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U.S. Supreme Court Affirms Ninth Circuit’s Decision in Barrier Culverts Case

Wednesday, June 13, 2018

J. Nathanael Watson

Of Counsel, Stoel Rives LLP

On June 11, 2018, the U.S. Supreme Court issued a 4-4 per curium decision (Justice Anthony Kennedy was recused) affirming the U.S. Court of Appeals for the Ninth Circuit’s decision in Washington v. United States, often referred to as the “culverts case.” 

Every tribe, person, public utility, municipality, state, or developer that has an interest in water rights or projects that impact salmon should pay attention to the Court’s ruling in the culverts case—and work with counsel to prepare your strategy for productive engagement to resolve these issues before they lead to expensive bet-the-farm litigation.

Coho Salmon in Washington State (Photo: BLM)

Below, the Ninth Circuit held that Washington’s management of barrier culverts, which allow streams to flow underneath roads, violated various Native American treaties from the 1850s and ordered the state to correct them. The "Stevens Treaties" were entered into in 1854-1855 between Native American tribes in the Pacific Northwest and the governor of Washington Territory. As part of the Treaties, the tribes were forced to relinquish large swaths of land, watersheds, and offshore waters adjacent to those areas (known as the “Case Area”), in what is now the state of Washington. In exchange, the tribes were guaranteed a right to engage in off-reservation fishing. But in building and maintaining the culverts, the court held that the state has caused the size of salmon runs in the Case Area to diminish. Washington, therefore, has violated and continues to violate its obligation under the Treaties. The Supreme Court’s single-sentence decision affirms the Ninth Circuit’s directive that Washington correct the culverts—nearly 1,000 in total.

This decision could impact more than just Washington’s culverts, including, potentially, a variety of development, construction, and farming practices throughout the Northwest. Any developer, municipality, irrigation project, or state relying on federal, state, or local authorizations for activities that alone or cumulatively impact the passage of fish or fish species at a population level should assess the application of this decision, develop a plan to preemptively address any impacts, and build strong partnerships with tribes to avoid costly and consequential litigation.

The decision is the second time this term the Supreme Court has allowed a Ninth Circuit decision concerning tribal interests in water and fish to stand. Earlier this term, the Court denied a petition for certiorari in Desert Water Agency v. Agua Caliente Band of Cahuilla Indians, a case where the Ninth Circuit held that a federal reserved water right exists if the reservation purpose “envisions” the use of water, including groundwater. This “envisions” test limits the narrow reading of the Supreme Court’s decision in United States v. New Mexico, wherein a federal reserved water right impliedly exists only if the reservation of water is “necessary” to accomplish the primary reservation purposes and prevent these purposes from being “entirely defeated." While the cert denial in Agua Caliente and the per curium opinion in the culverts case (and a 4-4 tie at that) are not enough to establish a trend, it is enough to indicate that the Supreme Court is open to a broader view of tribal treaty rights than some anticipated.

One possible explanation for these rulings is the appointment of Justice Neil Gorsuch, who authored 18 legal opinions and heard approximately 60 cases involving Indian law and tribal interests while he served on the U.S. Court of Appeals for the Tenth Circuit. Because it was a per curium decision, it is unclear how Justice Gorsuch voted in the culverts case, but his questions during oral arguments in the culvert case seemed to indicate that he supported the tribes’ position. Add to this his experience on the Tenth Circuit, and he is the Justice to watch on Indian law issues, at least for now. Practitioners and court watchers will have to wait for another decision to reach further conclusions.

Culverts like this one may not be large enough to allow wildlife passage (Wikimedia Commons)

The culverts case may indicate a new era for enforcement of tribal treaty rights and, critically, the need to resolve potential or existing conflicts between rights reserved by treaties to the tribes and development and activities that may have encroached upon those rights. For example, many of the disputes over treaty-reserved water rights arose, in part, because the federal government has not enforced these treaty-reserved rights against encroaching development. As a result, developers and other water users with settled expectations as to the actions they can take may need to reassess their expectations, as more courts and legislative bodies respond to tribes’ long-standing assertions of their water rights. Rather than upending state water rights systems and the settled expectations of developments that occurred while the United States neglected its treaty obligations, many tribes and states have worked cooperatively with the federal government to resolve these disputes. For example, long-term negotiations have produced water compacts between tribes, state governments, and the United States. Although the process typically culminates in a large outlay of federal money only after years of studies, settlement negotiations, and expenditure of political capital, this is better than the alternative of protracted and costly litigation that may result in a devastating blow to the losing party. Like a water rights adjudication, the culverts case has the potential to impact land use and development practices at a landscape level. The tools tribes, states, irrigators, and other water users have developed in the water rights context are likely applicable to future disputes flowing from the culverts decision.

Partnerships, particularly in the hydropower context, have also proven effective. For example, the Pelton Round Butte hydroelectric project in Jefferson County, Oregon, is co-owned and co-managed by Portland General Electric and the Confederated Tribes of the Warm Springs Reservation of Oregon. Partnership solutions require long-term thinking and a reevaluation of not only who should have a seat at the table, but who should benefit from the agreement, license, or permit produced. Partnership may be particularly attractive to all parties when seemingly intractable disputes arise during licensing or permitting processes.

Tribes, developers, utilities, and irrigation districts should work with counsel to assess their risk and formulate new strategies for engagement and productive agreements. The culverts case clearly opened the door for the state of Washington and other parties to pursue negotiation and settlement whenever existing structures impact treaty rights. With cooperative, creative, and thoughtful negotiation, interested stakeholders can rephrase the status quo to protect tribes’ treaty-reserved rights alongside existing and new development.