FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA;

SUQUAMISH INDIAN TRIBE;

SAUK-SUIATTLE TRIBE;

STILLAGUAMISH TRIBE; HOH

TRIBE; JAMESTOWN S’KLALLAM

TRIBE; LOWER ELWHA BAND OF

KLALLAMS; PORT GAMBLE

BAND CLALLAM; NISQUALLY

INDIAN TRIBE; NOOKSACK

INDIAN TRIBE; SKOKOMISH

INDIAN TRIBE; SQUAXIN ISLAND

TRIBE; UPPER SKAGIT INDIAN

TRIBE; TULALIP TRIBES; LUMMI

INDIAN NATION; QUINAULT

INDIAN NATION; PUYALLUP

TRIBE; CONFEDERATED TRIBES

AND BANDS OF THE YAKAMA

INDIAN NATION; QUILEUTE

INDIAN TRIBE; MAKAH INDIAN

TRIBE; SWINOMISH INDIAN

TRIBAL COMMUNITY;

MUCKLESHOOT INDIAN TRIBE,

Plaintiffs-Appellees,

v.

STATE OF WASHINGTON,

Defendant-Appellant.

No. 13-35474

D.C. Nos.

2:01-sp-00001-RSM

2:70-cv-09213-RSM

ORDER AND

AMENDED

OPINION
2 UNITED STATES V. WASHINGTON

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted October 16, 2015

Seattle, Washington

Filed June 27, 2016

Amended March 2, 2017

Before: William A. Fletcher and Ronald M. Gould, Circuit

Judges, and David A. Ezra,* District Judge.

Opinion by Judge W. Fletcher

* The Honorable David A. Ezra, District Judge for the U.S. District

Court for the District of Hawai’i, sitting by designation.
UNITED STATES V. WASHINGTON 3

SUMMARY**

Tribal Fishing Rights

The panel amended the opinion filed on June 27, 2016;

and affirmed the district court’s order issuing an injunction

directing the State of Washington to correct culverts, which

allow streams to flow underneath roads, because they

violated, and continued to violate, the Stevens Treaties, which

were entered in 1854–55 between Indian tribes in the Pacific

Northwest and the Governor of Washington Territory. 

As part of the Treaties, the Tribes relinquished large

swaths of land, watersheds, and offshore waters adjacent to

those areas (collectively, the “Case Area”), in what is now the

State of Washington. In exchange, the Tribes were

guaranteed a right to engage in off-reservation fishing.

In 1970, the United States brought suit against the State

of Washington on behalf of the Tribes to resolve a persistent

conflict over fishing rights; and in a 1974 decision, the

district court authorized the parties to invoke its continuing

jurisdiction to resolve continuing disputes.

The panel held that in building and maintaining barrier

culverts within the Case Area, Washington violated, and was

continuing to violate, its obligation to the Tribes under the

Treaties. The panel also held that because treaty rights

belong to the Tribes rather than the United States, it was not

the prerogative of the United States to waive them.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. WASHINGTON

Concerning the State of Washington’s cross-request

seeking an injunction that would require the United States to

fix its culverts before Washington repaired its culverts, the

panel held that Washington’s cross-request was barred by

sovereign immunity, and Washington did not have standing

to assert any treaty rights belonging to the Tribes. 

Specifically, the panel held that Washington’s cross-request

for an injunction did not qualify as a claim for recoupment. 

The panel also held that the United States did not waive its

own sovereign immunity by bringing suit on behalf of the

Tribes. The panel further held that any violation of the

Treaties by the United States violated rights held by the

Tribes rather than the State, and the Tribes did not seek

redress against the United States in this proceeding.

The panel held that the district court did not abuse its

discretion in enjoining Washington to correct most of its

high-priority barrier culverts within seventeen years, and to

correct the remainder at the end of their natural life or in the

course of a road construction project undertaken for

independent reasons. The panel rejected Washington’s

objections that the injunction was too broad, that the district

court did not defer to the State’s expertise, that the court did

not properly consider costs and equitable principles, that the

injunction impermissibly intruded into state government

operations, and that the injunction was inconsistent with

federalism principles.

Addressing the State of Washington’s petition for panel

rehearing and for rehearing en banc, the panel rejected

Washington’s argument that it should have been awarded, as

recoupment or set-off, a monetary award from the United

States. The panel also rejected Washington’s contention that

because of the presence of non-state-owned barrier culverts
UNITED STATES V. WASHINGTON 5

on the same streams as state-owned barrier culverts, the

benefits obtained from remediation of state-owned culverts

would be insufficient to justify the district court’s injunction.

COUNSEL

Noah G. Purcell (argued), Solicitor General; Laura J. Watson,

Deputy Solicitor General; Robert W. Ferguson, Attorney

General; Jessica E. Fogel, Assistant Attorney General; Office

of the Attorney General, Olympia, Washington; for

Defendant-Appellant State of Washington.

John C. Sledd (argued), Jane G. Steadman, Cory J. Albright,

and Philip E. Katzen; Kanji & Katzen, PLLC, Seattle,

Washington; for Plaintiffs-Appellees.

David C. Shilton (argued), Vanessa Boyd Willard, and

Evelyn S. Ying, Attorneys; United States Department of

Justice, Environment & Natural Resources Division;

Washington, D.C., for Plaintiff-Appellee United States.

Pamela B. Loginsky, Washington Association of Prosecuting

Attorneys, Olympia, Washington; Douglas D. Shaftel, Pierce

County Deputy Prosecuting Attorney; for Amicus Curiae

Washington State Association of Counties.

Ellen F. Rosenblum, Attorney General; Anna M. Joyce,

Solicitor General; Michael A. Casper, Deputy Solicitor

General; Stephanie L. Striffler, Senior Assistant Attorney

General; Oregon Department of Justice, Salem, Oregon; for

Amicus Curiae State of Oregon.
6 UNITED STATES V. WASHINGTON

Colette Routel, Associate Professor and Co-Director, Indian

Law Clinic, William Mitchell College of Law, Saint Paul,

Minnesota, for Amicus Curiae Indian Law Professors.

Amanda W. Goodin and Janette K. Brimmer, Earthjustice,

Seattle, Washington, for Amicus Curiae Pacific Coast

Federation of Fishermen’s Associations and Institute for

Fisheries Resources.

Stephanie L. Striffler, Senior Assistant Attorney General;

Michael A. Casper, Deputy Solicitor General; Anna M.

Joyce, Solicitor General; Ellen F. Rosenblum, Attorney

General; Office of the Attorney General, Salem, Oregon; for

Amicus Curiae State of Oregon.

Dale Schowengerdt, Solicitor; Timothy C. Fox, Attorney

General; Attorney General’s Office, Helena, Montana; for

Amicus Curiae State of Montana.

Clay R. Smith, Deputy Attorney General; Clive J. Strong,

Chief of Natural Resources; Lawrence G. Wasden, Attorney

General; Office of the Attorney General, Boise, Idaho; for

Amicus Curiae State of Idaho.

Dominic M. Carollo, Yockim Carollo LLP, Roseburg,

Oregon, for Amici Curiae Klamath Critical Habitat

Landowners Inc., Modoc Point Irrigation District, Mosby

Family Trust, Sprague River Water Resource Foundation

Inc., and TPC LLC.
UNITED STATES V. WASHINGTON 7

ORDER

The opinion filed on June 27, 2016 is amended as

follows:

At 855 of the published opinion, U.S. v. Washington,

827 F.3d 836 (9th Cir. 2016), add the following subheading

beneath “C. Washington’s Cross-Request”:

“1. Injunction.”

On the same page, add “for an injunction” following “The

district court struck the cross request . . .”.

At 855–56, change the numbering of the subheadings of

“Sovereign Immunity” and “Standing” from 1, 2 to a, b.

At 856, just above subsection D, add the following text:

2. Recoupment of Part of Washington’s Costs

In its Petition for Panel Rehearing and for Rehearing En

Banc, filed after our opinion came down, see United States v.

Washington, 827 F.3d 836 (9th Cir. 2016), Washington

contends that we misconstrued its appeal of the district

court’s denial of its cross-request. Washington writes in its

Petition:

The State’s original [cross-request]sought

a variety of remedies, including that the

federal government be required to (1) pay part

of the cost of replacing state culverts that

were designed to federal standards; (2) take

actions on federal lands to restore salmon
8 UNITED STATES V. WASHINGTON

runs; and (3) replace federal culverts in

Washington. But on appeal, the State pursued

only the first of these remedies.

