As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.
The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.
The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.
From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.
Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.
In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.
Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.
Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”
The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.
Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.
“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”
Asked Justice Elena Kagan, “I mean, do you have a number in your head?”
Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”
Purcell said he thought that half would obviously quality but not 5 percent.
“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”
“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”
Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.
“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.
Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.
“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”
“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”
Alito asked federal prosecutors in the case whether federal dams also violate the treaties.
Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.
Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.
Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.
Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.
“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.
Later, Justice Alito turned to Attorney William Jay, representing the tribes.
“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”
“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”
Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.
“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”
Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.
“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”
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