F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

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I B E ; S T I L L A G U A M I S H T R

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N S’K L A L L A M T R I B E ; L O W

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A G I T I N D I A N T R I B E ; T U L

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N ; Q U I N A U L T I N D I A N N A T I O

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A T E D T R

I B E S
A N D B A N D S O F T H E Y A K

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N ; Q U I L E U T E I N D I A N T R I B E ; M A K

A H I N D I A N T R I B E ; S W I N O M I S H I

N D I A N T R I B A L C O M M

U N I T Y ; M U C K L E S H O O T I

ND I A N T R I B E , Plaintiffs-Appellees
,

v

.

S T A T E O F W A S H I

N G T O N , D efendant-Appellant. No. 13-35474

D.C. Nos. 2:01-sp-00001-RSM 2:70-cv-09213-RSM

ORDER AND AMENDED OPI NI ONU N I T E D S T A T E S V

. W A S H I N G T O N 2

Appeal from the United States District Court

for the W e stern District of W ashing ton Ricardo S. Martinez , Chief District J udg e, Presiding

Arg ued and Submitted October 16, 2015

Seattle, W a shing ton

F iled J une 27, 2016 Amended March 2, 2017

B efore: W illiam A. F letcher and Ronald M. Gould, Circuit J udg es, and David A. Ez ra, * District J udg e.

Opinion by

J udg e W

. F letcher

* T h e Ho n o rab l e D a v i d A

. Ezra, District J u d g e f o r th e U.S. District Co urt f o r th e District o f

Haw ai’ i, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. W A S H I N G T O N 3

SUMMARY * *

Tribal F ishing Rights

The panel amended the opinion filed on J une 27, 20 16; and affirmed the distri c t court’s order issuing an injunction directing the State of W ashing ton to c orrect culv e rts, which allow stream s to flow underneath roads, because they violated, and continued to violate, the Stevens Treati e s , which

were entered in 1854–55 between I n d ian tribes in the Pacific Northwest and the Governor of W ashing ton Territory

.

As part of the Trea t i e s, the Tribes relinquished larg e

sw a ths of land, watersheds, and offshore waters adjacent to those areas (collectively
, the “ Case Area”), in w hat is now the State of W a shi n gt o n. I n ex chang e, the Tribes were g uaranteed a rig

h t to eng ag e in off-reservation fishing

.

I n 1970, the United States broug ht suit ag ainst the State of W ashing ton on behalf of the Tribes to resolve a p ersistent conflict over fishing r ig hts; and in a 1974 deci s i o n , t he district court authoriz ed the part i e s to invoke its continuing jurisdiction to resolve continuing disputes.

The panel held that in buildi n g and maintaining barrier culverts within the Case Area, W ashing ton violated, and was

c o n t inuing to violate, its oblig ation to the T ribes under t h e Treaties. T he panel also held that because treaty rig h t s belong to the Tribes rather than the United States, it was not the prerog ative of the United States to waive them.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. W A S H I N G T O N 4

Concerning the St at e of W ashing ton’s cross-request seeking a n injunction that would require the United States to fix its culverts before W ashing ton repaired its culverts, the panel held that W ashing ton’s cross-request was bar r ed b y sovereig n immunity
, and W a shing ton did not have stand i n g to assert any treaty rights belong ing to the Tribes. Specifically
, the panel h eld that W ashing ton’s c r o ss-request for an injunction did not qualify as a c la i m f o r r ecoupment. The panel also held that the United S t a t e s did not waive its

own sovereign i m m unity by b ring ing suit on behalf of the Tribes. The p anel further hel d t hat any violation of the Treaties b y the United States v i o l ated rig hts held by the Tribes rather than the State, and the Tribes did not seek redress ag ainst the United States in this proceeding

.

The panel held that the distri c t court did not a buse its discretion in enjoining W ashing ton t o c o rrect most o f its h i gh

- priority barrier culverts within seventeen y ears, and to correct the remainder at the end of their natural life or in the

course o f a road const ruction project undertaken for independent r easons

. T he panel rejected W ashing ton’s objections that the injunction was too broad, that the district court did not defer to the State’s ex pertise, that the court did not properly consider costs and equitable principles, that the injunction imperm issibly intruded into state g overnment operations, and that the injunction was incon s i s tent with federalism principles.

Addressing the State of Washing ton’s p e tition for panel rehearing and for rehearing en banc, the p a n e l rejected W a shing ton’s argument that it should have been awarded, a s recoupment or set-off, a monetary award from the United States. T he panel a lso r ejected W ashing ton’s contention that because of the presence of non-state-owned barrier culvertsU N I T E D S T A T E S V

. W A S H I N G T O N 5

on the same streams as state-owned barrie r c u l v erts, the benefits obtained from remediation of state-owned culver t s would b e insufficient to justify the district court’s injunction.

COUNSEL

Noah G. Purcell (arg

ued), Solicitor General; L aura J

. W atson, Deputy Solicitor General; Robert W

. F erguson, Attorney General; J e ssica E. F og e l, Assistant Attorney General; Office of the A ttorney G eneral, Oly mpia, W ashing ton; for Defendant-Appellant State of W ashing ton.

J ohn C. Sledd (arg

ued), J ane G. Steadman, Cory J

. Albrig ht, and Philip E. Katz en; Kanj i & Katz en, PL L C, Seattle, W a shing ton; for Plaintiffs-Appellees.

David C

. Shilton (arg

ued), Vanessa B oy d W illard, a nd E vely n S. Ying
, A ttorney s; United States Department of J ustice, Environment & Natural Resources D ivision; W a shing ton, D.C., for Plaintiff-Appellee United States.

Pamela B

. L og insky
, W ashing ton Association of Prosecuting Attorney s, Oly

mpia, Washing ton; Doug las D. Shaftel, Pierce County De p u ty Prosecuting Attorney ; for Amicus Curiae W a shing ton State Association of Counties.

Ellen F

. Rose n b lum, Attorney G eneral; Anna M. J oy ce, Solicitor Genera l ; Michael A. Casper, Deputy Solicitor General; Stephanie L

. Striffler, Senior Assistant Attorney General; Oreg on Department of J ustice, Salem, Oreg on; for Amicus Curiae State of Oreg on.U N I T E D S T A T E S V

. W A S H I N G T O N 6

Colette Routel, Associate Professor and Co-Director, I ndian L aw Clinic, W illiam Mitchell Colleg e of L aw, S a i nt Paul, Minnesota, for Amicus Curiae I n dian L aw Professors.

Ama n d a W

. G oodin and J anette K. B rimmer, Earthjustice, Seattle, W ashing ton, for Amicus Curiae Pacific Coast F ed eration of F ishermen’s Associations and I nstitute for F isheries Resources.

Stephanie L

. Striffler, Senior A ssistant Attorney General; Michael A

. Casper, D eputy S olicitor General; Anna M. J oy ce, Solicitor General; Ellen F

. Rosenblum, Attorn e y General; O ffice of the Attorney General, Salem, Oreg on; for Amicus Curiae State of Oreg on.

Dale Schoweng erdt, Solicit or; Timothy C. F ox , Attorney General; Attorney General’s O ffic e, H e lena, Montana; for Amicus Curiae State of Montana.

Clay R. Smith, Deputy Attorney General; Cl i ve J

. Strong
, Chief of Natural Resources; L awrence G. W asden, Attorney General; Office of the Attorney Gene ra l
, B oise, I d aho; for Amicus Curiae State of I daho.

Dominic M

. C arollo, Y ockim Carollo L L P, Roseburg
, Oreg on, f

or Amici Curiae K l amath Critical H abitat L andowners I nc., Modoc Poin t I rrig ation D istrict, Mosby F amily Trust, Sprag ue River W a ter Resource F oundation I nc., and TPC L L C.U N I T E D S T A T E S V

. W A S H I N G T O N 7

ORDER

The opi n ion filed o n J une 27, 2016 is amended a s follows:

At 8 55 o f the published o p i n ion, U .S. v. W a shington
, 827 F .3d 836 (9th Cir. 2016), a d d the following sub h e a d i ng beneath “C. W ashing ton’s Cross-Request”:

“1. I njunction.”

On the same pag e, add “for an injunction” following “The district court struck the cross request . . .”.

At 855–56, chang e the numbering of the subheading s o f “Sovereig n I mmunity ” and “Standing ” from 1, 2 to a, b.

At 856, just above subsection D, add the following tex t:

2. Recoupment of Part of W ashing ton’s Costs

I n its Petition for Panel Rehearing and for Rehe aring E n B anc, filed after our opinion came down, see United States v

. W ashington
, 827 F .3d 836 ( 9th Cir. 2016), W ashing ton contends that we misconstrued its appeal of the district

c o u r t ’ s denial of its cross-request. W ashing ton writes in its Petition:

The Stat e ’ s o r i g inal [ c ross-request] soug ht

a variety of r em ed ies, including that the federal g overnment b e r equired to (1) pay part of the cost o f replaci n g state culverts that

were d esig ned to f

e d eral standards; (2) take actions on federal l a n d s to restore salmonU N I T E D S T A T E S V

. W A S H I N G T O N 8

ru n s ; and (3) replace federal culverts in W a shing ton. B ut on appeal, the State pursued only the first of these remedies.

W e d id not, and do not, s o u n d erstand the State’s appeal. Contrary to Washing ton’s statement, it did appeal the district court’s denial of its cross-request for an injunction requiring the United States to repair or replace the United States’ own b arrier culverts. I t did not a ppeal a denial of a request t h at the United States be r equired to pay part of its costs to repair or replace its culverts.

I n the district court, W ashing ton stated in the body of its cross-request that “[ t] he Un i t e d S t ates has a duty to p ay all
costs incurred by the State to identify and fix any an d a ll ba rr i er culverts.” B ut in its demand for relief, W ashing ton did n ot demand any monetary p ay ment from the United States, unless its boilerplate request (“The State o f W a shing ton further requests all other relief the Court deems just and equitable”) c ould be d eemed such a d emand. Not surprising ly
, in denying W ashing ton’s cross-r e quest, the district c ourt d id not discuss a demand for monetary pay ment from the United States. I n its brief to us, W ashing ton writes in the introduction th at the district court erred in denying its request to allow the State “ to re c oup some of the costs o f compliance from the United State s b e cause it specified the culvert desig n and caused much of the decline in the salmon runs.” B ut W ashing ton makes no a r g ument in the body of its brief that it should be allow e d t o recover from the United States a ny part of the cost to repair o r replace its own barrier culverts.

W h en c onsidering W ashing ton’s a ppeal, w e did not

u nderstand it to argue that it should have been awarded, a sU N I T E D S T A T E S V

. W A S H I N G T O N 9

recoupment or set-off, a monetary award from the United States. G iven W ashing ton’s failure to make this argument in the body o f its brief, t h e a r gument was waived. Smith v

. Marsh
, 1 94 F .3d 1045, 1052 (9th Cir. 1 999). However, g iven the vig or with w hich W ashing ton now makes the argu ment in its Petition for Rehearing a nd Rehearing En B anc, we think it appropriate to respond on the merits.

W a shing ton’s argument is easily rejected. As recounted above, a claim for recoupment must, inter alia
, “seek relief o f the same kind o r nature as the plaintiff’s suit

. ” Berrey
, 439 F .3d at 645. W ashing ton’s claim does not s a tisfy this criterion. Th e United States, the plaintiff, soug ht injunctive relief ag ainst W a shing to n

. W ashing ton soug ht a monetary award. These two forms of relief are not “of the same kind o r nature.”

At 859, just prior to the parag raph beg inning
, “W itnesses at trial. . .”, add the following tex t:

T he State contends that because of the presence of n o n

state-owned barrier culverts o n the s ame streams as stateowned barrier c ulverts, the benefit obtained from remediation of state-owned culverts wil l be insufficient to justify the district court’s injunction. The State writes:

[ S] tate-owned c ulverts are less than 2 5 % o f all known barrier culverts, and in some places,
non-state culvert s outnumber state-owned

c u lverts by a factor of 36 to 1. Any b en e f i t from fix ing a sta t e

- owned culvert will not be realiz e d if fish are b locked by other culverts in the same stream sy stem.U N I T E D S T A T E S V

. W A S H I N G T O N 10

There a

re several a

n swers to the State’s contention. F irst, it is true that in calculating whether a state culvert is a barrier culvert, a

nd in d etermining the priority fo r r e quiring remediation, the court’s injunction ig nores non-state barriers

on the same stream. B ut in so doing
, the court followed t h e practice of the state itself

. P a u l Sekulich, formerly division
manag er in the restoration d ivision in the habitat p rog ram o f the W a s h i n g t o n D epartment of F ish and W ildlife ( “W DF W ”), testified in the district court:

Q: W hen y ou calculate a priority index number for a [state-owned] culvert, do y ou account for the p resence of other fish passag e barriers in a watershed?

A:

. . . W hen the priority i n d e x is calculated, i t t reats those other barriers as transparent

. The reason we d o that, we d o n ’ t know when those other barriers a

re being c o r r e c ted. So by treating them as transparent, y o u do a p r iority index that looks at potential habita t g ain as if all those barriers would be c orrected at some point in time.

W a shing ton State law r equir e s that a “dam or other obstruction a cross or i n a stream” be constructed in such a

m a nner as to provide a “durable and efficient fis h w a y ” allowing p a ssag e of salmon. Wash. Rev. Code § 77.57.030(1). I f owners fail to construct or maintain proper fishway s, the Director o f W DF W may require them do so at their own ex pense. I

d. at § 77.57.030(2).

