United States v. State of Washington , 864 F.3d 1017 ( 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 BANK OF
KLALLAMS; PORT GAMBLE
BAND CLALLAM; NISQUALLY ORDER
INDIAN TRIBE; NOOKSACK
INDIAN TRIBE; SKOKOMISH
INDIAN TRIBE; SQUAXIN ISLAND
TRIBE; UPPER SKAGIT INDIAN
TRIBE; TULALIP TRIBES; LUMMI
INDIAN NATION; QUINAULT
INDIAN NATION; SUQUAMISH
INDIAN TRIBE; 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
Filed May 19, 2017
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and David A. Ezra,* District Judge.
Order;
Concurrence by Judge W. Fletcher;
Opinion Respecting Denial by Judge O’Scannlain;
Statement by Judge Hurwitz
SUMMARY **
Tribal Fishing Rights
The panel denied a petition for a panel rehearing and
denied a petition for rehearing en banc on behalf of the court
in an action in which the panel affirmed the district court’s
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.
Concurring in the denial of rehearing en banc, Judges W.
Fletcher and Gould stated that the district court properly
found that Washington State violated the Treaties by acting
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. WASHINGTON 3
affirmatively to build state-owned roads, and to build and
maintain salmon-blocking culverts under those roads. The
Judges stated that there is ample evidence in the record that
remediation of the State’s barrier culverts will have a
substantial beneficial effect on salmon populations, resulting
in more harvestable salmon for the Tribes. As an incidental
result, there will also be more harvestable salmon for non-
Indians. The Judges noted that the United States requested
an injunction requiring remediation of all of the State’s
barrier culverts within five years. The district court crafted
a careful, nuanced injunction, giving the United States much
less than it requested. The Judges stated that the district
court properly found a violation of the Treaties by the State,
and that it acted within its discretion in formulating its
remedial injunction.
In an opinion respecting the denial of rehearing en banc,
Judge O’Scannlain, joined by Judges Kozinski, Tallman,
Callahan, Bea, Ikuta and N.R. Smith, and joined by Judges
Bybee and M. Smith as to all but Part IV, stated that the panel
opinion’s reasoning ignored the Supreme Court’s holding in
Washington v. Washington State Commercial Passenger
Fishing Vessel Association, 443 U.S. 658 (1979), and this
Circuit’s cases, was incredibly broad, and if left unchecked,
could significantly affect natural resource management
throughout the Pacific Northwest, inviting judges to become
environmental regulators. Judge O’Scannlain stated that by
refusing to consider the doctrine of laches, the panel opinion
further disregarded the Supreme Court’s decision in City of
Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197(2005), relying instead on outdated and impliedly overruled
precedent. Finally, Judge O’Scannlain stated that the panel
opinion imposed a poorly-tailored injunction which will
needlessly cost the State of Washington hundreds of millions
of dollars.
4 UNITED STATES V. WASHINGTON
In a separate statement, Judge Hurwitz stated the dissent
from the denial of rehearing en banc unfortunately
perpetuated the false notion that the full court’s refusal to
exercise its discretion under Federal Rule of Appellate
Procedure 35(a) is tantamount to the court “tacitly affirming
the panel opinion’s erroneous reasoning.” Judge Hurwitz
stated that, like the denial of certiorari by the Supreme Court,
the denial of rehearing en banc simply leaves a panel
decision undisturbed.
COUNSEL
Noah G. Purcell (argued), Solicitor General; Laura J.
Watson, Deputy Solicitor General; Robert W. Ferguson,
Attorney General; Jessica E. Fogel, Assistant Attorney
General; Robert W. Ferguson, 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,
Philip E. Katzen, and Riyaz A. Kanji; 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.
UNITED STATES V. WASHINGTON 5
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.
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.
Dale Schowengerdt, Solicitor; Timothy C. Fox, Attorney
General; United States Attorney'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, Modoc Point Irrigation District, Mosby Family
Trust, Sprague River Water Resource Foundation Inc., and
TPC LLC.
6 UNITED STATES V. WASHINGTON
ORDER
The panel, as constituted above, has voted unanimously
to deny the petition for panel rehearing. Judges Fletcher and
Gould have voted to deny the petition for rehearing en banc,
and Judge Ezra so recommends.
A judge of the court called for a vote on the petition for
rehearing en banc. A vote was taken, and a majority of the
non recused active judges of the court failed to vote for en
banc rehearing. Fed. R. App. P. 35(f).
The petition for rehearing and the petition for rehearing
en banc, filed August 11, 2016, are DENIED.
W. FLETCHER and GOULD, Circuit Judges, concurring in
the denial of rehearing en banc: *
The opinion in this case speaks for itself. See United
States v. Washington, 853 F.3d 946 (9th Cir. 2017). We
write to respond to the views of our colleagues who dissent
from the decision of our court not to rehear the case en banc.
In 1854 and 1855, U.S. Superintendent of Indian Affairs
and Governor of Washington Territory, Isaac I. Stevens,
negotiated a series of virtually identical Treaties with the
Indian Tribes that lived around Puget Sound. In return for
their agreement to live on reservations, the Tribes were
promised equal access to off-reservation fishing “at all usual
*
District Judge Ezra was a member of the three-judge panel that
decided this case. Because Judge Ezra is not a member of the Ninth
Circuit, he does not have the authority to vote on a petition for rehearing
en banc.
UNITED STATES V. WASHINGTON 7
and accustomed grounds and stations.” The Supreme Court
described the importance of the promise:
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.
Washington v. Washington State Commercial Passenger
Fishing Vessel Ass’n (“Fishing Vessel”), 443 U.S. 658, 676
(1979).
For more than 100 years, the State of Washington
deliberately and systematically prevented the Tribes from
engaging in the off-reservation fishing promised under the
Treaties. The State eventually came to employ surveillance
planes, high powered boats, tear gas, billy clubs and guns
against tribal members engaged in off-reservation fishing.
In 1970, the United States brought suit against Washington
State to enforce the Treaties.
The district court held that the Treaties promised the
Tribes fifty percent of the harvestable salmon in any given
year. The Supreme Court affirmed, holding that the Tribes
had been promised a “moderate living” from fishing, and
that they were entitled to fifty percent of the harvest, up to
the point where they were able to catch enough salmon to
provide a moderate living. Id. at 686. The district court
entered a detailed injunction which the State strenuously
resisted. The Supreme Court affirmed the injunction:
It is . . . absurd to argue . . . both that the state
agencies may not be ordered to implement
the decree and also that the District Court
8 UNITED STATES V. WASHINGTON
may not itself issue detailed remedial orders
as a substitute for state supervision.
