836 (9th Cir. 2016), add the following subheading
beneath “C. Washington’s Cross-Request”:
“1. Injunction.”
On the same page, add “for an injunction” following “The
district court struck the cross request . . .”.
At 855–56, change the numbering of the subheadings of
“Sovereign Immunity” and “Standing” from 1, 2 to a, b.
At 856, just above subsection D, add the following text:
2. Recoupment of Part of Washington’s Costs
In its Petition for Panel Rehearing and for Rehearing En
Banc, filed after our opinion came down, see United States v.
Washington, 827 F.3d 836 (9th Cir. 2016), Washington
contends that we misconstrued its appeal of the district
court’s denial of its cross-request. Washington writes in its
Petition:
The State’s original [cross-request] sought
a variety of remedies, including that the
federal government be required to (1) pay part
of the cost of replacing state culverts that
were designed to federal standards; (2) take
actions on federal lands to restore salmon
8 UNITED STATES V. WASHINGTON
runs; and (3) replace federal culverts in
Washington. But on appeal, the State pursued
only the first of these remedies.
We did not, and do not, so understand the State’s appeal.
Contrary to Washington’s statement, it did appeal the district
court’s denial of its cross-request for an injunction requiring
the United States to repair or replace the United States’ own
barrier culverts. It did not appeal a denial of a request that
the United States be required to pay part of its costs to repair
or replace its culverts.
In the district court, Washington stated in the body of its
cross-request that “[t]he United States has a duty to pay all
costs incurred by the State to identify and fix any and all
barrier culverts.” But in its demand for relief, Washington
did not demand any monetary payment from the United
States, unless its boilerplate request (“The State of
Washington further requests all other relief the Court deems
just and equitable”) could be deemed such a demand. Not
surprisingly, in denying Washington’s cross-request, the
district court did not discuss a demand for monetary payment
from the United States. In its brief to us, Washington writes
in the introduction that the district court erred in denying its
request to allow the State “to recoup some of the costs of
compliance from the United States because it specified the
culvert design and caused much of the decline in the salmon
runs.” But Washington makes no argument in the body of its
brief that it should be allowed to recover from the United
States any part of the cost to repair or replace its own barrier
culverts.
When considering Washington’s appeal, we did not
understand it to argue that it should have been awarded, as
UNITED STATES V. WASHINGTON 9
recoupment or set-off, a monetary award from the United
States. Given Washington’s failure to make this argument in
the body of its brief, the argument was waived. Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). However, given
the vigor with which Washington now makes the argument in
its Petition for Rehearing and Rehearing En Banc, we think
it appropriate to respond on the merits.
Washington’s argument is easily rejected. As recounted
above, a claim for recoupment must, inter alia, “seek relief of
the same kind or nature as the plaintiff’s suit.” Berrey,
439 F.3d at 645. Washington’s claim does not satisfy this
criterion. The United States, the plaintiff, sought injunctive
relief against Washington. Washington sought a monetary
award. These two forms of relief are not “of the same kind or
nature.”
At 859, just prior to the paragraph beginning, “Witnesses
at trial. . .”, add the following text:
The State contends that because of the presence of non-
state-owned barrier culverts on the same streams as state-
owned barrier culverts, the benefit obtained from remediation
of state-owned culverts will be insufficient to justify the
district court’s injunction. The State writes:
[S]tate-owned culverts are less than 25% of
all known barrier culverts, and in some places,
non-state culverts outnumber state-owned
culverts by a factor of 36 to 1. Any benefit
from fixing a state-owned culvert will not be
realized if fish are blocked by other culverts
in the same stream system.
10 UNITED STATES V. WASHINGTON
There are several answers to the State’s contention. First,
it is true that in calculating whether a state culvert is a barrier
culvert, and in determining the priority for requiring
remediation, the court’s injunction ignores non-state barriers
on the same stream. But in so doing, the court followed the
practice of the state itself. Paul Sekulich, formerly division
manager in the restoration division in the habitat program of
the Washington Department of Fish and Wildlife (“WDFW”),
testified in the district court:
Q: When you calculate a priority index
number for a [state-owned] culvert, do you
account for the presence of other fish passage
barriers in a watershed?
A: . . . When the priority index is calculated,
it treats those other barriers as transparent.
The reason we do that, we don’t know when
those other barriers are being corrected. So
by treating them as transparent, you do a
priority index that looks at potential habitat
gain as if all those barriers would be corrected
at some point in time.
Washington State law requires that a “dam or other
obstruction across or in a stream” be constructed in such a
manner as to provide a “durable and efficient fishway”
allowing passage of salmon. Wash. Rev. Code
§ 77.57.030(1). If owners fail to construct or maintain proper
fishways, the Director of WDFW may require them do so at
their own expense. Id. at § 77.57.030(2).
Second, in 2009, on streams where there were both state
and non-state barriers, 1,370 of the 1,590 non-state barriers,
UNITED STATES V. WASHINGTON 11
or almost ninety percent, were upstream of the state barrier
culverts. Sixty nine percent of the 220 downstream non-state
barriers allowed partial passage of fish. Of the 152 that
allowed partial passage, “passability” was 67% for 80 of the
barriers and 33% for 72 of them.
Third, the specific example provided by the state is a
culvert on the Middle Fork of Wildcat Creek under State
Route 8 in Grays Harbor County. The State is correct that
there are 36 non-state barriers and only one state barrier
culvert on this creek. The State fails to mention, however,
that all of the non-state barriers are upstream of the state
culvert. Further, it is apparent from the map in the district
court record that the nearest non-state barrier is almost a half
mile upstream.
No new Petition for Panel Rehearing or Petition for
Rehearing en Banc will be entertained. Pending petitions
remain pending and need not be renewed.
OPINION
W. FLETCHER, Circuit Judge:
In 1854 and 1855, Indian tribes in the Pacific Northwest
entered into a series of treaties, now known as the “Stevens
Treaties,” negotiated by Isaac I. Stevens, Superintendent of
Indian Affairs and Governor of Washington Territory. Under
the Stevens Treaties (“Treaties”) at issue in this case, the
tribes relinquished large swaths of land west of the Cascade
Mountains and north of the Columbia River drainage area,
including the Puget Sound watershed, the watersheds of the
12 UNITED STATES V. WASHINGTON
Olympic Peninsula north of the Grays Harbor watershed, and
the offshore waters adjacent to those areas (collectively, the
“Case Area”), in what is now the State of Washington. In
exchange for their land, the tribes were guaranteed a right to
off-reservation fishing, in a clause that used essentially
identical language in each treaty. The “fishing clause”
guaranteed “the right of taking fish, at all usual and
accustomed grounds and stations . . . in common with all
citizens of the Territory.”
In 2001, pursuant to an injunction previously entered in
this long-running litigation, twenty-one Indian tribes
(“Tribes”), joined by the United States, filed a “Request for
Determination” — in effect, a complaint — in the federal
district court for the Western District of Washington. The
Tribes include the Suquamish Indian Tribe, Jamestown
S’Klallam, Lower Elwha Band of Klallams, Port Gamble
Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-
Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe,
Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes,
Lummi Indian Nation, Quinault Indian Nation, Puyallup
Tribe, Hoh Tribe, Confederated Tribes and Bands of the
Yakama Indian Nation, Quileute Indian Tribe, Makah Indian
Tribe, Swinomish Indian Tribal Community, and the
Muckleshoot Indian Tribe. The Tribes contended that
Washington State (“Washington” or “the State”) had violated,
and was continuing to violate, the Treaties by building and
maintaining culverts that prevented mature salmon from
returning from the sea to their spawning grounds; prevented
smolt (juvenile salmon) from moving downstream and out to
sea; and prevented very young salmon from moving freely to
seek food and escape predators. In 2007, the district court
held that in building and maintaining these culverts
Washington had caused the size of salmon runs in the Case
UNITED STATES V. WASHINGTON 13
Area to diminish and that Washington thereby violated its
obligation under the Treaties. In 2013, the court issued an
injunction ordering Washington to correct its offending
culverts.
We affirm the decision of the district court.
I. Historical Background
For over a hundred years, there has been conflict between
Washington and the Tribes over fishing rights under the
Treaties. We recount here some of the most salient aspects of
this history.
When white settlers arrived in the Washington territory in
the second half of the nineteenth century, many settled on
riparian land and salt-water shoreline. Even though the
majority of these settlers were not themselves fishermen, they
blocked access to many of the Tribes’ traditional fishing sites.
By the end of the century, white commercial fishermen were
catching enormous quantities of salmon, first on the
Columbia River and then in Puget Sound as well, supplying
large-scale canneries.
In 1894, L. T. Erwin, the United States Indian Agent for
the Yakimas, complained that whites had blocked access to
the Indians’ “accustomed fisheries” on the Columbia River:
“[I]nch by inch, [the Indians] have been forced back until all
the best grounds have been taken up by white men, who now
refuse to allow them to fish in common, as the treaty
provides.” Report of the Secretary of the Interior, 1894
(3 vols., Washington, D.C., 1894, II, 326). In 1897, D. C.
Govan, the Indian Agent for the Tulalips on Puget Sound
reported that “the Alaska Packing Company and other
14 UNITED STATES V. WASHINGTON
cannery companies have practically appropriated all the best
fishing grounds at Point Roberts and Village Point, where the
Lummi Indians have been in the habit of fishing from time
immemorial.” Annual Reports of the Department of the
Interior, 1897: Report of the Commissioner of Indian Affairs
(Washington, D.C., 1897, 297). In 1905, Charles Buchanan,
the new Indian Agent for the Tulalips, complained, “The
tremendous development of the fisheries by traps and by trust
methods of consolidation, concentration, and large local
development are seriously depleting the natural larders of our
Indians and cutting down their main reliance for support and
subsistence. Living for them is becoming more precarious
year by year.” Annual Reports of the Department of the
Interior, 1905: Indian Affairs (Washington, D.C., 1906, Part
I, 362). During this period, “[t]he superior capital, large-scale
methods, and aggressiveness of whites . . . quickly led to their
domination of the prime fisheries of the region.” Donald L.
Parman, Inconstant Advocacy: The Erosion of Indian Fishing
Rights in the Pacific Northwest, 53 Pacific Hist. Rev. 163,
167 (1984).
The United States Supreme Court first addressed the
conflict over fisheries in United States v. Winans, 198 U.S.
371 (1905). The Winans brothers had acquired land at a
prime Yakima fishing site on the Washington side of the
Columbia River. See Michael C. Blumm and James
Brunberg, ‘Not Much Less Necessary . . . Than the
Atmosphere They Breathed’: Salmon, Indian Treaties, and
the Supreme Court — a Centennial Remembrance of United
States v. Winans and Its Enduring Significance, 46 Nat.