We did not, and do not, so understand the State’s appeal. 

Contrary to Washington’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. It did not appeal a denial of a request that

the United States be required to pay part of its costs to repair

or replace its culverts.

In the district court, Washington stated in the body of its

cross-request that “[t]he United States has a duty to pay all

costs incurred by the State to identify and fix any and all

barrier culverts.” But in its demand for relief, Washington

did not demand any monetary payment from the United

States, unless its boilerplate request (“The State of

Washington further requests all other relief the Court deems

just and equitable”) could be deemed such a demand. Not

surprisingly, in denying Washington’s cross-request, the

district court did not discuss a demand for monetary payment

from the United States. In its brief to us, Washington writes

in the introduction that the district court erred in denying its

request to allow the State “to recoup some of the costs of

compliance from the United States because it specified the

culvert design and caused much of the decline in the salmon

runs.” But Washington makes no argument in the body of its

brief that it should be allowed to recover from the United

States any part of the cost to repair or replace its own barrier

culverts.

When considering Washington’s appeal, we did not

understand it to argue that it should have been awarded, as
UNITED STATES V. WASHINGTON 9

recoupment or set-off, a monetary award from the United

States. Given Washington’s failure to make this argument in

the body of its brief, the argument was waived. Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). However, given

the vigor with which Washington now makes the argument in

its Petition for Rehearing and Rehearing En Banc, we think

it appropriate to respond on the merits.

Washington’s argument is easily rejected. As recounted

above, a claim for recoupment must, inter alia, “seek relief of

the same kind or nature as the plaintiff’s suit.” Berrey,

439 F.3d at 645. Washington’s claim does not satisfy this

criterion. The United States, the plaintiff, sought injunctive

relief against Washington. Washington sought a monetary

award. These two forms of relief are not “of the same kind or

nature.”

At 859, just prior to the paragraph beginning, “Witnesses

at trial. . .”, add the following text:

The State contends that because of the presence of nonstate-owned barrier culverts on the same streams as stateowned barrier culverts, the benefit obtained from remediation

of state-owned culverts will be insufficient to justify the

district court’s injunction. The State writes:

[S]tate-owned culverts are less than 25% of

all known barrier culverts, and in some places,

non-state culverts outnumber state-owned

culverts by a factor of 36 to 1. Any benefit

from fixing a state-owned culvert will not be

realized if fish are blocked by other culverts

in the same stream system.
10 UNITED STATES V. WASHINGTON

There are several answers to the State’s contention. First,

it is true that in calculating whether a state culvert is a barrier

culvert, and in determining the priority for requiring

remediation, the court’s injunction ignores non-state barriers

on the same stream. But in so doing, the court followed the

practice of the state itself. Paul Sekulich, formerly division

manager in the restoration division in the habitat program of

the WashingtonDepartment of Fish and Wildlife (“WDFW”),

testified in the district court:

Q: When you calculate a priority index

number for a [state-owned] culvert, do you

account for the presence of other fish passage

barriers in a watershed?

A: . . . When the priority index is calculated,

it treats those other barriers as transparent. 

The reason we do that, we don’t know when

those other barriers are being corrected. So

by treating them as transparent, you do a

priority index that looks at potential habitat

gain as if all those barriers would be corrected

at some point in time.

Washington State law requires that a “dam or other

obstruction across or in a stream” be constructed in such a

manner as to provide a “durable and efficient fishway”

allowing passage of salmon. Wash. Rev. Code

§ 77.57.030(1). If owners fail to construct or maintain proper

fishways, the Director of WDFW may require them do so at

their own expense. Id. at § 77.57.030(2).

Second, in 2009, on streams where there were both state

and non-state barriers, 1,370 of the 1,590 non-state barriers,
UNITED STATES V. WASHINGTON 11

or almost ninety percent, were upstream of the state barrier

culverts. Sixty nine percent of the 220 downstream non-state

barriers allowed partial passage of fish. Of the 152 that

allowed partial passage, “passability” was 67% for 80 of the

barriers and 33% for 72 of them.

Third, the specific example provided by the state is a

culvert on the Middle Fork of Wildcat Creek under State

Route 8 in Grays Harbor County. The State is correct that

there are 36 non-state barriers and only one state barrier

culvert on this creek. The State fails to mention, however,

that all of the non-state barriers are upstream of the state

culvert. Further, it is apparent from the map in the district

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 Banc will be entertained. Pending petitions

remain pending and need not be renewed.

OPINION

W. FLETCHER, Circuit Judge:

In 1854 and 1855, Indian tribes in the Pacific Northwest

entered into a series of treaties, now known as the “Stevens

Treaties,” negotiated by Isaac I. Stevens, Superintendent of

Indian Affairs and Governor of Washington Territory. Under

the Stevens Treaties (“Treaties”) at issue in this case, the

tribes relinquished large swaths of land west of the Cascade

Mountains and north of the Columbia River drainage area,

including the Puget Sound watershed, the watersheds of the
12 UNITED STATES V. WASHINGTON

Olympic Peninsula north of the Grays Harbor watershed, and

the offshore waters adjacent to those areas (collectively, the

“Case Area”), in what is now the State of Washington. In

exchange for their land, the tribes were guaranteed a right to

off-reservation fishing, in a clause that used essentially

identical language in each treaty. The “fishing clause”

guaranteed “the right of taking fish, at all usual and

accustomed grounds and stations . . . in common with all

citizens of the Territory.”

In 2001, pursuant to an injunction previously entered in

this long-running litigation, twenty-one Indian tribes

(“Tribes”), joined by the United States, filed a “Request for

Determination” — in effect, a complaint — in the federal

district court for the Western District of Washington. The

Tribes include the Suquamish Indian Tribe, Jamestown

S’Klallam, Lower Elwha Band of Klallams, Port Gamble

Clallam, Nisqually Indian Tribe, Nooksack Tribe, SaukSuiattle Tribe, Skokomish Indian Tribe, Squaxin IslandTribe,

Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes,

Lummi Indian Nation, Quinault Indian Nation, Puyallup

Tribe, Hoh Tribe, Confederated Tribes and Bands of the

Yakama Indian Nation, Quileute Indian Tribe, Makah Indian

Tribe, Swinomish Indian Tribal Community, and the

Muckleshoot Indian Tribe. The Tribes contended that

Washington State (“Washington” or “the State”) had violated,

and was continuing to violate, the Treaties by building and

maintaining culverts that prevented mature salmon from

returning from the sea to their spawning grounds; prevented

smolt (juvenile salmon) from moving downstream and out to

sea; and prevented very young salmon from moving freely to

seek food and escape predators. In 2007, the district court

held that in building and maintaining these culverts

Washington had caused the size of salmon runs in the Case
UNITED STATES V. WASHINGTON 13

Area to diminish and that Washington thereby violated its

obligation under the Treaties. In 2013, the court issued an

injunction ordering Washington to correct its offending

culverts.

We affirm the decision of the district court.

I. Historical Background

For over a hundred years, there has been conflict between

Washington and the Tribes over fishing rights under the

Treaties. We recount here some of the most salient aspects of

this history.

When white settlers arrived in the Washington territory in

the second half of the nineteenth century, many settled on

riparian land and salt-water shoreline. Even though the

majority of these settlers were not themselves fishermen, they

blocked access to many of the Tribes’ traditional fishing sites. 

By the end of the century, white commercial fishermen were

catching enormous quantities of salmon, first on the

Columbia River and then in Puget Sound as well, supplying

large-scale canneries.

In 1894, L. T. Erwin, the United States Indian Agent for

the Yakimas, complained that whites had blocked access to

the Indians’ “accustomed fisheries” on the Columbia River: 

“[I]nch by inch, [the Indians] have been forced back until all

the best grounds have been taken up by white men, who now

refuse to allow them to fish in common, as the treaty

provides.” Report of the Secretary of the Interior, 1894

(3 vols., Washington, D.C., 1894, II, 326). In 1897, D. C.