Id. at 695.
The current proceeding is a continuation of the suit
brought by the United States in 1970.
Salmon are anadromous fish—hatching in fresh water,
migrating to the ocean to mature, and returning to fresh
water to spawn—so access to spawning grounds is essential
to their reproduction and survival. For many years, the
Tribes had complained that the State had built roads across
salmon-bearing streams, and that it had built culverts under
the roads that allowed passage of water but not passage of
salmon. The United States instituted the current proceeding
in 2001 to require the State to modify its culverts to allow
passage of salmon.
The State has fought the proceeding tooth and nail. The
State contended, and continues to contend, that it can block
every salmon-bearing stream into Puget Sound without
violating the Treaties. The district court disagreed and held
that the State’s affirmative act of building roads with
salmon-blocking, or “barrier,” culverts violated the Treaties.
The district court sought the State’s participation and
assistance in drafting a remedial injunction, but the State
refused to participate. Despite the State’s refusal, the district
court entered an injunction that was substantially more
favorable to the State than the injunction sought by the
United States.
The State appealed, objecting to the district court’s
holding that its affirmative acts in building roads with barrier
culverts violated the Treaties. Without conceding that it
violated the Treaties, the State also objected to the scope of
UNITED STATES V. WASHINGTON 9
the injunction in whose formulation it had declined to
participate. We affirmed.
Our dissenting colleagues object to our decision on four
grounds. We respond to the objections in turn.
I. Violation of the Treaties
First, our colleagues contend that we have misread the
Supreme Court’s 1979 decision in Fishing Vesssel. They
contend that fifty percent of the harvestable salmon is an
absolute “ceiling” on the amount of fish the Tribes have been
promised. They contend that the Treaties promised only that
the Tribes will get fifty percent of the harvestable salmon,
and that Treaties permit the State to take affirmative acts that
have the effect of diminishing the supply of salmon below
the amount necessary to provide a moderate living.
According to our colleagues, if the State acts affirmatively
to entirely eliminate the supply of harvestable salmon, the
Tribes get fifty percent of nothing.
Our colleagues misread Fishing Vessel. The Court
recognized that the Treaties promised that the Tribes would
have enough salmon to feed themselves. In the words of the
Court, the Treaties promised that the Tribes would have
enough harvestable salmon to provide a “moderate living.”
Fishing Vessel, 433 U.S. at 686. The Tribes get only fifty
percent of the catch even if the supply of salmon is
insufficient to provide a moderate living. However, there is
nothing in the Court’s opinion that authorizes the State to
diminish or eliminate the supply of salmon available for
harvest.
It is undisputed that at the present time fifty percent of
the harvestable salmon in Puget Sound does not provide a
moderate living to the Tribes. It is also undisputed that the
10 UNITED STATES V. WASHINGTON
State has acted affirmatively to build roads with barrier
culverts that block the passage of salmon, with the
consequence of substantially diminishing the supply of
harvestable salmon. Evidence at trial showed that
remediation of the State’s barrier culverts will increase the
yearly supply of salmon by several hundred thousand adult
salmon. Half of the newly produced harvestable salmon will
be available to the Tribes. The other half will be available
to non-Indians.
Our opinion does not hold that the Tribes are entitled to
enough salmon to provide a moderate living, irrespective of
the circumstances. We do not hold that the Treaties’ promise
of a moderate living is valid against acts of God (such as an
eruption of Mount Rainier) that would diminish the supply
of salmon. Nor do we hold that the promise is valid against
all human-caused diminutions, or even against all State-
caused diminutions. We hold only that the State violated the
Treaties when it acted affirmatively to build roads across
salmon bearing streams, with culverts that allowed passage
of water but not passage of salmon.
II. Effect and Scope of the Holding
Second, our colleagues contend that our decision may
open the door to “a whole host of future suits,” and that we
do “nothing to cabin [our] opinion.” We are not sure what
the hypothesized future suits would be. But we are sure that
we have not opened the floodgates to a host of future suits.
Because of the Eleventh Amendment, a further suit
against Washington State seeking enforcement of the
Treaties cannot be brought by the Tribes. Nor can it be
brought by non-Indians who would benefit from an increase
in harvestable salmon (recall that 50% of any increased
salmon harvest will go to non-Indians). Nor can it be
UNITED STATES V. WASHINGTON 11
brought by environmental groups. The only possible
plaintiff is the United States. The United States is a
responsible litigant and is not likely to burden the States
without justification. The history of this litigation
demonstrates that it was no easy thing for the Tribes to
persuade the United States to institute proceedings against
the state of Washington to seek remediation of the State’s
barrier culverts, and will be no easy thing for other
Northwest tribes to persuade the United States to bring
comparable suits against other States.
Our opinion describes the facts of this litigation carefully
and in detail, as required by our decision in United States v.
State of Washington, 759 F.2d 1353, 1357 (9th Cir. 1985)
(en banc) (“[T]he measure of the State’s [Treaty] obligation
will depend for its precise legal formulation on all of the
facts presented by a particular dispute.”). Cabining our
opinion by means other than a careful, detailed description
of the facts presented would have entailed positing
hypothetical facts in cases not before us and giving an
improper advisory opinion. On the facts presented to us, we
held that the State violated the Treaties when it acted
affirmatively to block salmon-bearing streams by building
roads with culverts that protected the State’s roads but killed
the Tribes’ salmon. Other cases with different facts might
come out differently, but we did not decide—and should not
have decided—such cases.
III. Laches
Third, our colleagues contend that the United States’ suit
on behalf of the Tribes is barred by laches. There is an
established line of cases holding that the United States
cannot, based on laches or estoppel, render unenforceable
otherwise valid Indian treaty rights. Our colleagues contend
that these cases have been overruled by City of Sherrill v.
12 UNITED STATES V. WASHINGTON
Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), and that
laches applies here.
This contention is belied by Sherrill itself. In 1788, the
Oneida Indian Nation (“OIN”), located in New York State,
had a reservation of 300,000 acres. By 1920, the OIN had
sold off all but 32 acres. In 1985, the Supreme Court held
that the sale of OIN lands had been illegal, and that the OIN
was entitled to monetary compensation for the sales. County
of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226(1985). The OIN subsequently bought two parcels of land
within the boundaries of its ancestral reservation. The
parcels had been sold to a non-Indian in 1807. The OIN
asserted that the repurchased parcels were sovereign tribal
property and therefore free from local taxation. The
Supreme Court disagreed. It wrote, “[T]he Tribe cannot
unilaterally revive its ancient sovereignty . . . over the
parcels at issue. The Oneidas long ago relinquished the reins
of government and cannot regain them through open market
purchases from current titleholders.” Sherrill, 544 U.S. at
203.