Resources J. 489, 523 (2006). Under an exclusive license
from the State, the Winanses operated “fish wheels” at the
site. Fish wheels were essentially mechanized dip nets
“capable of catching salmon by the ton.” Washington v.
UNITED STATES V. WASHINGTON 15
Wash. State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. 658, 679 (1979). The Winanses refused to allow the
Yakimas to cross over or to camp on their land in order to
fish at the site.
The Yakimas had signed one of the Stevens Treaties in
1855. The United States brought suit against the Winanses
on the Yakimas’ behalf. The Supreme Court held that the
land owned by the Winanses, previously conveyed by patent
from the government, was by virtue of the treaty subject to an
easement allowing access to the Yakimas’ “usual and
accustomed” fishing site. The Court held, further, that the
State could not license the Winanses to “construct and use a
device which gives them exclusive possession of the fishing
places, as it is admitted a fish wheel does.” Winans, 198 U.S.
at 382. See also Seufort Bros. Co. v. United States, 249 U.S.
194 (1919) (holding that the Yakimas had rights under the
treaty on the Oregon, as well as the Washington, side of the
river).
In 1915, Charles Buchanan, still the Indian Agent for the
Tulalips, complained to the Washington legislature of the
diminished supply of salmon and the harsh application of
Washington’s fish and game laws against the Indians. He
wrote:
[M]ore recently, the use of large capital,
mechanical assistance, numerous great traps,
canneries, etc., and other activities allied to
the fishery industry, have greatly lessened and
depleted the Indians’ natural sources of food
supply. In addition thereto the stringent and
harsh application to Indians of the State game
and fish laws have made it still and
16 UNITED STATES V. WASHINGTON
increasingly precarious for him to procure his
natural foods in his natural way.
Rights of the Puget Sound Indians to Game and Fish, 6 Wash.
Hist. Quart. 109, 110 (Apr. 1915).
The next year, the Washington Supreme Court upheld the
sort of “stringent and harsh application . . . of game and fish
laws” of which Buchanan complained. In State v.
Towessnute, 154 P. 805, 806 (Wash. 1916), a member of the
Yakima Nation named Towessnute was charged with off-
reservation fishing without a license in a manner forbidden by
state law. Towessnute defended on the ground that he was
fishing in the traditional manner at one the Yakimas’ usual
and accustomed places, and that he was entitled to do so
under the treaty at issue in Winans. Id. Characterizing the
treaty as a “dubious document,” id., the Washington Supreme
Court rejected the defense:
The premise of Indian sovereignty we reject.
The treaty is not to be interpreted in that light.
At no time did our ancestors in getting title to
this continent, ever regard the aborigines as
other than mere occupants . . . of the soil.
Id. at 807. The Court read the Supreme Court’s holding in
Winans as requiring easements across private land, but at the
same time as endorsing the authority of the state, through the
exercise of its “police power,” to enact regulatory laws
restricting Indian fishing rights. Id. at 809. See also State v.
Alexis, 154 P. 810 (Wash. 1916) (holding the same under the
Stevens Treaty with the Lummi Tribe in Puget Sound).
UNITED STATES V. WASHINGTON 17
Much traditional Indian fishing was done with traps and
nets in rivers, catching mature salmon when they returned to
their native habitat to spawn. White commercial fishermen,
by contrast, often fished in salt water, using equipment that
most Indians could not afford and catching both mature and
immature salmon. Beginning in the early 1900s, the State
regulated the salmon fishery in Puget Sound in such a way
that Indians who fished in rivers were increasingly unable to
exercise their off-reservation treaty right to fish in their usual
and accustomed places and in their traditional manner. For
example, in 1907 the Washington legislature forbade all off-
reservation fishing above the tide line — by whites and
Indians alike — except by hook and line. Wash. Sess. Laws
Ch. 247, Sec. 2 (1907).
In 1934, Washington voters adopted Initiative 77, a
measure that limited off-reservation commercial fishing to
certain portions of Puget Sound and banned the use of fixed
gear, such as the “pound net, fish trap, fish wheel, scow fish
wheel, set net, or any fixed appliance,” to catch salmonids.
Init. Measure No. 77, State of Wash. Voting Pamphlet 5
(Nov. 6, 1934). According to a report commissioned by the
federal Bureau of Indian Affairs, the passage of Initiative 77
“constituted a serious blow to the Indian fishing being carried
on at usual and accustomed grounds”:
[D]ue to their extremely limited financial
means, [the Indians’] gear necessarily must be
obtainable at a minimum of expense.
Generally speaking, the Indians are unable to
finance the purchase of other more expensive
gear and operating equipment, the use of
which was not entirely outlawed. In order to
continue to provide the necessities of life, the
18 UNITED STATES V. WASHINGTON
Indians, as a result of the above conservation
statute, were literally forced to confine their
fishing with such gear to reservation waters.
The fact that such was the situation led to
considerable agitation in the Pacific
Northwest and especially in the [S]tate of
Washington looking to the further curtailment
of the Indians’ commercial fishery.
Edward Swindell, Report on Source, Nature and Extent
of Fishing, Hunting, and Miscellaneous Rights of Certain
Indian Tribes in Washington and Oregon 95 (1942).
In subsequent years, the State continued to assert
authority to regulate off-reservation fishing by Indians,
including authority to require purchase of fishing licences. In
1939, Sampson Tulee, a Yakima Indian, was criminally
charged with off-reservation commercial fishing with a dip
net on the Columbia River without a state license. Citing
Towessnute and Alexis, the Washington Supreme Court
affirmed the conviction as a valid exercise of the State’s
police powers. Washington v. Tulee, 109 P.2d 280, 287
(Wash. 1941) (“Washington enjoys to the full the exercise of
its police powers.”). The United States Supreme Court
reversed. The Court held that while the State had the power,
consistent with the treaty, to regulate fishing by both Indians
and non-Indians to the degree “necessary for the conservation
of fish,” the exaction of a license fee “cannot be reconciled
with a fair construction of the treaty.” Tulee v. Washington,
315 U.S. 681, 684–85 (1942).
After Tulee, state officials continued to enforce
restrictions on off-reservation fishing by Puget Sound
UNITED STATES V. WASHINGTON 19
Indians, even when that fishing was conducted at the Indians’
usual and accustomed places:
Over the years the state fish and game
authorities have asserted that Indian treaty-
protected fishing exists only on the
reservations, and have acted to enforce this
position. Injunctions against off-reservation
fishing by Indians of the Nisqually, Puyallup,
and Muckleshoot tribes have been obtained
and enforcement actions carried out even
while the injunctions are being contested in
the courts. Arrests of fishermen and
confiscation of gear have seriously hampered
the Indians. Valuable gear held by the state as
evidence can effectively put the fisherman out
of business during several runs of fish, even
though he may eventually win his case.
Walter Taylor, Uncommon Controversy: Fishing Rights of the
Muckleshoot, Puyallup, and Nisqually Indians 60 (1970). As
a result of the State’s hostility to off-reservation fishing, the
Indians’ share of the overall catch was relatively small. For
example, from 1958 through 1967, the shares of the total
salmon catch in Puget Sound were 6% for Indian fishing,
8.5% for sports fishing, and 85.5% for commercial fishing.
Id. at 123, 126.
Beginning in the early 1960s, the State substantially
increased its enforcement against off-reservation fishing in
Puget Sound. See generally Bradley G. Shreve, “From Time
Immemorial”: The Fish-in Movement and the Rise of
Intertribal Activism, 78 Pacific Hist. Rev. 403, 411–15
(2009). In response, in 1964 the National Indian Youth
20 UNITED STATES V. WASHINGTON
Council organized a large demonstration in Olympia to
demand that the State acknowledge their treaty fishing rights.
See Uncommon Controversy, supra, at 107–13. During the
1960s and early 1970s, in what came to be called the “fish
wars,” some Indians fished openly and without licenses in
“fish-ins” to bring attention to the State’s prohibitions against
off-reservation fishing. State reaction to the “fish-ins”
sometimes led to violence. See, e.g., Associated Press,
“Shots Fired, 60 Arrested in Indian-Fishing Showdown,”
Seattle Times, Sept. 9, 1970; Alex Tizon, “The Boldt
Decision / 25 Years — The Fish Tale That Changed History,”
Seattle Times, Feb. 7, 1999 (describing the State’s “military-
style campaign,” employing “surveillance planes, high-
powered boats and radio communications,” as well as “tear
gas,” “billy clubs,” and “guns”).
In 1970, in an effort to resolve the persistent conflict
between the State and the Indians, the United States brought
suit against the State on behalf of the Tribes. The dispute
now before us is part of that litigation.
II. Anadromous Fisheries and Washington’s Barrier
Culverts
Anadromous fish, such as salmon, hatch and spend their
early lives in fresh water, migrate to the ocean to mature, and
return to their waters of origin to spawn. Washington is home
to several anadromous fisheries, of which the salmon fishery
is by far the most important. Before the arrival of white
settlers, returning salmon were abundant in the streams and
rivers of the Pacific Northwest. Present-day Indian tribes in
the Pacific Northwest eat salmon as an important part of their
diet, use salmon in religious and cultural ceremonies, and fish
for salmon commercially.
UNITED STATES V. WASHINGTON 21
Roads often cross streams that salmon and other
anadromous fish use for spawning. Road builders construct
culverts to allow the streams to flow underneath roads, but
many culverts do not allow fish to pass easily. Sometimes
they do not allow fish passage at all. A “barrier culvert” is a
culvert that inhibits or prevents fish passage. Road builders
can avoid constructing barrier culverts by building roads
away from streams, by building bridges that entirely span
streams, or by building culverts that allow unobstructed fish
passage.
Four state agencies are responsible for building and
managing Washington’s roads and the culverts that pass
under them: Washington State Department of Transportation
(“WSDOT”), Washington State Department of Natural
Resources (“WSDNR”), Washington State Parks and
Recreation Commission (“State Parks”), and Washington
Department of Fisheries and Wildlife (“WDFW”). Of these,
WSDOT, the agency responsible for Washington’s highways,
builds and maintains by far the most roads and culverts.
III. Earlier Proceedings
In 1970, the United States, on its own behalf and as
trustee for Pacific Northwest tribes, sued Washington in
federal court in the Western District of Washington. The
United States sought declaratory and injunctive relief based
on the fishing clause of the Treaties. United States v. State of
Washington, 384 F. Supp. 312, 327–28 (W.D. Wash. 1974)
(“Washington I”). In what has come to be known as the
“Boldt decision,” District Judge George H. Boldt divided the
case into two phases. Phase I was to determine what portion,
if any, of annually harvestable fish were guaranteed to the
Tribes by the fishing clause. Phase II was to determine
22 UNITED STATES V. WASHINGTON
whether the fishing clause extends to hatchery fish, and
whether it requires Washington to prevent environmental
degradation within the Case Area.
