TREATY FISHING, WATER RIGHTS & CULVERTS – A TRINITY

1. 100 YEARS OF IMPLIED TREATY RIGHTS Presented by: Mason D. Morisset, Attorney at Law Washington Water Law – 2008 Law Seminars International SEATTLE, WASHINGTON April 10-11, 2008 TREATY FISHING, WATER RIGHTS & CULVERTS – A TRINITY

2. In the Pacific Northwest • 35 Reservations in different climate zones • Large and small • Agrarian and Timbered • Urban and rural

3. The Pacific Northwest

4. THE ‘TRINITY’ • FISHING: U.S. v. Winans, 198 U.S. 371, 380-381 (1905) • WATER: Winters v. United States, 207 U.S. 564, 577 (1908) • HABITAT: United States v. Washington, No. 9213, Subproceeding 01-1, Order of August 22, 2007, USDC WD Wash.

5. FISHING: U.S. v. Winans • “The right to resort to the fishing places in controversy was a part of the larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, …. [T]he treaty was not a grant of rights to the Indians but a grant of rights from them-a reservation of those not granted.” U.S. v. Winans, 198 U.S. 371, 380-381 (1905)

6. The Basis of the Right to Fish • The scope of Tribal fishing in the United States is explored in the NW treaty fishing rights litigation. In that litigation, the Supreme Court construed the “fishing clause” of several 1854 and 1855 Treaties between the Federal Government which provided that the Tribes reserved the “right of taking fish, at all usual and accustomed grounds and stations…in common with all citizens of the Territory.” Treaty of Medicine Creek. Washington v. Passenger Fishing Vessel Assoc., 443 U.S. 658, 662 (1979).

7. The Scope of the Right to Fish • In affirming a lower court decision entitling tribes to a maximum of 50% of the available harvest at usual and accustomed grounds and stations, the Supreme Court held that the Tribes were entitled to enough fish  “. . . necessary to provide the Indians with a livelihood–that is to say a moderate living.” Washington v. Passenger Fishing Vessel Assoc., 443 U.S. 658, 686 (1979).

8. The Scope of the Right to Fish – includes all free swimming species. The decision was extended to:- hatchery –propagated fish in 1976. U.S. v. Washington, 459 F. Supp 1020, 1085 (W.D. Wash. 1976) - herring in 1975. U.S. v. Washington , 459 F. Supp 1020, 1048. W.D. Wash. 1978) - halibut in the 1980’s by administrative Federal action.

9. The Scope of the Right to Fish – also includes all Shellfish • In affirming a lower court decision entitling tribes to also harvest shellfish, the Ninth Circuit Court of Appeals rejected arguments that Tribal rights should be limited to those shellfish actually harvested by aboriginal means prior to the Treaties. The Court held: “…there is no language in the Treaties to support [this] position: the Treaties make no mention of any species-specific or technology-based restrictions on the Tribes’ rights”. U.S. v. Washington, 157 F.3d 630, 643. (9th Cir. 1998)

10. WATER: THE WINTERS DOCTRINE • Settlers were sued in the early 1900’s by the United States which sought to restrain them from constructing water works which would prevent water from flowing to the Fort Belknap Reservation in Montana. The Settlers argued that the reservation for the Tribe was for land only and they did not have a right to demand that water flow to the reservation.

11. In rejecting these arguments, the Court noted that the United States had the power to reserve water in connection with a land reservation for Indians, the Indians would have assumed they would have sufficient water and that the Government did impliedly reserve such water. Winters v. United States, 207 U.S. 564, 577 (1908)

12. TheWintersDoctrine - Restated • This Court has long held that when the federal government withdraws its land from the public domain and reserves it for federal purposes, the government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. …The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and non‑navigable streams. • Cappert v. United States, 426 U.S. 128, 138 (1976)

13. How Much Water? • In determining whether there is a federally‑reserved water right implicit in a federal reservation of public land, the issue is whether the government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purpose for which the reservation was created. • Cappert v. United States, 426 U.S. 128, 139 (1976)

14. How do you determine – How much? • The measure of the reserved right on those reservations designed to transform Indians into agrarians is “practicably irrigable acreage”. • Arizona v. California, 373 U.S. 546, 600 (1963)

15. What is PIA? • A. Physically capable of sustained irrigation, and • B. Irrigable at a reasonable cost. • Adjudication of Big Horn System, 753 P. 2d 76, 101-105 (Wyo. 1988) Aff’d w/out opinion, 492 U.S. 406, reh’g denied, 492 U.S. 938 (1989)

16. Treaty Fishing Rights Imply Important Water Rights

17. For Examples Quantification of Instream Flows: • 20 cfs to maintain suitable water temperatures for fish spawning. U.S. v. Anderson, 736 F.2d 1358 (9th Cir. 1984). • 350 acre feet per year to reestablish a fishery to replace salmon runs terminated by dam building. Colville Confederated Tribes v. Walton (Colville II), 752 F.2d 397, 404‑05 (9th Cir. 1985). • Instream rights exist sufficient to prevent appropriators from depleting stream flows from “the protected level.” U.S. v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983) cert. denied 467 U.S. 1252 (1984).