Second, in 2009, on streams where there were both state and n on-state barriers, 1,370 of the 1,590 non-state b arriers,U N I T E D S T A T E S V

. W A S H I N G T O N 11

or almost ninety p e rcent, were upstream of the state barrier culverts. Six ty nine percent of the 220 downstream non-state barriers allowed partial passag e of f ish. Of the 152 t hat allowed partial passag e, “passability ” was 67% f or 80 of the barriers and 33% for 72 of them.

Third, the specif

i c ex ample p rovided by the state is a culvert on the Middle F ork of W ildcat Cree k u n d e r State R oute 8 in Gray s H arbor County

. T he State is cor r e c t t h at there are 36 non-state barriers and only one sta t e barrier culvert on this creek. The State fails to mention, however, that all of the non-state barriers a r e upstream of the state culvert. F urther, it is apparent from the map in the d i s t r i ct court record that the nearest non-state barrier is almost a half mile upstream.

No new Petition for Panel Rehearing or Petition for Rehearing en B anc will be entertained

. P e n ding p e titions remain pending

and need not be renewed.

OP INION

W

. F L ETCHER, Circuit J udg e:

I n 1 854 and 1 855, I ndian tribes in the Pacific Northwest entered into a series of treaties, now k nown as the “Stevens Treaties,” n e g o t i ated by I saac I

. Stevens, Superintendent o f I ndian Affairs and Governor o f W ashing ton Territory

. Under th e S t e v ens Treaties (“Treaties”) at issue in this case, the
t r ibes relinquished larg e swaths of land west of the Casc a d e Mountains and north of the Columbia Rive r d r a i nag e area, including the Pug et Sound w atershed, th e watersheds of theU N I T E D S T A T E S V

. W A S H I N G T O N 12

Oly mpic Peninsula north of the Gray s Harbor watershed, a nd the offshore waters adjacent t o those areas ( collectively
, the “Case A rea”), in what i s n o w t h e State of W ashing ton. I n

ex c h a ng e for their land, the tribes were g uaranteed a rig

ht to off-reservation f

ishing
, in a clause that used essent i a l l y i d e ntical lang u ag e in each treaty

. The “fishing c lause”
g uaranteed “the rig h t of taking fish, at a ll usual a nd
accust o m e d grounds and stations

. . . in common with all citiz ens of the Territory .”

I n 2001, pursuant to an injunction p reviously entered in
t his long -running litig ation, twenty

- one I ndian trib e s (“Tribes”), joined by the U nited States, filed a “Request for Determination” — in effe c t , a complaint — in the federal district court for the W estern District o f W ashing ton. The Tribes include the Suquamish I n d ian Tribe, J amestown S’Klallam, L ower Elwha B and of Klallams, P ort Gamble Clallam, Nisqually I ndian Tribe, Nooksac k T r ibe, SaukS u i attle Tribe, Skokomish I ndian Tribe, Squax in I sland T r i b e , Stillag uamish Tribe, Upper Skag it Tribe, T u lalip Tribes, Lummi I ndian N ation
, Q uinault I n dian Nation, Puy allup Tribe, Hoh Tri b e , Confederated Tribes and B ands of the Yakama I ndian Nation, Quileute I ndian Tribe, Makah I ndian Tribe, Swinomish I ndian Tribal Community
, and the Muckleshoot I ndian Tribe. The Tribes contended that W a shing ton S t a

t e ( “ Wa shing ton” or “ the State”) had violated, and was continuing t o violate, the Treaties by b uilding a nd

ma i n t aining culverts that prevented mature salmon from returning from the sea to their spawning g rounds; prevented smolt (juvenile salmon) from moving downstream and out to
sea; and prevented v ery y oung salmon from moving freely to seek food and escape predators. I n 2007, t h e district court held that in building and maintaining these culverts W a shing ton had caused the siz e of salmon runs in the C a s eU N I T E D S T A T E S V

. W A S H I N G T O N 13

Area to diminish and that W ashing ton thereby violated its oblig ation u n d er the Treaties. I n 2013, the court issued an injunction orderi n g W a shing ton to correct its o ffending culverts.

W e affirm the decision of the district court.

I . Historical B ackg round

F or over a hundred y ears, there has been conflict b etween W as h i n gton and the Tribes over fishing rig hts under the Treaties. W e recount here some o f the most salient aspects o f this history

.

W h en w hite settlers arrived in the W ashing ton territory in the second half of the nineteenth century , many settled on riparian land and salt-water shor e line. Even thoug h the majority of these settlers were n ot themselves fishermen, they blocked access to many of the Tribes’ traditional fishing sites. B y the end o f the century , w hite c o mmercial fishermen were catching enormous quantities of s a l mon, first on the Columbia River and then in Pug et Sound as well, supply ing larg e -scale canneries.

I n 1 894, L

. T. Erwin, the United States I ndian Ag ent for the Yakimas, complained that whites had block e d a ccess to the I ndians’ “accustomed fisheries” on the Columbia River: “[ I ] nch by inch, [ the I ndians] have b e e n forced b ack until all the best g rounds have b een taken up by w hite men, who n ow

r efuse to allow them to fish in c ommon, as the t r e at y provides.” Report of the Secretary of the Interio r, 1894 (3 vols., Washing ton, D.C., 1894, I I
, 326). I n 1897, D. C. Govan, the Indian Ag e nt for the Tulalips on Pug et Sound reported that “ t h e Alaska Packing Company and otherU N I T E D S T A T E S V

. W A S H I N G T O N 14

cannery companies have practically appropriated all the best fishing g rounds a t Point Roberts and Villag e Point, w here the Lummi I ndians have bee n i n t he habit o f fishing from time im memorial.” Annual R eports o f the Department of the Interior, 1897: Report of the Commissioner of Indian Affairs (W ashing ton, D .C., 1897, 2 97). I n 1 905, Charles B uchanan, the new I n dian Ag ent for the Tulalips
, c o m p lained, “The tremendous development of the fisheries by traps and by trust methods o f c onsolidation, concentration, and larg e local development are seriously depleting the natural larders of our I ndians and c utting down their main reliance for support a nd subsistence. L iving f

or them i s b ecoming more precarious
y ear by y ear .” Annual Reports of the Department of the Interior, 1905: Indian Affairs (W ashing ton, D .C., 1906, Part I
, 362). During this period, “[ t] he superior capital, larg e-scale methods, and ag g ressiveness of whites

. . . quickly led to their domination o f the prime fisheries of the reg ion.” Donald L

. Parman, Inconstant Advocacy: The Erosion of Indian Fishing Rights in the Pacific Northwest
, 53 Pacifi c H i s t. Rev. 163, 167 (1984).

The United S t ates Supreme Court first addressed the conflict over fisheries in United States v

. W inans
, 198 U.S. 371 ( 1 905). T h e Winans brothers had acquired land at a prime Yakima fish i n g site on the W ashing ton side of the Columbia River. See Michael C. B lumm and J ames B runberg
, ‘Not Much Less Necessary

. . . T han the Atmosphere They Breathed’: Salmo n , Indian Treaties, and the Supreme Court — a Centennial Remembrance of United States v. W inans and Its Enduring Signific a n c e , 46 Nat. Resources J

. 489, 523 (2006). Under a n ex clusive l i ce nse from the State, the W inans e s o p e r ated “fish wheels” at the si te. F ish wheels were essentially mechaniz ed dip nets “capabl e o f catching salmon by the ton.” W ashington v

.U N I T E D S T A T E S V

. W A S H I N G T O N 15

W ash. State Commercial Passen g e r Fishing Vessel A ss’n
, 443 U.S. 658, 679 (1979). T he W inanses refused to allow the Yakimas to cross o ver or to camp on their land in order t o fish at the site.

The Yakimas had sig ned o ne o f the Stevens T r e at i e s in 1855. The United States broug ht suit ag ainst the W inanses

on the Y a kimas’ behalf. T h e Supreme Court held that the land o w ned by the Winanses, p reviously convey ed by patent from the g overnment, was by virtue of the treaty subject to an easement allowing acc e s s to the Y akimas’ “usual a nd accustomed” fishing si t e

. Th e Court held, f urther, that the State could not license the W inanses to “construct and use a device which g ives them ex clusive possession of the fishing places, as it is admitted a fish wheel does.” W inans
, 198 U.S.
at 3 82. See also Seufort Bros. Co. v. United States
, 249 U.S. 194 (1919) ( holding that the Yakimas had rig h ts under the treaty o n the Oreg on, a s well as the W a shing ton, side of the river).

I n 1915, Charles B u chanan, still the I ndian Ag ent f or the Tulalips, complained to the W ashing ton le gi s l a ture of the d iminished supply of salmon and the h arsh applicati o n o f W a shing ton’s fish and g ame laws ag a inst the I ndians. He
wrote:

[ M] ore r e cently
, the use o f larg e capital,

me c h anical assistance, numerous g reat traps, canneries, etc., and other activities allied to the f ishery industry
, have g r eatly lessened a nd depleted the I ndi an s ’ natural sources of food supply

. I n addition thereto the string ent a nd harsh application to I ndians of the State g ame and fish laws have m ade it still a ndU N I T E D S T A T E S V

. W A S H I N G T O N 16

increasing ly precarious for him to procure his natural foods in his natural way

. Rights of the Puget Sound Indians to Game and Fish
, 6 W a sh. Hist. Quart. 109, 110 (Apr. 1915).

The nex t y e ar, the W ashing ton Supreme Court upheld the sort of “string ent and harsh application

. . . of g ame and fish laws” of which B uchanan co m p l a i ned. I n State v

. Towessnute
, 1 54 P. 805, 806 (W ash. 1916), a member of the Yakima Nation named T o wessnute was charg ed with offreservation fishing without a license in a manner forbidden b y state law. T owessnute defended o n the g round that he was f i s h ing in the traditional manner at one the Yakimas’ usu al and accustomed places, and that he was entitled to do so under the trea t y a t issue in W inans

. Id. Characteriz ing the treaty as a “dubious document,” id.
, the W ashing ton Supreme Court rejected the defense:

The premise of I ndian sovereig n ty we reject. The treaty is not to be interpreted in that lig ht. At no time did our a

ncestors in g etting title to t his continent, ever r eg ard the a borig ines a s other than mere occupants . . . of the soil.

Id. at 807. The Court read the Supreme Court’s holding in W inans a s requiring easements across private land, but at the

same time as endorsing the authority of the state, throug h the

ex e r cise of i t s “police power,” to enact regulatory laws restricting I ndian fishing rig hts. Id. at 809. S ee also State v

. Alexis
, 1 54 P. 810 (W ash. 1 916) (holding the same under the Stevens Treaty

with the Lu mmi Tribe in Pug et Sound).U N I T E D S T A T E S V

. W A S H I N G T O N 17

Much tr a d itional I ndian f ishing was done with traps a nd
nets in rivers, catching mature salmon when they returned to their native habitat to spawn. W hite commercial fishermen, by contrast, often fished in salt w at er, using equipment that

m ost Indians could not afford and catching both matur e a n d immature salmon. B e g inni ng in the early 1900s, the State
regulated the salmon fishe r y i n Pug et Sound in such a way that I ndians who fished in rivers were increasing ly unable to

ex e r cise their off-reservation treaty r ig ht to fish in their usual and accust o m e d places and in their traditional manner. F o r

ex ample, in 1 907 the W ashing ton leg islature forbade all offreserva t i o n fishing above the tide line — by whites a nd I ndians alike — ex c ept by hook and line. W ash. Sess. L aws Ch. 247, Sec. 2 (1907).

I n 1934, W ashing ton voters adopted I nitiative 77, a

measure that limited off-reservation commercial fishing to certain portions of Pug et Sound and banned the use of fix ed
g ear, such as the “pound net, fish trap, fish w heel, scow fish wheel, set net, or a

ny fix ed appliance,” to catch salmonids. I nit. M e as ure No. 77, State of W ash. Voting Pamphlet 5 (Nov. 6, 1934). According to a report commissioned by the federal B ureau of I n dian Affairs, the passag e of I nitiative 77 “constituted a serious blow to the I ndian fishing being carried on at usual and accustomed g rounds”:

[ D] ue to their ex tremely limited financial
means, [ the I n dians’] g e a

r necessarily must be obtainable a t a minimum of ex pense. Generally speaking , the I ndians are unable to finance the purchase of other more ex pensive
g e ar and operating equipment, the use o f which was not entirely outlawed. I n order to continue to provide the necessities of life, theU N I T E D S T A T E S V

. W A S H I N G T O N 18

I ndians, as a result of the above c onservation statute, were literally forced to confine their fishing with such g ear to reservation waters. The fact that s u c h was the situation led to

c o n s i d e r a b l e a gi t a t i o n i n t h e P a c i f i c Northwest and especially in the [ S ] t a t e o f W a shing ton looking to the further curtailment of the Indians’ commercial fishery

.

Edward Swindell, R e

p o rt o n Source, Nature and Extent of Fishing, Hun t i n g

, and Miscellaneous Rights of Certain Indian Tribes in W

a shington and Oregon 95 (1942).

