## Facts

- The United States, acting on behalf of several treaty tribes, sued Washington in the long-running *United States v. Washington* framework litigation to enforce fishing rights secured in mid‑nineteenth‑century Stevens Treaties.
- Those treaties reserved to the tribes “the right of taking fish at all usual and accustomed grounds and stations … in common with all citizens,” a right previously construed in the litigation as more than simple physical access to fishing locations.
- In a designated subproceeding, the United States and tribes challenged Washington’s construction and maintenance of numerous state-owned road culverts in salmon-bearing streams.
- Plaintiffs alleged many culverts were barriers (e.g., perched, undersized, or improperly installed) that blocked or severely impeded anadromous fish migration to and from spawning habitat.
- Plaintiffs contended that these passage barriers reduced the quantity of salmon available for tribal harvest at usual and accustomed fishing areas, impairing the treaty fishing right.
- Plaintiffs requested declaratory relief and an injunction requiring Washington to repair or replace state-maintained fish-blocking culverts and to refrain from building new culverts that would block fish passage.
- Washington disputed that the treaties impose a culvert-related obligation and argued plaintiffs had not shown a sufficient causal connection between culverts and decreased salmon runs, pointing to other causes of fish declines.
- The parties filed cross-motions for summary judgment: Washington sought judgment in its favor; the tribes sought partial summary judgment establishing entitlement to declaratory relief on treaty interpretation and liability.

## Issues

1. Whether the Stevens Treaties’ reserved right of taking fish limits Washington from building or operating state-owned culverts that block or significantly impede salmon passage and thereby diminish fish available for tribal harvest.
2. Whether the court should grant declaratory relief on summary judgment establishing Washington’s duty regarding fish-blocking culverts, with remedial details to be addressed later.

## Decision

- The court denied Washington’s motion for summary judgment.
- The court granted the tribes’ motion for partial summary judgment on declaratory relief.
- The court declared that the treaty fishing right imposes a duty on Washington to refrain from building or operating culverts that hinder fish passage and thereby diminish the number of fish available for tribal harvest.
- The court treated the order as resolving the legal duty and violation question, while leaving the scope and timing of any injunctive remedy for further proceedings.

## Legal Principles

- Indian treaties are interpreted as the tribes would have understood them, and ambiguities are resolved in favor of the tribes.
- The treaty fishing clause secures a meaningful fishing right, not merely access to water; the right is impaired if state action substantially interferes with the availability of fish needed to exercise the right.
- State-created physical barriers to fish migration that significantly reduce fish runs can violate the treaty fishing right.
- A plaintiff need not rule out every other contributor to salmon decline to establish a treaty violation based on the state’s maintenance of barrier culverts; the focus is whether the state’s conduct materially impedes fish passage and reduces fish available for tribal harvest.
- Declaratory relief is appropriate when treaty interpretation and the existence of a legal duty can be decided as a matter of law on summary judgment, even if detailed remedial implementation requires additional proceedings.

## Conclusion

The district court held that the Stevens Treaties’ fishing right limits Washington from maintaining or operating state-owned culverts that block or significantly impede salmon passage and thereby reduce fish available for tribal harvest; it denied the state’s request for summary judgment, granted the tribes partial summary judgment, and issued declaratory relief recognizing the state’s duty, leaving remedial specifics for later stages.


United States v. Washington, No. CV 9213RSM, 2007 WL 2437166, 20 F. Supp. 3d 828 (2007)