In Phase I, Judge Boldt held that the phrase “the right of
taking fish . . . in common with all citizens” gives the Tribes
the right to take up to fifty percent of the harvestable fish in
the Case Area, subject to the right of non-treaty fishers to do
the same. Id. at 343. The Supreme Court affirmed in
Washington v. Washington State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658 (1979) (“Fishing
Vessel”). The Court specified that fifty percent was a ceiling
rather than a floor, and that the fishing clause guaranteed “so
much as, but no more than, is necessary to provide the
Indians with a livelihood—that is to say, a moderate living.”
Id. at 686. In accordance with its standard practice of
interpreting Indian treaties in favor of the tribes, the Court
interpreted the clause as promising protection for the tribes’
supply of fish, not merely their share of the fish. The Court
wrote:
Governor Stevens and his associates were
well aware of the “sense” in which the Indians
were likely to view assurances regarding their
fishing rights. During the negotiations, the
vital importance of the fish to the Indians was
repeatedly emphasized by both sides, and the
Governor’s promises that the treaties would
protect that source of food and commerce
were crucial in obtaining the Indians’ assent.
Id. at 676.
 UNITED STATES V. WASHINGTON 23
In 1976, the United States initiated Phase II of the
litigation, asking for a declaratory judgment clarifying the
Tribes’ rights with respect to the “hatchery fish” issue and to
the “environmental” issue. United States v. State of
Washington, 506 F. Supp. 187, 194 (W.D. Wash. 1980)
(“Washington II”). The district court held, first, that hatchery
fish must be included in determining the share of fish to
which the Tribes are entitled. Id. at 197. It held, second, that
the Tribes’ right to “a sufficient quantity of fish to satisfy
their moderate living needs” entailed a “right to have the
fishery habitat protected from man-made despoliation.” Id.
at 208, 203.
Sitting en banc, we affirmed in part and vacated in part.
United States v. State of Washington, 759 F.2d 1353 (9th Cir.
1985) (en banc) (“Washington III”). We affirmed the district
court’s decision that hatchery fish must be included in
determining the share of salmon to be allocated to the Tribes:
The hatchery programs have served a
mitigating function since their inception in
1895. They are designed essentially to
replace natural fish lost to non-Indian
d e g r a d a t i o n of t he hab i t a t a n d
commercialization of the fishing industry.
Under these circumstances, it is only just to
consider such replacement fish as subject to
treaty allocation. For the tribes to bear the
full burden of the decline caused by their non-
Indian neighbors without sharing the
replacement achieved through the hatcheries,
24 UNITED STATES V. WASHINGTON
would be an inequity and inconsistent with the
Treaty.
Id. at 1360 (citations omitted).
We vacated the court’s decision on the environmental
issue. We held that the issue was too broad and varied to be
resolved in a general and undifferentiated fashion, and that
the issue of human-caused environmental degradation must
be resolved in the context of particularized disputes. We
wrote:
We choose to rest our decision in this case on
the proposition that issuance of the
declaratory judgment on the environmental
issue is contrary to the exercise of sound
judicial discretion. The legal standards that
will govern the State’s precise obligations and
duties under the treaty with respect to the
myriad State actions that may affect the
environment of the treaty area will depend for
their definition and articulation upon concrete
facts which underlie a dispute in a particular
case.
Id. at 1357. Although we vacated the district court’s decision
with respect to the environmental issue, we made clear that
we were not absolving Washington of environmental
obligations under the fishing clause. We concluded the
section of our opinion devoted to the environmental issue by
emphasizing that Washington “is bound by the treaty.” Id.
Judge Boldt’s 1974 decision authorized the parties to
invoke the continuing jurisdiction of the district court to
UNITED STATES V. WASHINGTON 25
resolve disputes “concerning the subject matter of this case.”
Washington I, 384 F. Supp. at 419; see also United States v.
Washington, 573 F.3d 701, 705 (9th Cir. 2009). For such
disputes, the court directed the parties to “file with the clerk
of this court . . . a ‘Request for Determination’ setting forth
the factual nature of the request and any legal authorities and
argument which may assist the court, along with a statement
that unsuccessful efforts have been made by the parties to
resolve the matter, whether a hearing is required, and any
factors which bear on the urgency of the request.”
Washington I, 384 F. Supp. at 419.
In 2001, the Tribes filed a Request for Determination
(“Request”), seeking “to enforce a duty upon the State of
Washington to refrain from constructing and maintaining
culverts under State roads that degrade fish habitat so that
adult fish production is reduced.” The Tribes sought a
permanent injunction from the district court “requiring
Washington to identify and then to open culverts under state
roads and highways that obstruct fish passage, for fish runs
returning to or passing through the usual and accustomed
grounds and stations of the plaintiff tribes.”
The United States joined the Tribes’ Request, seeking a
declaration from the court that:
The right of taking fish secured to the
plaintiff tribes in the Stevens Treaties imposes
a duty upon the State of Washington to refrain
from degrading the fishery resource through
the construction or maintenance of culverts
under State owned roads and highways in a
way that deprives the Tribes of a moderate
living from the fishery.
26 UNITED STATES V. WASHINGTON
The State has violated and continues to
violate the duty owed to the plaintiff tribes
under the Stevens Treaties through the
operation and maintenance of culverts which
reduce the number of fish that would
otherwise return to or pass through the Tribes’
usual and accustomed fishing grounds and
stations to such a degree as would deprive the
Tribes of the ability to earn a moderate living
from the fishery.
The United States sought a permanent injunction that would
require Washington “within five years of the date of
judgment (or such other time period as the Court deems
necessary and just)” to “repair, retrofit, maintain, or replace”
culverts that “degrade appreciably” the passage of fish.
Washington and the defendant state agencies (collectively
“Washington” or “the State”) answered by declaring that
there is “no treaty-based right or duty of fish habitat
protection as described” in the Request. In the alternative,
Washington emphasized that some of its barrier culverts pass
under highways funded in part by the United States, and that
these highways were “designed according to standards set or
approved” by the Federal Highway Administration, leading
Washington to believe that its culverts complied with the
Treaties. Further, Washington asserted that the United States
and the Tribes have built and maintained barrier culverts on
their own lands within the Case Area. Washington asserted
that the United States “has a duty to take action on its own
lands so as not to place on the State of Washington an unfair
burden of complying with any such treaty-based duty.”
UNITED STATES V. WASHINGTON 27
Washington also made a “cross-request” — in effect, a
counterclaim — against the United States seeking a
declaration that the United States has violated its own duty to
the Tribes under the Treaties, and seeking an injunction that
would require the United States to modify or replace its own
barrier culverts. The district court dismissed the cross-
request on the ground that the United States had not waived
its sovereign immunity. The court later denied Washington’s
request to file an amended cross-request on the additional
ground that Washington did not have standing. It wrote,
“[T]he State may not assert a treaty-based claim on behalf of
the Tribes. . . . The decision as whether and when to assert
that claim against the United States is for the Tribes alone.”
The district court granted summary judgment in favor of
the Tribes and the United States, concluding that the dispute
involved the kind of “concrete facts” that were lacking in
Washington III. The court held, first, that “the right of taking
fish, secured to the Tribes in the Stevens Treaties, imposes a
duty upon [Washington] to refrain from building or operating
culverts under State-maintained roads that hinder fish passage
and thereby diminish the number of fish that would otherwise
be available for Tribal harvest.” It held, second, that “the
State of Washington currently owns and operates culverts that
violate this duty.”
The district court conducted a bench trial in 2009 and
2010 to determine the appropriate remedy. After failed
efforts to reach a settlement, the court issued both a
Memorandum and Decision and a Permanent Injunction. In
its Memorandum and Decision, issued in 2013, the court
found that Governor Stevens had assured the Tribes that they
would have an adequate supply of salmon forever. The court
wrote:
28 UNITED STATES V. WASHINGTON
During the negotiations leading up to the
signing of the treaties, Governor Isaac Stevens
and other negotiators assured the Tribes of
their continued access to their usual fisheries.
Governor Stevens assured the Tribes that even
after they ceded huge quantities of land, they
would still be able to feed themselves and
their families forever. As Governor Stevens
stated, “I want that you shall not have simply
food and drink now but that you may have
them forever.”
(Emphasis added.)
The court found that salmon stocks in the Case Area have
declined “alarmingly” since the Treaties were signed, and
“dramatically” since 1985. The court wrote, “A primary
cause of this decline is habitat degradation, both in breeding
habitat (freshwater) and feeding habitat (freshwater and
marine areas) . . . . One cause of the degradation of salmon
habitat is . . . culverts which do not allow the free passage of
both adult and juvenile salmon upstream and downstream.”
The “consequent reduction in tribal harvests has damaged
tribal economies, has left individual tribal members unable to
earn a living by fishing, and has caused cultural and social
harm to the Tribes in addition to the economic harm.”
The district court entered a Permanent Injunction on the
same day it issued its Memorandum and Decision. The court
ordered the State, in consultation with the Tribes and the
United States, to prepare within six months a current list of
all state-owned barrier culverts within the Case Area. It
ordered WSDNR, State Parks, and WDFW to correct all their
barrier culverts on the list by the end of October 2016. It
UNITED STATES V. WASHINGTON 29
ordered WSDOT to correct many of its barrier culverts within
seventeen years, and to correct the remainder only at the end
of the culverts’ natural life or in connection with
independently undertaken highway projects. We provide a
more detailed description of the injunction below.
IV. Standard of Review
We review de novo dismissals for want of jurisdiction
under Rule 12(b)(1) and for failure to state a claim under
Rule 12(b)(6). Rhoades v. Avon Products, Inc., 504 F.3d
1151, 1156 (9th Cir. 2007). We also review de novo a grant
or denial of summary judgment. Scott v. Pasadena Unified
Sch. Dist., 306 F.3d 646, 652 (9th Cir. 2002). We review
permanent injunctions under three standards: we review
factual findings for clear error, legal conclusions de novo, and
the scope of the injunction for abuse of discretion. Id. at 653.
V. Discussion
Washington objects to the decision of the district court on
a number of grounds. It objects to the court’s interpretation
of the Stevens Treaties, contending that it has no treaty-based
duty to refrain from building and maintaining barrier culverts;
to the overruling of its waiver defense; to the dismissal of its
cross-request against the United States; and to the injunction.
We take the State’s objections in turn.