I n subsequen t y ears, the State continued to assert authority to regulate off-reservat ion fishing by I ndians, including a

uthority to require purchase of fishing licences. I n 1939, Sampson Tulee, a Yakima I ndian, was cr i minally charg ed w ith off-reservation c ommercial fishing with a dip
net on the Columbia River without a st a t e license. Citing Towessnute a

nd A lexis
, the W ashing to n Supreme Court affirmed the conviction as a valid ex e r c ise of the State’s police powers. W

a s h i ngton v. Tulee
, 109 P.2d 280, 287 (W ash. 1941) ( “W ashing ton enjoy s to the full the ex ercise o f its police powers.”). The U n i t e d States Supreme Court reversed. The Court held that while the State had the power, consistent with the treaty , to regulate fishing by both I n dians and non-I ndians to the deg ree “necessary for the conservation of fish,” the ex action of a license fee “cannot be r e c o nciled with a fair construction of the treaty .” Tulee v. W a shington
, 315 U.S. 681, 684–85 (1942).

After Tulee
, state officials c o ntinued to e nforce restrictions on off-reservation fishi n g b y Pug et SoundU N I T E D S T A T E S V

. W A S H I N G T O N 19

I ndians, even when that fishing w as c onducted a t the I n dians’ usual and accustomed places:

Over the y ears the state f ish and g ame

a u thorities have asserted that I ndian trea t y

prot e c t e d f

i s h i n g e x i s t s o n l y on the

reserva t ions, and have acted to enforce this position. I njunctions a g ainst o ff-reservation fishing by I n dians of the Nisqually
, Puy allup, and Muckle s h oot tribes have been o btained and enforcement actions car ri e d out even while the i n

j unctions are being contested in the courts. A rrests of fishermen a nd confiscation of g ear have seriously hampered the Indians. Valuable g ear held by the state a s evidence can e ffectively p ut the fisherman out of b usiness during several runs of fish, even thoug h he may

eventually

win his case.

W a lter Taylor, Uncommon Controversy: F i s h i n g R i g h t s o fthe Muckleshoot, Puyallup, a nd Nisqually Indians 60 (1970). A s

a result of the State’s hostility to off-reservation fish i n g , the I ndians’ share of the overa l l catch was relatively small. F o r

ex ample, from 1958 throug h 1967, the shares of the tot al salmon catch in P ug et Sound were 6 % for I ndian fishing
, 8.5% for sports f

ishing
, and 85. 5 % for commercial fishing

. Id. at 123, 126.

B e g inning in the early 1960s, the Stat e substantially increased its enforcement ag ainst off-reservation fi s h i ng in Pug et Sound. See generally B radley G. Shreve, “From Time Immemorial”: The Fish-in Move m e n t and the Rise of In t e r t r ibal Activism
, 78 Pacific Hist. Rev. 403, 411–15 (2009). I n response, in 1 964 the National I ndian YouthU N I T E D S T A T E S V

. W A S H I N G T O N 20

Council org aniz ed a larg e demonstration in Oly mpia t o demand that the State acknowledg e their treaty fishing rig hts. See Uncommon Cont r o v e rsy , supra , at 107–13. During the 1 9 6 0 s and early 1970s, in what came to be called the “ f i s h wars,” some I ndians f

ish e d openly and without licenses in “fish-ins” to bring a ttention to the State’s prohibitions ag ainst off-reservation fishing

. State reaction to the “fi s h -i ns” someti m e s led to violence. See, e.g. , Associated Press, “Shots F ired, 60 Arrested in I n d i an-F ishing Showdown,” Seattle Times
, S e p t. 9, 1970; Alex Tiz on, “The B oldt Decision / 25 Years — The F ish Tale That Chang ed History
, ” Seattle Times
, F eb. 7, 1999 (describing the State’s “military

sty le campaig n,” employ ing “surveillance planes, hig h

powered b oats and radio communica t i o ns,” as well as “tear
g as,” “billy

clubs,” and “g

uns”).

I n 1970, in an effort to resolve t h e p ersistent conflict between the State and the I ndians, the United States broug ht suit ag ainst the State on behalf of the Tribes. T h e d i s p ute now before us is part of that litig ation.

I I

. Anadromous F isheries and W ashing ton’s B arrier

Culverts

Anadromous fish, such a s salmon, hatch and spend their early lives in fresh water, mig rate to the ocean to mature, a nd
return to their waters of orig in to spawn. W ashing ton is home
to several anadromous f

isheries, of which the salmon fishery is by far the most important. Be f o r e the arrival of white settlers, re t u rning salmon were abundant in the streams a nd rivers of the Pacific Northwest. Present-day I ndian tribes in the Pacific Northwest eat salmon as an important part of their diet, use salmon in relig ious a nd cultural ceremonies, a

nd fish for salmon commercially

.U N I T E D S T A T E S V

. W A S H I N G T O N 21

Roads often cross streams that salmon a nd other anadromous fish use for spawning

. Road builders construct culverts to allow the streams t o f l ow underneath roads, but

m any c ulverts do not allow fish to pass easily

. Somet i m e s they do not allow f

ish p assag e at all. A “barrier culvert” is a culvert that inhibits or p revents fish passag e. Road b uilders

can avoid constructing bar r i e r culverts by building roads
away f rom streams, by build i n g b ridg es that entirely span streams, or by building culverts that allow unobstructed fish
passag e.

F our state ag encies are responsible fo r b uilding a nd managi n g W ashing ton’s roads and the culverts that p ass under them: W ashing ton State Department of Transportation (“W SDOT”), W ashing ton State Depart m e n t of Natural Resources (“W SDNR”), W ashing ton State Parks a nd Recreation Commission (“State Parks” )
, and W ashing ton Department of F isheries and W ildlife ( “W DF W ”). Of these, W SDOT, the ag ency r esponsible for W ashi ng ton’s hig hway s, builds and maintains by

far the most roads and culverts.

I I I . Earlier Proceeding s

I n 1970, the U n i ted States, on its own behalf a nd a s t ru s t ee for Pacific Northwest tribes, sued W ashing ton in federal court in the W estern District of W ash i n gt o n

. The United States soug ht declaratory and injunctive relief based

on the f ishing clause of the Treaties. United States v. State of W ashingto n , 384 F

. Supp. 312, 327–28 (W .D. W ash. 1 974) (“ W ashington I

”)

. I n w h a t has come to be known as the “B oldt decision,” District J udg e G eorg e H. B oldt divided the

case into two phases. Phase I was to determine what portion, if any , o f annually harvestable fish w ere g u aranteed to the Tribes by the fishing clause

. P h a s e I I was to determineU N I T E D S T A T E S V

. W A S H I N G T O N 22

whether the fishing clause ex tends to hat c h e ry fish, a nd whether it r equires W ashing ton to prevent environmental deg radation within the Case Area.

I n Phase I , J udg e B oldt held that the phrase “the rig ht o f taking fish

. . . in common with all citiz e ns” g ives the Tribes the rig ht to take up to fifty percent o f the harves t a b l e fish in the Case Area, subject to the rig h t of non-treaty fishers to do the same. Id

. a t 3 4 3

. The Supreme Court affirmed in W ashingt o n v. W

ashington S

tate Commercial Passenger Fishing V

essel Ass’n
, 4 43 U.S. 658 (1979) ( “Fishing Vessel ”). The Court specified that fifty p ercent was a c eiling rather than a floor, and that the fishing clause g uaranteed “so much a s, but n o more than, is necessary to provide the I ndians with a livelihood—that is to say , a moderate living

. ” Id. at 686. I n accordance wit h i t s s tandard p ractice o f interpreting I n dian t r e at ies in favor of the tribes, the Court interprete d the clause a s promising protection for the tribes’

s u p p l y o f f

ish, not merely their share of the fish. The Court
wrote:

Governor Stevens a nd his associates were well aware of the “sense” in which the I ndians

were likely to view assurances reg arding their fi s h i n g rig hts. During the neg otiations, the vital importance o f the fish to the I ndians was repeatedly

emphasiz ed by

both sides, and the Governor’s promises that the treaties would protect that source of food and commerce were crucial in obtaining

the I ndians’ assent.

Id. at 676.U N I T E D S T A T E S V

. W A S H I N G T O N 23

I n 1976, the United S t a t e s initiated Phase I I of the litig ation, asking for a declaratory judg ment clarify ing the Tribes’ rig h ts with respect to the “hatchery f ish” issue and to the “ environmental” issue

. U nited States v. State of W ashington
, 506 F

. Supp. 187, 194 ( W .D. W ash. 1 980) (“ W ashington II

”). The district court held, first, that hatchery fish must be included in d e t e rmining the share of fish to which the Tribes are e ntitled. Id. at 197. I t held, second, that the Tribes’ r ig ht to “a suffi ci e n t quantity of fish to satisfy their moderate living needs” entailed a “rig ht t o have the fishery h a b i tat protected from man-made despoliation.” Id. at 208, 203.

Sitting en banc, we affirmed in p a r t a n d vacated in part. United S tates v

. S tate of W a shington
, 759 F .2d 1353 (9th Cir. 1985) (en banc) (“ W

ashington III

”). W e affirmed the district court’s decision that hatchery f i s h m u st be included in determining the share of salmon to be allocated to the Tribes:

The hat c hery prog rams h ave served a mitig ating f

unction since their i n c e ption in 1895. They are desig ned essenti al l y to replace natural f

ish lost to n o n-I ndian d e g r a d a t i o n o f t h e h a b i t a t a n d commercializ ation of the fishing industry

. Under these circumstances, i t is only just to consider such replacement f ish a s subject to treaty allocation. F or the tribes to bear the full burden of the decline caused by their nonI n d i a n n e i gh b o r s w i t h o u t sha r i n g t h e replacement achieved throug h the hatcheries,U N I T E D S T A T E S V

. W A S H I N G T O N 24

would be an inequity and inconsistent with the Treaty

.

Id. at 1360 (citations omitted).

W e vacated the court’s d e c ision on the environmental issue. W e held that the issue was too broad and varied to be resolved in a g eneral and undifferentiated f a s h ion, and that the issue o f hu man-caused environmental deg radation must be resolved in the contex t of particulariz e d dis p u t e s

. W e wrote:

W e choose to rest our decision in this case on t h e p r o p o s i t i o n t hat iss u an c e o f t h e declaratory j udg ment on the environmental issue is c o n trary to the e x ercise of sound j udicial discretion. The leg al standards tha t will g o vern the State’s p recise oblig ations a nd duties under the t r e a t y with respect to the
my riad State actions t h a t may affect the environment o f the treaty a rea will depend for their definition and articulation upon concrete facts w hich un derlie a dispute in a particula r

case.

Id. at 1 357. Althoug h we vacated the district court’s decision with respect to th e environmental issue, we made clear that

we w ere not a

bsolving W a shing ton of environmental oblig ations under the fishing clause. W e concluded the section of our opinion devoted to the environmental issue b y emphasiz ing that W ashing ton “is bound by the treaty .” Id.

J udg e B oldt’s 1974 de cision authoriz ed the p arties to i n voke the continuing jurisdiction of the district court t oU N I T E D S T A T E S V

. W A S H I N G T O N 25

resolve disputes “concerning the subject matter of this case.” W ashington I

, 384 F

. Supp. at 419; see also United States v. W ashington
, 573 F .3d 701, 705 (9th Cir. 2009). F or such disputes, the court directed the p arties to “file with the clerk of this court

. . . a ‘Request for Dete r m i n a t i o n ’ setting forth the factual nature o f the request and any leg a l authorities a nd
argument which may assist the court, along with a statement that unsuccessful efforts have b een made by the pa rties to resolve the matter, whether a h e a ring is required
, a n d any fa c t o r s which bear on the urg ency of the request.” W ashington I

, 384 F

. Supp. at 419.

I n 2 001, the Tribes filed a Request for Determination (“Request”), seeking “to e nforce a duty upon the State o f W a shing ton to refrain from constructing and maintaining

cu lverts under State roads that deg r ade fish habitat so that adult fish p roduction is r educed

. ” The Tribes soug ht a permanent injunction from the distric t c o urt “requiring W a shing ton to identify and then to open culverts under state roads a nd hig h way s that obstruct fish pass a ge , f or fish r uns returning to or passing throug h the usual and a c c ustomed
g rounds and stations of the plaintiff tribes.”

The United S t a t e s joined the Tribes’ Request, seeking a declaration from the court that:

T he rig ht o f taking fish secured t o t h e plaintiff tribes in the Stevens Treaties imposes

a duty upon the State of W ashing ton to refrain from deg rading the fishery r esource throug h the construction or ma i n tenance of culverts under State owned roads and hig hway s in a way that deprives the Tribes of a moderate living from the fishery

.U N I T E D S T A T E S V

. W A S H I N G T O N 26

The Stat e h as violated and continues to violate the d u t y owed to the plaintiff tribes

u nder the Stevens Treaties throug h th e operation and maintenance of culverts which reduce the number of fish that wo uld otherwise return to or pass throug h the Tribes’ usual an d accustomed fishing g rounds a nd stations to such a deg ree as would deprive the Tribes of the ability to earn a moderate living from the fishery

.

The United States soug ht a permanent injunction that would

r e q u ire W ashing ton “within five y ears of the date o f judg ment (or such other time period as the Court deems
necessary a

nd just)” to “repair, retrofit, maintain, or replace” culverts that “degrade appreciably ” the passag e of fish.

