## Facts

- In 1854 and 1855, the Washington Territory entered into the Stevens Treaties with tribes in the Pacific Northwest, reserving to the tribes the right of taking fish at their “usual and accustomed” grounds “in common with” non-Indians.
- In 1970, the United States, on behalf of treaty tribes, sued the State of Washington to enforce the treaties’ fishing provisions, beginning long-running litigation in the Western District of Washington.
- The case proceeded in phases. Earlier rulings interpreted the treaties to secure to the tribes a share of harvestable fish and recognized that the treaty right must be meaningful in practice, not merely a formal right of access.
- In later proceedings addressing environmental interference with treaty fishing, the district court held that Washington had a duty not to act in ways that materially reduce the fish available for tribal harvest, while also stating that habitat-related treaty disputes would be decided on an issue-by-issue record.
- In 2001, the tribes (joined by the United States) filed a Request for Determination alleging Washington violated the treaties by building and maintaining state-owned road culverts that blocked or impeded salmon passage to upstream spawning habitat, reducing salmon runs and the fish available for treaty harvest.
- After findings that many state-owned culverts in the case area were barriers to fish passage and reduced salmon production, the district court entered a permanent injunction.
- The injunction required Washington to: compile an inventory of state-owned barrier culverts; correct culverts that blocked the most salmon by 2016; correct other high-priority barrier culverts within 17 years; and correct remaining barrier culverts when they would ordinarily be replaced or during independently planned road projects.
- Washington appealed to the Ninth Circuit, challenging both liability and the scope of the injunctive remedy.

## Issues

1. Whether Washington’s construction and maintenance of state-owned fish-blocking culverts violated the Stevens Treaties’ fishing clause by reducing salmon runs and diminishing fish available for tribal harvest.
2. Whether the district court abused its discretion in ordering injunctive relief requiring Washington to inventory and correct barrier culverts on a set schedule.
3. Whether Washington’s defenses—framed in part around waiver and sovereign-immunity-related arguments tied to federal involvement in culvert construction or funding—barred or limited the requested relief.

## Decision

- The Ninth Circuit held that Washington violated, and continued to violate, its obligations under the Stevens Treaties by building and maintaining state-owned culverts that blocked salmon passage and diminished the fish available for tribal harvest.
- The court affirmed the district court’s permanent injunction directing Washington to identify and correct barrier culverts in the case area, including the prioritization and timeline requirements.
- The court rejected Washington’s defenses seeking to avoid or reduce the injunctive remedy based on alleged waiver or immunity theories tied to the United States’ role in the broader history of culvert funding and construction.

## Legal Principles

- Treaty fishing clauses reserving the “right of taking fish” at usual and accustomed places “in common with” others are interpreted as the tribes would have understood them, with ambiguities resolved in the tribes’ favor; the treaties are read as reservations of rights by the tribes, not grants to them.
- A treaty fishing right is not satisfied by bare physical access to fishing sites when state action foreseeably and materially reduces the fish runs that make fishing possible; the right includes protection against state actions that significantly degrade fish habitat and thereby reduce fish available for harvest.
- A state violates the treaty when it constructs or maintains state-owned infrastructure that blocks fish passage and measurably reduces the number of fish that would otherwise return to spawning habitat and be available for tribal harvest.
- Federal courts sitting in equity may order forward-looking, compliance-focused relief against a state to remedy an ongoing treaty violation, including schedules and prioritization requirements, when the remedy is tied to the proven violation and tailored to correcting it.
- The presence of other contributing barriers (such as non-state-owned culverts) does not, by itself, defeat injunctive relief directed at state-owned barriers that are found to cause treaty-protected harms.
- In long-running treaty enforcement litigation, the district court may retain jurisdiction to supervise and enforce compliance with its remedial orders.

## Conclusion

United States v. Washington, 827 F.3d 836 (9th Cir. 2016), held that Washington’s state-owned culverts that block salmon passage violate the Stevens Treaties because they reduce salmon runs and diminish fish available for tribal treaty harvest, and the Ninth Circuit upheld a permanent injunction requiring Washington to inventory and correct barrier culverts on a prioritized schedule designed to remedy the ongoing treaty violation.


United States v. Washington, 827 F.3d 836 (2016)