New Scholarship on Indian Treaty Rights and Fossil-Fuel Exports Projects in the Pacific Northwest

Michael C. Blumm & Jeffrey Litwak have posted “Democratizing Treaty Fishing Rights: Denying Fossil-Fuel Exports Projects in the Pacific Northwest,” forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review, on SSRN.

Here is the abstract:

Indian treaty fishing rights scored an important judicial victory recently when an equally divided U.S. Supreme Court affirmed the Ninth Circuit’s decision in the so-called “culverts case,” which decided that the Stevens Treaties of the 1850s give the tribes a right to protect salmon migration obstructed by barrier road culverts. The implications of that decision on other habitat damaging activities have yet to be ascertained, but even prior to the resolution of the culverts case there were significant indications that federal, state, and local administrative agencies were acting to protect treaty fishing rights from the adverse effects of large fossil-fuel export projects proposed throughout the Pacific Northwest. After briefly explaining the culverts decision, this article examines five recent examples of agencies denying permits for fossil-fuel developments at least in part of treaty rights grounds. We draw some lessons from these examples concerning the importance of tribal participation in administrative processes and explore some knotty evidentiary issues that tribal efforts to protect their historic fishing sites may entail. We conclude that safeguarding their treaty rights in the 21st century will require tribes to be as vigilant about the administrative process as they have been about seeking judicial protection.

Washington v. United States Background Materials [culverts]

Oral argument transcript: oral argument transcript

Merits stage briefs:

17-269ts Petitioners Brief


17-269-bs-Tribal Respondents

Amici in Support of Petitioners:

Idaho and 10 Other States Brief

Pacific Legal Foundation Brief

Modoc Point Irrigation District Brief

Business Organizations Brief

Citizens Equal Rights Foundation Brief

American Forest & Paper Association and National Mining Association Brief

Washington State Association of Counties and Association of Washington Cities

Amici Supporting Respondents:

NCAI amicus brief

Fishermans Associations amicus brief

Warm Springs et al amicus brief

Daniel J. Evans amicus brief

State and Local Officials amicus brief

Professors amicus brief

Other docs:

Recusal Letter

Ninth Circuit panel decision here. Briefs:

State’s Opening Brief

Oregon Amicus

Tribal Brief

US Brief

Indian Law Professors

Pacific Coast Federation of Fishermen’s Associations

En banc stage briefs:

Washington Rehearing/En Banc Petition

Idaho and Montana Amicus Brief

Klamath Critical Habitat Landowners Amicus Brief

US Response

Tribal Response

District court materials are here:

Tribal Motion for Summary Judgment

State Motion for Summary Judgment

District Court Opinion