W a shing ton and the defendant state ag e n cies ( collectively “W a shing ton” or “the State”) answered b y d e claring that there is “no treaty -based rig ht or duty of fish h a b i tat protection as described” in the Request. I n the alternative, W a shing ton emphasiz ed that some of its barrier culverts p ass under hig hway s f

unded in part by the U nited States, and that these hig hway s were “desig ned according to standards set o r

a p proved” b y the F ederal Hig h way Administration, leading W a shing ton to believe that its culverts compl i e d w ith the Treaties. F urther, W ashing ton asserted that the United States

an d t he Tribes have built a nd maintained barrier culverts on their own lands within the Ca s e A r ea. W ashing ton asserted that the U nited States “ has a d uty to take a ction on i t s o wn lands so as not to place on the State of W ashing ton an unfair burden of comply

ing with any such treaty -based duty .”U N I T E D S T A T E S V

. W A S H I N G T O N 27

W ashing ton also made a “cross-request”

— in effect, a counterclaim — ag ainst the Unite d S t ates seeking a declaration that the United States has violated its own duty to the Tribes under the Treaties, and seeking an injunction that would require the United States to modify or replace its o wn barrier culverts. The district court dismissed the crossrequest on the g rou n d t hat the United States had not waived its sovereig n immunity

. T he court later denied W ashing ton’s request to file an amended cross-request on the a d d itional
g round that W a s h i n g ton did not have standing

. I t wrote, “[ T] he State may not assert a treaty -based claim on behalf o f the Tribes.

. . . The d e c i s ion as whether and when to assert that claim ag ainst the United States is for the Tribes alone.”

The district court g ranted summary judg ment in favor of the Tribes and the United States, concluding that the dispute involved the kind of “concrete facts” tha t w er e lacking in W ashington III

. The court held, f

irst, that “the rig ht of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon [ W ashing ton] to refrain from building or operating culverts under State-maintained roads that hi n d e r fish passag e and thereby d iminish the number of fish that would otherwise be available for Tribal ha r v e s t.” I t held, second, that “the State of W ashing ton currently owns and operates culverts that violate this duty .”

The district court conducted a bench trial in 200 9 and 2010 to determine the appropriat e re medy

. After failed efforts t o reach a settlement, the court issued both a Memorandum and Decision and a Permanent I njunction. I n its Memorandum and Deci s i o n , issued in 2013, the court found that Governor Stevens had assured the Tribes that they would have an adequate supply of salmon forever. The court wrote:U N I T E D S T A T E S V

. W A S H I N G T O N 28

During the neg otiations lead i n g up to the sig ning of the treaties, Governor I saac Stevens and other neg otiators a ssur ed the Tribes o f their continued access to their u sual fisheries. G overnor Stevens assured the Tribes that e v e n after they ceded huge quantities of land, they would still be able to f

ee d themselves and their families forever. As Govern o r Stevens stated, “I want that you shall not have simply food a nd drink now but that you may have them forever.”

(Emphasis added.)

The court found that salmon stocks in the Case Area have declined “alarming ly ” since the Tre aties were sig ned, a nd “dramatically

” since 1985. The court wrote, “A primary cause of this decline is habitat deg radation, both in breeding habitat (freshwater) and feeding habita t (freshwater a nd marine a reas)

. . . . One cause of the d eg rada tion of salmon habitat is

. . . culverts which do n ot allow the free passag e o f both adult and juvenile salmon upstream and down s t r eam.” The “consequent reduction in tribal harvests has da mag ed tribal e conomies, has left individual tribal members unable to

earn a living by f

i shing
, and has c aused cultural and social harm to the Tribes in addition to the economic harm.”

The d istri ct court entered a Permanent I njunction on the

same day it issued its Memorandum and Decision. The court ordered the State, in c onsul tation w ith the Tribes and the United States, to prepare withi n s i x months a current list o f all state-owned barrier c u lverts within the Case Area. I t ordered W SDNR, State Parks, and W DF W to correct all their barrier culverts on the list by t h e end of October 2016. I tU N I T E D S T A T E S V

. W A S H I N G T O N 29

ordered W SDOT to correct many of its barrier culverts within
seventeen y ears, and to correct the remainder only at the e nd of the culverts’ na t u ral life or in connection with independently undertaken hig hway projects. W e pro vide a more detailed description of the injunction below.

I V. Standard of Review

W e review de novo d i s missals for want of jurisdiction under Rule 12(b)(1) and for failure to state a cl ai m u n der Rule 12(b)(6). Rhoades v. Avon Products
, I nc ., 504 F .3d 1151, 1156 (9th Cir. 2007). W e also review de n ovo a g rant

or denial of summary judg ment. S c o tt v. Pasadena Unified Sch. Dist.
, 3 06 F .3d 646, 652 (9t h Cir. 2002). We r eview permanent injunctions under three standards: we r eview factual finding s for clear e r ror, leg a l conclusions de novo, a nd the scope of the injunction for a b u se of discretion. Id

. at 653.

V. Discussion

W a shing ton objects to the decision of the district court on

a number o f g rounds. I t objects to t h e c ourt’s interpretation of the Stevens Treaties, contending that it has no treaty -based duty to refrain from building and maintaining barrier culverts;
to the overruling of its w aiver defense; to the dismissal of its cross-request ag ainst the U nited States; and to the injunction. W e take the State’s objections in turn.

A . W ashing ton’s Duty un der the Treaties

The fishing clause o f t he Stevens Treaties g u arantees to the Tribes a rig ht to eng ag e in off-reserv ation fishing

. I t provides, in its entirety :U N I T E D S T A T E S V

. W A S H I N G T O N 30

The rig ht of taking fish, at a ll usual a n d accustomed g rounds and stations, is f urther secured to said I ndians, in c ommon with all citiz ens of the Territory
, a n d of erecting temporary houses for the p urpose of curing, tog ether with the privile ge of hunting
, g athering roots a

n d berries, and pasturing their horses o n open a

n d u n c l a imed lands: Provided, however
, That they shall not take shell fish from any beds staked or cultivated by citiz ens.

Fishing Vess e l
, 443 U .S. at 674 (emphasis in orig inal). W a shing ton concedes that the c lause g uarantees to the Tribes the rig h t to take up to fifty percent of the fish avail a b le for harvest, but it contends that the clause imposes no oblig ation

on the State to ensure that any fish will, in fact, be available.

I n its brief to us, W ashing ton denies a ny treaty -based duty to avoid blocking salmon-bearing streams:

[ T] he Tribes here argue for a treaty rig ht that finds no basis in the plain la n gu ag e o r historical interpretation of the treaties. On its fa c e , the rig ht o f taking fish in common with all citiz ens does not include a rig ht to prevent the State from making land use decisions that could incidentally impact fish. Rather, such

a n i nterpretation is c ontrary to the treaties ’ principal purpose of o pening up the reg ion to settlement.

B r i ef at 27–28. At o ral argument, W ashing ton even more forthrig h tly denied any treaty

- based duty

. W a shing tonU N I T E D S T A T E S V

. W A S H I N G T O N 31

contended that it has the rig ht, consistent with the Treaties, to block every salmon-bearing stream feeding into Pug et Sound:

The Cour t : W ould the State h ave the rig ht, consistent with t h e t reaty , to dam every salmon stream into Pug et Sound?

Answer: Y o u r honor, we would never a nd could never do that. . . .

The Cou r t :

. . . I ’m asking a different question. W ould y ou have the rig ht to do that under the treaty ?

Answer: Your honor, the tre a t y would not prohibit that[

. ]

The Court: So, let me make sure I understand
y our answer. You’re sa y i ng , c onsistent with the treaties that G overnor Stevens entered into with the Tribes, y ou could block every salmon stream in the Sound?

Answer: Your honor, the treaties would n ot prohibit that[

. ]

Oral Arg ument at 1:07–1:45, October 16, 2015.

The State misconstrues the Treaties.

W e h ave long cons trued treaties b etween the United States and I ndian tribes in favor of the I ndians. Chief J u stice Marshall w rote in the third case of the Marshall Trilog y , “The lang uag e used in treatie s w ith the I ndians should never beU N I T E D S T A T E S V

. W A S H I N G T O N 32

construed to their p r ejudice.” W orcester v. Georgia
, 31 U.S. 515, 582 (1832). “I f w ords be m ade use of which a re susceptible o f a m o r e ex tended meaning than their plain import, as c onnected with the tenor of the treaty , they should be considered as used only in the latter sense.” Id.

Neg otiations for the Stevens Treaties were conducted in the Ch i n o o k lang uag e, a trading jarg on of only about 300 words. Fishing Vessel
, 4 43 U.S. at 667 n.10. The Treaties

were w ritten in Eng lish, a languag e the I ndians could neither read n or w rite. B ecause treaty n eg o tiations with I ndians were conducted by “representatives skilled in diplomacy ,” because
neg otiators repre s e n t ing the U nited States were “assisted b y

. . . interpreter[ s] employ ed by t h e m selves,” b ecause the treaties were “drawn u

p by [ the n eg o tiators] and in their o wn lang uag e,” and because the “only knowledg e of the terms in which the treaty is framed is that imparted to [ the Indians] b y the interpreter employ ed by the U nited States,” a “ treaty must

. . . be construed, not according to the technical meaning o f its words to learned lawy ers, but in the sense i n wh i ch they would n aturally be understood by the I ndians. ” J o nes v

. Meehan
, 175 U.S. 1, 11 (1899). “[ W ] e w ill construe a treaty with the Indians as [they ] understood it, and as justice a nd

reason demand, in all cases where power is e x e rt e d by the strong over those to whom they owe care and protection, a nd counterpoise the inequality by the superior j u s t i ce which looks only to the s u b s tance o f the rig h t, without reg ard to technical rules.” United States v. W inans
, 198 U.S. 371, 380 (1905) ( i n t ernal q

u otation marks omitted). “[ W ] e look bey ond the written words to the larg e r contex t that frames the Treaty
, including t h e h istory of the treaty , the neg o tiations, and the practical construction adopted by the parties.” Minnesota v. Mille Lacs Band of Chippewa Indians
, 5 26 U.S. 172, 196 (1999) (internal quotation marks omitted).U N I T E D S T A T E S V

. W A S H I N G T O N 33

The Supreme Court h as interpr e t e d the Stevens Treaties

on several occasions. I n affirmin g J u d g e B oldt’s decision, the Court wrote:

[ I ] t is the intention of the parties, and not solely that of the superior side, that must

c o ntrol any attempt to interpret the treaties

. W h en I ndians are involved, t his Court has long g iven special meaning to this rule. I t has held that the United S t a tes, a s the party with the presumpt i vely superior neg otiating skills and superior knowledg e of the lang u a ge in which the treaty is recorde d
, h as a responsibility to avoid taking advantag e of the oth e r side. “ [ T] he treaty must therefore be

con s trued, not according to the technical meaning of it s words to learned lawy ers, but in the sense in which they would naturally be understood by the I ndians.” Jones v. M eehan
, 175 U.S. 1, 11. T h is rule, in fact, has thrice been e x p l icitly r elied o n by the Court in broadly interpreting these v ery t r eaties in the I ndians’ favor. Tulee v. W ashington
, 3 15 U.S. 681 [ 1 947] ; Seufort Bros. Co

. v. United States
, 249 U.S. 194 [ 1919] ; United States v

. W inans
, 198 U.S. 371 [ 1 905]

. See also W ashington v. Y

akima I ndian N ation
, 439 U.S. 463, 484 [ 1979]

. Fishing Vessel , 443 U.S. at 675–76.

W a shing ton has a remarkably o n e-sided view of the Treaties. I n its brief, W ashing ton characteriz es the “treaties’ principal purpose” as “opening u p the reg ion to settlement.”U N I T E D S T A T E S V

. W A S H I N G T O N 34

B rief at 29. Opening up the Northwes t f o r w h ite settlement

was indeed the principal purpose of the United States. B ut it

was most certainly not the principal purpose of the I ndians. Their principal purpose w as to secure a means of supporting themselves once the Treaties took effect.

S a lmon w ere a central concern. An adequate supply o f salmon was “ not much less necessary to the ex istence of the I ndia n s than the atmosphere they breathed.” W inans
, 198 U .S. at 381. Richard W hite, a n ex pert o n the history o f the American W est and Professor of A merican H istory at Stanford University
, wrote in a declaration filed in the district
court that, during the neg otiations for the P o i n t

- No-Point Treaty
, a Skokomish I ndi a n w o r ried aloud about “how they

were to feed themselves once they ceded so much land to the whites.” Professor W hite wrote, to t h e same e ffect, that during neg otiations at N eah B ay , Makah I ndians “raised
q u e stions a

bout the role that fisheries were to play in their future.” I n response to these concern s , Governor Stevens repeatedly assured the I ndians that there alway s would be an adequate supply of fish. Professor W hite wrote that Stevens told the Indians during neg otiations f o r the Point Elliott Treaty
, “ I w ant that y ou shall not have simply food and drink

now but that y ou may h a v e them forever.” During
neg otiations for the Point-No-Point Treaty
, Stevens said, “This paper is such a s a m a n would g ive to his children a nd I w ill tell y ou why

. This paper g ives y ou a h ome. D oes not

a father g ive his children a home?

. . . This paper secures y our fish. Does not a father g ive food to his chi l d r e n ? ” Fishing Vessel , 443 U.S. at 667 n.11 (ellipsis in orig inal).

The Indians did not understand the Treaties to p romise that they would have a ccess to their u sual and accus t o m e d fishing p l a c e s , but with a qualification that would allow theU N I T E D S T A T E S V

. W A S H I N G T O N 35

g overnment to diminish or destroy the fish runs. Governor Stevens did n ot make, and the I ndians did not understand him
to make, such a cy

nical a nd dising enuous promise. The I ndians reasonably understood Governor Stevens to p romise
not only that they would h ave access to their usual a nd accustomed fishing p laces, but also that there would b e fish sufficient to sustain them. They reasonably un derstood that they would h ave, in Stevens ’ words, “food and drink

. . . forever.” As the Supreme Court wrote in Fishing Vessels :

Governor Stevens a

nd his associates were well aware of the “sense” in which the I ndians

were likely to view assurances reg arding their f ishing rig hts. During the neg otiations, t h e vital importance o f the fish to the I ndians was repeatedly

emphasiz ed by

both sides, and the Governor’s promises that the treaties would protect that source of food and c o m merce

w ere c rucial in obtaining the I ndians’ assent

. I t i s absolutely c lear, as Governor Stevens himself said, that neither h e n or the I ndians intended that the l a t t e r should be ex cluded from their ancient fisheries, and it is according ly inconceivable that either party deliberately ag reed to authoriz e f uture settlers
to c rowd the I ndians out o f any meaningful

use of their accustomed places to fish.