A. Washington’s Duty under the Treaties
The fishing clause of the Stevens Treaties guarantees to
the Tribes a right to engage in off-reservation fishing. It
provides, in its entirety:
30 UNITED STATES V. WASHINGTON
The right of taking fish, at all usual and
accustomed grounds and stations, is further
secured to said Indians, in common with all
citizens of the Territory, and of erecting
temporary houses for the purpose of curing,
together with the privilege of hunting,
gathering roots and berries, and pasturing
their horses on open and unclaimed lands:
Provided, however, That they shall not take
shell fish from any beds staked or cultivated
by citizens.
Fishing Vessel, 443 U.S. at 674 (emphasis in original).
Washington concedes that the clause guarantees to the Tribes
the right to take up to fifty percent of the fish available for
harvest, but it contends that the clause imposes no obligation
on the State to ensure that any fish will, in fact, be available.
In its brief to us, Washington denies any treaty-based duty
to avoid blocking salmon-bearing streams:
[T]he Tribes here argue for a treaty right that
finds no basis in the plain language or
historical interpretation of the treaties. On its
face, the right of taking fish in common with
all citizens does not include a right to prevent
the State from making land use decisions that
could incidentally impact fish. Rather, such
an interpretation is contrary to the treaties’
principal purpose of opening up the region to
settlement.
Brief at 27–28. At oral argument, Washington even more
forthrightly denied any treaty-based duty. Washington
UNITED STATES V. WASHINGTON 31
contended that it has the right, consistent with the Treaties, to
block every salmon-bearing stream feeding into Puget Sound:
The Court: Would the State have the right,
consistent with the treaty, to dam every
salmon stream into Puget Sound?
Answer: Your honor, we would never and
could never do that. . . .
The Court: . . . I’m asking a different
question. Would you have the right to do that
under the treaty?
Answer: Your honor, the treaty would not
prohibit that[.]
The Court: So, let me make sure I understand
your answer. You’re saying, consistent with
the treaties that Governor Stevens entered into
with the Tribes, you could block every salmon
stream in the Sound?
Answer: Your honor, the treaties would not
prohibit that[.]
Oral Argument at 1:07–1:45, October 16, 2015.
The State misconstrues the Treaties.
We have long construed treaties between the United
States and Indian tribes in favor of the Indians. Chief Justice
Marshall wrote in the third case of the Marshall Trilogy, “The
language used in treaties with the Indians should never be
32 UNITED STATES V. WASHINGTON
construed to their prejudice.” Worcester v. Georgia, 31 U.S.
515, 582 (1832). “If words be made use of which are
susceptible of a more extended meaning than their plain
import, as connected with the tenor of the treaty, they should
be considered as used only in the latter sense.” Id.
Negotiations for the Stevens Treaties were conducted in
the Chinook language, a trading jargon of only about 300
words. Fishing Vessel, 443 U.S. at 667 n.10. The Treaties
were written in English, a language the Indians could neither
read nor write. Because treaty negotiations with Indians were
conducted by “representatives skilled in diplomacy,” because
negotiators representing the United States were “assisted by
. . . interpreter[s] employed by themselves,” because the
treaties were “drawn up by [the negotiators] and in their own
language,” and because the “only knowledge of the terms in
which the treaty is framed is that imparted to [the Indians] by
the interpreter employed by the United States,” a “treaty must
. . . be construed, not according to the technical meaning of its
words to learned lawyers, but in the sense in which they
would naturally be understood by the Indians.” Jones v.
Meehan, 175 U.S. 1, 11 (1899). “[W]e will construe a treaty
with the Indians as [they] understood it, and as justice and
reason demand, in all cases where power is exerted by the
strong over those to whom they owe care and protection, and
counterpoise the inequality by the superior justice which
looks only to the substance of the right, without regard to
technical rules.” United States v. Winans, 198 U.S. 371, 380
(1905) (internal quotation marks omitted). “[W]e look
beyond the written words to the larger context that frames the
Treaty, including the history of the treaty, the negotiations,
and the practical construction adopted by the parties.”
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.
172, 196 (1999) (internal quotation marks omitted).
UNITED STATES V. WASHINGTON 33
The Supreme Court has interpreted the Stevens Treaties
on several occasions. In affirming Judge Boldt’s decision,
the Court wrote:
[I]t is the intention of the parties, and not
solely that of the superior side, that must
control any attempt to interpret the treaties.
When Indians are involved, this Court has
long given special meaning to this rule. It has
held that the United States, as the party with
the presumptively superior negotiating skills
and superior knowledge of the language in
which the treaty is recorded, has a
responsibility to avoid taking advantage of the
other side. “[T]he treaty must therefore be
construed, not according to the technical
meaning of its words to learned lawyers, but
in the sense in which they would naturally be
understood by the Indians.” Jones v. Meehan,
175 U.S. 1, 11. This rule, in fact, has thrice
been explicitly relied on by the Court in
broadly interpreting these very treaties in the
Indians’ favor. Tulee v. Washington, 315 U.S.
681 [1947]; Seufort Bros. Co. v. United
States, 249 U.S. 194 [1919]; United States v.
Winans, 198 U.S. 371 [1905]. See also
Washington v. Yakima Indian Nation,
439 U.S. 463, 484 [1979].
Fishing Vessel, 443 U.S. at 675–76.
Washington has a remarkably one-sided view of the
Treaties. In its brief, Washington characterizes the “treaties’
principal purpose” as “opening up the region to settlement.”
34 UNITED STATES V. WASHINGTON
Brief at 29. Opening up the Northwest for white settlement
was indeed the principal purpose of the United States. But it
was most certainly not the principal purpose of the Indians.
Their principal purpose was to secure a means of supporting
themselves once the Treaties took effect.
Salmon were a central concern. An adequate supply of
salmon was “not much less necessary to the existence of the
Indians than the atmosphere they breathed.” Winans,
198 U.S. at 381. Richard White, an expert on the history of
the American West and Professor of American History at
Stanford University, wrote in a declaration filed in the district
court that, during the negotiations for the Point-No-Point
Treaty, a Skokomish Indian worried aloud about “how they
were to feed themselves once they ceded so much land to the
whites.” Professor White wrote, to the same effect, that
during negotiations at Neah Bay, Makah Indians “raised
questions about the role that fisheries were to play in their
future.” In response to these concerns, Governor Stevens
repeatedly assured the Indians that there always would be an
adequate supply of fish. Professor White wrote that Stevens
told the Indians during negotiations for the Point Elliott
Treaty, “I want that you shall not have simply food and drink
now but that you may have them forever.” During
negotiations for the Point-No-Point Treaty, Stevens said,
“This paper is such as a man would give to his children and
I will tell you why. This paper gives you a home. Does not
a father give his children a home? . . . This paper secures your
fish. Does not a father give food to his children?” Fishing
Vessel, 443 U.S. at 667 n.11 (ellipsis in original).
The Indians did not understand the Treaties to promise
that they would have access to their usual and accustomed
fishing places, but with a qualification that would allow the
UNITED STATES V. WASHINGTON 35
government to diminish or destroy the fish runs. Governor
Stevens did not make, and the Indians did not understand him
to make, such a cynical and disingenuous promise. The
Indians reasonably understood Governor Stevens to promise
not only that they would have access to their usual and
accustomed fishing places, but also that there would be fish
sufficient to sustain them. They reasonably understood that
they would have, in Stevens’ words, “food and drink . . .
forever.” As the Supreme Court wrote in Fishing Vessels:
Governor Stevens and his associates were
well aware of the “sense” in which the Indians
were likely to view assurances regarding their
fishing rights. During the negotiations, the
vital importance of the fish to the Indians was
repeatedly emphasized by both sides, and the
Governor’s promises that the treaties would
protect that source of food and commerce
were crucial in obtaining the Indians’ assent.
It is absolutely clear, as Governor Stevens
himself said, that neither he nor the Indians
intended that the latter should be excluded
from their ancient fisheries, and it is
accordingly inconceivable that either party
deliberately agreed to authorize future settlers
to crowd the Indians out of any meaningful
use of their accustomed places to fish.
Id. at 676–77 (citations and internal quotation marks omitted)
(emphases added).
Even if Governor Stevens had not explicitly promised that
“this paper secures your fish,” and that there would be food
“forever,” we would infer such a promise. In Winters v.
36 UNITED STATES V. WASHINGTON
United States, 207 U.S. 564 (1908), the treaty creating the
Fort Belknap Reservation in Montana did not include an
explicit reservation of water for use on the reserved lands, but
the Supreme Court inferred a reservation of water sufficient
to support the tribe. The purpose of the treaty was to reserve
land on which the Indians could become farmers. Without a
reservation of water, the “lands were arid, and . . . practically
valueless.” Id. at 576. “[B]etween two inferences, one of
which would support the purpose of the agreement and the
other impair or defeat it,” the Court chose the former. Id. at
577.
Similarly, in United States v. Adair, 723 F.2d 1394 (9th
Cir. 1983), the Klamath Tribe in Oregon had entered into an
1854 treaty under which it relinquished 12 million acres,
reserving for itself approximately 800,000 acres. The treaty
promised that the tribe would have the right to “hunt, fish,
and gather on their reservation,” id. at 1398, but contained no
explicit reservation of water rights. A prime hunting and
fishing area on the reservation was the Klamath Marsh,
whose suitability for hunting and fishing depended on a flow
of water from the Williamson River. A primary purpose of
the treaty was to “secure to the Tribe a continuation of its
traditional hunting and fishing” way of living. Id. at 1409.
Because game and fish at the Klamath Marsh depended on a
continual flow of water, the treaty’s purpose would have been
defeated without that flow. In order to “support the purpose
of the agreement,” Winters, 207 U.S. at 577, we inferred a
promise of water sufficient to ensure an adequate supply of
game and fish. Adair, 723 F.2d at 1411.
Thus, even if Governor Stevens had made no explicit
promise, we would infer, as in Winters and Adair, a promise
to “support the purpose” of the Treaties. That is, even in the
UNITED STATES V. WASHINGTON 37
absence of an explicit promise, we would infer a promise that
the number of fish would always be sufficient to provide a
“moderate living” to the Tribes. Fishing Vessel, 443 U.S. at
686. Just as the land on the Belknap Reservation would have
been worthless without water to irrigate the arid land, and just
as the right to hunt and fish on the Klamath Marsh would
have been worthless without water to provide habitat for
game and fish, the Tribes’ right of access to their usual and
accustomed fishing places would be worthless without
harvestable fish.
In Washington III, we vacated the district court’s
declaration of a broad and undifferentiated obligation to
prevent environmental degradation. We did not dispute that
the State had environmental obligations, but, in the exercise
of discretion under the Declaratory Judgment Act, we
declined to sustain the sweeping declaratory judgment issued
by the district court. We wrote, “The legal standards that will
govern the State’s precise obligations and duties under the
treaty with respect to the myriad State actions that may affect
the environment of the treaty area will depend for their
definition and articulation upon concrete facts which underlie
a dispute in a particular case.” Washington III, 759 F.2d at
1357.