18. FISH NEED WATER, WETLANDS, HABITAT….!!

20. Salmon stocks continue to decline

21. Wetlands and fish: • - - - - wetlands filter suspended solids, nutrients and harmful or toxic substances; and moderate water level fluctuations. • - - - - wetlands provide stable habitat for wetland-associated species, including salmon and trout, for feeding, roosting, breeding and rearing of young, and cover for safety, mobility and thermal protection. • See: Washington Department of Ecology, Wetland Buffers: Use and Effectiveness (Feb. 1992).

22. Wetlands on the Duwamish River (NOT)

23. The Treaty “Environmental Right

24. U.S. v. Winans • “The right to resort to the fishing places in controversy was a part of the larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, …. [T]he treaty was not a grant of rights to the Indians but a grant of rights from them-a reservation of those not granted.” U.S. v. Winans, 198 U.S. 371, 380-381 (1905)

25. Wetlands for Fish – Protecting Habitat • The basis of habitat protection rights is the treaty fishing rights litigation. In affirming a lower court decision entitling tribes to a maximum of 50% of the available harvest at usual and accustomed grounds and stations, the Supreme Court held that the Tribes were entitled to enough fish  “. . . necessary to provide the Indians with a livelihood–that is to say a moderate living.” Washington v. Passenger Fishing Vessel Assoc., 443 U.S. 658, 686 (1979).

26. Phase II (Habitat) litigation • In the initial complaints filed in massive treaty rights case of United States v. Washington, the United States government and tribal governments alleged that an "environmental" right to have fisheries habitat protected from adverse state action also existed by implication from the reserved right to harvest fish. This issue was bifurcated for trial, and became known as "Phase II" of the litigation. Phase II was assigned to the Honorable William Orrick, U.S. District Judge, N.D. Calif. • In dealing with this issue, Judge Orrick held: • Implicitly incorporated in the treaties' fishing clause is the right to have the fishery habitat protected from man‑made despoliation. • The most fundamental prerequisite to exercising the right to take fish is the existence of fish to be taken.. U.S. v. Washington, 506 F. Supp. 187 at 203 (1980)

27. In U.S. v. Washington, 506 F. Supp. 187 at 203 (1980), the court stated: • . . . There can be no doubt that one of the paramount purposes of the treaties in question was to preserve to the tribes the right to continue fishing as an economic and cultural way of life. It is equally beyond doubt that the existence of an environmentally acceptable habitat is essential to the survival of the fish, without which the expressly, or ‑- reserved right to take fish would be meaningless and valueless. Thus, it is necessary to recognize an implied environmental right in order to fulfill the purposes of the fishing clause.

28. The district court's decision was appealed to the Ninth Circuit and substantially upheld with some modification on November 3, 1982. However, the opinion was later withdrawn by order and opinion of an en banc panel which vacated the district court opinion and declared the appeal premature under the applicable federal rules, (759 F. 2d 1353)(9th Cir. 1985)

29. The Treaty Tribe’s Quest for Habitat Protection • Frustrated with the inconclusive attempts to protect habitat necessary to perpetuate healthy fish stocks, the Treaty Tribes sought a specific fact situation to meet the Ninth Circuit requirements.

30. The Tribes Begin the “Culvert” Case • In 2001, 16 years after the Ninth Circuit’s ruling, the Tribes begin a new U.S. v. Washington Subproceeding (# 01-1 (Culvert Case) in District Court claiming that the Treaties include an implied right to habitat protection and that 100’s of state owned culverts illegally block fish habitat and fish migration.

31. Rasmussen Creek (Clallam County) - Two round culverts under State Route 112 had been built on a steep slope, so the water velocity was too high for most fish swimming upstream. Engineers replaced the culverts with a single concrete archway spanning the stream - ideal "natural" conditions for fish passage http://www.fhwa.dot.gov/environment/wildlifecrossings/fish.htm

33. The Court Confirms a “Habitat” Right • August 22, 2007. In Subproceeding 01-1 (Culvert Case), the District Court holds that the Treaties do include an implied right to habitat protection which requires the state to refrain from building or maintaining culverts under roads which block fish migration.

34. The Court’s Conclusion • “The Court herby declares that the right of taking fish, secured to the Tribes in the Steven’s Treaties, imposes a duty upon the State to refrain from building or operating culverts … that hinder fish passage and thereby diminish the number of fish….” • U.S. v. Washington, No. 9213, Subproceeding 01-1, USDC, WD Wash, Order of August 22, 2007, Docket No. 388

35. The treaties therefore include an “implied promise that neither the negotiators nor their successors would take actions that would significantly degrade the resource….” Order of August 22, 2007, p. 11.

36. What is next? • - Negotiations on schedule and standard for culvert fixes are underway • - What other activities which destroy fish habitat may be implicated?

37. THANKS FOR LISTENING