Govan, the Indian Agent for the Tulalips on Puget Sound

reported that “the Alaska Packing Company and other
14 UNITED STATES V. WASHINGTON

cannery companies have practically appropriated all the best

fishing grounds at Point Roberts and Village Point, where the

Lummi Indians have been in the habit of fishing from time

immemorial.” Annual Reports of the Department of the

Interior, 1897: Report of the Commissioner of Indian Affairs

(Washington, D.C., 1897, 297). In 1905, Charles Buchanan,

the new Indian Agent for the Tulalips, complained, “The

tremendous development of the fisheries by traps and by trust

methods of consolidation, concentration, and large local

development are seriously depleting the natural larders of our

Indians and cutting down their main reliance for support and

subsistence. Living for them is becoming more precarious

year by year.” Annual Reports of the Department of the

Interior, 1905: Indian Affairs (Washington, D.C., 1906, Part

I, 362). During this period, “[t]he superior capital, large-scale

methods, and aggressiveness of whites . . . quickly led to their

domination of the prime fisheries of the region.” Donald L.

Parman, Inconstant Advocacy: The Erosion of Indian Fishing

Rights in the Pacific Northwest, 53 Pacific Hist. Rev. 163,

167 (1984).

The United States Supreme Court first addressed the

conflict over fisheries in United States v. Winans, 198 U.S.

371 (1905). The Winans brothers had acquired land at a

prime Yakima fishing site on the Washington side of the

Columbia River. See Michael C. Blumm and James

Brunberg, ‘Not Much Less Necessary . . . Than the

Atmosphere They Breathed’: Salmon, Indian Treaties, and

the Supreme Court — a Centennial Remembrance of United

States v. Winans and Its Enduring Significance, 46 Nat.

Resources J. 489, 523 (2006). Under an exclusive license

from the State, the Winanses operated “fish wheels” at the

site. Fish wheels were essentially mechanized dip nets

“capable of catching salmon by the ton.” Washington v.
UNITED STATES V. WASHINGTON 15

Wash. State Commercial Passenger Fishing Vessel Ass’n,

443 U.S. 658, 679 (1979). The Winanses refused to allow the

Yakimas to cross over or to camp on their land in order to

fish at the site.

The Yakimas had signed one of the Stevens Treaties in

1855. The United States brought suit against the Winanses

on the Yakimas’ behalf. The Supreme Court held that the

land owned by the Winanses, previously conveyed by patent

from the government, was by virtue of the treaty subject to an

easement allowing access to the Yakimas’ “usual and

accustomed” fishing site. The Court held, further, that the

State could not license the Winanses to “construct and use a

device which gives them exclusive possession of the fishing

places, as it is admitted a fish wheel does.” Winans, 198 U.S.

at 382. See also Seufort Bros. Co. v. United States, 249 U.S.

194 (1919) (holding that the Yakimas had rights under the

treaty on the Oregon, as well as the Washington, side of the

river).

In 1915, Charles Buchanan, still the Indian Agent for the

Tulalips, complained to the Washington legislature of the

diminished supply of salmon and the harsh application of

Washington’s fish and game laws against the Indians. He

wrote:

[M]ore recently, the use of large capital,

mechanical assistance, numerous great traps,

canneries, etc., and other activities allied to

the fishery industry, have greatly lessened and

depleted the Indians’ natural sources of food

supply. In addition thereto the stringent and

harsh application to Indians of the State game

and fish laws have made it still and
16 UNITED STATES V. WASHINGTON

increasingly precarious for him to procure his

natural foods in his natural way.

Rights of the Puget Sound Indians to Game and Fish, 6 Wash.

Hist. Quart. 109, 110 (Apr. 1915).

The next year, the Washington Supreme Court upheld the

sort of “stringent and harsh application . . . of game and fish

laws” of which Buchanan complained. In State v.

Towessnute, 154 P. 805, 806 (Wash. 1916), a member of the

Yakima Nation named Towessnute was charged with offreservation fishing without a license in a manner forbidden by

state law. Towessnute defended on the ground that he was

fishing in the traditional manner at one the Yakimas’ usual

and accustomed places, and that he was entitled to do so

under the treaty at issue in Winans. Id. Characterizing the

treaty as a “dubious document,” id., the Washington Supreme

Court rejected the defense:

The premise of Indian sovereignty we reject. 

The treaty is not to be interpreted in that light. 

At no time did our ancestors in getting title to

this continent, ever regard the aborigines as

other than mere occupants . . . of the soil.

Id. at 807. The Court read the Supreme Court’s holding in

Winans as requiring easements across private land, but at the

same time as endorsing the authority of the state, through the

exercise of its “police power,” to enact regulatory laws

restricting Indian fishing rights. Id. at 809. See also State v.

Alexis, 154 P. 810 (Wash. 1916) (holding the same under the

Stevens Treaty with the Lummi Tribe in Puget Sound).
UNITED STATES V. WASHINGTON 17

Much traditional Indian fishing was done with traps and

nets in rivers, catching mature salmon when they returned to

their native habitat to spawn. White commercial fishermen,

by contrast, often fished in salt water, using equipment that

most Indians could not afford and catching both mature and

immature salmon. Beginning in the early 1900s, the State

regulated the salmon fishery in Puget Sound in such a way

that Indians who fished in rivers were increasingly unable to

exercise their off-reservation treaty right to fish in their usual

and accustomed places and in their traditional manner. For

example, in 1907 the Washington legislature forbade all offreservation fishing above the tide line — by whites and

Indians alike — except by hook and line. Wash. Sess. Laws

Ch. 247, Sec. 2 (1907).

In 1934, Washington voters adopted Initiative 77, a

measure that limited off-reservation commercial fishing to

certain portions of Puget Sound and banned the use of fixed

gear, such as the “pound net, fish trap, fish wheel, scow fish

wheel, set net, or any fixed appliance,” to catch salmonids. 

Init. Measure No. 77, State of Wash. Voting Pamphlet 5

(Nov. 6, 1934). According to a report commissioned by the

federal Bureau of Indian Affairs, the passage of Initiative 77

“constituted a serious blow to the Indian fishing being carried

on at usual and accustomed grounds”:

[D]ue to their extremely limited financial

means, [the Indians’] gear necessarilymust be

obtainable at a minimum of expense.

Generally speaking, the Indians are unable to

finance the purchase of other more expensive

gear and operating equipment, the use of

which was not entirely outlawed. In order to

continue to provide the necessities of life, the
18 UNITED STATES V. WASHINGTON

Indians, as a result of the above conservation

statute, were literally forced to confine their

fishing with such gear to reservation waters.

The fact that such was the situation led to

considerable agitation in the Pacific

Northwest and especially in the [S]tate of

Washington looking to the further curtailment

of the Indians’ commercial fishery.

Edward Swindell, Report on Source, Nature and Extent

of Fishing, Hunting, and Miscellaneous Rights of Certain

Indian Tribes in Washington and Oregon 95 (1942).

In subsequent years, the State continued to assert

authority to regulate off-reservation fishing by Indians,

including authority to require purchase of fishing licences. In

1939, Sampson Tulee, a Yakima Indian, was criminally

charged with off-reservation commercial fishing with a dip

net on the Columbia River without a state license. Citing

Towessnute and Alexis, the Washington Supreme Court

affirmed the conviction as a valid exercise of the State’s

police powers. Washington v. Tulee, 109 P.2d 280, 287

(Wash. 1941) (“Washington enjoys to the full the exercise of

its police powers.”). The United States Supreme Court

reversed. The Court held that while the State had the power,

consistent with the treaty, to regulate fishing by both Indians

and non-Indians to the degree “necessary for the conservation

of fish,” the exaction of a license fee “cannot be reconciled

with a fair construction of the treaty.” Tulee v. Washington,

315 U.S. 681, 684–85 (1942).

After Tulee, state officials continued to enforce

restrictions on off-reservation fishing by Puget Sound
UNITED STATES V. WASHINGTON 19

Indians, even when that fishing was conducted at the Indians’

usual and accustomed places:

Over the years the state fish and game

authorities have asserted that Indian treatyprotected fishing exists only on the

reservations, and have acted to enforce this

position. Injunctions against off-reservation

fishing by Indians of the Nisqually, Puyallup,

and Muckleshoot tribes have been obtained

and enforcement actions carried out even

while the injunctions are being contested in

the courts. Arrests of fishermen and

confiscation of gear have seriously hampered

the Indians. Valuable gear held by the state as

evidence can effectively put the fisherman out

of business during several runs of fish, even

though he may eventually win his case.