Id. at 676–77 (citations and internal quotation marks omitted) (emphases added).

Even if Governor Stevens had not ex plicitly promised that “this p aper secures y our fish,” and t h a t t h e re would be food “forever,” w e would infer su ch a promise. I n W inters v

.U N I T E D S T A T E S V

. W A S H I N G T O N 36

United States
, 207 U.S. 564 ( 1908), t he treaty creating the F ort B elknap Reservation in Montana d i d not include an

ex p licit reservation of water for use on the reserved lands, but th e S upreme Court inferred a reservation of water sufficient
to support the tribe. The purpose of the treaty was to reserve land on which the I ndians c o u ld become farmers. Without a reservation of w ater, the “lands were arid, and

. . . practically valueless.” Id. a t 5 7 6

. “[ B ] etween two inferences, one o f which wou l d support the p urpose of the ag reement and the other impair or defeat it,” the Court chose the former. Id. at 577.

Similarly
, in United States v. A dair
, 723 F .2d 1394 (9th Cir. 1983), the Klamath Tribe in Oreg on had entered into an 1854 treaty under which it relinquished 12 million acres, reserving for itself approx imately 800,000 acres. The treaty p r omised that the tribe w ould have the rig ht to “ hunt, fi s h
, and g ather on their reservation,” id. a t 1398, but c ontained no

ex p licit r e servation of water rig hts. A p rime hunting a nd fishing a rea on the reservation was the Klamath Marsh, whose suitability for hunting and fishing depended o n a flow of water from the W illiamson River. A pr imary purpose o f the treaty was to “secure to the Tribe a continuation of its traditional hunting and fishing ” way of living

. Id. at 1409. B ecause g ame and fish at the Klamath Marsh depended on a continual flow of water, the treaty ’s p urpose would have been defeated without that flow. I n order to “support the purpose of the ag reement,” W

inters
, 20 7 U

. S

. at 577, we inferred a promise of w a t er sufficient to ensure an adequate supply o f
g ame and fish. A dair , 723 F .2d at 1411.

Thus, even if Governor Stevens had made no ex plicit promise, we would infer, as in W inters and Adair
, a p romise
to “ support the purpose” of the T reaties. That is, e ven in theU N I T E D S T A T E S V

. W A S H I N G T O N 37

absence of an ex plicit promise, we would infer a promise that
t h e n u mber o f fish w ould alway s be sufficient to provide a “moderate living ” to the Tribes. Fishing Vessel
, 4 43 U.S. at 686. J ust as the land on the B elknap Reservation would have been worthless without water to irrig ate the arid land, and just

as the rig ht to hunt and fish on the Klamath Marsh would hav e b e e n worthless without w ater to provide habitat for
g ame and f

i s h
, the Tribes’ rig h t of access to their u sual a nd

accus t o m ed fishing places w ould be worthless without harvestable fish.

I n W a shington III

, w e v acated th e district court’s declaration of a broad and undif f e rentiated oblig ation to prevent environmental deg radation. W e did not dispute that the State had environmental oblig ations, but, in the ex ercise of discretion under the Declar a t o r y J udg ment A ct, we declined to sustain the sweeping d eclaratory judg ment issued by the d istrict court. W e w rote, “The leg al standards that will
g overn the State’s precise oblig ations and duties under the treaty w ith respect to the my riad State actions that may affect the e nvironment of the treaty area will depen d f or their definition and articulation upon concrete facts which underlie

a dispute in a particular case.” W ashington III

, 759 F .2d at 1357.

W e concluded:

The State of Washing ton is bound b y the treaty

. I f the State acts for th e primary
purpose or o b

ject of affecting or regulating the fi sh supply o r catch in noncompliance with the treaty as interpret ed b y past decisions, it will b e subject t o immediate

co rr ection and remedial action by the c ourts.U N I T E D S T A T E S V

. W A S H I N G T O N 38

I n other instances, the measure of the State’ s obli g ation will depend for its precise leg al f o r mulation on all o f the facts presented by a particular dispute.

Id

. There is no alleg at i o n in this case that in building a nd maintaining its b a rrier culverts the State has acted “for the primary p u rp o s e or object of affecting or reg ulating the fish supply or catch in noncompliance with the treat y .” The
consequence of building and maintaining the barrier culverts has been to diminish the supply of fish, but this consequence

was not the State’s “primary purpose or obje c t

. ” The “measure of the State’s oblig ation” therefore depends “on all the facts presented” in the “particular dispute” now b efore us.

The facts presented in the dis t r i c t court establish that W a shing ton h as acted affirmativel y t o build and maintain barrier c ulverts under i t s roads. The State’s barrier culverts within the Case Area block approx imately 1,000 linear miles of streams suitable f

or salmon habitat, c omprising almost 5 million square meters. I f these cu lverts were replaced o r

mo dified to allow free passag e of fish, several hundred thousand additional mature salmon w ould be produced every y ear. Many o f these mature salmon would be available to the Tribes for harvest.

Salmon now available f

or harvest are not sufficient to provide a “ mode r a t e living ” to the Tribes. Fishing Vessel
, 443 U.S. at 686. The district court found that “[ t] he reduced abundance of salmon and the c o n s equent reduction in tribal harvests has damag ed tribal economies, has left individual tribal members unable to e a r n a living by fishing
, a nd has caused cultural and social harm to th e T ribes in addition to the economic harm.” The court found, further, that “[ m] anyU N I T E D S T A T E S V

. W A S H I N G T O N 39

members of the Tribes would eng ag e in more c ommercial a nd subsistence salmon fisheries if more fish were available.”

W e therefore conclude that in building and maintaining barrier culverts within the Case Area, W ashing ton has violated, and is contin u i n g t o violate, its oblig ation to the Tribes under the Treaties.

B

. W aiver by

the United States

I n the district court, W ashing ton asserted a defense o f “waiver and/or estoppel” based on action and inaction by the United States that, a c cording to W ashing ton, led the State to bel i eve that its barrier culverts d id not violate the T reaties. On appeal, W a shing ton h as d r o p p ed its estoppel argument, pressing only

its waiver arg

ument.

W a shing ton alleg ed in the district court that W SDNR h ad developed, in consultation w ith the Un i t e d States, a 1999 “F orest and F ish Report” that contempla t ed a fifteen-ye ar schedule for “remediation of f ish pr o b l em s on forest roads”

un d e r t h e control of W SDNR. W a shing ton alleg e d that it “reasonably

concluded that b y

approving or failing to object
to the State’s 15-y e ar r e mediation schedule for forest roads, the NMF S [ National Marine F isheries Servi c e] h ad determined that the schedule satisfied any treaty oblig ation.” W a shing ton also alleg ed, with respect to “many ” o f the culverts under the c o ntrol of W SDOT, that the culverts a re “in hig hway s f

u n d ed in p art by the United States,” and that “[ t] hese h ig hway s were design e d a c cording to standards set

or a p proved by the F e d e ral Hig hway A dministration (F HW A) and its predecessors.” W ashing ton alleg e d that it “reasonably concluded that by approving or failing to object to the State’s culvert desig n and maintenance, the F HW A had determinedU N I T E D S T A T E S V

. W A S H I N G T O N 40

that the d e sig n and m ai n tenance satisfied any treaty oblig ation.” W ashing ton further alleg ed that the Army Corps of Eng ineers, in administering the Clean W ater Act, and the NMF S and U.S. F ish & W ildlife Service, in administering the Endang e red Species Act, issued permits to, or failed to object to, W SDOT culverts, and that W ashing ton reasonably relied

on their a ction and inaction to conclude that i t h ad satisfied
any treaty oblig ations.

The Unit e d States may a brog ate treaties with I ndian tribes, just as it may abrog ate treaties with ful l y sovereign nations. However, it may abrog ate a treaty wi t h a n I ndian tribe only by an Act of Cong ress that “clearly e x press[ es an] intent to do so.” Minnesota v. Mille Lacs Band of Chippewa Indians
, 526 U.S. 1 7 2
, 202 ( 1 999). Cong ress has not abrog ated the Stevens Treaties. So long as this is s o , t h e Tribes’ rig hts under the fishing c l a u se remain valid a nd enforceable. The United States, a s trustee for the Tribes, may bring suit o n their behalf to enforce the Tribes’ rig hts, b u t the rig hts belong to the Tribes.

The U nited Sta t e s cannot, based o n laches or estoppel, diminis h or render unenforceable otherwise valid I ndian treaty rig hts. See, e

. g

. , C r amer v. United States
, 261 U.S. 219, 2 34 ( 1923) (where I ndians had treaty ri ghts to land, leasing of the land t o a n on-I ndian defendant “by ag ents o f the g overnment was

. . . unauthoriz ed and could not bind the
g overnment; muc h l e s s c ould it deprive the I ndians o f their rig hts”); United States v. W ashington
, 1 57 F .3d 630, 649 (9th Cir. 1998) (“[ L ] aches or estoppel is not available to defeat I ndian t reaty rig hts.”) (quoting Swim v. Bergland
, 696 F .2d 7 12, 718 (9th Cir. 1983)); and United States v. Ahta n u m Irrigation Dist
., 236 F .2d 3 21, 3 34 (9th Cir. 1956) (“No defense of laches or estoppel is available to the defendantsU N I T E D S T A T E S V

. W A S H I N G T O N 41

here for the Government[ ,] as trustee for the I ndian Tribe, is
not subject to those defenses.”). The same is true f or waiver. B ecause the treaty

rig hts belong to the Tribes rather than the United States, it is not the prerog ative of the United States to waive them.

W a shing ton argu es the above line of cases h as been “called in doubt” by City of S herrill v. Oneida I

ndian Nation of N.Y

. , 544 U.S. 197 (2005). B rief at 42. W e disag ree. Suit

was broug ht in Sherrill by the O neida I ndian Nation (“OI N”), whose lands once comprised six million acres in central New York State. I n 1788, in the Tr ea t y o f Fort Schuy ler, OI N reserved 300,000 acres of its tribal land and ceded the rest to New York. T wo y e a r s l a ter, Cong ress passed the I n dians Trade and Intercourse Act (the “ N onintercourse A ct”), which required federal approval for the sale of tribal la n d. New York larg ely ig nored the law and i n t h e following y ears obtained l ar g e quantities of tribal land throug h treaties with O I N

. T h e United States did little to stop these transactions; indeed, its ag e nts took an active role in encourag ing Oneidas
to move west. B y 1838, Oneidas had sold all but 5,000 acres of their r eserv e d lands. B y 1920, their ownership h ad dwindled to 32 acres.

I n 1985, the Supreme Cour t h eld that the sale of OI N lands had been unlawful, and that the OI N was e n titled to monetary compensation for these sales. See Cnty. of O neida v. Oneida I

n dian Nation of N.Y

. State
, 470 U.S. 226 (1985). I n 1997 an d 1 9 9 8
, OI

N purchased on the open market two parcels o f land, located w ithin the boundaries of its ancestral reservation, that had been sold to a non-I ndian in 1807. OI N claimed tribal sovereig n s tatus for the purchased parcels, including the sovereig n rig h t to be free of local property tax es. I n S

h e rrill
, the Court h eld ag ainst OI N, writing thatU N I T E D S T A T E S V

. W A S H I N G T O N 42

“the Tribe cannot unilaterally revive its ancient sovereig nty , i n whole or in part, over the parcels a t issue.” 5 4 4 U

. S

. at 203.

T he case b efore us is radically different from Sherri l l

. The question in our case is not whether, as in Sherrill
, a tribe h a s s o vereig nty o v er land within the boundaries of a n abandoned reservation. The Tribes have not abandoned their reservations. Nor is the question whether, as in Sherrill
, the Tribes have acted to relinquish their rig hts under the T reaties. The Tribes have done nothing to authoriz e the S tate to

co n s truct and maintain barrier c ulverts. Nor, finally
, is the question whether, as in Sherrill
, to allow the revival o f disputes or c laims that h a ve long been left dormant. A s described above, W ashing ton and th e Tribes have been in a

more or less continuous state o f conflict over trea t y -based fishing rig hts for over one hundred y e ars.

C. W ashing ton’s Cross-Request

1. I njunction

W a shing ton asserted a “c ro s s-request” ( in effect, a counterclaim) based on the United S t a t es’ construction a nd maintenance of barrier culverts on its own land. W ashing ton

c ontended that if its barrier culverts violate the Treaties, s o too do the United States’ b arrier culverts. W ashing ton contended that an injunction requiring it to c orrect its barrier culverts, while leaving undisturbed those of the United States, imposed a d isproportionate and therefore unfair burden o n the State. W ashing ton soug ht a n i njunction that would require the Unit e d S t a t es “to fix and thereafter maintain all culverts built or maintained by [ the United States]

. . . before the StateU N I T E D S T A T E S V

. W A S H I N G T O N 43

of W ashing ton is required to repair or re m o v e any o f its culverts.”

