Yesterday, the Supreme Court announced its decision — but no opinion — in Washington v. United States, a case addressing tribal fishing rights under 19th-century treaties between the United States and northwest Indian tribes. The justices divided 4-4; the effect of the tie vote is affirmance of the lower court ruling. Justice Anthony Kennedy was recused because he participated in an earlier phase of the case — over 30 years ago, as a judge on the U.S. Court of Appeals for the 9th Circuit. As Tony Mauro writes for the National Law Journal, “recusals matter.”
Affirmance of the lower court’s opinion here means a win for the tribes and the United States and a loss for the state of Washington. As I described in my preview of the case, the district court had entered an injunction requiring the state to modify under-road culverts, which obstruct salmon passage, within 17 years. According to the state, the price tag for those modifications could approach $2 billion and would not meaningfully improve salmon populations, because barriers built by federal and private actors also obstruct fish passage. The tribes contested those projections, urging that the state’s foot-dragging threatened to push the salmon population “past a tipping point.”
In the opinion under review, the 9th Circuit affirmed the district court’s injunction. The 9th Circuit also indicated that the tribal fishing right conferred on the state an obligation to protect fish, rather than just to allow the tribes a share of otherwise available fish (though the parties disagreed on the exact scope of the ruling). In their briefs before the Supreme Court, both sides vigorously disputed both the scope of the treaty right and the principles governing equitable remedies like the injunction at issue here.
The absence of an opinion means, of course, that the court did not clear up these broader disputes. It also means we do not know how each justice voted. Given the case’s cross-cutting currents – of federalism, judicial remedies, environmentalism and more – it is not obvious that the justices divided along the lines that are sometimes regarded as predictable. And, finally, it is not clear exactly how much yesterday’s ruling will help the salmon population overall. Rather, the effect of the ruling is more limited: It seems to close the door on this phase of a long-running dispute, and by doing so, at least open doors (or culverts) to increased fish passage in the state of Washington.
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