Indian Treaty Case Could Lead to Rigid Regulation

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By Paul Shukovsky

Oct. 27 — An Indian treaty fishing case wending its way through the U.S. Court of Appeals for the Ninth Circuit could mean developers, infrastructure builders and polluters across vast swaths of the U.S. could find themselves shut down, sharply restricted or facing huge expenditures to comply with habitat protections far beyond those imposed by the Endangered Species Act.

As an indication of the intense interest in the case, it was a standing-room-only situation Oct. 16 during oral arguments in a Seattle courtroom filled largely by members of the 21 tribes who brought the lawsuit.

Arguments of the sort about “property takings” under the Fifth Amendment, routinely brought to defend against ESA restrictions, would evaporate if the Ninth Circuit rules that tribes with off-reservation treaty hunting, fishing and gathering rights implicitly also have a guarantee that government take no action that diminishes the plants, animals and fish protected by treaties.

Dams might be demolished. Permits might be denied—or approved with costly restrictions. Roads might have to be rebuilt or rerouted. And a victory for the tribes would mean a burgeoning new line of litigation and perhaps a much more meaningful place at the table for tribes in making development and permitting decisions not unlike the co-management regime in place for the Pacific Coast fishery.

‘Endless Future Litigation.'

Washington state is seeking to overturn a decision and injunction issued in March 2013 by Judge Ricardo Martinez of the U.S. District Court for the Western District of Washington affirming such a right and requiring the state to fix culverts blocking salmon passage at a cost that could exceed $1 billion over 20 years.

That order stems from a 1974 decision by U.S. District Court Judge George Boldt, who ruled treaties signed in the 1850s guarantee that tribes are entitled to half the salmon harvest.

Since then, some individuals have spent entire legal careers litigating issues arising from what has come to be known as “Phase I” of the dispute. The habitat-protection concept enunciated by Martinez is called “Phase II.”

During the Oct. 16 oral arguments, Washington state Solicitor General Noah Purcell told the Ninth Circuit three-judge panel the treaty right affirmed by Martinez “has no basis in the treaty language, goes far beyond any treaty right recognized by this court or the Supreme Court.” He predicted that if it stands, it will lead to “endless future litigation.”

Purcell managed to speak for two minutes and 34 seconds before presiding Judge William Fletcher interrupted to ask if the state could dam every salmon stream on Puget Sound without running afoul of the treaty. “The treaty would not prohibit that,” said Purcell, who went on to argue that was not an absurd result.

‘Where Do You Draw That Line?'

Fletcher followed up asking if Purcell believes “the state of Washington has the right entirely to destroy the fishery.” Purcell responded, “The treaties do not prohibit that.”

Fletcher asked attorney John Sledd, who represents tribes that are parties to the treaties, how far the habitat-protection concept would go: Could the state be required to remove dams? Sledd said that would have to be answered case by case, “but the principle is certainly applicable.”

A few minutes later, Senior District Court Judge David A. Ezra—sitting by designation of the circuit—jumped in: “Look, I'm not at all unsympathetic to these issues. I'm the judge that issued the order blocking the damming of the Snake River. But in this case, you're taking the position that any action by the state that impedes in any way salmon violates the treaty. Period. No ifs, ands or buts, aren't you?”

“Where do you draw that line,” asked Ezra. “If we were to rule for you and uphold that principle, you could attack in the courts for years to come the construction of virtually every dam in the state of Washington, virtually every hydroelectric plant, virtually every construction site, every bridge on the theory that a fish or some fish might not get down it.”

No Bright Line

Sledd responded, “This is the first injunction that's come up under this theory in the 45 years it's been pending in state of Washington. I don't think the tribes are leaping to jump on every little problem out there.”

A few days after the oral arguments, Sledd told Bloomberg BNA: “I can tell Judge Ezra wants a bright line. Judges always want a bright line, but sometimes there isn't a bright line. I think this is a really fact-specific inquiry. And I just don't see the tribes coming into court at every opportunity” if their Phase II habitat rights are upheld.