Walter Taylor, Uncommon Controversy: FishingRights of the

Muckleshoot, Puyallup, and Nisqually Indians 60 (1970). As

a result of the State’s hostility to off-reservation fishing, the

Indians’ share of the overall catch was relatively small. For

example, from 1958 through 1967, the shares of the total

salmon catch in Puget Sound were 6% for Indian fishing,

8.5% for sports fishing, and 85.5% for commercial fishing. 

Id. at 123, 126.

Beginning in the early 1960s, the State substantially

increased its enforcement against off-reservation fishing in

Puget Sound. See generally Bradley G. Shreve, “From Time

Immemorial”: The Fish-in Movement and the Rise of

Intertribal Activism, 78 Pacific Hist. Rev. 403, 411–15

(2009). In response, in 1964 the National Indian Youth
20 UNITED STATES V. WASHINGTON

Council organized a large demonstration in Olympia to

demand that the State acknowledge their treaty fishing rights. 

See Uncommon Controversy, supra, at 107–13. During the

1960s and early 1970s, in what came to be called the “fish

wars,” some Indians fished openly and without licenses in

“fish-ins” to bring attention to the State’s prohibitions against

off-reservation fishing. State reaction to the “fish-ins”

sometimes led to violence. See, e.g., Associated Press,

“Shots Fired, 60 Arrested in Indian-Fishing Showdown,”

Seattle Times, Sept. 9, 1970; Alex Tizon, “The Boldt

Decision / 25 Years — The Fish Tale That Changed History,” 

Seattle Times, Feb. 7, 1999 (describing the State’s “militarystyle campaign,” employing “surveillance planes, highpowered boats and radio communications,” as well as “tear

gas,” “billy clubs,” and “guns”).

In 1970, in an effort to resolve the persistent conflict

between the State and the Indians, the United States brought

suit against the State on behalf of the Tribes. The dispute

now before us is part of that litigation.

II. Anadromous Fisheries and Washington’s Barrier

Culverts

Anadromous fish, such as salmon, hatch and spend their

early lives in fresh water, migrate to the ocean to mature, and

return to their waters of origin to spawn. Washington is home

to several anadromous fisheries, of which the salmon fishery

is by far the most important. Before the arrival of white

settlers, returning salmon were abundant in the streams and

rivers of the Pacific Northwest. Present-day Indian tribes in

the Pacific Northwest eat salmon as an important part of their

diet, use salmon in religious and cultural ceremonies, and fish

for salmon commercially.
UNITED STATES V. WASHINGTON 21

Roads often cross streams that salmon and other

anadromous fish use for spawning. Road builders construct

culverts to allow the streams to flow underneath roads, but

many culverts do not allow fish to pass easily. Sometimes

they do not allow fish passage at all. A “barrier culvert” is a

culvert that inhibits or prevents fish passage. Road builders

can avoid constructing barrier culverts by building roads

away from streams, by building bridges that entirely span

streams, or by building culverts that allow unobstructed fish

passage.

Four state agencies are responsible for building and

managing Washington’s roads and the culverts that pass

under them: Washington State Department of Transportation

(“WSDOT”), Washington State Department of Natural

Resources (“WSDNR”), Washington State Parks and

Recreation Commission (“State Parks”), and Washington

Department of Fisheries and Wildlife (“WDFW”). Of these,

WSDOT, the agencyresponsible for Washington’s highways,

builds and maintains by far the most roads and culverts.

III. Earlier Proceedings

In 1970, the United States, on its own behalf and as

trustee for Pacific Northwest tribes, sued Washington in

federal court in the Western District of Washington. The

United States sought declaratory and injunctive relief based

on the fishing clause of the Treaties. United States v. State of

Washington, 384 F. Supp. 312, 327–28 (W.D. Wash. 1974)

(“Washington I”). In what has come to be known as the

“Boldt decision,” District Judge George H. Boldt divided the

case into two phases. Phase I was to determine what portion,

if any, of annually harvestable fish were guaranteed to the

Tribes by the fishing clause. Phase II was to determine
22 UNITED STATES V. WASHINGTON

whether the fishing clause extends to hatchery fish, and

whether it requires Washington to prevent environmental

degradation within the Case Area.

In Phase I, Judge Boldt held that the phrase “the right of

taking fish . . . in common with all citizens” gives the Tribes

the right to take up to fifty percent of the harvestable fish in

the Case Area, subject to the right of non-treaty fishers to do

the same. Id. at 343. The Supreme Court affirmed in

Washington v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979) (“Fishing

Vessel”). The Court specified that fifty percent was a ceiling

rather than a floor, and that the fishing clause guaranteed “so

much as, but no more than, is necessary to provide the

Indians with a livelihood—that is to say, a moderate living.” 

Id. at 686. In accordance with its standard practice of

interpreting Indian treaties in favor of the tribes, the Court

interpreted the clause as promising protection for the tribes’

supply of fish, not merely their share of the fish. The Court

wrote:

Governor Stevens and his associates were

well aware of the “sense” in which the Indians

were likely to view assurances regarding their

fishing rights. During the negotiations, the

vital importance of the fish to the Indians was

repeatedly emphasized by both sides, and the

Governor’s promises that the treaties would

protect that source of food and commerce

were crucial in obtaining the Indians’ assent.

Id. at 676.
UNITED STATES V. WASHINGTON 23

In 1976, the United States initiated Phase II of the

litigation, asking for a declaratory judgment clarifying the

Tribes’ rights with respect to the “hatchery fish” issue and to

the “environmental” issue. United States v. State of

Washington, 506 F. Supp. 187, 194 (W.D. Wash. 1980)

(“Washington II”). The district court held, first, that hatchery

fish must be included in determining the share of fish to

which the Tribes are entitled. Id. at 197. It held, second, that

the Tribes’ right to “a sufficient quantity of fish to satisfy

their moderate living needs” entailed a “right to have the

fishery habitat protected from man-made despoliation.” Id.

at 208, 203.

Sitting en banc, we affirmed in part and vacated in part. 

United States v. State of Washington, 759 F.2d 1353 (9th Cir.

1985) (en banc) (“Washington III”). We affirmed the district

court’s decision that hatchery fish must be included in

determining the share of salmon to be allocated to the Tribes:

The hatchery programs have served a

mitigating function since their inception in

1895. They are designed essentially to

replace natural fish lost to non-Indian

degradation of the habit at and

commercialization of the fishing industry. 

Under these circumstances, it is only just to

consider such replacement fish as subject to

treaty allocation. For the tribes to bear the

full burden of the decline caused by their nonIndian neighbors without sharing the

replacement achieved through the hatcheries,
24 UNITED STATES V. WASHINGTON

would be an inequity and inconsistent with the

Treaty.

Id. at 1360 (citations omitted).

We vacated the court’s decision on the environmental

issue. We held that the issue was too broad and varied to be

resolved in a general and undifferentiated fashion, and that

the issue of human-caused environmental degradation must

be resolved in the context of particularized disputes. We

wrote:

We choose to rest our decision in this case on

the proposition that issuance of the

declaratory judgment on the environmental

issue is contrary to the exercise of sound

judicial discretion. The legal standards that

will govern the State’s precise obligations and

duties under the treaty with respect to the

myriad State actions that may affect the

environment of the treaty area will depend for

their definition and articulation upon concrete

facts which underlie a dispute in a particular

case.

Id. at 1357. Although we vacated the district court’s decision

with respect to the environmental issue, we made clear that

we were not absolving Washington of environmental

obligations under the fishing clause. We concluded the

section of our opinion devoted to the environmental issue by

emphasizing that Washington “is bound by the treaty.” Id.

Judge Boldt’s 1974 decision authorized the parties to

invoke the continuing jurisdiction of the district court to
UNITED STATES V. WASHINGTON 25

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

Washington I, 384 F. Supp. at 419; see also United States v.

