## Facts

- Several Pacific Northwest tribes entered treaties in 1854–55 reserving “the right of taking fish at all usual and accustomed grounds and stations, in common with all citizens of the Territory.”
- Prior federal litigation interpreting these treaties recognized tribal entitlement to up to 50% of harvestable fish and tied the treaty promise to the ability to earn a “moderate living” from fishing.
- Washington built and maintained numerous road culverts that impeded salmon migration; some operated as “barrier culverts.”
- The district court found state-owned barrier culverts blocked access to extensive salmon habitat, materially reduced salmon available for tribal harvest, and contributed to salmon runs inadequate to provide tribes a moderate living.
- In a sub-proceeding within the longstanding treaty litigation, the United States and multiple tribes sought declaratory and injunctive relief requiring Washington to correct state-owned barrier culverts.
- After trial, the district court declared Washington in violation of the treaties and entered an injunction requiring identification, prioritization, and correction of state-owned barrier culverts according to specified schedules.

## Issues

1. Whether the treaty fishing clause includes a right against state actions that significantly degrade fish habitat and substantially diminish fish available for tribal harvest, impairing the tribes’ ability to earn a moderate living.
2. Whether the district court had authority to enter, and properly tailored, an injunction requiring Washington to remediate state-owned barrier culverts consistent with equitable discretion and federalism constraints.
3. Whether causation and redressability were satisfied where other factors and non-state barriers also contribute to salmon declines.

## Decision

- The Ninth Circuit affirmed the declaratory judgment and injunction.
- The court held that the treaties protect more than physical access to fishing locations and bar Washington from maintaining culverts that hinder fish passage and significantly diminish harvestable fish.
- The court concluded the district court’s findings on harm and expected gains from remediation were not clearly erroneous.
- The court rejected Washington’s argument that other causes of salmon decline or non-state barriers defeated relief against the State.
- The court upheld the injunction as within the district court’s retained jurisdiction and equitable authority and as appropriately limited to state-owned culverts with prioritized, staged deadlines.

## Legal Principles

- Indian treaties are construed in favor of the tribes and as the tribes would have understood them at the time of agreement.
- A reserved treaty right to take fish at usual and accustomed grounds is not merely an access right; it includes protection against state affirmative actions that significantly degrade habitat and thereby substantially reduce fish available for tribal harvest.
- When state conduct materially contributes to impairment of treaty fishing rights, a federal court may order prospective equitable relief directed to the state’s own infrastructure and ongoing violations.
- The presence of other contributing causes or third-party barriers does not excuse the State from compliance where remediation of state-owned barriers will provide significant benefits to fish production and treaty harvest opportunities.
- Injunctive relief must be supported by trial findings and may be tailored through prioritization and phased deadlines based on expected benefit and practical constraints.

## Conclusion

The Ninth Circuit held that Washington’s maintenance of salmon-blocking, state-owned road culverts violated treaty-reserved fishing rights by significantly reducing harvestable salmon needed for a moderate living, and it affirmed a tailored injunction requiring the State to identify, prioritize, and fix those culverts.


United States v. Washington, 853 F.3d 946 (9th Cir. 2017)