Monday, June 27, 2016

U.S. v. State of Washington (9th Cir. - June 27, 2016)

It's hard to argue with Judge Fletcher's opinion in this case.  It's an exhaustive opinion, topping out at 59 single-spaced pages.  It's exceptionally well reasoned.  And it's unanimous.

You could perhaps raise some issues about timing.  The district court caption starts with "01-", which means that this single matter has taken 15 years to get through the district court and the Ninth Circuit.  That's a lot of time.  Plus, the appellate caption starts with a 13-, so that's a heady amount of time in the Ninth Circuit alone, and the case was argued and submitted back in October of 2015.  That's a fair amount of time for a unanimous opinion.

Still.  The opinion is long, comprehensive, and articulate.  As well as important.  So you can see why the Ninth Circuit might want to make sure it gets this one right.

This is another one of those "Pacific Northwest Salmon" cases.  The U.S. entered into treaties in the nineteenth century with various Indian tribes.  They ceded tons of land to us and we promised in turn that we'd respect their rights to fish.  Needless to say, we promptly violated those treaties, repeatedly, but we're trying at this point to comply.

When we negotiated the treaties, we told the tribes that, yeah, we'd take a ton of their land, but we'd make sure they were still able to fish.  The basic scoop was something like this:  "Governor Stevens repeatedly assured the Indians that there always would be an adequate supply of fish. Professor White wrote that Stevens told the Indians during negotiations for the Point Elliott Treaty, 'I want that you shall not have simply food and drink now but that you may have them forever.' During negotiations for the Point-No-Point Treaty, Stevens said, 'This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?'”

The problem is -- as you might expect -- that the salmon population has substantially collapsed.  In no small part due to human intervention.  So how do we comply with our promises?

Well, one problem is that we -- and by that, I mean "Washington State" -- keep making it harder for the salmon to breed.  One way we do that is at issue here; namely, there are lots and lots and lots of culverts over streams, and many of those are built in a way that make it too tough for salmon to swim up 'em.  Easy for us to drive over, and cheaper than more expensive culverts (or actual bridges), but this whacks the salmon.  Hence resulting in fewer promised fish for the Indian tribes.

So the district court orders lot of 'em to be replaced, albeit over a 17-year period and/or when the normal lifespan of these culverts expires.  Washington State doesn't like that, so files an appeal.  But the Ninth Circuit affirms.

Judge Fletcher's analysis seems spot on.  At least most of it: there's something that seems messed up in the transition from pages 9 to 10 of the slip opinion; like there's a paragraph (or more) missing.  So hopefully that'll be worked out.  But otherwise, definitely solid, and a persuasive resolution of the appeal.

Judge Fletcher also does something relatively unusual, and something that you rarely want to see when you're on the losing side of an appeal:  He quotes from the oral argument.  Here it is:

"Washington contended that it has the right, consistent with the Treaties, to block every salmon-bearing stream feeding into Puget Sound:

The Court: Would the State have the right, consistent with the treaty, to dam every salmon stream into Puget Sound?

Answer: Your honor, we would never and could never do that. . . .

The Court: . . . I’m asking a different question. Would you have the right to do that under the treaty?

Answer: Your honor, the treaty would not prohibit that[.]

The Court: So, let me make sure I understand your answer. You’re saying, consistent with the treaties that Governor Stevens entered into with the Tribes, you could block every salmon stream in the Sound?

Answer: Your honor, the treaties would not prohibit that[.]"

Yeah, that's a tough question.  And the answer is indeed something that hoists the state on its own petards.  Since I strongly doubt that was the contemporaneous understanding of the Indian tribes as to what they were giving up under the deal.  So you can see why Judge Fletcher responds to this claim in the opinion with the line:  "The State misconstrues the Treaties."

More salmon for Native Americans.  More salmon for everyone.  But roads that are a bit more expensive.

P.S. - Washington State's best argument is, perhaps unfortunately, blocked by doctrine.  The state says that the United States is totally wrong about the culverts being a violation of the treaty because the U.S. itself has placed a plethora of the exact same types of culverts under its own (federal) roads, thereby blocking salmon.  It'd be totally unfair, Washington says, to let the U.S. successfully sue us, and make us take out our culverts, when the U.S. gets to keep its own identical culverts over the exact same streams (in violation of the exact same treaties).  To which Judge Fletcher says, essentially:  "Maybe.  But welcome to the wonderful world of sovereign immunity."

Which is almost surely right as a matter of doctrine.  But if there were an affirmative defense of "Manifest Hypocrisy," Washington State might well crush on this one.