Alan 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” Decision Alan C. Stay, Muckleshoot Indian Tribe Bart 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.

Tribal Treaty Rights in the Pacific Northwest Alan C. Stay Tribal Treaty Rights in the Pacific Northwest Stevens / Point Elliot Treaties Arose 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 . . .”

Interpreting Indian Treaties (1) Alan C. Stay Interpreting 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.

Interpreting Indian Treaties (2) Alan C. Stay Interpreting 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.

Treaty Fishing Rights – Components Alan C. Stay Treaty Fishing Rights – Components

Established Treaty Rights – “Fair Share” Alan C. Stay Established 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.

Established Treaty Rights – “Access” Alan C. Stay Established 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.

Established Treaty Rights – “Shellfish” Alan C. Stay Established Treaty Rights – “Shellfish” Tribes are entitled to one half of the naturally occurring shellfish on private tidelands in Washington State.

Additional Treaty Right – “Habitat Protection” Alan C. Stay Additional 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.

Habitat Protection – Prior Litigation Alan C. Stay Habitat Protection – Prior Litigation In 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.

Habitat Protection – Culvert Litigation Alan C. Stay Habitat Protection – Culvert Litigation In 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.

Culvert Case Summary Judgment Alan C. Stay Culvert Case Summary Judgment Judge 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.

Alan C. Stay Causation “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).

Intent of the Parties (1) Alan C. Stay Intent 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).

Intent of the Parties (2) Alan C. Stay Intent 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).

Environmental Protection (1) Alan C. Stay Environmental 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).

Environmental Protection (2) Alan C. Stay Environmental 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.

Environmental Protection (3) Alan C. Stay Environmental 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.

Case Status Current settlement discussions on remedy. Alan C. Stay Case Status Current settlement discussions on remedy. State of Washington undeclared as to appeal on merits.

Implications / Issues Remaining Alan C. Stay Implications / Issues Remaining Is 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.

Arguably, ruling is very broad: The Court found that historic alterations to the environment that impede fish are a treaty violation.

Implications Built infrastructure. Now potentially subject to Treaty claims: Culverts – state, local, private. Access to estuarine habitat, i.e., tide gates and flood gates. Dams.

Additional Implications: Development of habitat for housing and other uses. Pollution, current or historic. Stream flow and river temperatures.

Impact of District Court Order Right of Access: Muckleshoot v. Hall. Corps of Engineers requires tribal concurrence on permits, implicating treaty rights.

Regulatory Impact of Culvert Decision Federal, local and state regulators may require tribal consultation on a broad range of permit issues.

Future Litigation?