We concluded:
The State of Washington is bound by the
treaty. If the State acts for the primary
purpose or object of affecting or regulating
the fish supply or catch in noncompliance
with the treaty as interpreted by past
decisions, it will be subject to immediate
correction and remedial action by the courts.
38 UNITED STATES V. WASHINGTON
In other instances, the measure of the State’s
obligation will depend for its precise legal
formulation on all of the facts presented by a
particular dispute.
Id. There is no allegation in this case that in building and
maintaining its barrier culverts the State has acted “for the
primary purpose or object of affecting or regulating the fish
supply or catch in noncompliance with the treaty.” The
consequence of building and maintaining the barrier culverts
has been to diminish the supply of fish, but this consequence
was not the State’s “primary purpose or object.” The
“measure of the State’s obligation” therefore depends “on all
the facts presented” in the “particular dispute” now before us.
The facts presented in the district court establish that
Washington has acted affirmatively to build and maintain
barrier culverts under its roads. The State’s barrier culverts
within the Case Area block approximately 1,000 linear miles
of streams suitable for salmon habitat, comprising almost
5 million square meters. If these culverts were replaced or
modified to allow free passage of fish, several hundred
thousand additional mature salmon would be produced every
year. Many of these mature salmon would be available to the
Tribes for harvest.
Salmon now available for harvest are not sufficient to
provide a “moderate living” to the Tribes. Fishing Vessel,
443 U.S. at 686. The district court found that “[t]he reduced
abundance of salmon and the consequent reduction in tribal
harvests has damaged tribal economies, has left individual
tribal members unable to earn a living by fishing, and has
caused cultural and social harm to the Tribes in addition to
the economic harm.” The court found, further, that “[m]any
UNITED STATES V. WASHINGTON 39
members of the Tribes would engage in more commercial and
subsistence salmon fisheries if more fish were available.”
We therefore conclude that in building and maintaining
barrier culverts within the Case Area, Washington has
violated, and is continuing to violate, its obligation to the
Tribes under the Treaties.
B. Waiver by the United States
In the district court, Washington asserted a defense of
“waiver and/or estoppel” based on action and inaction by the
United States that, according to Washington, led the State to
believe that its barrier culverts did not violate the Treaties.
On appeal, Washington has dropped its estoppel argument,
pressing only its waiver argument.
Washington alleged in the district court that WSDNR had
developed, in consultation with the United States, a 1999
“Forest and Fish Report” that contemplated a fifteen-year
schedule for “remediation of fish problems on forest roads”
under the control of WSDNR. Washington alleged that it
“reasonably concluded that by approving or failing to object
to the State’s 15-year remediation schedule for forest roads,
the NMFS [National Marine Fisheries Service] had
determined that the schedule satisfied any treaty obligation.”
Washington also alleged, with respect to “many” of the
culverts under the control of WSDOT, that the culverts are
“in highways funded in part by the United States,” and that
“[t]hese highways were designed according to standards set
or approved by the Federal Highway Administration (FHWA)
and its predecessors.” Washington alleged that it “reasonably
concluded that by approving or failing to object to the State’s
culvert design and maintenance, the FHWA had determined
40 UNITED STATES V. WASHINGTON
that the design and maintenance satisfied any treaty
obligation.” Washington further alleged that the Army Corps
of Engineers, in administering the Clean Water Act, and the
NMFS and U.S. Fish & Wildlife Service, in administering the
Endangered Species Act, issued permits to, or failed to object
to, WSDOT culverts, and that Washington reasonably relied
on their action and inaction to conclude that it had satisfied
any treaty obligations.
The United States may abrogate treaties with Indian
tribes, just as it may abrogate treaties with fully sovereign
nations. However, it may abrogate a treaty with an Indian
tribe only by an Act of Congress that “clearly express[es an]
intent to do so.” Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 202 (1999). Congress has not
abrogated the Stevens Treaties. So long as this is so, the
Tribes’ rights under the fishing clause remain valid and
enforceable. The United States, as trustee for the Tribes, may
bring suit on their behalf to enforce the Tribes’ rights, but the
rights belong to the Tribes.
The United States cannot, based on laches or estoppel,
diminish or render unenforceable otherwise valid Indian
treaty rights. See, e.g., Cramer v. United States, 261 U.S.
219, 234 (1923) (where Indians had treaty rights to land,
leasing of the land to a non-Indian defendant “by agents of
the government was . . . unauthorized and could not bind the
government; much less could it deprive the Indians of their
rights”); United States v. Washington, 157 F.3d 630, 649 (9th
Cir. 1998) (“[L]aches or estoppel is not available to defeat
Indian treaty rights.”) (quoting Swim v. Bergland, 696 F.2d
712, 718 (9th Cir. 1983)); and United States v. Ahtanum
Irrigation Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No
defense of laches or estoppel is available to the defendants
UNITED STATES V. WASHINGTON 41
here for the Government[,] as trustee for the Indian Tribe, is
not subject to those defenses.”). The same is true for waiver.
Because the treaty rights belong to the Tribes rather than the
United States, it is not the prerogative of the United States to
waive them.
Washington argues the above line of cases has been
“called in doubt” by City of Sherrill v. Oneida Indian Nation
of N.Y., 544 U.S. 197 (2005). Brief at 42. We disagree. Suit
was brought in Sherrill by the Oneida Indian Nation (“OIN”),
whose lands once comprised six million acres in central New
York State. In 1788, in the Treaty of Fort Schuyler, OIN
reserved 300,000 acres of its tribal land and ceded the rest to
New York. Two years later, Congress passed the Indians
Trade and Intercourse Act (the “Nonintercourse Act”), which
required federal approval for the sale of tribal land. New
York largely ignored the law and in the following years
obtained large quantities of tribal land through treaties with
OIN. The United States did little to stop these transactions;
indeed, its agents took an active role in encouraging Oneidas
to move west. By 1838, Oneidas had sold all but 5,000 acres
of their reserved lands. By 1920, their ownership had
dwindled to 32 acres.
In 1985, the Supreme Court held that the sale of OIN
lands had been unlawful, and that the OIN was entitled to
monetary compensation for these sales. See Cnty. of Oneida
v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985).
In 1997 and 1998, OIN purchased on the open market two
parcels of land, located within the boundaries of its ancestral
reservation, that had been sold to a non-Indian in 1807. OIN
claimed tribal sovereign status for the purchased parcels,
including the sovereign right to be free of local property
taxes. In Sherrill, the Court held against OIN, writing that
42 UNITED STATES V. WASHINGTON
“the Tribe cannot unilaterally revive its ancient sovereignty,
in whole or in part, over the parcels at issue.” 544 U.S. at
203.
The case before us is radically different from Sherrill.
The question in our case is not whether, as in Sherrill, a tribe
has sovereignty over land within the boundaries of an
abandoned reservation. The Tribes have not abandoned their
reservations. Nor is the question whether, as in Sherrill, the
Tribes have acted to relinquish their rights under the Treaties.
The Tribes have done nothing to authorize the State to
construct and maintain barrier culverts. Nor, finally, is the
question whether, as in Sherrill, to allow the revival of
disputes or claims that have long been left dormant. As
described above, Washington and the Tribes have been in a
more or less continuous state of conflict over treaty-based
fishing rights for over one hundred years.
C. Washington’s Cross-Request
1. Injunction
Washington asserted a “cross-request” (in effect, a
counterclaim) based on the United States’ construction and
maintenance of barrier culverts on its own land. Washington
contended that if its barrier culverts violate the Treaties, so
too do the United States’ barrier culverts. Washington
contended that an injunction requiring it to correct its barrier
culverts, while leaving undisturbed those of the United States,
imposed a disproportionate and therefore unfair burden on the
State. Washington sought an injunction that would require
the United States “to fix and thereafter maintain all culverts
built or maintained by [the United States] . . . before the State
UNITED STATES V. WASHINGTON 43
of Washington is required to repair or remove any of its
culverts.”
The district court struck the cross-request for an
injunction and subsequently denied Washington’s motion to
amend. It did so on two grounds. First, it held that
Washington’s cross-request was barred by sovereign
immunity. Second, it held that Washington did not have
standing to assert treaty rights belonging to the Tribes. We
agree with both grounds.
a. Sovereign Immunity
The United States enjoys sovereign immunity from
unconsented suits. However, when the United States files
suit, consent to counterclaims seeking offset or recoupment
will be inferred. United States v. Agnew, 423 F.2d 513, 514
(9th Cir. 1970). Washington contends that the injunction it
seeks against the United States is “recoupment.” We
disagree.
The Tenth Circuit has set forth three criteria that must be
satisfied for a recoupment claim:
To constitute a claim in recoupment, a
defendant’s claim must (1) arise from the
same transaction or occurrence as the
plaintiff’s suit; (2) seek relief of the same kind
or nature as the plaintiff’s suit; and (3) seek an
amount not in excess of the plaintiff’s claim.
Berrey v. Asarco Inc., 439 F.3d 636, 645 (10th Cir. 2006); see
Fed. Deposit Insur. Corp. v. Hulsey, 22 F.3d 1472, 1487
(10th Cir. 1994). We adopt these criteria as our own, and
44 UNITED STATES V. WASHINGTON
make explicit that the remedy (the “amount”) sought by the
United States and by the defendant in recoupment must be
monetary.
It is implicit in the use of the word “amount” in Berrey’s
third criterion that a recoupment claim is a monetary claim.
A claim for recoupment, if successful, can reduce or
eliminate the amount of money that would otherwise be
awarded to the plaintiff. It cannot result in an affirmative
monetary judgment in favor of the party asserting the claim:
“Although a counterclaim may be asserted against a
sovereign by way of set off or recoupment to defeat or
diminish the sovereign’s recovery, no affirmative relief may
be given against a sovereign in the absence of consent.”
Agnew, 423 F.2d at 514; see also United States v. U.S. Fid. &
Guar. Co., 309 U.S. 506, 511 (1940) (“[A] defendant may,
without statutory authority, recoup on a counterclaim an
amount equal to the principal claim.”); Black’s Law
Dictionary 1466 (10th ed. 2009) (“Recoupment: 1. The
getting back or regaining of something, esp. expenses. 2. The
withholding, for equitable reasons, of all or part of something
that is due. . . . 3. Reduction of a plaintiff’s damages because
of a demand by the defendant arising out of the same
transaction. . . . 4. The right of a defendant to have the
plaintiff’s claim reduced or eliminated because of the
plaintiff’s breach of contract or duty in the same
transaction.”). The parties have cited no case, and we have
found none, in which the term recoupment has been applied
to non-monetary relief such as an injunction.
Washington’s cross-request for an injunction thus does
not qualify as a claim for recoupment and is barred by
sovereign immunity.