The district c o u r t struck the cross-request for an injunction and subsequently denied Washing ton’s motion to amend. I t d id so o n two g rounds. F irst, it held that W a shington’s cross-request w as barred b y sovereign immunity

. Second, it held that W ashing ton d i d not have
st a n d i n g t o assert treaty rig hts belong ing to the Tribes. W e ag ree with both g rounds.

a. Sovereig n I mmunity

The United States enjoy s s o vereig n immunity from unconsented suits. However, when the United States f iles suit, consent to counterclaims seeking o ffset or re c o u p m ent will b e inferred. United States v. Agnew , 423 F .2d 513, 514 (9th Cir. 1970). W ashing ton contends that the injun c t i on it seeks ag ain s t t h e United States is “ recoupment.” W e disag ree.

The Tenth Circuit has set forth three criteria that must be satisfied for a recoupment claim:

To constitute a c laim in r ecoupment, a defen d a n t’s claim must (1) arise from the

same transaction or occurrence a s the plaintiff’s suit; ( 2) seek relief of the same kind

or nature as the plaintiff’s suit; and (3) seek an amount not in ex c ess of the plaintiff’s claim.

Berrey v. Asarco Inc.
, 439 F .3d 636, 645 (10th Cir. 2006); see Fe d

. D eposit Insur. Corp. v. Hulsey
, 22 F .3d 1472, 1487 (10th Cir. 1994). W e ad o p t t h e s e criteria as our own, a ndU N I T E D S T A T E S V

. W A S H I N G T O N 44

m ake e x plicit that the remedy (the “ amount”) soug ht by th e United States and b y the d efendant in r ecoup m e n t m ust be monetary

.

I t is implicit in the use of the word “amount” in Berrey ’s third c riterion that a r ecoupment c laim is a monetar y c laim. A claim for recoupment, if successful, can reduce o r eliminat e t he amount of money that w ould otherwise be

aw a r d ed to the p laintiff. I t cannot result in an affirmative monetary judg ment in favor of the party asserting the claim: “Althoug h a counterclaim may be asserted ag ainst a

s o v e reig n by way of set off or recoupment to defeat o r diminish the sovereig n’s recovery , no affirmative relief may be g iven ag ainst a sover ei gn in the a bsence of consent.” Agnew
, 423 F .2d at 514; see also United States v. U.S. Fid. & Guar. Co
., 309 U.S. 506, 511 ( 1 9 4 0) (“[ A] defendant may , without statutory authority
, r eco u p o n a counterclaim an amount e qu a l to the principal claim.”); Black’s Law D i c t ionary 1 466 ( 10th e d

. 2009) (“Recoupment: 1. The
g etting back or reg a ining of something
, esp. e x penses. 2. The withholding
, for equitable reasons, of all or part of something that is due.

. . . 3. Reduction of a plaintiff’s damag es because of a d e m and by the defendant arising out of the same transaction.

. . . 4. The r i g ht of a d efendant to have the plaintiff’s claim reduced or elimin a t ed b ecause of the plaintiff’s breach of contract or duty in t h e same transac t i o n

. ” )

. The parties have cited no case, and w e have found none, in which the term recoupment has be en a pplied to non-monetary

relief such as an injunction.

W a shing ton’s cross-requ e s t for an injunction thus does
not qualify as a claim for rec o u p ment and is barred b y sovereig n immunity

.U N I T E D S T A T E S V

. W A S H I N G T O N 45

b. Standing

W a shing ton seeks an i n junction requiring the United States to correct its b arrier c ulvert s o n the g round that the United States is bound b y t h e T reaties in the same manner and to the same deg ree as the St a t e

. W ashing ton is, o f
course, correct that the U nited States is bound by the T reaties. I ndian treaty rig hts were “intended to be c ontinuing ag ainst the United States

. . . as well as a g ainst the state[ .] ” W inans
, 198 U.S. at 381– 8 2

. Ou r h olding that W ashing ton has violated the Treaties in building and maintaining i ts barrier culverts necessarily means that the United States has also violated the Treaties in building and maintaining its o wn barrier culverts.

However, any violation of the T reaties by the United States violates rig hts held by the Tribes r ather than the State. The Tribes have not soug ht redress ag a inst the United States in the proceeding

now before us.

2

. Recoupment of Part of W ashing ton’s Costs

I n its Petition for Panel Rehearing and for Reheari ng E n B anc, filed after our opinion came down, see United States v

. W ashington
, 827 F .3d 836 ( 9th Cir. 2016), W ashing ton contends that we misconstrued its appeal of the district court’s d enial of its c ross-request. W ashing ton writ e s i n its Petition:

T h e State’s orig inal [ c ross-request] s o u g h t

a vari e t y of remedies, including that the federal g overnment b e r equired to (1) pay part of th e cost of r eplacing state culverts that

were desig ned to federal standar d s; (2) takeU N I T E D S T A T E S V

. W A S H I N G T O N 46

actio n s on federal lands to restore salmon
runs; a nd (3) replace federal cul v e r t s in W a shing ton. B ut on appeal, the State pursued only the first of these remedies.

W e d id not, and do not, s o u n d e rstand the State’s appeal. Contrary to W ashing ton’s statement, it did appeal the district court’s denial of its cross-request for an injunction requiring the United States to repair or replace the United States’ own barrier culverts. I t did not appeal a d e n ial o f a r equest that the United States be r equired to pay part of its c osts to repair or replace its culverts.

I n the district court, W ashing ton stated in the body of its cross-request that “[ t ] h e U n ited States has a duty to p ay all
costs incurred by the State to identify and fix any an d all b arrier c ulverts.” B ut in its demand f or relief, W ashingt o n did n ot demand any monetary p ay ment from the United S tates, un less its boilerplate request (“The State o f W a shing ton further requests all other relief the Court deems just and equitable”) c ould be d eemed such a d em a nd. Not surprising ly
, in denying W ashing ton’s cross-requ e st, the district c ourt did not discuss a demand for monetary pay ment from the United States. I n its b rief to us, W ashing ton writes in the in troduction that the district court erred in denying its request to allow the State “ to r e c oup some of the costs o f compliance from the United Stat e s because it specified the culvert desig n and caused much of the decline in the salmon runs.” B ut Washing ton makes no a r g ument in the body of its brief that it should be allo w e d to recover from the United States a ny part of the cost to repair or replace its own barrier culverts.U N I T E D S T A T E S V

. W A S H I N G T O N 47

W h en considering W a s hing ton’s a ppeal, w e did not understand it to argue that it sho u l d have been awarded, a s recoupment or set-off, a monetary award from the United States. Given W ashing ton’s failure to make this argument in the body o f its brief, t h e a rgu m ent was waived. Smith v

. Marsh
, 1 94 F .3d 1045, 1052 (9th Cir. 1 999). However, g iven the vig or with w hich Washing ton n ow makes the argu ment in its Petition for Rehearing a nd Rehearing En B anc, we think it appropriate to respond on the merits.

W a shing ton’s argument is easily rejected. As recounted above, a claim for recoupment must, inter alia
, “seek relief o f the same kind o r nature as the plaintiff’s su i t

. ” Berrey
, 439 F .3d at 645. W ashing ton’s claim does no t satisfy this criterion. The United States, the p laintiff, soug ht in j u nctive relief ag ainst W a shing ton. W a s hing ton soug ht a monetary award. These two forms of relief are not “of the same kind o r nature.”

D. I njunction

The distric t c o urt h eld a trial in 2009 and 2010 to determine the appropriate remedy f or W ashing ton’s violation of the Treaties. A t t h e t i m e of trial, there were 1,114 stateowned culverts in the Case A rea. A t l e a st 886 of them blocked access to “sig nificant h abitat,” defined as 200 linear
meters or more of salmon habitat upstream from the culvert
to the first n atural passag e barrier. More b arrier culverts were identified o r constructed wit h i n t he Case Area a fter 2009. The c ourt e stimated in its 2 013 Memorandum a n d Decision that a t the then-current rate of remediation, all of the b ar r i e r culverts und e r t h e control of WSDNR, State Parks, a nd W D F W would be corrected by October 31, 2016. The g reat majority of barrier culverts, however, were under W SDOT’sU N I T E D S T A T E S V

. W A S H I N G T O N 48

control. I n 2009, when trial beg an, there were 807 identified W SDOT b a

r r i e r culverts. Additional W SDOT barrier culverts were constructed or identified after that date.

I n 1997, W DF W and W SDOT rep o r t e d t o the W ashing ton S t a te leg islature that WSDOT c ulverts blocked 249 linear miles of stream, comprising over 1.6 million square meters o f salmon habitat, which th e y estimated was sufficient to produce 200,000 a d u l t salmon per y ear. B ased o n W DF W records, the district court found that at the time of trial, stateowned barrier culverts in the C a se Area blocked access to

a p p rox imately 1,000 miles of stream, comprising almo s t 5 million square meters of salmon habitat.

The district court issued a permanent injunction in 2013,

on the same day it issued i t s M e m orandum and Decision. T h e court ordered the State, in consultation with the Tri b e s and the United States, to prepare within six months a current l i s t o f all state-owned barrier culverts within the Case Area. The court o rdered that identification of a c ulvert as a “barrier” be based on the methodology s p ecified in the F ish Passag e B arrier and Surface W ater Diversion Screening and Prioritiz ation Manual (“Assessment Manual”) publish ed b y W D F W in 2000. T he court ordered W SDNR, State Parks, and WDF W to provide fish passag e t h ro ug h all their barrier culverts o n the list by October 31, 2 016 — the date by which these three ag encies were already e x pected to com plete correction of their barrier culverts.

F or barrier culverts under t he c ontrol of W SDOT, the injunction was more nuance d

. I n Parag raph 6 of the injunction, the court ordered W S DOT to provide, within
seventeen y ears of the date of the o r d e r , and “in accordance with the standards set out in this injunction,” fish passag e forU N I T E D S T A T E S V

. W A S H I N G T O N 49

each barrier culvert with more than 200 l i n e a r m eters o f salmon habitat upstream to the first natural p assage b arrier. I n Parag r aph 7
, the court ordered W SDOT to replace ex isting barrier culverts above which t h ere was less than 200 linear
meters o f a ccessible salm o n habitat only at the “ end o f the useful life” of the cul v e r t s, or sooner “as part of a hig hway project.” I n Parag raph 8, the court allowed W SDOT to defer correction of some of the culverts described in Parag raph 6. Deferred c ulverts can a ccount f o r u p to ten percent o f upstream habitat from the culverts d e scribed in Parag raph 6. W SDOT’s choice of which culverts to defer is to b e made in consultation with the Tribes a n d the United States. The court specified that th e choice o f c ulverts could be g uided by the “Priority I n d e x ” methodolog y described in the WDF D Assessment Manual. Th a t m e t hodolog y uses cost as a permissible factor in deter m i n i ng priority

. Assessment Manual a t 55. Culverts deferred und e r P a r a graph 8 a re to be r eplaced o n the more lenient schedule spec i fied in Parag raph 7.

I n Parag r aph 9, the district court ordered that the State

shall desig n and build f

ish passag e a t e ach barrier culvert o n the L ist in ord er to pass all species of salmon at all life stag e s at a ll flows where the f

ish would n aturally seek p a s sag e

. I n orde r of preference, fish p assag e shall be achieved by (a) avoiding the necessity for the roadway to c ross the stream, ( b ) use of full
span bridg e, (c) use o f t he “stream simulation” me t hodolog y

. . . which the parties to this proceeding h a ve ag reed represents the best science currently available for desig ning culverts that p rov ide fishU N I T E D S T A T E S V

. W A S H I N G T O N 50

passag e and allow fluvial processes. Nothing in t h i s injunction shall p r event the [ State] from developing and using desig ns other than bridg es or stream s i m ulation in the f uture if
t h e [State] can demonstrate that those fut u r e desig ns provide e quivalent or better fish
passag e and fisheries habitat benefits than the desig ns required in this injunction.

I n Parag raph 10, the court provided that the State may deviate from the desig n standards specified in Parag r aph 9 in cases o f
emerg ency or where “ ex traordina ry site conditions” ex ist. The court specified that it would “retain continu ing jurisdiction

. . . for a suf f i c i ent period to a ssure that the [ State] compl[ ies] with the terms of this injunction.”

W a shing ton declined to participate in the formulation of the injunction on the g round that it h a d n ot violated the Treaties and that, therefore, no remedy w as appropriate. W a shing ton now objects on several g r ounds to the injunction that was f

ormulated without its parti c i p a tion. W ashing ton specifically objects (1) that th e injunction is too “broad,” B rief at 50; (2) that the d istrict court did not “defer to the State’s e x pertise,” id. at 54; (3) that the court did not properly consider costs and equitable principles, id. at 57; (4) and that the injunction “impermissibly and sig nificantly intrudes into
state g overnment operations.” Id. at 6 3. F inally
, W ashing ton objects that its four specific objections su p p ort a contention
t h at the court’s injunction is inconsistent w ith “federal i s m principles.” Id. at 47, 65. W e consider the State’s o bjections in turn.U N I T E D S T A T E S V

. W A S H I N G T O N 51

1. B readth of the I

njunction

W a shing ton contends i n i ts brief that “[ t] h e Tribes presented no evidence tha t state-owned culverts are a sig nificant cause of the decline [ in salmon]

. . . . Despite that complete failure of

proof
, t h e d i strict c o urt found that stateowned culverts ‘have a sign i f i cant total impact on salmon production.’” B rief a t 50 (emphasis in o rig inal). W ashing ton contends, further, that the district court “ordered replacement of nearly every state-owned barrier culvert within the case

area without any specific showing that those cu l v erts have sig nificantly diminished f i s h runs o r tribal fisheries, or that replacing them will meaning fully

improve runs.” Id.