The case before us is different from Sherrill. The
question in our case is not whether, as in Sherrill, a tribe can
reassert 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 dormant. Washington
and the Tribes have been in a continuous state of conflict
over treaty-based fishing rights for well over one hundred
years.
UNITED STATES V. WASHINGTON 13
IV. Breadth of the Injunction
Fourth, our colleagues contend that the injunction is
overbroad. The United States requested an injunction that
would have required the remediation of all of the State’s
barrier culverts within five years. The district court declined
that request. Instead, it issued a nuanced injunction
requiring the remediation of some, but not all, of the barrier
culverts within seventeen years.
Briefly stated, the injunction provides as follows. The
only seriously debated culverts are those under the control
of the Washington State Department of Transportation
(“WSDOT”). The court ordered the State to prepare a list of
all of WSDOT barrier culverts within the area covered by
the Treaties. In Paragraph 6 of the injunction, the court
ordered WSDOT to provide, within seventeen years, fish
passage for each barrier culvert with more than 200 linear
meters of accessible 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 upstream 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 the total
accessible upstream habitat from the culverts described in
Paragraph 6. WSDOT can choose which culverts to defer,
after consulting with the United States and the Tribes.
Culverts deferred under Paragraph 8 need only be replaced
on the more lenient schedule specified in Paragraph 7.
The injunction thus divided WSDOT barrier culverts
into two categories. High priority category culverts must be
remediated within seventeen years. Low priority category
14 UNITED STATES V. WASHINGTON
culverts must be remediated only at the end of the natural
life of the existing culvert, or in connection with a highway
project that would otherwise require replacement of the
culvert. Deferred culverts in the high priority category
(culverts blocking a total of ten percent of the accessible
upstream habitat above all the high priority culverts) can be
remediated on the schedule of low priority culverts.
In identifying the State’s barrier culverts and sorting
them into the two categories, the district court focused on the
amount of available upstream spawning habitat before
encountering a natural barrier. Culverts with more than
200 linear meters of accessible upstream habitat are in the
high category; culverts with less than 200 meters are in the
low category. The court ignored the existence of man-made
barriers, including those downstream of the State’s barrier
culverts. In so doing, the court followed the methodology of
the State in identifying and prioritizing culverts that should
be remediated. The State could have objected to the court’s
reliance on its own methodology, but it did not do so.
There were good reasons for the district court to ignore,
for purposes of its injunction, the existence of downstream
barriers. The most obvious reason is the following: The
State identified a total of 817 state-owned barrier culverts,
including both high and low priority culverts. On streams
where there are both state and non-state barrier culverts,
there are 1,590 non-state culverts. Of those, 1,370 are
upstream of the state culverts; only 220 are downstream. Of
those 220 downstream culverts, 152 allow partial passage of
salmon; only 68 entirely block passage.
Even if we were to make the assumption that all 817 of
the identified barrier culverts are high priority culverts
(which they clearly are not), state-provided documents
introduced at trial showed that roughly 230 of them—more
UNITED STATES V. WASHINGTON 15
than all of the 220 non-state downstream culverts
combined—need not be remediated within seventeen years.
They may be deferred and need be remediated only at the
end of their natural life or in connection with an
independently undertaken highway project. Further,
Washington law already imposes some obligation on the part
of owners of non-state barrier culverts to repair or replace
them, at their own expense, to allow fish passage.
Our dissenting colleagues emphasize the high cost of
complying with the injunction. Our colleagues, like the
State, exaggerate the cost. The State claimed in its brief to
us that compliance with the injunction will cost a total of
$1.88 billion. Our colleagues highlight that figure at the
beginning of their dissent. There is no plausible basis for the
State’s claim of $1.88 billion. We analyze the evidence in
detail in our opinion, to which we refer the reader. For
present purposes, it is sufficient to note, as we point out in
our opinion, that “Washington’s cost estimates are not
supported by the evidence.” United States v. Washington,
853 F.3d at 976.
***
In sum, the district court properly found that Washington
State violated the Treaties by acting affirmatively to build
state-owned roads, and to build and maintain salmon-
blocking culverts under those roads. By allowing passage of
water, the culverts protect the State’s roads. But by not
allowing passage of fish, the culverts kill the Tribes’ salmon.
There is ample evidence in the record that remediation of the
State’s barrier culverts will have a substantial beneficial
effect on salmon populations, resulting in more harvestable
salmon for the Tribes. As an incidental result, there will also
be more harvestable salmon for non-Indians. The United
States requested an injunction requiring remediation of all of
16 UNITED STATES V. WASHINGTON
the State’s barrier culverts within five years. The district
court crafted a careful, nuanced injunction, giving the United
States much less than it requested. We unanimously
concluded that the district court properly found a violation
of the Treaties by the State, and that it acted within its
discretion in formulating its remedial injunction.
O’SCANNLAIN, Circuit Judge, * with whom KOZINSKI,
TALLMAN, CALLAHAN, BEA, IKUTA, and N.R.
SMITH, Circuit Judges, join, and with whom BYBEE and
M. SMITH, Circuit Judges, join as to all but Part IV,
respecting the denial of rehearing en banc:
Fashioning itself as a twenty-first century environmental
regulator, our court has discovered a heretofore unknown
duty in the Stevens Indian Treaties of 1854 and 1855. The
panel opinion in this case enables the United States, as a
Treaty signatory, to compel a State government to spend
$1.88 billion 1 to create additional salmon habitat by
*
As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate
in discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).
1
According to the State’s estimate. There is a dispute about the
actual cost of the injunction, but even using the more conservative
estimates on which the district court relied, the cost of replacing all
817 culverts ranges from $538 million to $1.5 billion (the average cost
of replacing a culvert was $658,639 to $1,827,168). See United States v.
Washington, 853 F.3d 946, 976 (9th Cir. 2017) (“Washington V”).
UNITED STATES V. WASHINGTON 17
removing or replacing culverts 2 under state-maintained
highways and roads, wherever found. Pacific Northwest
salmon litigation has been ongoing for almost fifty years, 3
has been before our court multiple times, and has been up to
and down from the Supreme Court. Nonetheless, it
apparently just occurred to the Tribes, the United States, and
our court that in order to fulfill nineteenth century federal
treaty obligations, the State of Washington must now be
required to remove physical barriers which might impede the
passage of salmon. See Washington V, 853 F.3d at 966.