UNITED STATES V. WASHINGTON 45
b. Standing
Washington seeks an injunction requiring the United
States to correct its barrier culverts on the ground that the
United States is bound by the Treaties in the same manner
and to the same degree as the State. Washington is, of
course, correct that the United States is bound by the Treaties.
Indian treaty rights were “intended to be continuing against
the United States . . . as well as against the state[.]” Winans,
198 U.S. at 381–82. Our holding that Washington has
violated the Treaties in building and maintaining its barrier
culverts necessarily means that the United States has also
violated the Treaties in building and maintaining its own
barrier culverts.
However, any violation of the Treaties by the United
States violates rights held by the Tribes rather than the State.
The Tribes have not sought redress against the United States
in the proceeding now before us.
2. Recoupment of Part of Washington’s Costs
In its Petition for Panel Rehearing and for Rehearing En
Banc, filed after our opinion came down, see United States v.
Washington, 827 F.3d 836 (9th Cir. 2016), Washington
contends that we misconstrued its appeal of the district
court’s denial of its cross-request. Washington writes in its
Petition:
The State’s original [cross-request] sought
a variety of remedies, including that the
federal government be required to (1) pay part
of the cost of replacing state culverts that
were designed to federal standards; (2) take
46 UNITED STATES V. WASHINGTON
actions on federal lands to restore salmon
runs; and (3) replace federal culverts in
Washington. But on appeal, the State pursued
only the first of these remedies.
We did not, and do not, so understand the State’s appeal.
Contrary to Washington’s statement, it did appeal the district
court’s denial of its cross-request for an injunction requiring
the United States to repair or replace the United States’ own
barrier culverts. It did not appeal a denial of a request that
the United States be required to pay part of its costs to repair
or replace its culverts.
In the district court, Washington stated in the body of its
cross-request that “[t]he United States has a duty to pay all
costs incurred by the State to identify and fix any and all
barrier culverts.” But in its demand for relief, Washington
did not demand any monetary payment from the United
States, unless its boilerplate request (“The State of
Washington further requests all other relief the Court deems
just and equitable”) could be deemed such a demand. Not
surprisingly, in denying Washington’s cross-request, the
district court did not discuss a demand for monetary payment
from the United States. In its brief to us, Washington writes
in the introduction that the district court erred in denying its
request to allow the State “to recoup some of the costs of
compliance from the United States because it specified the
culvert design and caused much of the decline in the salmon
runs.” But Washington makes no argument in the body of its
brief that it should be allowed to recover from the United
States any part of the cost to repair or replace its own barrier
culverts.
UNITED STATES V. WASHINGTON 47
When considering Washington’s appeal, we did not
understand it to argue that it should have been awarded, as
recoupment or set-off, a monetary award from the United
States. Given Washington’s failure to make this argument in
the body of its brief, the argument was waived. Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). However, given
the vigor with which Washington now makes the argument in
its Petition for Rehearing and Rehearing En Banc, we think
it appropriate to respond on the merits.
Washington’s argument is easily rejected. As recounted
above, a claim for recoupment must, inter alia, “seek relief of
the same kind or nature as the plaintiff’s suit.” Berrey,
439 F.3d at 645. Washington’s claim does not satisfy this
criterion. The United States, the plaintiff, sought injunctive
relief against Washington. Washington sought a monetary
award. These two forms of relief are not “of the same kind or
nature.”
D. Injunction
The district court held a trial in 2009 and 2010 to
determine the appropriate remedy for Washington’s violation
of the Treaties. At the time of trial, there were 1,114 state-
owned culverts in the Case Area. At least 886 of them
blocked access to “significant habitat,” defined as 200 linear
meters or more of salmon habitat upstream from the culvert
to the first natural passage barrier. More barrier culverts were
identified or constructed within the Case Area after 2009.
The court estimated in its 2013 Memorandum and Decision
that at the then-current rate of remediation, all of the barrier
culverts under the control of WSDNR, State Parks, and
WDFW would be corrected by October 31, 2016. The great
majority of barrier culverts, however, were under WSDOT’s
48 UNITED STATES V. WASHINGTON
control. In 2009, when trial began, there were 807 identified
WSDOT barrier culverts. Additional WSDOT barrier
culverts were constructed or identified after that date.
In 1997, WDFW and WSDOT reported to the Washington
State legislature that WSDOT culverts blocked 249 linear
miles of stream, comprising over 1.6 million square meters of
salmon habitat, which they estimated was sufficient to
produce 200,000 adult salmon per year. Based on WDFW
records, the district court found that at the time of trial, state-
owned barrier culverts in the Case Area blocked access to
approximately 1,000 miles of stream, comprising almost
5 million square meters of salmon habitat.
The district court issued a permanent injunction in 2013,
on the same day it issued its Memorandum and Decision.
The court ordered the State, in consultation with the Tribes
and the United States, to prepare within six months a current
list of all state-owned barrier culverts within the Case Area.
The court ordered that identification of a culvert as a
“barrier” be based on the methodology specified in the Fish
Passage Barrier and Surface Water Diversion Screening and
Prioritization Manual (“Assessment Manual”) published by
WDFW in 2000. The court ordered WSDNR, State Parks,
and WDFW to provide fish passage through all their barrier
culverts on the list by October 31, 2016 — the date by which
these three agencies were already expected to complete
correction of their barrier culverts.
For barrier culverts under the control of WSDOT, the
injunction was more nuanced. In Paragraph 6 of the
injunction, the court ordered WSDOT to provide, within
seventeen years of the date of the order, and “in accordance
with the standards set out in this injunction,” fish passage for
UNITED STATES V. WASHINGTON 49
each barrier culvert with more than 200 linear meters of
salmon habitat upstream to the first natural passage barrier.
In Paragraph 7, the court ordered WSDOT to replace existing
barrier culverts above which there was less than 200 linear
meters of accessible salmon habitat only at the “end of the
useful life” of the culverts, or sooner “as part of a highway
project.” In Paragraph 8, the court allowed WSDOT to defer
correction of some of the culverts described in Paragraph 6.
Deferred culverts can account for up to ten percent of
upstream habitat from the culverts described in Paragraph 6.
WSDOT’s choice of which culverts to defer is to be made in
consultation with the Tribes and the United States. The court
specified that the choice of culverts could be guided by the
“Priority Index” methodology described in the WDFD
Assessment Manual. That methodology uses cost as a
permissible factor in determining priority. Assessment
Manual at 55. Culverts deferred under Paragraph 8 are to
be replaced on the more lenient schedule specified in
Paragraph 7.
In Paragraph 9, the district court ordered that the State
shall design and build fish passage at each
barrier culvert on the List in order to pass all
species of salmon at all life stages at all flows
where the fish would naturally seek passage.
In order of preference, fish passage shall be
achieved by (a) avoiding the necessity for the
roadway to cross the stream, (b) use of full
span bridge, (c) use of the “stream
simulation” methodology . . . which the
parties to this proceeding have agreed
represents the best science currently available
for designing culverts that provide fish
50 UNITED STATES V. WASHINGTON
passage and allow fluvial processes. Nothing
in this injunction shall prevent the [State]
from developing and using designs other than
bridges or stream simulation in the future if
the [State] can demonstrate that those future
designs provide equivalent or better fish
passage and fisheries habitat benefits than the
designs required in this injunction.
In Paragraph 10, the court provided that the State may deviate
from the design standards specified in Paragraph 9 in cases of
emergency or where “extraordinary site conditions” exist.
The court specified that it would “retain continuing
jurisdiction . . . for a sufficient period to assure that the
[State] compl[ies] with the terms of this injunction.”
Washington declined to participate in the formulation of
the injunction on the ground that it had not violated the
Treaties and that, therefore, no remedy was appropriate.
Washington now objects on several grounds to the injunction
that was formulated without its participation. Washington
specifically objects (1) that the injunction is too “broad,”
Brief at 50; (2) that the district court did not “defer to the
State’s expertise,” id. at 54; (3) that the court did not properly
consider costs and equitable principles, id. at 57; (4) and that
the injunction “impermissibly and significantly intrudes into
state government operations.” Id. at 63. Finally, Washington
objects that its four specific objections support a contention
that the court’s injunction is inconsistent with “federalism
principles.” Id. at 47, 65. We consider the State’s objections
in turn.
UNITED STATES V. WASHINGTON 51
1. Breadth of the Injunction
Washington contends in its brief that “[t]he Tribes
presented no evidence that state-owned culverts are a
significant cause of the decline [in salmon]. . . . Despite that
complete failure of proof, the district court found that state-
owned culverts ‘have a significant total impact on salmon
production.’” Brief at 50 (emphasis in original). Washington
contends, further, that the district court “ordered replacement
of nearly every state-owned barrier culvert within the case
area without any specific showing that those culverts have
significantly diminished fish runs or tribal fisheries, or that
replacing them will meaningfully improve runs.” Id.
Washington misrepresents the evidence and
mischaracterizes the district court’s order.
Contrary to the State’s contention, the Tribes presented
extensive evidence in support of the court’s conclusion that
state-owned barrier culverts have a significant adverse effect
on salmon. The 1997 report prepared for the Washington
State Legislature by two of the defendants in this case,
WDFW and WSDOT, stated, “Fish passage at human made
barriers such as road culverts is one of the most recurrent and
correctable obstacles to healthy salmonid stocks in
Washington.” The report concluded:
A total potential spawning and rearing area of
1,619,839 m2 (249 linear miles) is currently
blocked by WSDOT culverts on the 177
surveyed streams requiring barrier resolution;
this is enough wetted stream area to produce
200,000 adult salmonid annually. These
estimates would all increase when considering
52 UNITED STATES V. WASHINGTON
the additional 186 barriers that did not have
full habitat assessments.
The report recommended that state funding be supplied to
remove “all barriers” under the control of the State:
Planning is underway for resolution of at least
seven more barriers during the 1997–99
biennium using dedicated funds, and to
resolve all barriers in the next two or three
decades. . . . Estimated cost is about $40
million, with resultant benefits exceeding
$160 million.
Based on later WDFW figures, the district court found
that at the time of trial state-owned barrier culverts in the
Case Area blocked access to approximately 1,000 linear miles
of stream, comprising almost 5 million square meters of
salmon habitat. These figures, taken together with the 1997
figures supplied by WDFW and WSDOT, indicate that the
total habitat blocked by state-owned barrier culverts in the
Case Area is capable of producing several times the 200,000
mature salmon specified in the 1997 report.
