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United States v. Washington

ELR Citation: 46 ELR 20115
Nos. 13-35474, (9th Cir., 06/27/2016)

The Ninth Circuit held that Washington state'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 relinquished 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 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 state must correct most of its high-priority barrier culverts within 17 years, and correct the remainder at the end of their natural life or in the course of a road construction project undertaken for independent reasons. In addition, the court rejected the state's cross-request seeking an injunction that would require the United States to fix its culverts before Washington repaired its culverts. The cross-request is barred by sovereign immunity, and Washington did not have standing to assert any treaty rights belonging to the tribes.