Given the significance of this case—both in terms of
dollars and potential precedential effect—it seemed the ideal
candidate for en banc review and, hopefully, correction on
the merits. But rather than reining in a runaway decision, our
court has chosen to do nothing—tacitly affirming the panel
opinion’s erroneous reasoning.
With utmost respect, I believe our court has made a
regrettable choice.
I
In reaching its conclusion, the panel opinion makes four
critical errors.
2
A culvert is “[a] tunnel carrying a stream or open drain
under a road or railway.” Culvert, OxfordDictionaries.com,
https://en.oxforddictionaries.com/definition/culvert (last visited April
29, 2017).
3
Five iterations of the United States v. Washington litigation,
including this case, which is referred to as Washington V, are mentioned
herein and are referred to as Washington I, Washington II, etc.
18 UNITED STATES V. WASHINGTON
First, it misreads Washington v. Washington State
Commercial Passenger Fishing Vessel Association
(“Fishing Vessel”), 443 U.S. 658 (1979), as requiring
Washington to ensure that there are a certain “number of
fish” available for the Tribes, “sufficient to provide a
‘moderate living.’” Washington V, 853 F.3d at 965 (quoting
Fishing Vessel, 443 U.S. at 686).
Second, by holding that culverts need to be removed
because they negatively impact the fish population, the panel
opinion sets up precedent that could be used to challenge
activities that affect wildlife habitat in other western states,
which led Idaho and Montana to join Washington in
requesting rehearing. The panel opinion fails to articulate a
limiting legal principle that will prevent its holding from
being used to attack a variety of development, construction,
and farming practices, not just in Washington but throughout
the Pacific Northwest.
Third, the panel opinion contravenes City of Sherrill v.
Oneida Indian Nation of New York, 544 U.S. 197 (2005), by
refusing to apply the doctrine of laches to the United States.
Fourth, the panel opinion upholds an injunction that is
overbroad—requiring the State to spend millions of dollars
on repairs that will have no immediate effect on salmon
habitat.
II
The Stevens Treaties 4 provide that “[t]he right of taking
fish, at all usual and accustomed grounds and stations, is
The Treaties are a series of Senate-ratified agreements between the
4
United States and various Indian tribes that were negotiated in the 1850s
UNITED STATES V. WASHINGTON 19
further secured to said Indians, in common with all citizens
of the Territory.” Fishing Vessel, 443 U.S. at 674. The
precise contours of this guarantee remain hotly contested but
were most fully addressed by the Supreme Court’s opinion
in Fishing Vessel.
A
The panel opinion reads language in Fishing Vessel as
requiring that there be enough fish to provide a “moderate
living” for the Tribes. See Washington V, 853 F.3d at 965–
66. It is true that the Court stated that “Indian treaty rights to
a natural resource [i.e. fish]. . . secures so much as, but no
more than, is necessary to provide the Indians with a
livelihood—that is to say, a moderate living.” Fishing
Vessel, 443 U.S. at 686. In isolation, this statement might be
read as guaranteeing the Tribes a certain number of fish, but
only if one ignores the rest of the opinion. In Fishing Vessel,
the Supreme Court adopted the United States’ position that
the Treaties entitled the Tribes “either to a 50% share of the
‘harvestable’ fish” passing through their fishing grounds “or
to their needs, whichever was less.” Id. at 670 (emphasis
added); see also id. at 685–86.
by Isaac Stevens, then-federal Governor and Superintendent of Indian
Affairs of the Washington Territory (pre-statehood), under which the
Tribes agreed to give up land in exchange for monetary payments.
Fishing Vessel, 443 U.S. at 661–62, 666. The Treaties contained clauses
reserving the Tribes’ right to fish on ceded land. See, e.g., Treaty of
Medicine Creek, 10 Stat. 1132 (1854). Beginning with U.S. District
Court Judge George Boldt’s decision in 1974, United States v. State of
Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (“Washington I”), the
contours of these fishing rights have been the subject of extensive
litigation before the district court, our court, and the Supreme Court and
tumultuous protests by the people impacted by these decisions.
20 UNITED STATES V. WASHINGTON
Thus, notwithstanding the significance of fish to the
Tribes, the Court recognized that “some ceiling should be
placed on the Indians’ apportionment to prevent their needs
from exhausting the entire resource and thereby frustrating
the treaty right of ‘all [other] citizens of the Territory.’” Id.
at 686. The Court ruled that 50% of the available fish was
the appropriate limit. See id. (“[T]he 50% figure imposes a
maximum . . . allocation.”) (“[T]he maximum possible
allocation to the Indians is fixed at 50%.”); id. at 686 n.27
(“Because the 50% figure is only a ceiling, it is not correct
to characterize our holding as ‘guaranteeing the Indians a
specified percentage’ of the fish.”).
Such ceiling makes intuitive sense. With or without pre-
existing barriers, the population of fish varies dramatically
from year to year and season to season. In a year with a low
run of fish, absent a ceiling, the Tribes’ needs could easily
predominate, leaving few fish for other citizens. Thus, to
protect the rights of all parties to the Treaties, the Court
imposed a 50% ceiling.
Since the fish population varies, however, the presence
of the ceiling necessarily entails that the Tribes may not
always receive enough fish to provide a “moderate living.”
Indeed, the Court emphasized that the Treaties secured to the
Tribes “a fair share of the available fish,” rather than a
certain number of fish. Id. at 685 (emphasis added). The total
number of fish that the Tribes receive indubitably will vary
with the run of fish. See id. at 679 (observing that the
Treaties “secure the Indians’ right to take a share of each run
of fish that passes through tribal fishing areas” (emphasis
added)); id. at 687 (discussing the “50% allocation of an
entire run that passes through . . . customary fishing
grounds”).
UNITED STATES V. WASHINGTON 21
Thus, by imposing a percentage ceiling tied to the
relevant run rather than a fixed numerical floor, the Court
rejected the proposition that the Tribes were entitled to a
certain number of fish. Indeed, “while the maximum
possible allocation to the Indians is fixed at 50%, the
minimum is not; the latter will, upon proper submissions to
the District Court, be modified in response to changing
circumstances.” 5 Id. at 686–87. Our court has confirmed this
holding multiple times.
In United States v. Washington, 759 F.2d 1353, 1359
(9th Cir. 1985) (“Washington III”), our en banc court
explained:
[T]he Supreme Court in Fishing Vessel did
not hold that the Tribes were entitled to any
particular minimum allocation of fish.
Instead, Fishing Vessel mandates an
allocation of 50 percent of the fish to the
Indians, subject to downward revision if
moderate living needs can be met with less.