The State contends that because of the presence of non-
state-owned barrier culverts on the same streams as state-
owned barrier culverts, the benefit obtained from remediation
of state-owned culverts will be insufficient to justify the
district court’s injunction. The State writes:
[S]tate-owned culverts are less than 25% of
all known barrier culverts, and in some places,
non-state culverts outnumber state-owned
culverts by a factor of 36 to 1. Any benefit
UNITED STATES V. WASHINGTON 53
from fixing a state-owned culvert will not be
realized if fish are blocked by other culverts
in the same stream system.
There are several answers to the State’s contention. First,
it is true that in calculating whether a state culvert is a barrier
culvert, and in determining the priority for requiring
remediation, the court’s injunction ignores non-state barriers
on the same stream. But in so doing, the court followed the
practice of the state itself. Paul Sekulich, formerly division
manager in the restoration division in the habitat program of
the Washington Department of Fish and Wildlife (“WDFW”),
testified in the district court:
Q: When you calculate a priority index
number for a [state-owned] culvert, do you
account for the presence of other fish passage
barriers in a watershed?
A: . . . When the priority index is calculated,
it treats those other barriers as transparent.
The reason we do that, we don’t know when
those other barriers are being corrected. So
by treating them as transparent, you do a
priority index that looks at potential habitat
gain as if all those barriers would be corrected
at some point in time.
Washington State law requires that a “dam or other
obstruction across or in a stream” be constructed in such a
manner as to provide a “durable and efficient fishway”
allowing passage of salmon. Wash. Rev. Code
§ 77.57.030(1). If owners fail to construct or maintain proper
54 UNITED STATES V. WASHINGTON
fishways, the Director of WDFW may require them do so at
their own expense. Id. at § 77.57.030(2).
Second, in 2009, on streams where there were both state
and non-state barriers, 1,370 of the 1,590 non-state barriers,
or almost ninety percent, were upstream of the state barrier
culverts. Sixty nine percent of the 220 downstream non-state
barriers allowed partial passage of fish. Of the 152 that
allowed partial passage, “passability” was 67% for 80 of the
barriers and 33% for 72 of them.
Third, the specific example provided by the state is a
culvert on the Middle Fork of Wildcat Creek under State
Route 8 in Grays Harbor County. The State is correct that
there are 36 non-state barriers and only one state barrier
culvert on this creek. The State fails to mention, however,
that all of the non-state barriers are upstream of the state
culvert. Further, it is apparent from the map in the district
court record that the nearest non-state barrier is almost a half
mile upstream.
Witnesses at trial repeatedly described benefits to salmon
resulting from correction of barrier culverts. One example is
evidence presented by Mike McHenry, habitat program
manager for the Lower Elwha Klallam Tribe. In his written
testimony, McHenry described several studies. One was a
2003 study of culvert removal projects on the Stillaguamish
River that opened up 19 linear kilometers of salmon habitat.
According to the study, over 250 adult coho salmon were
observed spawning in the newly accessible habitat in each of
the two years immediately after the completion of the
projects. Based on his own experience as habitat manager for
the tribe, McHenry wrote that removal of barrier culverts on
the Lower Elwha River had had a similar effect. In
UNITED STATES V. WASHINGTON 55
McHenry’s view, “The systematic correction of barrier
culverts is an important place to focus restoration efforts.”
He wrote, further, “The correction of human caused barriers
is generally recognized as the second highest priority for
restoring habitats used by Pacific salmon (following the
protection of existing functional habitats).”
In his live testimony, McHenry stated that his tribe had
corrected seventeen of thirty-one barriers in a particular
watershed:
McHenry: Because when we did the
watershed assessment, we found that there
were 50 miles of historically active stream
that salmon could access in this watershed,
and fully half that mileage was blocked by
culverts of various ownerships. So to us, we
applied our scientific knowledge and
recommendations from the literature which
indicated that when you’re going to restore a
place like this, you need to go after the
barriers first.
The Court: In your expert opinion, that was
the biggest bang for your buck?
McHenry: Yes.
Another example is the live testimony of Lawrence
Wasserman, environmental policy manager for the
Swinomish Indian Tribal Community. He testified that
culvert remediation provides substantial benefits:
56 UNITED STATES V. WASHINGTON
There’s an immediate access and
immediate benefit to additional habitat when
we replace a culvert . . . .
If you compare that to having to plant
trees, shade, it can take 10, 20, 50 years to get
the trees large enough . . . .
. . . We have a high confidence in design.
By and large, we know how to fix
culverts. . . . So we have a high confidence
compared to many other more experimental
restoration activities.
It’s fairly easy to monitor. If there were
no fish there before, [then] we open a culvert
and we can count fish[.] . . .
A critical factor is that there’s minimal
impacts on adjacent land use or land
owners. . . . [I]t’s relatively infrequent where
there needs to be a condemnation of other
people’s land or asking people to sell their
land. . . .
. . . It’s cost effective. There have been
some studies that have shown that, really,
compared to other kinds of restoration
activities, the cost per smolt produced is
relatively low[.] . . .
And finally, we get benefits with a broad
sweep of culvert repairs. We get a very broad
geographic distribution of benefits, and the
UNITED STATES V. WASHINGTON 57
cumulative effects can accrue across a variety
of watersheds.
It is true, as the evidence at trial showed, that correction
of barrier culverts is only one of a number of measures that
can usefully be taken to increase salmon production in the
Case Area. It is also true that the benefits of culvert
correction differ depending on the culvert in question. For
example, Paul Wagner, manager of the culvert correction
program for WSDOT, presented evidence in 2013 identifying
817 WSDOT barrier culverts blocking 937 linear miles of
stream habitat in the Case Area. Wagner’s evidence showed
that correction of the 314 culverts blocking the most habitat
would open up 655 of the 937 miles of total habitat.
Correcting the 232 culverts blocking the least habitat would
open up only 95 miles. Those 95 miles of habitat constitute
10.1 percent of the total habitat blocked by the 817 barrier
culverts. The 232 culverts blocking those 95 miles
constituted 28.4 percent of the total barrier culverts.
The district court’s injunction took into account the facts
that culvert correction is not the only factor in salmon
recovery; that some culverts block more habitat than others;
and that some culverts are more expensive to correct than
others. The court ordered correction of high-priority culverts
— those blocking 200 linear meters or more of upstream
habitat — within seventeen years. For low-priority culverts
— those blocking less than 200 linear meters of upstream
habitat — the court ordered correction only at the end of the
useful life of the existing culvert, or when an independently
undertaken highway project would require replacement of the
culvert. Further, recognizing the likelihood that accelerated
replacement of some high-priority culverts will not be cost-
effective, the court allowed the State to defer correction of
58 UNITED STATES V. WASHINGTON
high-priority culverts accounting for up to ten percent of the
total blocked upstream habitat, and to correct those culverts
on the more lenient schedule of the low-priority culverts.
Wagner’s evidence indicates that if the sole criterion for
choosing deferred culverts is the amount of blocked habitat,
there will be approximately 230 deferred culverts. If cost of
correction of particular culverts is added as a criterion, there
will be a somewhat smaller number of deferred culverts.
In sum, we disagree with Washington’s contention that
the Tribes “presented no evidence,” and that there was a
“complete failure of proof,” that state-owned barrier culverts
have a substantial adverse effect on salmon. The record
contains extensive evidence, much of it from the State itself,
that the State’s barrier culverts have such an effect. We also
disagree with Washington’s contention that the court ordered
correction of “nearly every state-owned barrier culvert”
without “any specific showing” that such correction will
“meaningfully improve runs.” The State’s own evidence
shows that hundreds of thousands of adult salmon will be
produced by opening up the salmon habitat that is currently
blocked by the State’s barrier culverts. Finally, we disagree
with Washington’s contention that the court’s injunction
indiscriminately orders correction of “nearly every state-
owned barrier culvert” in the Case Area. The court’s order
carefully distinguishes between high- and low-priority
culverts based on the amount of upstream habitat culvert
correction will open up. The order then allows for a further
distinction, to be drawn by WSDOT in consultation with the
United States and the Tribes, between those high-priority
culverts that must be corrected within seventeen years and
those that may be corrected on the more lenient schedule
applicable to the low-priority culverts.
UNITED STATES V. WASHINGTON 59
2. Deference to the State’s Expertise
Washington contends that the district court made a clearly
erroneous finding of fact, concluding that correction of
human-caused barriers is the highest priority in habitat
restoration. It contends, further, that this finding led the court
to ignore the expert testimony presented by both the State and
the Tribes. Washington wrote in its brief:
The State has concluded — and the Tribes
agree — that a comprehensive approach to
preserving and restoring salmon runs is the
most productive and cost-effective . . . . The
district court concluded, however, that
“correction of human-caused barriers is
recognized as the highest priority for restoring
salmon habitat in the Case Area.” On that
basis, the court ordered injunctive relief
focused solely on culverts, even though the
cost of the injunction will likely reduce
funding available for other salmon restoration
efforts. The court’s finding was clearly
erroneous, and its approach was an abuse of
discretion.
In concluding that fixing culverts is “the
highest priority for restoring salmon habitat in
the Case Area,” the court cited the declaration
of tribal expert Mike McHenry. Mr.
McHenry said no such thing.
Brief at 54–55.
60 UNITED STATES V. WASHINGTON
Washington is mistaken. It is true that the district court
made the factual finding to which Washington objects. Citing
McHenry’s evidence, the court wrote, “The correction of
human-caused barriers is recognized as the highest priority
for restoring salmon habitat in the Case Area.” But the
court’s finding is amply supported by the record. With
respect to restoring habitat (as distinct from preserving
habitat, which has a higher priority), McHenry wrote that it
is “generally recognized” that the correction of human-caused
barriers is the highest priority. Further, McHenry testified
that “you need to go after the barriers first” because that is the
“biggest bang for the buck.” Wasserman testified to the same
effect, saying that “there’s an immediate access and
immediate benefit to additional habitat when we replace a
culvert”; that “it’s cost effective” compared to “other kinds of
restoration activities”; and that “the cumulative effects can
accrue across a variety of watersheds.”
It is also true that the district court’s injunction “focused
solely on culverts” and did not order other remedies. But it
is appropriate that the injunction should have done so. The
court was acutely conscious of the fact that, while barrier
culverts are an important cause of the decline of salmon in the
Case Area, they are not the only cause. It wrote, “A primary
cause of this decline is habitat degradation . . . . One cause
of the degradation of salmon habitat is blocked culverts[.]”
(Emphasis added.) However, because the only treaty
violation alleged in this litigation was Washington’s barrier
culverts, the court acted appropriately in ordering only the
correction of these culverts. As the court wrote, “The scope
of this subproceeding includes only those culverts that block
fish passage under State-owned roads.”
UNITED STATES V. WASHINGTON 61
Contrary to Washington’s contention, the district court
had a sophisticated record-based understanding of the various
causes of the decline of salmon in the Case Area, of what
could be achieved by the correction of state-owned barrier
culverts, and of the limitations on what could be achieved by
culvert correction. The court’s injunction is carefully crafted
to reflect that understanding.
