Today the United States Supreme Court issued a 4-4 per curiam decision (Justice Kennedy was recused) affirming the United States Court of Appeals for the Ninth Circuit’s decision in the Culverts case, which is the latest chapter in Washington v. United States. Every tribe, person, public utility, municipality, state, or developer that has an interest in water rights or projects that impact salmon, should pay attention to the Court’s ruling in the Culverts case — and work with counsel to prepare your strategy for productive engagement to resolve these issues before they lead to expensive bet-the-farm litigation.
The Supreme Court’s single sentence decision affirms the Ninth Circuit decision requiring Washington to replace nearly a thousand culverts that the district court determined had degraded fish habitat and reduced fish populations in violations of the Stevens treaties between the United States and Northwest tribes. Twenty one Northwest Indian tribes and the United States sued to force Washington to replace the culverts. This decision could impact more than just Washington’s culverts, including, potentially, a variety of development, construction, and farming practices throughout the Northwest. Any developer, municipality, irrigation project, or state, relying on federal, state, or local authorizations for activities that alone or cumulatively impact the passage of fish or fish species at a population level should assess the application of this decision, develop a plan to preemptively address any impacts, and build strong partnerships with tribes, to avoid costly and consequential litigation.
Today’s decision is the second time this term the Supreme Court has allowed a Ninth Circuit decision concerning tribal interests in water and fish to stand. Earlier this term, the Court denied a petition for certiorari in Desert Water Agency v. Agua Caliente Band of Cahuilla Indians, a case where the Ninth Circuit held that a federal reserved water right exists if the reservation purpose “envisions” the use of water, including groundwater. This test stands in contrast to a test of whether the water was “necessary” to the primary purpose of the reservation, without which water, the primary purpose of the reservation would be “entirely defeated.” While a cert denial and a per curiam opinion (and a 4-4 tie at that) are not enough to establish a trend, it is enough to indicate that the Supreme Court is open to a broader view of tribal treaty rights than some anticipated.
One possible explanation for these rulings is the appointment of Justice Gorsuch, who authored 18 legal opinions and heard approximately 60 cases involving Indian law and tribal interests while he served on the United States Court of Appeals for the Tenth Circuit. It is unclear how Justice Gorsuch voted in the Culverts case but, given his experience and questions at oral argument that indicated he supported the Washington tribes’ position, he is the justice to watch on Indian law issues, at least for now. Practitioners and court watchers will have to wait for another decision to reach further conclusions because the Court offered no rationale or indication of how the justices voted.
Today’s result may indicate a new era for enforcement of tribal treaty rights and, critically, the need to resolve conflicts between development that may have encroached upon or impacted treaty rights. Fortunately, roadmaps for how to resolve these disputes without leaving it up to the courts already exist. For example, long-term negotiations have produced water compacts between tribes, state governments, and the United States. These disputes over treaty-reserved water rights arose, in part, because treaties and other laws reserve water for tribal uses, but the federal government did not enforce these rights against encroaching development. As a result, many water users have settled expectations and feel threatened by tribes asserting their water rights in both legal and political forums.
Rather than upending state water rights systems and the settled expectations of developments that occurred while the United States neglected its treaty obligations, many tribes and states have worked cooperatively with the federal government to resolve these disputes. This process, however, typically culminates in a large outlay of federal money only after years of studies, settlement negotiations, and expenditure of political capital. Like a water rights adjudication, the Culverts decision has the potential to impact land use and development practices at a landscape level. The tools tribes, states, irrigators, and other water users have developed in the water rights context are likely applicable to future disputes flowing from the Culverts decision. While this is not for the faint of heart, neither is the alternative of protracted and costly litigation that may result in a devastating blow to the losing party. One need only consider the conflict between the Standing Rock Sioux Tribe and the Dakota Access Pipeline or the long-running litigation in the Klamath basin to understand the magnitude of the stakes involved.
Models for partnership, particularly in the hydropower context, have also proven effective. In 1985 the Confederated Salish and Kootenai Tribes became a co-licensee when the Se̓liš Ksanka Ql̓ispe̓ hydroelectric project was relicensed. Thirty years later, after extraordinary effort by the Tribes, tribal expense, and fulfillment of rigorous contractual requirements, a corporation owned by the Confederated Salish and Kootenai Tribes took over the project’s operations. Similarly, the Pelton Round Butte hydroelectric project is co-owned and co-managed by Portland General Electric and the Confederated Tribes of the Warm Springs Reservation of Oregon. Partnership may be particularly attractive to all parties when seemingly intractable disputes arise during licensing or permitting processes. Partnership solutions require long-term thinking and a revaluation of not only who should have a seat at the table, but who should benefit from the agreement, license, or permit produced.
Tribes, developers, utilities, and irrigation districts should work with counsel to assess their risk and formulate new strategies for engagement and productive agreements. The tribes that brought the Culverts litigation have clearly left the door open for the State of Washington, and other parties, to pursue negotiation and settlement whenever existing structures impact treaty rights. The water compacts worked out between tribes, states, and the federal government demonstrate that these conflicts do not have to undermine the treaty rights of tribes or non-tribal water users’ legitimate expectations. In the Culverts case, the tribes’ initial pleading sought “to enforce a duty upon the State of Washington to refrain from constructing and maintaining Culverts under state roads that degrade fish habitat . . . .” This specific and narrowly focused question can and will be applied to other development, prompting litigation and, optimistically, settlement models that rephrase the status quo to protect tribes’ treaty-reserved rights alongside existing and new development.