The Tribes have a right to at most one-half of
the harvestable fish in the case area.
Id. (emphasis added). Likewise in Midwater Trawlers Co-
operative v. Department of Commerce, 282 F.3d 710, 719
(9th Cir. 2002), we observed that under Fishing Vessel, the
Makah Tribe was entitled “to one-half the harvestable
surplus of Pacific whiting that passes through its usual and
5
Such changing circumstances include the Tribes finding “other
sources of support that lead it to abandon its fisheries.” Id. at 687.
Washington does not present this contention, but arguably the tribal
economy has changed dramatically since the enactment of the Stevens
Treaties, leading the Tribes to rely less on fish for their subsistence.
22 UNITED STATES V. WASHINGTON
accustomed fishing grounds, or that much of the harvestable
surplus as is necessary for tribal subsistence, whichever is
less.” Id. (emphasis added). Most recently in Skokomish
Indian Tribe v. United States, 410 F.3d 506, 513 (9th Cir.
2005), our en banc court again described Fishing Vessel as
holding that the Tribes were “entitled to an equal measure of
the harvestable portion of each run that passed through a
‘usual and accustomed’ tribal fishing ground, adjusted
downward if tribal needs could be satisfied by a lesser
amount.” Id. (emphasis added) (quoting Fishing Vessel,
443 U.S. at 685–89).
By holding that the Treaties guarantee “that the number
of fish would always be sufficient to provide a ‘moderate
living’ to the Tribes,” Washington V, 853 F.3d at 965
(emphasis added), the panel opinion turns Fishing Vessel on
its head. It imposes an affirmative duty upon the State to
provide a certain quantity of fish, which reads out the 50%
ceiling entirely.
Instead, the panel opinion ignores the 50% ceiling,
effectively adopting the position urged by the Tribes in
Fishing Vessel that “the treaties had reserved a pre-existing
right to as many fish as their commercial and subsistence
needs dictated.” 443 U.S. at 670. Yet, as explained, the
Supreme Court has already rejected this approach, following
instead the United States’ position that the Tribes were
guaranteed the lesser of their needs or 50% of the available
run. See id. at 670, 685. Likewise, our court has rejected
interpretations of Fishing Vessel that would entitle the Tribes
to a “particular minimum allocation of fish.” Washington III,
759 F.2d at 1359. The panel opinion’s holding misconstrues
not only the Supreme Court’s decision in Fishing Vessel but
also our decisions in Washington III, Midwater Trawlers,
and Skokomish Indian Tribe.
UNITED STATES V. WASHINGTON 23
B
To reach its conclusion, the panel points to various
statements allegedly made by Governor Stevens to the
Tribes at the time the Treaties were negotiated in the 1850s.
Washington V, 853 F.3d at 964–65. As the Supreme Court
observed in Fishing Vessel, however, “[b]ecause of the great
abundance of fish and the limited population of the area, it
simply was not contemplated that either party would
interfere with the other’s fishing rights.” 443 U.S. at 668.
Indeed, the Supreme Court considered the very same
statements in Fishing Vessel yet still chose to impose a 50%
cap on the Tribes’ share of available fish. See id. at 666–68
& nn. 9 & 11. 6 Such cap necessarily means that the Tribes
are not always guaranteed enough fish to meet their needs.
If the Supreme Court considered Stevens’ statements and
declined to find that the Tribes were entitled to a certain
minimum quantity of fish, it eludes me how a panel of our
court can reach the opposite conclusion by relying on these
statements now. The panel opinion utterly fails to grapple
with the 50% cap imposed by Fishing Vessel.
The panel opinion further cites to the Supreme Court’s
opinion in Winters v. United States, 207 U.S. 564, 576–77
(1908), and our opinion in United States v. Adair, 723 F.2d
1394, 1409, 1411 (9th Cir. 1983), as supporting its
conclusion that the Stevens Treaties guarantee the Tribes a
specific quantity of fish. Yet, neither Winters nor Adair is
factually relevant. Each involved the question of whether
certain tribes were entitled to various water rights on their
reservations under the treaties creating the reservations.
6
In fact, the panel opinion quotes Fishing Vessel for some of these
statements. See Washington V, 853 F.3d at 964–65.
24 UNITED STATES V. WASHINGTON
In Winters, the Supreme Court held that the lands ceded
to create the Fort Belknap Indian Reservation necessarily
included the water rights accompanying such lands. See
207 U.S. at 565, 576–77. Likewise in Adair, we held “that at
the time the Klamath Reservation was established, the
[United States] and the Tribe intended to reserve a quantity
of the water flowing through the reservation.” 723 F.2d at
1410. Thus, both cases stand for the somewhat unremarkable
proposition that in the context of Native American
reservations, water rights accompany land rights.
It is true that both cases found water rights that were not
explicitly detailed in the text of the treaties. Nonetheless, if
we read these cases broadly to mean that we can and should
infer a whole host of rights not contained in the four corners
of tribal treaties, the possibilities are endless. Since the
Supreme Court made it plain in Fishing Vessel that the
Tribes are not entitled to a certain numerical amount of fish,
we certainly should not rely on Winters and Adair to hold
otherwise.
III
Even if one agrees with the panel opinion that the Tribes
are entitled to a specific quantity of fish, however, it does not
necessarily mean that the installation and maintenance of
culverts run afoul of the Treaties. But assuming that they do,
it is far from clear that the drastic remedy of removal or
repair should be required.
A
Before reaching its conclusion that the State violated the
Treaties, the panel opinion devotes minimal treatment to
showing (1) that tribal members would engage in more
fishing if there were more salmon and (2) that removing
UNITED STATES V. WASHINGTON 25
culverts would increase this salmon population. See
Washington V, 853 F.3d at 966 (devoting three paragraphs
to these issues). 7 The panel opinion acknowledges that the
State of Washington was not intentionally trying to impact
the fish population when it installed culverts under state
highways and other roads. 8 Id. Nonetheless, the panel
opinion concludes that because there was evidence that
culverts affect fish population, and because the fish
population is low, the State violated the Treaties by building
and maintaining its culverts. See id.
This overly broad reasoning lacks legal foundation.
There are many factors that affect fish population and
multiple fish populations that are low. 9 Is any surface
physical activity, wherever found, that negatively affects
7
The panel opinion provides more factual support for the
proposition that culverts adversely affect the population of salmon in
considering the injunction, see Washington V, 853 F.3d at 972–75, but at
that point it had already found that the Treaties were violated.