Washington, 573 F.3d 701, 705 (9th Cir. 2009). For such

disputes, the court directed the parties to “file with the clerk

of this court . . . a ‘Request for Determination’ setting forth

the factual nature of the request and any legal authorities and

argument which may assist the court, along with a statement

that unsuccessful efforts have been made by the parties to

resolve the matter, whether a hearing is required, and any

factors which bear on the urgency of the request.” 

Washington I, 384 F. Supp. at 419.

In 2001, the Tribes filed a Request for Determination

(“Request”), seeking “to enforce a duty upon the State of

Washington to refrain from constructing and maintaining

culverts under State roads that degrade fish habitat so that

adult fish production is reduced.” The Tribes sought a

permanent injunction from the district court “requiring

Washington to identify and then to open culverts under state

roads and highways that obstruct fish passage, for fish runs

returning to or passing through the usual and accustomed

grounds and stations of the plaintiff tribes.”

The United States joined the Tribes’ Request, seeking a

declaration from the court that:

The right of taking fish secured to the

plaintiff tribes in the Stevens Treaties imposes

a duty upon the State of Washington to refrain

from degrading the fishery resource through

the construction or maintenance of culverts

under State owned roads and highways in a

way that deprives the Tribes of a moderate

living from the fishery.
26 UNITED STATES V. WASHINGTON

The State has violated and continues to

violate the duty owed to the plaintiff tribes

under the Stevens Treaties through the

operation and maintenance of culverts which

reduce the number of fish that would

otherwise return to or pass through the Tribes’

usual and accustomed fishing grounds and

stations to such a degree as would deprive the

Tribes of the ability to earn a moderate living

from the fishery.

The United States sought a permanent injunction that would

require Washington “within five years of the date of

judgment (or such other time period as the Court deems

necessary and just)” to “repair, retrofit, maintain, or replace”

culverts that “degrade appreciably” the passage of fish.

Washington and the defendant state agencies (collectively

“Washington” or “the State”) answered by declaring that

there is “no treaty-based right or duty of fish habitat

protection as described” in the Request. In the alternative,

Washington emphasized that some of its barrier culverts pass

under highways funded in part by the United States, and that

these highways were “designed according to standards set or

approved” by the Federal Highway Administration, leading

Washington to believe that its culverts complied with the

Treaties. Further, Washington asserted that the United States

and the Tribes have built and maintained barrier culverts on

their own lands within the Case Area. Washington asserted

that the United States “has a duty to take action on its own

lands so as not to place on the State of Washington an unfair

burden of complying with any such treaty-based duty.”
UNITED STATES V. WASHINGTON 27

Washington also made a “cross-request” — in effect, a

counterclaim — against the United States 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 own

barrier culverts. The district court dismissed the crossrequest on the ground that the United States had not waived

its sovereign immunity. The court later denied Washington’s

request to file an amended cross-request on the additional

ground that Washington did not have standing. It wrote,

“[T]he State may not assert a treaty-based claim on behalf of

the Tribes. . . . The decision as whether and when to assert

that claim against the United States is for the Tribes alone.”

The district court granted summary judgment in favor of

the Tribes and the United States, concluding that the dispute

involved the kind of “concrete facts” that were lacking in

Washington III. The court held, first, that “the right of taking

fish, secured to the Tribes in the Stevens Treaties, imposes a

duty upon [Washington] to refrain from building or operating

culverts under State-maintained roads that hinderfish passage

and thereby diminish the number of fish that would otherwise

be available for Tribal harvest.” It held, second, that “the

State of Washington currentlyowns and operates culverts that

violate this duty.”

The district court conducted a bench trial in 2009 and

2010 to determine the appropriate remedy. After failed

efforts to reach a settlement, the court issued both a

Memorandum and Decision and a Permanent Injunction. In

its Memorandum and Decision, 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:
28 UNITED STATES V. WASHINGTON

During the negotiations leading up to the

signing of the treaties, Governor Isaac Stevens

and other negotiators assured the Tribes of

their continued access to their usual fisheries. 

Governor Stevens assured the Tribes that even

after they ceded huge quantities of land, they

would still be able to feed themselves and

their families forever. As Governor Stevens

stated, “I want that you shall not have simply

food and drink now but that you may have

them forever.”

(Emphasis added.)

The court found that salmon stocks in the Case Area have

declined “alarmingly” since the Treaties were signed, and

“dramatically” since 1985. The court wrote, “A primary

cause of this decline is habitat degradation, both in breeding

habitat (freshwater) and feeding habitat (freshwater and

marine areas) . . . . One cause of the degradation of salmon

habitat is . . . culverts which do not allow the free passage of

both adult and juvenile salmon upstream and downstream.” 

The “consequent reduction in tribal harvests has damaged

tribal economies, has left individual tribal members unable to

earn a living by fishing, and has caused cultural and social

harm to the Tribes in addition to the economic harm.”

The district court entered a Permanent Injunction on the

same day it issued its Memorandum and Decision. The court

ordered the State, in consultation with the Tribes and the

United States, to prepare within six months a current list of

all state-owned barrier culverts within the Case Area. It

ordered WSDNR, State Parks, and WDFW to correct all their

barrier culverts on the list by the end of October 2016. It
UNITED STATES V. WASHINGTON 29

ordered WSDOT to correct many of its barrier culverts within

seventeen years, and to correct the remainder only at the end

of the culverts’ natural life or in connection with

independently undertaken highway projects. We provide a

more detailed description of the injunction below.

IV. Standard of Review

We review de novo dismissals for want of jurisdiction

under Rule 12(b)(1) and for failure to state a claim under

Rule 12(b)(6). Rhoades v. Avon Products, Inc., 504 F.3d

1151, 1156 (9th Cir. 2007). We also review de novo a grant

or denial of summary judgment. Scott v. Pasadena Unified

Sch. Dist., 306 F.3d 646, 652 (9th Cir. 2002). We review

permanent injunctions under three standards: we review

factual findings for clear error, legal conclusions de novo, and

the scope of the injunction for abuse of discretion. Id. at 653.

V. Discussion

Washington objects to the decision of the district court on

a number of grounds. It objects to the court’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 waiver defense; to the dismissal of its

cross-request against the United States; and to the injunction. 

We take the State’s objections in turn.

A. Washington’s Duty under the Treaties

The fishing clause of the Stevens Treaties guarantees to

the Tribes a right to engage in off-reservation fishing. It

provides, in its entirety:
30 UNITED STATES V. WASHINGTON

The right of taking fish, at all usual and

accustomed grounds and stations, is further

secured to said Indians, in common with all

citizens of the Territory, and of erecting

temporary houses for the purpose of curing,

together with the privilege of hunting,

gathering roots and berries, and pasturing

their horses on open and unclaimed lands: 

Provided, however, That they shall not take

shell fish from any beds staked or cultivated

by citizens.

Fishing Vessel, 443 U.S. at 674 (emphasis in original). 

Washington concedes that the clause guarantees to the Tribes

the right to take up to fifty percent of the fish available for

harvest, but it contends that the clause imposes no obligation

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

In its brief to us, Washington denies any treaty-based duty

to avoid blocking salmon-bearing streams:

[T]he Tribes here argue for a treaty right that

finds no basis in the plain language or

historical interpretation of the treaties. On its

face, the right of taking fish in common with

all citizens does not include a right to prevent

the State from making land use decisions that

could incidentally impact fish. Rather, such

an interpretation is contrary to the treaties’

principal purpose of opening up the region to

settlement.

Brief at 27–28. At oral argument, Washington even more

forthrightly denied any treaty-based duty. Washington
UNITED STATES V. WASHINGTON 31

contended that it has the right, consistent with the Treaties, to

block everysalmon-bearing stream feeding into Puget Sound:

The Court: Would the State have the right,

consistent with the treaty, to dam every

salmon stream into Puget Sound?

Answer: Your honor, we would never and

could never do that. . . .

The Court: . . . I’m asking a different

question. Would you have the right to do that

under the treaty?

Answer: Your honor, the treaty would not

prohibit that[.]

The Court: So, let me make sure I understand

your answer. You’re saying, consistent with

the treaties that Governor Stevens entered into

with the Tribes, you could block every salmon

stream in the Sound?

Answer: Your honor, the treaties would not

prohibit that[.]

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

The State misconstrues the Treaties.

