Presentation on theme: "Alan C. Stay, Muckleshoot Indian Tribe Bart J. Freedman, K&L Gates"— Presentation transcript:
1Alan C. Stay, Muckleshoot Indian Tribe Bart J. Freedman, K&L Gates Indian Treaty Rights and Fish Habitat: U.S. v. Washington, Phase II – The “Culverts” DecisionAlan C. Stay, Muckleshoot Indian TribeBart J. Freedman, K&L Gates* This presentation represents the perspectives of the individual presenters and not the positions of either the Muckleshoot Indian Tribe or K&L Gates.
2Tribal Treaty Rights in the Pacific Northwest Alan C. StayTribal Treaty Rights in the Pacific NorthwestStevens / Point Elliot TreatiesArose out of increased non-Indian settlement in the Pacific Northwest in the early- to mid-1800s.Executed during 1854 and 1855.Each contains the provision that “the right of taking fish, at all usual, and accustomed grounds and stations, is further secured to said Indians, in common with all citizens . . .”
3Interpreting Indian Treaties (1) Alan C. StayInterpreting Indian Treaties (1)They are construed as the Indians would have understood them at the time of signing, and ambiguities are construed in favor of Indians.They describe rights “reserved” by the Tribes rather than “granted” by the United States.Courts presume that Tribes continue to possess all rights to land enjoyed at the time of signing.
4Interpreting Indian Treaties (2) Alan C. StayInterpreting Indian Treaties (2)Congress has plenary power over Tribes. It can abrogate treaty promises, alter tribal powers of self government, extinguish title to land (with just compensation), and even eliminate a tribe’s formal existence. Congress must, however, act in a manner rationally linked to its unique obligations to Tribes.Where Congress has not specifically and unequivocally abrogated treaty rights, courts will enforce them scrupulously.Abrogation of a treaty right may result in a duty to pay compensation to the affected tribe.
5Treaty Fishing Rights – Components Alan C. StayTreaty Fishing Rights – Components
6Established Treaty Rights – “Fair Share” Alan C. StayEstablished Treaty Rights – “Fair Share”Tribes are entitled to half of the available fin and shellfish, with a “moderate living” limitation.“Moderate living” allows the tribal share to be reduced if a share of less than 50% will support a moderate living from fishing for tribal members.Hatchery fish are included as part of the available salmon harvest for treaty purposes.Currently, the presumption is that Indians are not making a moderate living from fishing.
7Established Treaty Rights – “Access” Alan C. StayEstablished Treaty Rights – “Access”“Geographic Entitlement:” A tribe has a right to access “usual and accustomed” fishing areas.Tribal members may cross private lands to fish.Courts view with extreme skepticism any action that attempts to eliminate reserved geographic treaty fishing locations.
8Established Treaty Rights – “Shellfish” Alan C. StayEstablished Treaty Rights – “Shellfish”Tribes are entitled to one half of the naturally occurring shellfish on private tidelands in Washington State.
9Additional Treaty Right – “Habitat Protection” Alan C. StayAdditional Treaty Right – “Habitat Protection”Tribes have asserted that their treaties guarantee them the continued existence of abundant salmon populations in the Pacific Northwest sufficient to allow treaty Indians to meet their moderate living needs from fishing.Such a right would impose an affirmative obligation to protect salmon habitat.
10Habitat Protection – Prior Litigation Alan C. StayHabitat Protection – Prior LitigationIn 1980, the district court for the Western District of Washington recognized a treaty right and protection of fish habitat. It held that the state must not degrade or authorize degradation of salmon habitat that interferes with “moderate living.”The Ninth Circuit at first limited this ruling to require “reasonable steps to preserve and enhance the fishery,” but then vacated the ruling and declined to explore this right until a concrete dispute was presented.