W a s h i n g t o n m i s r e p r e s e n t s t h e e v i d e n c e a n d mischaracteriz es the district court’s order.

Contrary to the State’s contention, t h e Tribes presented

ex tensive evidence in support of the court’s co nclusion that state-owned barrier culverts have a sig nificant adverse effect

on salmon. T he 1997 report prepared for the W ashing ton State L eg islature by two of the defendants in th is c ase, W D F W and W SDOT, stated, “ Fi s h passag e at human made barriers such as road culverts is one o f the most recurrent a nd correctable obstacles to healthy salmonid stocks in W a shing ton.” The report concluded:

A total potential spawning and rearing a rea o f 1,619,839 m 2 (249 linear mile s ) is currently blocked by W SDOT c ulverts on the 177
survey e d streams requiring barrier resolution; this is enoug h w etted s t ream area to produce 200,000 ad u l t salmonid annually

. These

es t i m ates would all increase when consideringU N I T E D S T A T E S V

. W A S H I N G T O N 52

the a dditional 186 barriers that d i d not have full habitat assessments.

The report recommended that state funding b e supplied to remove “all barriers” under the control of the State:

Planning is underway for resolution of at least

seve n more barriers during the 1997–99 biennium using dedicated f unds, and to resolve all barriers in the nex t t w o o r three decades.

. . . Estimated c o s t is about $40 million, w i t h resultant benefits ex ceeding $160 million.

B a sed on later W DFW fig ures, the district court f ound that at the ti me of trial state-owned b arrier culverts in the Case Area blocked access to approx imately 1,000 linear miles of stream, comprising almost 5 millio n square meters o f salmon habitat. These fig ures, taken tog ether with the 1997 fig ures su p plied by W DF W and W SDOT, indicate that the total habitat blocked by state-owned b arrier culverts in the Case A rea is capable of producing several times the 200,000 mature salmon specified in the 1997 report.

The State contend s t h at b ecause of the p resence o f nonstate-owned barrier culverts o n t he same streams as stateowned barrier c ulverts, the b enefit obtained from remediation of state-owned culverts will be insufficient to justify the district court’s injunction. The State writes:

[ S] tate-owned c ulverts ar e less than 25% o f all known barrier culverts, and in some places,
non-state culverts outnumber state-ow n ed

cu l v e r t s b y a factor o f 36 to 1. Any benefitU N I T E D S T A T E S V

. W A S H I N G T O N 53

from fix ing a state-owned culver t w ill not be realiz e d if fish are b locked by other culverts in the same stream sy stem.

There a re several answers to the State’s contention. F irst, it is true that in calculating whether a state culvert is a barrier culvert, a

nd in d e t e rmining the p riority for requiring remediation, the court’s injunction ig nores non-state barriers

on the same stream. B ut in so doing
, t he court followed the practice of the state itself. Paul Sekulich, f o r m e r l y division
manag er in the restoration d ivision in the habitat p rog ram o f the W ashing ton Dep a

r t m e n t o f F ish and W ildlife ( “W DF W ”), testified in the district court:

Q: W hen y ou calculate a priority index number f o r a [state-owned] culvert, do y ou account for the presence of other fish passag e barriers in a watershed?

A:

. . . W hen the p r i o rity index is calculated, i t t reats those other barriers as transparent

. T he reason we do that, we don’t know w h e n t h o se other barriers are b eing corrected. S o by treating them as transparent, y o u do a p r iority index that looks at potential habita t g ain as if all those barriers would be c orrected at some point in time.

W a shing ton State law r equires that a “ dam or other obstructi o n a c r oss or in a stream” be constructed in such a

manner as to provide a “d u r a b le a nd efficient fishway ” allowing p assag e of salmon. W a sh. Rev. Code § 77.57.030(1). I f owners fail to construct or maintain properU N I T E D S T A T E S V

. W A S H I N G T O N 54

fishway s, the D irector of W DF W may require them do so at their own ex pense. I

d. at § 77.57.030(2).

Second, in 2009, on streams where there were both state and n o n-state barriers, 1,370 of the 1 ,590 non-state barriers,

or almost ninety percent, were upstream of the state b arrier culverts. Six ty nine percent of the 2 20 downstream non-state barriers allowed partial passag e of f ish. Of the 152 that allowed partial passag e, “passability ” was 67% for 80 of the barriers and 33% for 72 of them.

T h ird, the specific ex ample provided by the state is a culvert on t h e M i d d le F ork of W ildcat Creek under State Route 8 in Gray s Harbor County

. The State i s c o r r e c t that there are 36 non-state barriers and only on e state barrier

cu l vert on this creek. The State fails to mention, however, that all of the non-state barriers a r e upstream of the state culvert. Fu r t h e r, it is apparent from the map in the district
court record that the nearest non-state barrier is almost a half mile upstream.

W itnesses at trial repeatedly described benefits to salmon resulting from correction of barrier c ulverts. One ex ample is evidence presented by Mike McHenry
, h abitat prog ram manag er for the L ower Elwha Klall a m Tribe. I n his written testimony
, McHenry described several studies. One w as a 2003 study of culv e r t removal projects o n the Stillag uamish River that opened up 19 linear kilometers of salmon habitat. According to the study
, over 250 adul t c o ho salmon were observed spawning in the newly accessible habitat in each o f the two y ears immediately after the completion of the projects. B ased on his own ex p erience as habitat manag er for the tribe, McHenry

wrote that removal of barrier culverts on the L ower Elwh a River had had a similar effect. I nU N I T E D S T A T E S V

. W A S H I N G T O N 55

McHenry ’ s view, “ The sy stematic correction of barrier culverts is an important place to f ocus restoration efforts.” He w rote, further, “The correction of human caused barriers is g enerally recog niz ed as the second hig hest priority for restoring habitats used by Pacific salmon ( following t h e protection of ex isting functional habitats).”

I n his live testimony
, McHenry stated that his tribe h ad corrected seventeen of thirty -one barriers in a p ar t i cular watershed:

McHenry : B ecause w hen we did the watershed assessment, we fo u n d that there

we r e 50 miles o f h istorically active stream that salmon could access in thi s w atershed, and full y half that mileag e was blocked b y culverts of v arious ownersh i p s

. So to us, we

a p p l i e d our scie n t i f

i c k n o w l e d ge a n d recommendations from the literature which indicated th a t when y ou’re g oing to restore a plac e l i k e this, y o u need to g o after the barriers first.

The Court: I n y o ur ex pert o pinion
, that was the big g est bang for y o ur buck?

McHenry : Yes.

Another ex ample is the live testimony of L awrence W a sserman, environmental policy manag e r f o r the Swi n o m i s h I ndian Tribal Community

. He testified that culvert remediation provides substantial benefits:U N I T E D S T A T E S V

. W A S H I N G T O N 56

There’s an immediate access a nd immediate benefit to additional habitat when we replace a culvert . . . .

I f y o u c ompare that to having to plant trees, shade, it can take 10, 20, 50 y ears to g et the trees larg e enoug h

. . . .

. . . W e h ave a hig h confidence in desig n. B y and larg e, w e know ho w t o fix culverts.

. . . So we have a hig h confidence compared to many other m ore e x perimental restoration activities.

I t’s fairly easy to monitor. I f there were no fish there before, [ then] we open a culvert and we can count fish[ .]

. . .

A c riti cal f

a c tor is that there’s minimal impacts on adjacent land use o r l and

owners.

. . . [ I ] t’s rela t i v e ly infrequent where there needs to be a condemnation of o t h er people’s land or asking people to sell thei r land. . . .

. . . I t ’ s cost effective. T here have been

some studies that have shown that, really
, compared to other kinds o f restoration activities, the cost p er smolt pr oduced is relatively low[ .]

. . .

And finally
, w e g et benefi t s with a broad
sweep o f culvert repairs. W e g et a very broad
g eog raphic distribution of b enef i ts, a nd theU N I T E D S T A T E S V

. W A S H I N G T O N 57

cumulative e f

fects c an accrue across a variety of watersheds.

I t i s t ru e , as the evidence at trial showed, that correction

o f barrier c ulverts is only one of a number of measures t h at

can usefully be taken to increase salmon production in the Cas e Area. I t is also true that the benefits of culvert correction differ depending o n the culvert in question. F o r

ex ample, Paul W ag ner, manag er of the culvert c o rr ection
prog r am for W SDOT, presented evidence in 2013 identify ing 81 7 W S D OT barrier culverts blocking 937 linear miles o f
stream habitat in the Case Area. W ag ner’s evidence showed that c orrection of the 314 c ulverts b locking the most habitat would op e n u p 6 55 of the 937 miles of total habitat. Correct i ng the 232 culverts blocking the least habitat would
open up only

95 miles. Those 95 miles of habitat constitute 1 0

. 1 percent of the total h a b itat blocked by the 817 barr i e r culverts. T he 232 culverts blocking those 9 5 miles constituted 28.4 percent of the total barrier culverts.

The district court’s injunction took into account the facts that culvert correction is not the only factor i n salmon
recovery ; that some culverts block more habitat than others; and that some culverts are more ex pensive t o correct than others. The court ordered correction of h ig h-priority culverts

— those blocking 200 linear meters or more of upstream habitat

— w ithin seventeen y e ars. F or low-priority culverts

— those bl o cking less than 200 linear meters of upstream habitat — the court ordered correction only at the end of the useful life of the ex isting c ulvert, or when an independently undertaken hig hway project would require replacement of the culvert. F urther, recog niz ing the likelihood that accelerated replacement of some h ig h-priority culverts will not be costeffective, t h e c ourt allowed the State to defer correction o fU N I T E D S T A T E S V

. W A S H I N G T O N 58

hig h-priority

culverts accountingfor up to ten percent of the total blocked upstream habitat, and to correct thos e culverts

o n the more lenient schedule of the low-priority culver t s

. W a g n er’s evidence indicates that if the sole criterion f o r choosing deferred culverts is the amount of blocked habitat, there will be a

pprox imately 2 30 deferred culverts. I f cost of correction of particular culverts is added as a criterion, there will be a somewhat smaller number of deferred culverts.

I n sum, we disag ree with W ashing ton’s contention that the Tribes “pre s e n ted no evidence,” a nd that there was a “complete failure of proof,” that state-owned barrier culverts have a substantial adverse effect on salmon. The record contains ex tensive e v idence, much of it f rom the State itself, that the State’s barrier c ulverts have such an effect. W e also disag ree with W ashing ton’s c o n tention that the court ordered correction of “nearly every state -owned barrier culvert” without “any specific showing ” that s uch correction will “meaning fully improve r uns.” T he State’s own e v i d e n ce shows that hundreds of thousands of adult s a l m on will be produced by opening up the salmon ha b itat that is currently blocked by the State’s barrier culve r ts. F inally
, we disag r ee with W ashing ton’s contention that the court’s injun c tion indiscriminately orders correction o f “nearly e very stateowned barrier culvert” i n t he Case Area. The court’s order carefully disting uishes between h ig h- and low-priority culvert s based on the amount o f upstream habitat culvert correction will open up. The order then allows for a f u r ther distinction, to be drawn by W SDOT in c onsultation with the United States and the Tribes, between those hig h- p r i o r ity culverts that must be corre c t ed within seventeen y ears a nd those that may be corr e c t e d o n the more lenient schedule applicable to the low-priority culverts.U N I T E D S T A T E S V

. W A S H I N G T O N 59

2. Deference to the State’s Ex pertise

W a shing ton contends that the district court made a clearly

erroneous f

inding of fact, concluding that correct i o n o f h uman-caused barriers is the hig h est priority in habi t at restoration. I t contends, f

urther, that this finding led the court to ig nore the ex pert testimony presented by both the State a nd the Tribes. W ashing ton wrote in its brief:

The State has concluded — and the Tribes
ag ree — that a comprehensiv e a p proach to preserving a

n d r estoring salmo n runs is the

m o s t productive and cost-effective

. . . . Th e district court concluded, however, that “correc t ion of human-caused barriers is
recog niz ed as the hig h est priority for restoring

s a l m on habitat in the Case Area.” On t h at basis, the court ordered inj u n c tive relief focused solely on cu l verts, even thoug h the
cost of the i n

j unction will likely reduce funding available for other salmon restoration efforts. T he court’s finding was clearly

erron e ous, a

nd its approach was an abuse o f discretion.

I n concluding that fix ing c ulverts is “the hig hest priority for r estoring salmon habitat in the Case Area,” the court cited the declaration of tribal e x p ert Mike McHenry

. Mr. McHenry said no such thing

.

B rief at 54–55.U N I T E D S T A T E S V

. W A S H I N G T O N 60

W a shing ton is mistaken. I t is true t h a t t h e district court made the factual finding to which W a shing ton objects. Citing McHenry ’ s evidenc e , the court wrote, “The correction o f human-caused barriers is rec o g niz ed as the hig hest priority f o r restoring salmon habitat in the Case Area.” B u t t h e court’s finding is amply support e d b y the record. W ith respect to restoring habit a t (as distinct from preserving habitat, w hich has a hig her priority )
, McHenry wrote that it is “g e nerally recog niz ed” that the correction of human-caused b arriers is the hig hest priority

. F urther, McHenry test i fi e d that “y ou n eed to g o after the barriers f irst” because that is the “big g est bang for the buck.” W asserman testified to the same effect, saying that “ there’s an immediate access and immediate benefit to additional habitat when we replace a culvert”; that “it’s cost effective” compared to “other kinds o f restoration ac t ivities”; and that “the cumulative effects can accrue across a variety of watersheds.”