8
The concurrence makes the extravagant assertion that I maintain
that the Treaties allow the State to act “affirmatively to entirely eliminate
the supply of harvestable salmon.” What utter nonsense! I said no such
thing! In building and maintaining the culverts, the State was not acting
affirmatively to destroy the salmon population—any negative effects
were incidental—as the panel opinion acknowledged. See Washington
V, 853 F.3d at 966. Far from seeking to eliminate the salmon population,
the State recognizes that it is a treasured resource and has spent millions
of dollars on programs specifically designed to preserve, to protect, and
to enhance the salmon population.
9
See, e.g., Washington Department of Fish & Wildlife,
Washington’s Native Char, http://wdfw.wa.gov/fishing/char/ (noting
that the bull trout population is “low and in some cases declining”).
26 UNITED STATES V. WASHINGTON
fish habitat an automatic Treaty violation? If so, the panel’s
opinion could open the door to a whole host of future suits.
While such speculation may sound far-fetched, in
actuality, it is already occurring. Legal commentators have
noted that plaintiffs could use the panel’s decision to demand
the removal of dams and attack a host of other practices that
can degrade fish habitat (such as logging, grazing, and
construction). 10 The panel does nothing to cabin its opinion.
Nor does it provide any detail for how to determine if a fish
population has reached an appropriate size, making further
remedial efforts unnecessary.
B
Furthermore, the future reach of this decision extends far
beyond the State of Washington. As the amici observe, the
same fishing rights are reserved to tribes in Idaho, Montana,
and Oregon. Further, the Stevens Treaties also guarantee the
Tribes the privilege of hunting. See Fishing Vessel, 443 U.S.
at 674. There seems little doubt that future litigants will
argue that the population of various birds, deer, elk, bears,
and similar animals, which were traditionally hunted by the
Tribes, have been impacted by Western development. If a
court subsequently concludes that hunting populations are
covered by the reasoning of this decision, the potential
impact of this case is virtually limitless.
C
Yet, our court has already held that the Stevens Treaties
cannot be used to attach broad “environmental servitudes”
See, e.g., Michael C. Blumm, Indian Treaty Fishing Rights and
10
the Environment: Affirming the Right to Habitat Protection and
Restoration, 92 Wash. L. Rev. 1, 29–31 (2017).
UNITED STATES V. WASHINGTON 27
to the land. See United States v. Washington, 694 F.2d 1374,
1381 (9th Cir. 1982) (coining the term “environmental
servitude”), vacated on reh’g, Washington III, 759 F.2d at1354–55 (but reaching similar result). Thus, in Washington
III, our en banc court vacated a declaratory judgment from
the district court which held “that the treaties impose upon
the State a corresponding duty to refrain from degrading or
authorizing the degradation of the fish habitat to an extent
that would deprive the treaty Indians of their moderate living
needs.” 759 F.2d at 1355, vacating United States v.
Washington, 506 F. Supp. 187, 208 (W.D. Wash. 1980)
(“Washington II”). While the panel’s opinion here deals with
the specific issue of culverts, its reasoning is not so confined;
it effectively imposes the same boundless standard upon the
State—preventing habitat degradation—that we rejected in
Washington III.
D
Once a court has decided that there has been a violation,
it must address the remedy. The panel opinion acknowledges
“that correction of barrier culverts is only one of a number
of measures that can usefully be taken to increase salmon
production.” 11 Washington V, 853 F.3d at 974. And, the
panel opinion further concedes “that the benefits of culvert
correction differ depending on the culvert in question.” Id.
Yet, if culverts are only one “measure” that could affect the
salmon population, what about the other measures? Why is
it appropriate to require the State to correct culverts rather
11
Indeed, the State argues that while the culverts have been in place,
the fish harvest has fluctuated dramatically from “nearly 11 million fish
in 1985” to “900,000 fish” in 1999, and then back to “over 4 million fish
by 2003.” Such evidence tends to suggest that culverts are not a primary
driver of fish population.
28 UNITED STATES V. WASHINGTON
than something else? Since, at some level, almost all urban
growth can impact fish populations, should the State be
required to reverse decades of development in an effort to
increase the number of fish? Is the answer that any activity
that amounts to a Treaty violation must be halted or
removed? The panel opinion offers no cost-benefit analysis,
or any other framework, to guide future courts on what is an
appropriate remedial measure (and what is not). 12
In effect, the panel’s decision opens a backdoor to a
whole host of potential federal environmental regulation-
making. And, it invites courts, who have limited expertise in
this area, to serve as policymakers.
But the issues at the heart of this suit—development
versus wildlife habitat, removal versus accommodation—
are properly left to the political process. Judges are ill-
equipped to evaluate these questions. We deal in closed
records and have difficulty obtaining and evaluating on-the-
ground information—for example, which culverts it would
be most cost-effective to remove over the next seventeen
years.
Here, the State recognizes that “[s]almon are vital to
Washington’s economy, culture, and diet.” Prior to the
injunction, the State was already working to address
problematic culverts, and the State has spent “hundreds of
12
It seems highly likely that if the panel opinion had engaged in such
cost-benefit analysis, there would be more cost-effective ways to remedy
the alleged Treaties violation. For example, a 1997 state report estimated
that if the State replaced the culverts maintained by the Washington State
Department of Transportation (which controls a majority of culverts), it
would result in an annual increase of 200,000 salmon. Washington V,
853 F.3d at 970. It might be cheaper to stock an additional 200,000
salmon into Washington’s streams each year.
UNITED STATES V. WASHINGTON 29
millions of dollars” on programs designed “to preserve and
restore salmon runs.” There is no justification for interfering
with the State’s existing programs.
IV
Notably, the panel opinion does not prohibit the State
from installing future culverts. Instead, it orders the State to
correct existing culverts. See Washington V, 853 F.3d at
979–80. Yet, according to the State, it was the federal
government, now bringing suit in its capacity as trustee for
the Tribes, which “specified the design for virtually all of the
culverts at issue.” Further, these culverts have been in place
for many decades. According to the State, “Washington’s
state highway system has been essentially the same size
since the 1960’s,” and thus presumably many culverts
predated this litigation, which has been ongoing for almost
fifty years. Apparently, however, no one thought that the
culverts might be a problem until 2001 when the Tribes filed
a request for determination that such pre-existing barriers
were infringing the Treaties. See Washington V, 853 F.3d at
954.
Given the United States’ involvement in designing the
culverts and its long acquiescence in their existence, one
might suppose that an equitable doctrine such as laches
would bar suit by the United States. Indeed, “[i]t is well
established that laches, a doctrine focused on one side’s
inaction and the other’s legitimate reliance, may bar long-
dormant claims for equitable relief.” City of Sherrill,
544 U.S. at 217.
According to the panel opinion, however, “[t]he United
States cannot, based on laches or estoppel, diminish or
render unenforceable otherwise valid Indian treaty rights.”