11Habitat Protection – Culvert Litigation Alan C. StayHabitat Protection – Culvert LitigationIn January 2001, tribes with treaty rights in Puget Sound and along the Washington coast filed an action claiming that culverts designed and maintained by the State violated their treaty rights by harming salmon habitat.The State study estimated that between 50 and 300 culverts significantly impair fish passage, the repair of which would result in a return of an additional 200,000 salmon.
12Culvert Case Summary Judgment Alan C. StayCulvert CaseSummary JudgmentJudge Martinez grants Summary Judgment to Tribes “find[ing] that the Treaties do impose a duty upon the State to refrain from building or maintaining culverts . . .” that block fish passage.SJ Order at pg. 12.
13Alan C. StayCausation“The State argues that the Tribes have produced no evidence that the blocked culverts ‘affirmatively diminish the number of fish available for harvest.’ The Tribes have, however, produced evidence of greatly diminished fish runs. Where there may be other contributing causes for this, the conclusion is inescapable that if culverts block fish passage so that they cannot swim upstream to spawn, or downstream to reach the ocean, those blocked culverts are responsible for some portion of the diminishment. It is not necessary for the Tribes to exactly quantify the numbers of ‘missing’ fish to proceed in this manner.”Order on Cross-Motions for Summary Judgment (“SJ Order”) at pg.5 (emphasis added).
14Intent of the Parties (1) Alan C. StayIntent of the Parties (1)“. . . the Governor’s promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians’ assent.”SJ Order at pg. 9, citing State of Washington, et al., v. Washington State Commercial Passenger Fishing Vessel Association, et al., 443 U.S. 658 (1979) (emphasis added by Judge Martinez).
15Intent of the Parties (2) Alan C. StayIntent of the Parties (2)“It was thus the government’s intent, and the Tribes’ understanding, that they would be able to meet their own subsistence needs forever . . .”SJ Order at pg. 10.“I want that you shall not have simply food and drink now but that you may have them forever.”SJ Order at pg. 10, citing Decl. of Richard White, DKT. #296, ¶¶13, 14 which quotes Governor Stevens (emphasis added by Judge Martinez).
16Environmental Protection (1) Alan C. StayEnvironmental Protection (1)“. . . and the related right not to have the fishery habitat degraded to the extent that the minimum standard cannot be met. I also agree that the State has a correlative duty to refrain from degrading or authorizing others to degrade the fish habitat in such a manner.”SJ Order at pg. 7, citing United States v. Washington, 694 F.2d 1353, 1367 (9th Cir. 1982) (emphasis added by Judge Martinez).
17Environmental Protection (2) Alan C. StayEnvironmental Protection (2)“It was thus the right to take fish, not just the right to fish, that was secured by the treaties.”SJ Order at pg. 10.
18Environmental Protection (3) Alan C. StayEnvironmental Protection (3)“These assurances would only be meaningful if they carried the implied promise that neither the negotiators nor their successors would take actions that would significantly degrade the resource.”SJ Order at pg. 11.
19Case Status Current settlement discussions on remedy. Alan C. StayCase StatusCurrent settlement discussions on remedy.State of Washington undeclared as to appeal on merits.
20Implications / Issues Remaining Alan C. StayImplications / Issues RemainingIs Court’s order a “narrow directive” to refrain from impeding fish runs in one specific manner?Application to existing infrastructures.Application to other governments, private parties.Regulatory impact.
21Arguably, ruling is very broad: The Court found that historic alterations to the environment that impede fish are a treaty violation.
22ImplicationsBuilt infrastructure. Now potentially subject to Treaty claims:Culverts – state, local, private.Access to estuarine habitat, i.e., tide gates and flood gates.Dams.
23Additional Implications: Development of habitat for housing and other uses.Pollution, current or historic.Stream flow and river temperatures.
24Impact of District Court Order Right of Access:Muckleshoot v. Hall.Corps of Engineers requires tribal concurrence on permits, implicating treaty rights.
25Regulatory Impact of Culvert Decision Federal, local and state regulators may require tribal consultation on a broad range of permit issues.