Don Jenkins/Capital Press
The U.S. Supreme Court’s 4-4 tie on whether Washington’s fish-impeding culverts violate treaty rights was a victory for 21 Western Washington tribes, whose stance was opposed by farm groups, cities, counties, 11 states and Washington’s Democratic attorney general.
In a one-sentence statement Monday, the court announced it was equally divided in the latest phase of United States vs. Washington, long-running litigation to interpret the Stevens Treaties of 1854-55.
As a result, a 9th U.S. Circuit Court of Appeals order to replace more than 800 culverts under state roads stands. Critics contend the circuit court has handed tribes a precedent for challenging dams, restricting farming and altering century-old water rights.
“To that point, we would hope that anyone who is degrading habitat to the extent that the state is, would be willing to sit down and work with us, instead of having to go to court,” said Brian Cladoosby, chairman of the Swinomish Indian tribe in northwest Washington.
“We are very happy with the decision,” he said. “I look forward to getting the culverts replaced as soon as possible.”
The U.S. Justice Department and tribes argued that the treaties obligated the state not to obstruct salmon streams. The 9th Circuit Court agreed that some culverts break that promise, though the ruling was vague on what else might violate the treaty.
In appealing to the Supreme Court, state Attorney General Bob Ferguson said the 9th Circuit’s order was too broad. Ferguson issued a statement Monday focused on culverts. The state estimates that replacing the culverts will cost roughly $2 billion. The order applies only to some state-owned culverts, though Ferguson pointed out that the state isn’t the only government in Washington with culverts.
“For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state,” Ferguson said.
Idaho led 11 states that asked the high court to overturn the order. The Washington, Idaho, Oregon and Montana Farm Bureaus echoed the states’ concern that the 9th Circuit had wrongly elevated treaty rights over other interests and laws.
Former Washington Attorney General Rob McKenna submitted a brief on behalf of Washington cities and counties that are concerned tribes will seek to apply the 9th Circuit ruling to local governments.
“We’re still in agreement with Attorney General Ferguson and former attorney general McKenna, and cities and counties that the 9th Circuit went too far,” Washington Farm Bureau associate director of government affairs Evan Sheffels said. “There’s no question this gives the tribes a stronger lever.”
The high court’s tie vote was made possible when Justice Anthony Kennedy recused himself because as a judge on the 9th Circuit Court in 1985 he participated in a case on tribal treaty rights and Washington fish hatcheries.
The Supreme Court did not announce how the justices lined up on the culvert case. During oral arguments in April, Washington Solicitor General Noah Purcell faced tough questioning from justices on whether there are limits to the state’s right to block fish habitat. The state estimates the culverts reduce fish runs by 1 to 5 percent. Purcell said 5 percent was not enough to violate treaties, but could not give justices a more precise answer.
“That should have been a very strong signal the 9th Circuit Court’s decision would be affirmed,” said Seattle lawyer Nathanael Watson, a former Justice Department lawyer who has litigated tribal cases.
“It certainly strengthens the tribes’ hand,” Watson said. “If they had a seat at the table before, perhaps they are at the head of the table now.”
Washington Lands Commissioner Hillary Franz, who opposed appealing the 9th Circuit order, said the ruling should prod tribes, governments and private landowners to collaborate.
“Everything I’ve heard in my communications with agriculture, local governments and the tribal community is that they all want to come together,” she said.