The habitat-protection concept existed before Boldt's ruling, but he did not reach it in his 1974 decision. About six years passed before District Court Judge William Orrick made a ruling on the law not tied to specific facts in which he found the treaties impose a duty on the state not to degrade the habitat to such an extent that the tribes were not able to make a “moderate living” from the fishery.

A series of appeals ensued, ending with the Ninth Circuit's en banc decision vacating Orrick's ruling and saying that the nature and extent of the state's duty to conserve the fishery should be decided in a case where there is a concrete dispute. The tribes bided their time, waiting years for the perfect set of facts.

Case Presents ‘Outstanding Facts.'

They found what they were looking for in the culverts case, Professor Bob Anderson, director of the University of Washington Native American Law Center and a holder of an extended visiting professorship at the Harvard Law School, told Bloomberg BNA Oct. 21.

In the waning days of the Clinton administration, meetings were convened by the Interior Department to decide whether the United States would sue the state as trustee on behalf of the tribes. Anderson was present at those meetings in his role as counsel to Interior Secretary Bruce Babbitt.

“This culvert case presented outstanding facts based on evidence the state had developed itself about the harm by these state-owned culverts on salmon habitat,” Anderson said. “That was a very persuasive line of reasoning that the tribes were able to make to the Justice Department and to the secretary of the interior of why the United States should sue on their behalf as trustee to assert this Phase II right.”

There was a thorough discussion of the ramifications of a tribal victory at those meetings, Anderson said. He laughed when recalling how the Bureau of Land Management was saying ‘‘ ‘Gee, we have lots of roads with bad culverts, and we might have to fix ours, too.’ And the Forest Service was saying the same thing. And we said, ‘Yeah, you should fix them.’ ’’

More Clout Than ESA

The Phase II right is a property right assertion by the tribes to protect habitat, Anderson said. As such, it has more clout than the Endangered Species Act, which can be derailed in many cases by claims that it is infringing on somebody's Fifth Amendment protection against a taking without compensation. The taking argument evaporates under Phase II, in part because the tribal property right pre-dates any subsequent property right, he said.

“If the tribal property right includes a right of habitat protection, it completely wipes out that Fifth Amendment taking argument.”

“If the tribes and the U.S. prevail on this, this will be something that the agencies must consider as they authorize actions that are going to result in habitat loss,” Anderson said. “It will give them cover to say to developers, ‘No, we can't authorize you to do this this close to the river because you are going to harm the habitat.' ”

Anderson, of the Ojibwa people in Minnesota, was spending time at his lake-side cabin when asked by Bloomberg BNA about the application of the Phase II right across the country if it is upheld by the U.S. Supreme Court. He cited ongoing disputes “not far from where I'm sitting right now” about the potential of mining activities to pollute Minnesota lakes that is habitat to treaty-protected fish and wild rice.

Litigation Into Perpetuity?

“Anywhere where there are tribes that have off-reservation rights with the Pacific Northwest and Upper Midwest being the main focal area” of Phase II rights, Anderson said. He pointed to the woodland tribes in Minnesota, Michigan and Wisconsin which have off-treaty hunting and fishing rights as beneficiaries, along with tribes in the Pacific Northwest including Washington, Oregon, Idaho and Montana. Some attorneys say an affirmation of a Phase II right might help northern California tribes, too.

Could a tribal victory mean a lot of litigation into perpetuity? “It would be possible,” Anderson said. To avoid ongoing, complex litigation, “they might have to come up with some sort of joint management proceeding for these land-use decisions.”

“Nobody ever thought that would happen with fisheries management until the Boldt case came along” and led to tribes jointly managing the fishery. “That was Phase I. This is Phase II, so it could lead to the same thing.”

To contact the reporter on this story: Paul Shukovsky in Seattle at

To contact the editor responsible for this story: Larry Pearl at

For More Information

The Oct. 16 oral arguments in United States v. Washington are available at


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