Kennedy recuses himself from Washington treaty appeal

Supreme Court in Washington, D.C. If the U.S. Supreme Court deadlocks, a court order to remove more than 800 fish-blocking culverts will stand.

U.S. Supreme Court Justice Anthony Kennedy has recused himself from hearing Washington’s appeal of an order to replace culverts, raising the possibility that a deadlocked high court will let stand a ruling that farm groups argue threatens agriculture in the West.

Kennedy’s recusal, based on his participation in a ruling 33 years ago, removes a justice often seen as a swing vote on close calls and the one most familiar with ongoing litigation initiated in 1970 by the Justice Department on behalf of 21 Western Washington tribes.

In the latest development, the 9th Circuit Court of Appeals directed Washington last year to upgrade more than 800 fish-blocking culverts. Attorney General Bob Ferguson appealed the order, arguing it sets a precedent to remove dams, and limit agriculture, logging and anything seen as a threat to fish.

Eleven states, including Idaho, have filed a brief supporting Washington’s position, as have farm groups in Washington, Oregon, Idaho and Montana.

“I think it’s fair to say that with Justice Kennedy’s recusal, those who support Washington’s side are a little less confident and those who support the tribes’ and 9th Circuit Court’s side are a little more confident,” said Damien Schiff, senior attorney with the Pacific Legal Foundation, a property rights-oriented legal organization, which also has asked the court to overturn the order.

The Supreme Court will hear oral arguments April 18 in United States v. Washington. A court official said in a letter to lawyers Friday that Kennedy’s earlier participation in another phase of the lawsuit had been inadvertently overlooked.

As a 9th Circuit Court judge in 1985, Kennedy joined in ruling that tribes were entitled to half the fish produced in Washington hatcheries. In the same decision, however, the court said treaties didn’t obligate the state to broadly protect fish habitat.

The case before the Supreme Court now presents a similar question — whether the state has the duty to ensure that tribes have enough fish to earn a moderate living.

Schiff said the case could be more important than the 1974 Boldt decision, which guaranteed tribes half the harvestable fish. If the culvert order stands, it could drive lawsuits in other states that have tribes with treaty rights, he said.

“I think it has the potential for being much more significant,” he said.

The Justice Department and tribes had asked the Supreme Court to not hear the appeal. They argued that the order applied to culverts only and that concerns about the order’s far-reaching consequences were overblown.

Farm Bureau chapters in Washington, Oregon, Idaho and Montana urged the court to take up the case.

“This (Kennedy’s recusal) makes it a lot harder for the court to do anything,” Washington Farm Bureau associate director of government relations Evan Sheffels said. “Now it’s much more possible we don’t get a decision.”

Former Justice Department lawyer Nathanael Watson, who litigated tribal cases, said Kennedy, a Californian, would have brought knowledge about Western water law to the case.

“It’s disappointing he won’t have a vote on this,” said Watson, now an attorney with the law firm Stoel Rives in Seattle. “He lends substantial expertise.

“I think in the absence of Justice Kennedy, Judge (Neil) Gorsuch becomes a swing vote,” Watson said.

Gorsuch served on the 10th Circuit Court, which hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The region includes 76 federally recognized tribes. The National Congress of American Indians supported Gorsuch’s elevation to the Supreme Court based on his rulings in tribal cases.

“The real question is, where is Justice Gorsuch on this?” Watson said.

A deadlocked court would spare justices from handing down a decision that either threatens businesses or provokes anger toward tribes, Watson said. “It’s probably not a horrible outcome for any party,” he said.

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