3. Costs and Equitable Principles
Washington contends that the district court’s injunction
fails properly to take costs into account, and that its
injunction is inconsistent with equitable principles.
a. Costs
Washington writes in its brief that correction of WSDOT
barrier culverts will cost approximately $1.88 billion over the
course of the seventeen-year schedule ordered by the court,
or “roughly $117 million per year of the injunction.” (Using
Washington’s own estimates, a correct calculation is actually
$110.6 million per year rather than $117 million.)
Washington’s estimated total cost is based on an assumption
of 817 corrected culverts, at an average correction cost of
$2.3 million per culvert.
Washington’s cost estimates are not supported by the
evidence. Washington contended at trial, as it now contends
to us, that the average cost to replace a WSDOT barrier
culvert would be $2.3 million. But the district court did not
accept this estimate. The court found that “the actual cost of
construction for twelve WSDOT stream simulation culvert
projects completed prior to the 2009 trial ranged from
$413,000 to $1,674,411; the average cost for the twelve was
62 UNITED STATES V. WASHINGTON
$658,639 each.” In 2013, the State submitted a declaration
from WSDOT official Wagner listing thirty-one culvert
correction projects completed state-wide since October 2009.
Of these, twenty-four used either a stream simulation design
or a bridge. The declaration stated that the average cost for
each these twenty-four projects was $1,827,168, not
$2,300,000 as the State now contends. The district court
noted that even Wagner’s lower figure could not be
confirmed because cost data was missing for eight of the
twenty-four projects.
There are additional reasons to disregard the State’s
estimate of total cost. First, Washington assumes that all 817
of the state-owned barrier culverts will be corrected on the
seventeen-year schedule. This is demonstrably incorrect.
According to the State’s own evidence, Paragraph 8 of the
injunction will allow the State to defer correction of
approximately 230 of the 817 culverts. If cost of barrier
correction (rather than merely amount of upstream habitat) is
taken into account in deciding which culverts to defer, fewer
but more costly culverts will be deferred. Second, and
perhaps more important, Washington must eventually correct
its barrier culverts, irrespective of the court’s order in this
suit. The district court wrote that federal and state law
require Washington to correct its barrier culverts “in any
case,” and that the only consequence of its order will be an
“acceleration of barrier correction.” The net costs imposed
on Washington by the injunction are thus not the full costs of
barrier correction, but rather only the “marginal costs
attributable to an accelerated culvert correction schedule.”
Finally, we note that a portion of WSDOT’s funding for
correcting its barrier culverts will come from the United
States. The court wrote, “[T]he state expects to receive over
UNITED STATES V. WASHINGTON 63
$22,000,000 for fish passage barrier projects from the federal
government in the years 2011 to 2017. Of this amount,
$15,813,000 is expected in the 2013–2015 biennium.”
b. Equitable Principles
Washington makes one specific objection based on
equitable principles. It objects that the court abused its
discretion in requiring that “the State alone,” rather than State
in conjunction with the United States, be “burdened with the
entire cost of culvert repair.” Brief at 63. We disagree. The
court’s order required correction of only those barrier culverts
that were built and maintained by the State. It was not an
abuse of discretion to require the State to pay for correction
of its own barrier culverts.
Further, we note more generally that the district court did
consider equitable principles, and concluded that those
principles favored the Tribes and the citizens of the State.
The court wrote:
The Tribes and their individual members
have been harmed economically, socially,
educationally, and culturally by the greatly
reduced salmon harvests that have resulted
from State-created or State-maintained fish
passage barriers.
This injury is ongoing, as efforts by the
State to correct the barrier culverts have been
insufficient. . . . Remedies at law are
inadequate as monetary damages will not
adequately compensate the Tribes and their
individual members for these harms. . . .
64 UNITED STATES V. WASHINGTON
The balance of hardships tips steeply
toward the Tribes in this matter. The promise
made to the Tribes that the Stevens Treaties
would protect their source of food and
commerce was crucial in obtaining their
assent to the Treaties’ provisions. . . . Equity
favors requiring the State of Washington to
keep the promises upon which the Tribes
relied when they ceded huge tracts of land by
way of the Treaties.
...
The public interest will not be disserved
by an injunction. To the contrary, it is in the
public’s interest, as well as the Tribes’ to
accelerate the pace of barrier correction. All
fishermen, not just Tribal fishermen, will
benefit from the increased production of
salmon. . . . The general public will benefit
from the enhancement of the resource and the
increased economic return from fishing in the
State of Washington. The general public will
also benefit from the environmental benefits
of salmon habitat restoration.
4. Intrusion into State Government Operations
Washington contends that the court’s order
“impermissibly and significantly intrudes into state
government operations.” Brief at 63. Washington contends
that it “was making great strides in repairing culverts before
any federal court intervention,” and that “there was no need
for the court to issue a detailed and expensive injunction that
UNITED STATES V. WASHINGTON 65
sets an inflexible and tight schedule for culvert repair.” Id. at
63–64. Washington implies that the cost of complying with
the court’s order will oblige the State to cut other important
state programs:
[T]he injunction will require the State to
devote roughly $100 million per year more
than it otherwise would have to culvert repair.
This at a time when the State faces recurring
budget shortfalls in the billions of dollars and
has already made deep and painful cuts to
subsidized health insurance for low income
workers, K-12 schools, higher education, and
basic aid for persons unable to work.
Id. at 58. We disagree.
The district court disagreed with Washington’s contention
that there was “no need” for the court to order correction of
its barrier culverts. Based on the State’s slow rate of barrier
correction, the court concluded that “under the current State
approach, the problem of WSDOT barrier culverts in the Case
Area will never be solved.” The district court also disagreed
with the Washington’s cost estimates. As seen above,
Washington’s estimate of its cost to comply with the court’s
order (“roughly $100 million per year” more than it would
otherwise spend) is dramatically overstated.
The district court carefully considered the marginal cost
imposed on Washington by its injunction and concluded that
the State could comply with the order without cutting vital
state programs. The court relied on a state budget document
showing that $9.9 billion was allocated to the state
transportation budget for the 2011–2013 biennium. Of that
66 UNITED STATES V. WASHINGTON
$9.9 billion, $7.88 billion was allocated to WSDOT. Noting
the separation of the transportation budget from other state
budgets, the court concluded, “The separation of the
Transportation Budget from the Operating and Capital
Budgets ensures that money will not be taken from education,
social services, or other vital State functions to fund culvert
repairs.”
5. Federalism Principles
Washington contends, based on the four specific
objections just reviewed, that the district court’s injunction
violates principles of federalism. Washington asserts four
principles of federalism:
First, the remedy must be no broader than
necessary to address the federal law violation.
Second, courts must grant deference to a
state’s institutional competence and subject
matter expertise. Third, courts must take cost
into consideration and not substitute their
budgetary judgment for that of the state. And
finally, relief must be fashioned so that it is
the least intrusive into state governmental
affairs. The district court’s injunction here
contravenes all of these principles.
Blue Brief at 49. We will not quarrel here with these
principles, stated at this level of generality. However, for the
reasons given above, we have concluded that the district
court’s injunction violates none of them.
Further, a federalism-based objection to an injunction
enforcing Indian treaty rights should not be viewed in the
UNITED STATES V. WASHINGTON 67
same light as an objection to a more conventional structural
injunction. Washington cites two Supreme Court cases in
support of its federalism objection — Rizzo v. Goode,
423 U.S. 362 (1976) (structural injunction requiring reform
of the Philadelphia police department), and Horne v. Flores,
557 U.S. 433 (2009) (structural injunctions requiring Arizona
to comply with Equal Educational Opportunities Act of
1974). However, Washington fails to cite the Supreme Court
case directly on point — Fishing Vessel, 443 U.S. 658 (1979)
— in which the Court affirmed detailed injunctions requiring
Washington to comply with the very Treaties at issue in this
case.
The district court in Fishing Vessel had entered a series of
detailed injunctions implementing its holding that the Treaties
entitled the Tribes to take up to fifty percent of harvestable
salmon in any given year. Washington strenuously resisted,
with the result that the district court effectively took over
much of the State’s management of the salmon fishery.
Washington objected both to the district court’s interpretation
of the Treaties, and to the court’s intrusion into its affairs.
The Supreme Court affirmed the district court’s holding on
the meaning of the Treaties. It then rejected, in no uncertain
terms, federalism-based objections to the injunctions
enforcing the Treaties:
Whether [Washington] Game and
Fisheries may be ordered actually to
promulgate regulations having effect as a
matter of state law may well be doubtful. But
the District Court may prescind that problem
by assuming direct supervision of the fisheries
if state recalcitrance or state-law barriers
should be continued. It is therefore absurd to
68 UNITED STATES V. WASHINGTON
argue . . . both that the state agencies may not
be ordered to implement the decree and also
that the District Court may not itself issue
detailed remedial orders as a substitute for
state supervision.
Fishing Vessel, 443 U.S. at 695 (emphasis added).
6. Modification of the Injunction
It is possible that changing or newly revealed facts or
circumstances will affect the fairness or efficacy of an
injunction. In the case before us, the district court has
ordered that many of WSDOT’s high-priority barrier culverts
be corrected over the course of seventeen years, and that the
remainder be corrected only at the end of the culvert’s natural
life or when road work undertaken for independent reasons
would in any event require replacement of the culvert. It is
possible that, during this extended period, changed or newly
revealed facts or circumstances will justify a modification of
the injunction. The district court should not hesitate to
modify its injunction if this proves to be the case. As the
Supreme Court wrote in System Federation No. 91 v. Wright,
364 U.S. 642, 647 (1961), “a sound judicial discretion may
call for the modification of the terms of an injunctive decree
if the circumstances, whether of law or fact, obtaining at the
time of its issuance have changed, or new ones have since
arisen.” See also Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 380–81 (1992). In affirming the judgment
entered by the district court in this case, we emphasize that
the flexibility inherent in equity jurisdiction allows the court,
if changed or newly revealed facts or circumstances warrant,
to modify its injunction accordingly.
UNITED STATES V. WASHINGTON 69
Conclusion
In sum, we conclude that in building and maintaining
barrier culverts Washington has violated, and continues to
violate, its obligation to the Tribes under the fishing clause of
the Treaties. The United States has not waived the rights of
the Tribes under the Treaties, and has not waived its own
sovereign immunity by bringing suit on behalf of the Tribes.
The district court did not abuse its discretion in enjoining
Washington to correct most of its high-priority barrier
culverts within seventeen years, and to correct the remainder
at the end of their natural life or in the course of a road
construction project undertaken for independent reasons.
AFFIRMED.