I t is also true that the district court’s injunction “focused solely o n culverts” and did not order other rem e d i e s

. B ut it is a p p ropriate that the injunction sh o u ld have done so. The
court was acutely conscious of th e fact that, while barrier culverts are an important cause of the decline of salmon in the Case Area, they a

re not the only cause. I t wrote, “ A p rimary

cause of t h is decline is habitat deg radation

. . . . O ne cause of the deg ra d a t i o n of salmon habitat is blocked culverts[ .] ” (Emphasis added.) Howeve r, because the only treaty violation alleg ed in this litig ation was W ashing ton’ s barrier culverts, the court acted appropriately in ordering only the correction of these culverts. As the court wrote, “The scope of this subproceeding includes only those culverts that block fish passag e under State-owned roads.”U N I T E D S T A T E S V

. W A S H I N G T O N 61

Contrar y to Washing ton’s contention, the district court had a sophisticated r ecord-based understanding of the v arious

causes of the d ecline o f salmon in the Case Area, o f what

c ould b e achieved by the correction of state-owned bar r i e r culverts, and o f the limitations on w hat could be achieved b y culvert c orrection. The court’s injunction is carefully crafted to reflect that understanding

.

3. Costs and Equitable Principles

W a shing ton cont e n d s that the district court’s injunction fails p r o perly to take costs into account, and that its injunction is inconsistent with equitable principles.

a. Costs

W a shing ton writes in its brief that correction of W SDOT barrier culverts will cost a pprox imately $1.88 billion over the

course of the seventeen-y ear schedule orde r e d b y the court,

or “roug h ly $117 million per y ear of the injunction.” ( Using W a shing ton’s own estimates, a correct calculation is actually $110.6 million per y ear r ather than $ 117 million.) W a shing ton’s estimated total c ost is based on an assumption of 817 corrected culverts, at an averag e correction cost o f $2.3 million per culvert.

W ashing ton’s cost estimates a r e not supported b y t h e evidence. W ashing ton contended at trial, as it now contends
to us, that the averag e cost to repla c e a W SDOT barrier culvert would be $2.3 million. B ut the district court did not accept this estimate. The court found that “the actual cost o f

c onstruction for twelve WSDOT stream simulation culv er t projects c ompleted prior to the 2009 trial r ang ed from $413,000 to $1,674,411; the averag e cost for the twelve wasU N I T E D S T A T E S V

. W A S H I N G T O N 62

$658,639 each.” I n 2013, the State s u b mitted a declaration from W S D O T official W ag ner listing thirty

- one culvert correction projects completed state-wide since October 2009. Of these, twenty

- four used either a stream simulation desig n

or a bridg e. The declaration s t a t e d that the averag e cost for each th es e twenty -four projects was $1,827,168, not $2,300,000 a s the State no w c ontends. The district court noted that even W ag n er ’s lower f ig ure could not be confirmed because c ost data was missing for eig ht of the twenty -four projects.

There are additional r easons to disreg ard th e S t a te’s estimate of total cost. F irst, W ashing ton assumes that all 817 of the state

- owned barrier culverts will be corrected on the seventeen-y

ear schedule. This is d e monstrably incorrect. According to the State’s own eviden ce, Parag raph 8 of the injunction will allow the State t o d e fer correction o f
approx imately 230 of the 8 1 7 culverts. I f c o st of barrier correction (rather than merely amount of upstream habitat) is taken into account in deciding which culverts to defer, fewer b u t more costly culverts will be deferred. Second, a n d perhaps more important, W ashing ton must e ventually correct its barrier culverts, irrespec t i v e of the court’s order in this suit. The district court wrote th at f e d e ral and state law require W ashing ton to c orrect its b ar r ier culverts “in any case,” and t h at t h e only consequence of its order will be an “accele r a t i o n of barrier correction.” The net costs imposed

on W a shing ton by the injunction are thus not the full costs o f barrier correction, but rather only t h e “marg inal costs attributable to an accelerated culvert correction schedule.”

F inally
, we note that a portio n of WSDOT’s funding for correcting its barrier culverts w ill come from the U nited States. The c ourt wrote, “[ T] h e state ex p ects to receive overU N I T E D S T A T E S V

. W A S H I N G T O N 63

$22,000,000 for fish passag e barrier projects from the federal
g overnment in the y ears 2011 to 2 017

. O f t h is amount, $15,813,000 is ex pected in the 2013–2015 biennium.”

b . Equitable Principles

W a shing ton makes one specific o bjec t i o n based on equitable p rinci ples. I t objects that the court abused its discretion in requiring that “ the State alone,” rather than State in c onjunction with the U nited States, be “burdened with the entire cost of culvert r epair.” B rief a t 63. W e disag ree. The court’s order required correction of only those barrier culverts
t h a t we r e built and maintained by the State. I t was not an abuse of discretion to require the State to pa y f o r correction of its own barrier culverts.

F urther, w e note more g enerally that the district court did consider equitable principles, and co n cluded that those principles favored the Tribes a n d the citiz ens o f t h e State. The court wrote:

The T ribes and their individual members have been harmed economically
, socially
, educationally
, and cultura l l y by the g reatly reduced salmon h arvests that have resulted from State-created o r State-maintained fish
passag e barriers.

This inju ry is ong oing
, as efforts by the State to correct the barrier culverts have been insuff icient.

. . . Remedies at law a re inadequate a s m onetary d amag es will not adequately compensate the Tribe s and their individual members for these harms. . . .U N I T E D S T A T E S V

. W A S H I N G T O N 64

The balance of hardships tips steeply toward the Tribes in this matter. The promise made to the Tribes that the Ste v ens Treaties would protect their source of food a nd

commerce was crucial in obt aining their assent to the Treaties’ provisions.

. . . Equity favors requiri n g the State of Washing ton to keep the promises upo n which the Tribes relied w hen they

ceded hug e tracts of land b y way of the Treaties.

. . .

The pu b l i c interest will not be disserved by an i n j u n c t i on. T o the contrary , it is in the public’s interest, as w ell as t h e Tribes’ to accelerate the pace o f b arrier c orrection. All fishermen, not just Tribal f i s h ermen, will benefit f rom the increased production o f salmon.

. . . The g en e ral public will benefit from the e nhancement of the resource and the increased economic r e turn from fishing in the State o f W ashing ton. The g eneral public will also benefit from the envi r o nmental benefits of salmon habitat restoration.

4. I ntrusion into State Government Operations

W a s h i n gt o n c o n tends that th e c o u r t ’ s o r d e r “impermissibly and sig nificantly intrudes into state g overnment operations.” B r ief at 63. W ashing ton contends that it “was making g reat strides in r epairingculverts before
any federal court intervention,” and t h at “there was no need for the court to issue a d etailed and ex pensive injunction thatU N I T E D S T A T E S V

. W A S H I N G T O N 65

sets a n inflex ible and tig h t schedule f or culvert repair.” Id. at 63–64. W ashing ton implies that the cost of comply ing with the court’s order will oblig e the State to cut other important state prog rams:

[ T] he injunction w ill requir e the State to devote roug hly $100 million per y e a r more than it otherwise would have to culvert r epair. This at a t i me when the State faces recurring budg et shortfalls in the billions o f dollars a nd ha s a l r eady made deep and painful cuts to subsidiz ed health insurance for low income workers, K-12 schools, hig her education, a nd basic aid for persons unable to work.

Id. at 58. W e disag ree.

The d istrict court d isag reed with W as h i n g t o n ’ s c o n t ention that there was “no need” f or the court to order correc t i o n o f its barrier culverts. B ased on the State’s slow rate of barrier correction, the court concluded that “un der the c urrent State approach, the problem of W SDOT barrier culverts in the Case Area w ill n ever be solved.” The district court also disag reed with the W ashing ton’s cost estimates. As seen a b ove, W a shing ton’s estimate of its cost to comply with the court’s order (“roug hly $100 million pe r y ear” more than it would otherwise spend) is dramatically overstated.

The d istrict court carefully considered the margi n al cost imposed on W ashing ton by its injunction and concluded that the State could c omply w ith the order without cutting vital
state prog rams. The court relied on a state budg et document showing t hat $9.9 billion was allocated to the state transportation budg et f

o r t h e 2011–2013 biennium. Of thatU N I T E D S T A T E S V

. W A S H I N G T O N 66

$9.9 billion, $7.88 billion was a llocated to W SDOT. Noting the separati o n o f the transportation budg et f rom other state budg ets, the court concluded, “The separati o n o f the Transportation B udg et from the Operating a nd Capital B udg ets ensures that money w ill not be taken from education, social services, or other vi t al State f unctions to fund culvert repairs.”

5. F e deralism Principles

W a shing ton contends, based on the four specific ob j e c tions just reviewed, that the district court’s injunction

v i o l a t es principles of federalism. W ashing ton asserts four principles of federalism:

F irst, the remedy must be no br oader than
necessary to a ddress the federal law violation. Second, courts must g rant d eference to a state’s institutional co m petence and subject
matter ex pertise. Third, courts must take cost into consideration and not substi t u te their budg etary judg ment for that of the state. And final l y , relief must be fashioned so that it is the least intrusive into state g ov e r nmental affairs. The district court’s injunction here contravenes all of these principles.

B l u e B rief at 49. W e will not q uarrel here with these principles, stated at this level of g enerality

. However, for the

reasons g iven ab ove, we have concluded that the district court’s injunction violates none of them.

F urther, a federalism-based objection t o an injunction enforcing I ndian treaty r i gh ts should not be viewed in theU N I T E D S T A T E S V

. W A S H I N G T O N 67

same lig ht a s an objection to a more conventional structural injunction. W ashing ton cites two Supreme Co u rt cases in support of its fe d e r alism objection — Rizzo v. Goode
, 423 U.S. 362 (1976) (structu ral injunction requiring r eform of the Philadelphia police department), and H orne v. Flores
, 557 U.S. 433 (2009) (structural injunctions requiring A riz o na t o comply with Equal Educational Opportunities Act o f 1974). However, W ashing ton fails to c ite the Supreme Court

case directly on point — Fishing Vessel
, 443 U .S. 658 (1979)

— in which the Court affirmed detailed injunctions requiring W a shing ton to comply with the very Treaties a t issue in this

case.

The district court in Fishing Vessel had entered a series o f d e t a i l e d injunctions implementing its holding that the T r e a t i e s entitled the T ribes to take u p to fifty percent of harvestable salmon in any g iven y ear. W ashing ton strenuously resisted,

w i th the result that the district court effectively took over

m u c h o f the State’s manag ement of the salmon fishery

. W a shing ton objected both to the d istrict court’s interpretation of the Treaties, a

nd to the court’s intrusion into i t s affairs. The Supreme Court affirmed the distr i c t court’s h olding on the meaning of the Treaties. I t then rejected, in no uncertain terms, federalism-based objections to the inju nctions enforcing the Treaties:

W h ether [ W ashing ton] Game a nd F isheries may b e ordered actually to promulg ate r eg ulations h a ving effect a s a matter of state law may well be doubtful. B ut the D istrict Court may prescind that pr o b l em by a ssuming direct supervision of the fisheries if st a te recalcitrance or state-law barriers should be continued. It is therefore absurd toU N I T E D S T A T E S V

. W A S H I N G T O N 68

argue

. . . both that the state agencies may not b e ordered to implement the decree a nd al s o that the District Court may n ot i t s e lf issue detailed remedial o rders as a substitute for state supervision.

Fishing Vessel , 443 U.S. at 695 (emphasis added).

6. Modification of the Injunction

I t i s p o s sible that chang ing or newly revealed facts o r circumstances will af

fect the fairness or efficacy of an injunction. I n the c ase before us, the distr i c t c o u r t has ordered that many of W SDOT’s h ig h-priority barrier culverts be corrected over the course of seventeen y ears, and that the remainder be corrected only at the end of the culvert’s natural life or when r oad work undertaken for independent reasons

w o u l d in any e vent require replacement of the culvert. I t is possible that, d

uring this ex tended period, chang ed or newly revealed facts o r circumstances will justify a modification o f the injunction. The d istrict court s h o u l d n ot hesitate to modify its injunction if this pr o v e s t o b e the case. As the Supreme Court wrote in System F ederation No. 91 v. W

right
, 364 U.S. 642, 647 (1961), “a sound j u d icial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance h ave chang ed, or n ew ones h a v e since arisen.” See also Rufo v. Inmates o f Suffolk C

n t y

. J a i l
, 502 U .S. 367, 380–81 (1992). I n affi r m i n g t he judg ment entered by the district court in this c a s e, w e emphasiz e that the flex ibility inherent in equity jurisdiction allows the court, if chang ed or newly revealed facts or circumstances warrant, to modify its injunction according ly

.U N I T E D S T A T E S V

. W A S H I N G T O N 69

Conclusion

I n sum, we conclude that in building and ma i n t a i n ing b a rrier culverts Washing ton has v iolated, and continue s t o violate, its oblig ation to the Tribes under the fishing clause o f the Treaties. The U nited States h as not waived the r ig hts o f the Tribes under the Treat i e s , a n d h as not waived its o wn sovereig n immunity by bring ing suit on behalf o f the Tribes. The district court did not abuse its d iscretion in enjoining W a shing ton to correct most of its hig h -priority barr i e r culverts w ithin seventeen y ears, and to correct the remainder
at t h e e n d of their natural life or in the course of a road construction project undertaken for independent reasons.

AF F IRMED.