Argument analysis: Court debates standard for violating tribal fishing rights

In yesterday’s oral argument in Washington v. United States, the Supreme Court debated the scope of tribal fishing rights under 19th century treaties between the United States and northwest Indian tribes. In particular, were the lower courts correct that hundreds of the state of Washington’s under-road culverts, which obstruct salmon passage to some extent, violate the treaties? The dispute is a long-running one — so much so that it dates back to Justice Anthony Kennedy’s service on the U.S. Court of Appeals for the 9th Circuit, prompting his recusal from the case.

The eight justices who did participate in the argument focused largely on the correct standard for violations of the treaties. (As I explained in my argument preview, the case also presented two other questions related to remedies, but these were scarcely discussed.) The state of Washington, represented at the podium by the state’s solicitor general, Noah Purcell, argued that the state would violate the treaties if “a state barrier is causing a large decline in a particular river and … it’s not justified by substantial compelling interests.” In contrast, the federal government and the tribes, represented by Allon Kedem and William Jay, respectively, argued that the treaties are violated by a “substantial degradation” of the salmon population. For much of the argument, the justices pressed each of the litigants to provide more clarity about their respective tests.

Regarding Washington’s proposed standard of a “large decline,” Justice Elena Kagan asked Purcell, “[D]o you have a number in your head?” Purcell answered that decreasing the salmon population by “half or anything approaching half” would qualify, whereas a decrease of 1 to 5 percent would not. Justice Neil Gorsuch countered that five percent “is often deemed a material number” in other legal contexts, like securities law — why not here? Purcell responded that setting the bar so low would transform the treaties into “a catch-all environmental statute that will regulate every significant activity in the Northwest.” And, he argued, the decrease at issue in this case was only a fraction of one percent (The tribes and federal government dispute that figure.). The justices also questioned Purcell’s assertion that the state can cause salmon populations to substantially decline as long as it has a “substantial compelling interest” at stake. Where is that in the text of the treaties, Gorsuch and Kagan asked. Justice Sonia Sotomayor also expressed skepticism that the state could escape its treaty obligations “merely because [it] wanted to spend less money” building compliant culverts. Purcell emphasized that the state was not trying to create a test it would always win; some of its culverts would require replacement under its test. In any event, Purcell stressed, the district court did not consider the federal government’s new proposed test, and so if the court were not inclined to reverse, it should at least remand with instructions for the district court to consider that standard in the first instance.

Questioning the attorneys on the other side, the justices again asked for clarity and quantification. Both Kedem and Jay declined to supply a precise number that would constitute “substantial degradation,” urging instead a context-dependent standard involving whether the damage was “appreciable” and “durable.” In addition, Kedem and Jay both fielded questions about the role of common law in their arguments — both had argued that common-law concepts in place at the time the treaties were negotiated barred obstructing fish passage — and whether the court needed to remand to allow the lower courts to take the first pass at a common-law theory. The attorneys said no. They also emphasized that they were not (contrary to the state’s characterization) seeking to guarantee the tribes a “moderate living” from salmon fishing, and they disputed that any of their substantial-degradation theory was new on appeal. As for whether the federal government’s numerous dams in the northwest U.S. violate its own standard, Kedem and Jay noted that the question had not been addressed in this litigation. They further observed that many federal dams include salmon ladders, and many of those that don’t have involved payments to tribes for the damage done to fish.

For a case in which the briefing raised potentially far-reaching questions about treaty interpretation, federalism and equitable remedies, this oral argument was remarkably in the weeds. Both sides spent significant energy parsing the district court injunction that is under review and debating its accuracy — but as Justice Stephen Breyer and others pointed out during the argument, the Supreme Court is unlikely to devote its opinion to correcting factual findings. The court does seem poised to announce some standard for violations of the treaties. If the court then calls for the lower courts to determine how to apply that standard, it may commence yet another chapter in this long-running dispute.