We have long construed treaties between the United

States and Indian tribes in favor of the Indians. Chief Justice

Marshall wrote in the third case of the Marshall Trilogy, “The

language used in treaties with the Indians should never be
32 UNITED STATES V. WASHINGTON

construed to their prejudice.” Worcester v. Georgia, 31 U.S.

515, 582 (1832). “If words be made use of which are

susceptible of a more extended meaning than their plain

import, as connected with the tenor of the treaty, they should

be considered as used only in the latter sense.” Id.

Negotiations for the Stevens Treaties were conducted in

the Chinook language, a trading jargon of only about 300

words. Fishing Vessel, 443 U.S. at 667 n.10. The Treaties

were written in English, a language the Indians could neither

read nor write. Because treaty negotiations with Indians were

conducted by “representatives skilled in diplomacy,” because

negotiators representing the United States were “assisted by

. . . interpreter[s] employed by themselves,” because the

treaties were “drawn up by [the negotiators] and in their own

language,” and because the “only knowledge of the terms in

which the treaty is framed is that imparted to [the Indians] by

the interpreter employed by the United States,” a “treatymust

. . . be construed, not according to the technical meaning of its

words to learned lawyers, but in the sense in which they

would naturally be understood by the Indians.” Jones v.

Meehan, 175 U.S. 1, 11 (1899). “[W]e will construe a treaty

with the Indians as [they] understood it, and as justice and

reason demand, in all cases where power is exerted by the

strong over those to whom they owe care and protection, and

counterpoise the inequality by the superior justice which

looks only to the substance of the right, without regard to

technical rules.” United States v. Winans, 198 U.S. 371, 380

(1905) (internal quotation marks omitted). “[W]e look

beyond the written words to the larger context that frames the

Treaty, including the history of the treaty, the negotiations,

and the practical construction adopted by the parties.” 

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 196 (1999) (internal quotation marks omitted).
UNITED STATES V. WASHINGTON 33

The Supreme Court has interpreted the Stevens Treaties

on several occasions. In affirming Judge Boldt’s decision,

the Court wrote:

[I]t is the intention of the parties, and not

solely that of the superior side, that must

control any attempt to interpret the treaties. 

When Indians are involved, this Court has

long given special meaning to this rule. It has

held that the United States, as the party with

the presumptively superior negotiating skills

and superior knowledge of the language in

which the treaty is recorded, has a

responsibility to avoid taking advantage of the

other side. “[T]he treaty must therefore be

construed, not according to the technical

meaning of its words to learned lawyers, but

in the sense in which they would naturally be

understood by the Indians.” Jones v. Meehan,

175 U.S. 1, 11. This rule, in fact, has thrice

been explicitly relied on by the Court in

broadly interpreting these very treaties in the

Indians’ favor. Tulee v. Washington, 315 U.S.

681 [1947]; Seufort Bros. Co. v. United

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

Winans, 198 U.S. 371 [1905]. See also

Washington v. Yakima Indian Nation,

439 U.S. 463, 484 [1979].

Fishing Vessel, 443 U.S. at 675–76.

Washington has a remarkably one-sided view of the

Treaties. In its brief, Washington characterizes the “treaties’

principal purpose” as “opening up the region to settlement.” 
34 UNITED STATES V. WASHINGTON

Brief at 29. Opening up the Northwest for white settlement

was indeed the principal purpose of the United States. But it

was most certainly not the principal purpose of the Indians. 

Their principal purpose was to secure a means of supporting

themselves once the Treaties took effect.

Salmon were a central concern. An adequate supply of

salmon was “not much less necessary to the existence of the

Indians than the atmosphere they breathed.” Winans,

198 U.S. at 381. Richard White, an expert on the history of

the American West and Professor of American History at

Stanford University, wrote in a declaration filed in the district

court that, during the negotiations for the Point-No-Point

Treaty, a Skokomish Indian worried aloud about “how they

were to feed themselves once they ceded so much land to the

whites.” Professor White wrote, to the same effect, that

during negotiations at Neah Bay, Makah Indians “raised

questions about the role that fisheries were to play in their

future.” In response to these concerns, Governor Stevens

repeatedly assured the Indians that there always would be an

adequate supply of fish. Professor White wrote that Stevens

told the Indians during negotiations for the Point Elliott

Treaty, “I want that you shall not have simply food and drink

now but that you may have them forever.” During

negotiations for the Point-No-Point Treaty, Stevens said,

“This paper is such as a man would give to his children and

I will tell you why. This paper gives you a home. Does not

a father give his children a home? . . . This paper secures your

fish. Does not a father give food to his children?” Fishing

Vessel, 443 U.S. at 667 n.11 (ellipsis in original).

The Indians did not understand the Treaties to promise

that they would have access to their usual and accustomed

fishing places, but with a qualification that would allow the
UNITED STATES V. WASHINGTON 35

government to diminish or destroy the fish runs. Governor

Stevens did not make, and the Indians did not understand him

to make, such a cynical and disingenuous promise. The

Indians reasonably understood Governor Stevens to promise

not only that they would have access to their usual and

accustomed fishing places, but also that there would be fish

sufficient to sustain them. They reasonably understood that

they would have, in Stevens’ words, “food and drink . . .

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

Governor Stevens and his associates were

well aware of the “sense” in which the Indians

were likely to view assurances regarding their

fishing rights. During the negotiations, the

vital importance of the fish to the Indians was

repeatedly emphasized by both sides, and the

Governor’s promises that the treaties would

protect that source of food and commerce

were crucial in obtaining the Indians’ assent. 

It is absolutely clear, as Governor Stevens

himself said, that neither he nor the Indians

intended that the latter should be excluded

from their ancient fisheries, and it is

accordingly inconceivable that either party

deliberately agreed to authorize future settlers

to crowd the Indians out of 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 explicitly promised that

“this paper secures your fish,” and that there would be food

“forever,” we would infer such a promise. In Winters v.
36 UNITED STATES V. WASHINGTON

United States, 207 U.S. 564 (1908), the treaty creating the

Fort Belknap Reservation in Montana did not include an

explicit reservation of water for use on the reserved lands, but

the Supreme Court inferred a reservation of water sufficient

to support the tribe. The purpose of the treaty was to reserve

land on which the Indians could become farmers. Without a

reservation of water, the “lands were arid, and . . . practically

valueless.” Id. at 576. “[B]etween two inferences, one of

which would support the purpose of the agreement and the

other impair or defeat it,” the Court chose the former. Id. at

577.

Similarly, in United States v. Adair, 723 F.2d 1394 (9th

Cir. 1983), the Klamath Tribe in Oregon had entered into an

1854 treaty under which it relinquished 12 million acres,

reserving for itself approximately 800,000 acres. The treaty

promised that the tribe would have the right to “hunt, fish,

and gather on their reservation,” id. at 1398, but contained no

explicit reservation of water rights. A prime hunting and

fishing area on the reservation was the Klamath Marsh,

whose suitability for hunting and fishing depended on a flow

of water from the Williamson River. A primary purpose of

the treaty was to “secure to the Tribe a continuation of its

traditional hunting and fishing” way of living. Id. at 1409. 

Because game and fish at the Klamath Marsh depended on a

continual flow of water, the treaty’s purpose would have been

defeated without that flow. In order to “support the purpose

of the agreement,” Winters, 207 U.S. at 577, we inferred a

promise of water sufficient to ensure an adequate supply of

game and fish. Adair, 723 F.2d at 1411.

Thus, even if Governor Stevens had made no explicit

promise, we would infer, as in Winters and Adair, a promise

to “support the purpose” of the Treaties. That is, even in the
UNITED STATES V. WASHINGTON 37

absence of an explicit promise, we would infer a promise that

the number of fish would always be sufficient to provide a

“moderate living” to the Tribes. Fishing Vessel, 443 U.S. at

686. Just as the land on the Belknap Reservation would have

been worthless without water to irrigate the arid land, and just

as the right to hunt and fish on the Klamath Marsh would

have been worthless without water to provide habitat for

game and fish, the Tribes’ right of access to their usual and

accustomed fishing places would be worthless without

harvestable fish.