Washington V, 853 F.3d at 967. The panel opinion cites
30 UNITED STATES V. WASHINGTON
several cases for this proposition, including the 1923 opinion
of Cramer v. United States, 261 U.S. 219, 234 (1923)
(holding that a government agent’s unauthorized acceptance
of leases of tribal land could not bind the government or
tribe), and United States v. Washington, 157 F.3d 630, 649
(9th Cir. 1998) (“Washington IV”) (“[L]aches or estoppel is
not available to defeat Indian treaty rights.”). See
Washington V, 853 F.3d at 967.
Yet, the panel opinion’s rejection of laches contravenes
the Supreme Court’s subsequent 2005 decision in City of
Sherrill, 544 U.S. at 221. That case involved an attempt by
the Oneida Indian Nation to reassert sovereignty over newly-
purchased land that had once belonged to the Nation but had
been sold in contravention of federal law (although with the
apparent acquiescence of federal agents) approximately two
hundred years before. Id. at 203–05, 211. In particular, the
Nation sought to avoid local regulatory control and taxation
of its newly-purchased parcels. Id. at 211.
The Supreme Court analogized the situation to a dispute
between states, explaining that “long acquiescence may have
controlling effect on the exercise of dominion and
sovereignty over territory.” Id. at 218. The Court further
“recognized the impracticability of returning to Indian
control land that generations earlier passed into numerous
private hands.” Id. at 219. Therefore, the Court concluded,
“the Oneidas’ long delay in seeking equitable relief against
New York or its local units, and developments in the city of
Sherrill spanning several generations, evoke the doctrines of
laches, acquiescence, and impossibility, and render
inequitable the piecemeal shift in governance this suit seeks
unilaterally to initiate.” Id. at 221.
Thus, Sherrill indicates that our court’s previous holding
in Washington IV, 157 F.3d at 649, that laches cannot be
UNITED STATES V. WASHINGTON 31
used “to defeat Indian treaty rights” is wrong and impliedly
overruled. Cf. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003). The Second Circuit has recognized as much,
observing that Sherrill “dramatically altered the legal
landscape” by permitting “equitable doctrines, such as
laches, acquiescence, and impossibility” to “be applied to
Indian land claims.” Cayuga Indian Nation v. Pataki,
413 F.3d 266, 273 (2d Cir. 2005).
Yet, the panel opinion blindly cites Washington IV and
sidesteps the central tenet of Sherrill by attempting to
distinguish it on its facts. See Washington V, 853 F.3d at
967–68. The panel opinion tries to draw three distinctions:
(1) this case does not involve the question of whether the
Tribes can regain sovereignty over abandoned land; (2) the
Tribes never authorized the design or construction of the
culverts; and (3) the Tribes are not trying to revive claims
that have lain dormant. Id. at 968.
The first distinction is irrelevant; since Sherrill made
clear that laches can apply to Indian treaty rights, it should
not matter whether a party is seeking to apply laches in the
context of sovereignty over land or the enforcement of rights
appurtenant to land (the ability to fish).
Second, as Montana and Idaho observe, it does not
matter that the Tribes never authorized the design or
construction of the culverts because Washington is seeking
to impose the doctrine of laches against the United States,
not the Tribes. And, as the Second Circuit has made plain,
the logic of Sherrill applies to the United States when it is
acting as trustee for the Tribes. See Oneida Indian Nation v.
Cty. of Oneida, 617 F.3d 114, 129 (2d Cir. 2010).
Notably, only the United States could bring suit against
Washington for alleged culvert violations because
32 UNITED STATES V. WASHINGTON
Washington is protected by sovereign immunity against suit
from the Tribes. See Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 268 (1997). The panel opinion asserts that the
United States cannot waive treaty rights, and this may be true
as a general matter. Washington V, 853 F.3d at 967.
Nonetheless, in the context of specific litigation, since the
United States acts as the Tribes’ trustee, such representation
necessarily entails the ability to waive certain litigation
rights (failing to bring a claim within the statute of
limitations for example). Thus, the fact that the Tribes did
not authorize the culverts is irrelevant; the United States did,
and it further failed to object to the culverts for many years.
Finally, I disagree with the panel opinion’s assertion that
the United States is not trying to revive claims that have lain
dormant. Presumably, the State’s alleged violation of the
Treaties was complete when it constructed the culverts (and
relevant highways) in the 1960s. The United States first
brought suit to enforce the Tribes’ fishing rights in 1970.
Washington V, 853 F.3d at 958. Yet, the United States found
no problem with the culverts until 2001. While the claims
did not lie dormant for 200 years as in Sherrill, they were
dormant for over 30 years. And as in Sherrill, there are
significant practical issues involved with asserting the
claims now such as the time, expense, and efficacy of
removing the culverts. See 544 U.S. at 219.
Thus, while Sherrill may be factually distinct, it is also
directly on point. The panel opinion errs by ignoring its
central teaching. There is good reason to contend that the
United States is barred from bringing this suit by the doctrine
of laches. And, if the United States is barred from suit, the
entire suit is prohibited, since the Tribes cannot puncture the
State’s defense of sovereign immunity on their own. See
Coeur d’Alene Tribe, 521 U.S. at 268.
UNITED STATES V. WASHINGTON 33
Rather than taking the opportunity to harmonize our
precedent, the panel opinion ignores the changes wrought by
Sherrill, defying the Supreme Court’s direction.
V
Even if one concludes (1) that the Treaties guarantee the
Tribes enough fish to sustain a “moderate living,” (2) that
violation of such guarantee can and should be remedied by
removing culverts, and (3) that the suit is not barred by the
doctrine of laches, there is still good reason to reject the
injunction itself as overbroad. As the State explains, the
injunction requires it to replace or repair all 817 culverts
located in the area covered by the Treaties without regard to
whether replacement of a particular culvert actually will
increase the available salmon habitat.
In addition to state-owned culverts, there are a number
of other privately-owned culverts and barriers on the streams
in question which are not covered by the injunction. Where
there are non-state-owned culverts blocking fish passage
downstream or immediately upstream from state-owned
culverts, replacement of the State’s culverts will make little
or no difference on available salmon habitat. Indeed, the
State observes that
(1) roughly 90% of state barrier culverts are
upstream or downstream of other barriers . . .
