Ninth Circuit Audio and Video in United States v. Washington Culverts Appeal

Audio and video.

Billy Frank atop a culvert
Billy Frank atop a culvert

Opening and answer briefs.

Lower court materials here and here.

Culverts Case Implementation

Washington Dept. of Fish & Wildlife (WDFW) now has a website where you can learn more about their efforts to remove fish-blocking culverts. Facebook users can also access a time-lapse video of WDFW’s removal and replacement of a fish-blocking culvert pursuant to the district court’s order.

State of Washington’s Opening Brief in Ninth Circuit Appeal of Culverts Decision


State’s Opening Brief

Update: Oregon Amicus

Lower court materials are here.

Judge Martinez Issues Permanent Injunction Favoring Treaty Tribes in U.S. v. Washington Culverts Subproceeding


Here is the order (briefs shortly):

752 – Memorandum and Order Granting Perm. Injunction

Tribal Supplemental Brief

US Supplemental Brief

Washington Supplemental Brief

UPDATE: Perm Injunction

Judge Martinez’s 2007 order (and materials) is here.

Student Note on U.S. v. Washington Culverts Opinion

William Fisher has published “The Culverts Opinion and the Need for a Broader Property-Based Construct” in the Journal of Environmental Law and Litigation (Oregon). Here is a copy of the Culverts Opinion. Here is an excerpt:

The question becomes: Do treaties involve an affirmative duty for states to protect fish habitat and ensure quality fish runs? As discussed herein, a federal court has answered this question narrowly, yet affirmatively, failing to employ a property-based construct that encompasses all the rights reserved under the tribal treaties. Therefore, although the courts have recognized the existence of a duty, they have not yet recognized its entire scope.

Many theories have been advanced for how courts should interpret a state’s duties to protect fish habitat. Generally, treaty-invoked duties are analyzed under a contract-law paradigm. This is not erroneous, as treaties are said to be “contract[s] between sovereign nations.” However, when courts look at treaties only as contracts, they are missing one major aspect of tribal treaties: property rights. Not only are tribal treaties contracts between sovereigns, they are also deeds of property. Therefore, the bodies of law that are invoked by the formation of a tribal treaty include both contract law and property law. However, despite the promising answers property law provides for treaty interpretation, many judges have shown discomfort at the idea of applying property-based constructs to interpret states’ and tribes’ duties and rights under such treaties. Some feel that the formalistic rules of property law do not contain enough elasticity to be molded within the Indian law context. For example, when the Ninth Circuit used a property-law analogy to enforce tribes’ rights to take fish from the Columbia River, Judge Kennedy concurred in the holding but objected to the court’s use of this analogy, arguing that it was not an exact fit. What Judge Kennedy failed to recognize was that courts can and should apply the basic models of a property-based construct to analyze treaty rights, even where every jot and tittle may not line up. Refusing to do so is to turn a blind eye to the fact that treaties are deeds of property, and as such, invoke the rules of property law.

DC Circuit Vacates EPA Mercury Emissions — New Jersey v. EPA

Here is the opinion.

Here is a link to our previous post that included several briefs, including the tribal brief.

Congrats to the petitioners!

US v. Washington — Culverts Materials

In August, Judge Martinez granted the Stevens treaty tribes’ motion for summary judgment in the culvert subproceeding. Here are some of those materials:

Tribal Motion for Summary Judgment

State Motion for Summary Judgment

District Court Opinion