In Washington III, we vacated the district court’s

declaration of a broad and undifferentiated obligation to

prevent environmental degradation. We did not dispute that

the State had environmental obligations, but, in the exercise

of discretion under the Declaratory Judgment Act, we

declined to sustain the sweeping declaratory judgment issued

by the district court. We wrote, “The legal standards that will

govern the State’s precise obligations and duties under the

treaty with respect to the myriad State actions that may affect

the environment of the treaty area will depend for their

definition and articulation upon concrete facts which underlie

a dispute in a particular case.” Washington III, 759 F.2d at

1357.

We concluded:

The State of Washington is bound by the

treaty. If the State acts for the primary

purpose or object of affecting or regulating

the fish supply or catch in noncompliance

with the treaty as interpreted by past

decisions, it will be subject to immediate

correction and remedial action by the courts. 
38 UNITED STATES V. WASHINGTON

In other instances, the measure of the State’s

obligation will depend for its precise legal

formulation on all of the facts presented by a

particular dispute.

Id. There is no allegation in this case that in building and

maintaining its barrier culverts the State has acted “for the

primary purpose or object of affecting or regulating the fish

supply or catch in noncompliance with the treaty.” 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 object.” The

“measure of the State’s obligation” therefore depends “on all

the facts presented” in the “particular dispute” now before us.

The facts presented in the district court establish that

Washington has acted affirmatively to build and maintain

barrier culverts under its roads. The State’s barrier culverts

within the Case Area block approximately 1,000 linear miles

of streams suitable for salmon habitat, comprising almost

5 million square meters. If these culverts were replaced or

modified to allow free passage of fish, several hundred

thousand additional mature salmon would be produced every

year. Many of these mature salmon would be available to the

Tribes for harvest.

Salmon now available for harvest are not sufficient to

provide a “moderate living” to the Tribes. Fishing Vessel,

443 U.S. at 686. The district court found that “[t]he reduced

abundance of salmon and the consequent reduction in tribal

harvests has damaged tribal economies, has left individual

tribal members unable to earn a living by fishing, and has

caused cultural and social harm to the Tribes in addition to

the economic harm.” The court found, further, that “[m]any
UNITED STATES V. WASHINGTON 39

members of the Tribes would engage in more commercial and

subsistence salmon fisheries if more fish were available.”

We therefore conclude that in building and maintaining

barrier culverts within the Case Area, Washington has

violated, and is continuing to violate, its obligation to the

Tribes under the Treaties.

B. Waiver by the United States

In the district court, Washington asserted a defense of

“waiver and/or estoppel” based on action and inaction by the

United States that, according to Washington, led the State to

believe that its barrier culverts did not violate the Treaties. 

On appeal, Washington has dropped its estoppel argument,

pressing only its waiver argument.

Washington alleged in the district court that WSDNR had

developed, in consultation with the United States, a 1999

“Forest and Fish Report” that contemplated a fifteen-year

schedule for “remediation of fish problems on forest roads”

under the control of WSDNR. Washington alleged that it

“reasonably concluded that by approving or failing to object

to the State’s 15-year remediation schedule for forest roads,

the NMFS [National Marine Fisheries Service] had

determined that the schedule satisfied any treaty obligation.”

Washington also alleged, with respect to “many” of the

culverts under the control of WSDOT, that the culverts are

“in highways funded in part by the United States,” and that

“[t]hese highways were designed according to standards set

or approved bythe Federal HighwayAdministration (FHWA)

and its predecessors.” Washington alleged that it “reasonably

concluded that by approving or failing to object to the State’s

culvert design and maintenance, the FHWA had determined
40 UNITED STATES V. WASHINGTON

that the design and maintenance satisfied any treaty

obligation.” Washington further alleged that the ArmyCorps

of Engineers, in administering the Clean Water Act, and the

NMFS and U.S. Fish &Wildlife Service, in administering the

Endangered Species Act, issued permits to, or failed to object

to, WSDOT culverts, and that Washington reasonably relied

on their action and inaction to conclude that it had satisfied

any treaty obligations.

The United States may abrogate treaties with Indian

tribes, just as it may abrogate treaties with fully sovereign

nations. However, it may abrogate a treaty with an Indian

tribe only by an Act of Congress that “clearly express[es an]

intent to do so.” Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 202 (1999). Congress has not

abrogated the Stevens Treaties. So long as this is so, the

Tribes’ rights under the fishing clause remain valid and

enforceable. The United States, as trustee for the Tribes, may

bring suit on their behalf to enforce the Tribes’ rights, but the

rights belong to the Tribes.

The United States cannot, based on laches or estoppel,

diminish or render unenforceable otherwise valid Indian

treaty rights. See, e.g., Cramer v. United States, 261 U.S.

219, 234 (1923) (where Indians had treaty rights to land,

leasing of the land to a non-Indian defendant “by agents of

the government was . . . unauthorized and could not bind the

government; much less could it deprive the Indians of their

rights”); United States v. Washington, 157 F.3d 630, 649 (9th

Cir. 1998) (“[L]aches or estoppel is not available to defeat

Indian treaty rights.”) (quoting Swim v. Bergland, 696 F.2d

712, 718 (9th Cir. 1983)); and United States v. Ahtanum

Irrigation Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No

defense of laches or estoppel is available to the defendants
UNITED STATES V. WASHINGTON 41

here for the Government[,] as trustee for the Indian Tribe, is

not subject to those defenses.”). The same is true for waiver. 

Because the treaty rights belong to the Tribes rather than the

United States, it is not the prerogative of the United States to

waive them.

Washington argues the above line of cases has been

“called in doubt” by City of Sherrill v. Oneida Indian Nation

of N.Y., 544 U.S. 197 (2005). Brief at 42. We disagree. Suit

was brought in Sherrill by the Oneida Indian Nation (“OIN”),

whose lands once comprised six million acres in central New

York State. In 1788, in the Treaty of Fort Schuyler, OIN

reserved 300,000 acres of its tribal land and ceded the rest to

New York. Two years later, Congress passed the Indians

Trade and Intercourse Act (the “Nonintercourse Act”), which

required federal approval for the sale of tribal land. New

York largely ignored the law and in the following years

obtained large quantities of tribal land through treaties with

OIN. The United States did little to stop these transactions;

indeed, its agents took an active role in encouraging Oneidas

to move west. By 1838, Oneidas had sold all but 5,000 acres

of their reserved lands. By 1920, their ownership had

dwindled to 32 acres.

In 1985, the Supreme Court held that the sale of OIN

lands had been unlawful, and that the OIN was entitled to

monetary compensation for these sales. See Cnty. of Oneida

v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985). 

In 1997 and 1998, OIN purchased on the open market two

parcels of land, located within the boundaries of its ancestral

reservation, that had been sold to a non-Indian in 1807. OIN

claimed tribal sovereign status for the purchased parcels,

including the sovereign right to be free of local property

taxes. In Sherrill, the Court held against OIN, writing that
42 UNITED STATES V. WASHINGTON

“the Tribe cannot unilaterally revive its ancient sovereignty,

in whole or in part, over the parcels at issue.” 544 U.S. at

203.

The case before us is radically different from Sherrill. 

The question in our case is not whether, as in Sherrill, a tribe

has sovereignty over land within the boundaries of an

abandoned reservation. The Tribes have not abandoned their

reservations. Nor is the question whether, as in Sherrill, the

Tribes have acted to relinquish their rights under the Treaties. 

The Tribes have done nothing to authorize the State to

construct and maintain barrier culverts. Nor, finally, is the

question whether, as in Sherrill, to allow the revival of

disputes or claims that have long been left dormant. As

described above, Washington and the Tribes have been in a

more or less continuous state of conflict over treaty-based

fishing rights for over one hundred years.

C. Washington’s Cross-Request

1. Injunction

Washington asserted a “cross-request” (in effect, a

counterclaim) based on the United States’ construction and

maintenance of barrier culverts on its own land. Washington

contended that if its barrier culverts violate the Treaties, so

too do the United States’ barrier culverts. Washington

contended that an injunction requiring it to correct its barrier

culverts, while leaving undisturbed those of the United States,

imposed a disproportionate and therefore unfair burden on the

State. Washington sought an injunction that would require

the United States “to fix and thereafter maintain all culverts

built or maintained by [the United States] . . . before the State
UNITED STATES V. WASHINGTON 43

of Washington is required to repair or remove any of its

culverts.”