(2) state-owned culverts are less than 25% of
known barrier culverts . . . and (3) in many
watersheds, non-state barrier culverts
drastically exceed state-owned culverts, by
up to a factor of 36 to 1[.]
The panel attempted to address this issue in its revised
opinion. First, the opinion quotes testimony from a former
34 UNITED STATES V. WASHINGTON
State employee stating that Washington itself does not take
into account the presence of non-state-owned barriers when
calculating the priority index for which culverts to address.
Washington V, 853 F.3d at 973. What the opinion does not
reveal, however, is that this same expert also testified that
correcting state-owned culverts that are downstream from
non-state barriers “generally” will not have an immediate
impact or benefit on salmon habitat. And, according to the
State of Washington, the priority index, notwithstanding its
name, typically does not dictate which barriers the State
addresses first; instead the State focuses on culverts in
streams without barriers.
Next, the panel opinion points out that Washington law
requires dams or other stream obstructions to include a
fishway and observes that the State may take corrective
action against private owners who fail to comply with this
obligation. Washington V, 853 F.3d at 973 (quoting Wash.
Rev. Code Ann. § 77.57.030(1)–(2)). Yet, what the panel
opinion fails to disclose is that this law only went into effect
in 2003 and specifically “grandfathered in” various
obstructions that were installed before May 20, 2003. Wash.
Rev. Code Ann. § 77.57.030(3). Presumably, some of the
non-state barriers would fall under this exception.
Finally, the panel opinion observes that
[I]n 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
UNITED STATES V. WASHINGTON 35
67% for 80 of the barriers and 33% for 72 of
them.
Washington V, 853 F.3d at 973.
Given the significant cost of replacing barriers, however,
being forced to replace even a single barrier that will have
no tangible impact on the salmon population is an unjustified
burden. Even using the most conservative estimates found
by the district court, the average cost of replacing a single
culvert is between $658,639 and $1,827,168. Washington V,
853 F.3d at 976. 13 We do not know the precise number of
state-owned culverts that are located above non-state-owned
culverts which prevent all fish passage. Yet, considering that
there are at least sixty-eight non-state-owned barriers
blocking all passage downstream from state-owned
culverts, 14 there are almost certainly more than one or two
culverts whose replacement would have no impact
whatsoever on salmon habitat. The panel’s opinion utterly
fails to explain why the State should waste millions of
dollars on such culverts in particular.
Further, even if the majority of non-state barriers are
upstream, the court should still take into account the location
of these barriers. As noted, if a non-state upstream barrier is
close to or immediately above a state barrier, replacing the
13
Contrary to the curious claim in the concurrence that the costs are
exaggerated, these figures were relied upon in the panel’s own opinion!
14
Sixty-eight equals thirty-one percent of 220. See Washington V,
853 F.3d at 973 (explaining that “[s]ixty nine percent of the
220 downstream non-state barriers [i.e. 152 culverts] allowed partial
passage of fish,” and thus by implication, thirty-one percent (i.e.
68 culverts) blocked all passage).
36 UNITED STATES V. WASHINGTON
state barrier will have little effect on the size of salmon
habitat, but it will come at a significant cost to the State.
The panel opinion observes that the injunction offers the
State a longer schedule for replacing barriers that will open
up less habitat. See Washington V, 853 F.3d at 974–75. It
may be advantageous to the State to have the cost spread out
over a longer time period, but whether it occurs five years or
twenty-five years from now, the panel opinion fails to
explain why taxpayers should be required to replace barriers
that will not change the available salmon habitat. 15
Thus, significant overbreadth problems remain. There is
no doubt that the record in this case is voluminous and
pinpointing the specific culverts whose removal might
actually impact the available salmon habitat is an arduous
task. Both the panel and district court made a valiant effort
to wade through the many pages of maps and statistics. 16 As
it currently stands, however, the injunction is unsupportable.
VI
In sum, there were many reasons to rehear this case en
banc. The panel opinion’s reasoning ignores the Court’s
holding in Fishing Vessel and our own cases, is incredibly
broad, and if left unchecked, could significantly affect
15
In addition to the obvious financial cost to the State, there is also
a broader cost to residents. Shortly after the panel’s opinion was issued,
various news stories informed residents of highway closings resulting
from the repair of culverts associated with the injunction. See, e.g.,
KIRO7, S[R] 167 to be closed all weekend from Sumner to Auburn (Aug.
19, 2016), http://www.kiro7.com/news/local/sb-167-to-be-closed-all-
weekend-from-sumner-to-auburn/426411799.
16
Indeed, the difficulties of crafting an appropriate injunction
illustrate why it is an undertaking best left to the State.
UNITED STATES V. WASHINGTON 37
natural resource management throughout the Pacific
Northwest, inviting judges to become environmental
regulators. By refusing to consider the doctrine of laches, the
panel opinion further disregards the Supreme Court’s
decision in Sherrill, relying instead on outdated and
impliedly overruled precedent from our court. Finally, the
panel opinion imposes a poorly-tailored injunction which
will needlessly cost the State hundreds of millions of dollars.
Rather than correcting these errors, our court has chosen
the path of least resistance. We should have reheard this case
en banc.
Separate Statement of HURWITZ, Circuit Judge:
The dissent from the denial of rehearing en banc
unfortunately perpetuates the false notion that the full court’s
refusal to exercise its discretion under Federal Rule of
Appellate Procedure 35(a) is tantamount to the court “tacitly
affirming the panel opinion’s erroneous reasoning.” This
effectively rewrites Rule 35(a). The Rule is entirely
discretionary, providing that the court “may order” rehearing
en banc, and cautioning that such an order “is not favored”
and is reserved for “a question of exceptional importance”
or “to secure or maintain uniformity of the court’s
decisions.”
Like the denial of certiorari by the Supreme Court, the
denial of rehearing en banc simply leaves a panel decision
undisturbed. There are at least as many valid reasons for a
circuit judge to decide not to vote to rehear a case en banc as
there are for a Supreme Court justice to decide not to vote to
grant certiorari. Indeed, there is at least one additional
reason—Supreme Court review remains available to the
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losing litigant in our court, so it is not necessary that each of
us have the last word on every case. No one would suggest
that when the Supreme Court exercises its discretion not to
grant certiorari, it is “tacitly affirming” the decision below.
No different legal or factual conclusion can be made here.
Judges on our court—even those who cannot participate
in the voting—are entirely free to criticize the court’s failure
to grant rehearing en banc and express their own views as to
why a panel decision is incorrect. But it is not correct to
impute hidden meanings to the discretionary decisions of
others. When a judge chooses not to indicate views on the
merits of a controversy, colleagues should not invent them.