The district court struck the cross-request for an

injunction and subsequently denied Washington’s motion to

amend. It did so on two grounds. First, it held that

Washington’s cross-request was barred by sovereign

immunity. Second, it held that Washington did not have

standing to assert treaty rights belonging to the Tribes. We

agree with both grounds.

a. Sovereign Immunity

The United States enjoys sovereign immunity from

unconsented suits. However, when the United States files

suit, consent to counterclaims seeking offset or recoupment

will be inferred. United States v. Agnew, 423 F.2d 513, 514

(9th Cir. 1970). Washington contends that the injunction it

seeks against the United States is “recoupment.” We

disagree.

The Tenth Circuit has set forth three criteria that must be

satisfied for a recoupment claim:

To constitute a claim in recoupment, a

defendant’s claim must (1) arise from the

same transaction or occurrence as 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 excess of the plaintiff’s claim.

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

Fed. Deposit Insur. Corp. v. Hulsey, 22 F.3d 1472, 1487

(10th Cir. 1994). We adopt these criteria as our own, and
44 UNITED STATES V. WASHINGTON

make explicit that the remedy (the “amount”) sought by the

United States and by the defendant in recoupment must be

monetary.

It is implicit in the use of the word “amount” in Berrey’s

third criterion that a recoupment claim is a monetary claim. 

A claim for recoupment, if successful, can reduce or

eliminate the amount of money that would otherwise be

awarded to the plaintiff. It cannot result in an affirmative

monetary judgment in favor of the party asserting the claim: 

“Although a counterclaim may be asserted against a

sovereign by way of set off or recoupment to defeat or

diminish the sovereign’s recovery, no affirmative relief may

be given against a sovereign in the absence of consent.” 

Agnew, 423 F.2d at 514; see also United States v. U.S. Fid. &

Guar. Co., 309 U.S. 506, 511 (1940) (“[A] defendant may,

without statutory authority, recoup on a counterclaim an

amount equal to the principal claim.”); Black’s Law

Dictionary 1466 (10th ed. 2009) (“Recoupment: 1. The

getting back or regaining of something, esp. expenses. 2. The

withholding, for equitable reasons, of all or part of something

that is due. . . . 3. Reduction of a plaintiff’s damages because

of a demand by the defendant arising out of the same

transaction. . . . 4. The right of a defendant to have the

plaintiff’s claim reduced or eliminated because of the

plaintiff’s breach of contract or duty in the same

transaction.”). The parties have cited no case, and we have

found none, in which the term recoupment has been applied

to non-monetary relief such as an injunction.

Washington’s cross-request for an injunction thus does

not qualify as a claim for recoupment and is barred by

sovereign immunity.
UNITED STATES V. WASHINGTON 45

b. Standing

Washington seeks an injunction requiring the United

States to correct its barrier culverts on the ground that the

United States is bound by the Treaties in the same manner

and to the same degree as the State. Washington is, of

course, correct that the United States is bound by the Treaties. 

Indian treaty rights were “intended to be continuing against

the United States . . . as well as against the state[.]” Winans,

198 U.S. at 381–82. Our holding that Washington has

violated the Treaties in building and maintaining its barrier

culverts necessarily means that the United States has also

violated the Treaties in building and maintaining its own

barrier culverts.

However, any violation of the Treaties by the United

States violates rights held by the Tribes rather than the State. 

The Tribes have not sought redress against the United States

in the proceeding now before us.

2. Recoupment of Part of Washington’s Costs

In its Petition for Panel Rehearing and for Rehearing En

Banc, filed after our opinion came down, see United States v.

Washington, 827 F.3d 836 (9th Cir. 2016), Washington

contends that we misconstrued its appeal of the district

court’s denial of its cross-request. Washington writes in its

Petition:

The State’s original [cross-request]sought

a variety of remedies, including that the

federal government be required to (1) pay part

of the cost of replacing state culverts that

were designed to federal standards; (2) take
46 UNITED STATES V. WASHINGTON

actions on federal lands to restore salmon

runs; and (3) replace federal culverts in

Washington. But on appeal, the State pursued

only the first of these remedies.

We did not, and do not, so understand the State’s appeal. 

Contrary to Washington’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. It did not appeal a denial of a request that

the United States be required to pay part of its costs to repair

or replace its culverts.

In the district court, Washington stated in the body of its

cross-request that “[t]he United States has a duty to pay all

costs incurred by the State to identify and fix any and all

barrier culverts.” But in its demand for relief, Washington

did not demand any monetary payment from the United

States, unless its boilerplate request (“The State of

Washington further requests all other relief the Court deems

just and equitable”) could be deemed such a demand. Not

surprisingly, in denying Washington’s cross-request, the

district court did not discuss a demand for monetary payment

from the United States. In its brief to us, Washington writes

in the introduction that the district court erred in denying its

request to allow the State “to recoup some of the costs of

compliance from the United States because it specified the

culvert design and caused much of the decline in the salmon

runs.” But Washington makes no argument in the body of its

brief that it should be allowed to recover from the United

States any part of the cost to repair or replace its own barrier

culverts.
UNITED STATES V. WASHINGTON 47

When considering Washington’s appeal, we did not

understand it to argue that it should have been awarded, as

recoupment or set-off, a monetary award from the United

States. Given Washington’s failure to make this argument in

the body of its brief, the argument was waived. Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). However, given

the vigor with which Washington now makes the argument in

its Petition for Rehearing and Rehearing En Banc, we think

it appropriate to respond on the merits.

Washington’s argument is easily rejected. As recounted

above, a claim for recoupment must, inter alia, “seek relief of

the same kind or nature as the plaintiff’s suit.” Berrey,

439 F.3d at 645. Washington’s claim does not satisfy this

criterion. The United States, the plaintiff, sought injunctive

relief against Washington. Washington sought a monetary

award. These two forms of relief are not “of the same kind or

nature.”

D. Injunction

The district court held a trial in 2009 and 2010 to

determine the appropriate remedy for Washington’s violation

of the Treaties. At the time of trial, there were 1,114 stateowned culverts in the Case Area. At least 886 of them

blocked access to “significant habitat,” defined as 200 linear

meters or more of salmon habitat upstream from the culvert

to the first natural passage barrier. More barrier culverts were

identified or constructed within the Case Area after 2009. 

The court estimated in its 2013 Memorandum and Decision

that at the then-current rate of remediation, all of the barrier

culverts under the control of WSDNR, State Parks, and

WDFW would be corrected by October 31, 2016. The great

majority of barrier culverts, however, were under WSDOT’s
48 UNITED STATES V. WASHINGTON

control. In 2009, when trial began, there were 807 identified

WSDOT barrier culverts. Additional WSDOT barrier

culverts were constructed or identified after that date.

In 1997, WDFWand WSDOT reported to the Washington

State legislature that WSDOT culverts blocked 249 linear

miles of stream, comprising over 1.6 million square meters of

salmon habitat, which they estimated was sufficient to

produce 200,000 adult salmon per year. Based on WDFW

records, the district court found that at the time of trial, stateowned barrier culverts in the Case Area blocked access to

approximately 1,000 miles of stream, comprising almost

5 million square meters of salmon habitat.

The district court issued a permanent injunction in 2013,

on the same day it issued its Memorandum and Decision. 

The court ordered the State, in consultation with the Tribes

and the United States, to prepare within six months a current

list of all state-owned barrier culverts within the Case Area. 

The court ordered that identification of a culvert as a

“barrier” be based on the methodology specified in the Fish

Passage Barrier and Surface Water Diversion Screening and

Prioritization Manual (“Assessment Manual”) published by

WDFW in 2000. The court ordered WSDNR, State Parks,

and WDFW to provide fish passage through all their barrier

culverts on the list by October 31, 2016 — the date by which

these three agencies were already expected to complete

correction of their barrier culverts.

For barrier culverts under the control of WSDOT, the

injunction was more nuanced. In Paragraph 6 of the

injunction, the court ordered WSDOT to provide, within

seventeen years of the date of the order, and “in accordance

with the standards set out in this injunction,” fish passage for
UNITED STATES V. WASHINGTON 49

each barrier culvert with more than 200 linear meters of

salmon habitat upstream to the first natural passage barrier. 

In Paragraph 7, the court ordered WSDOT to replace existing

barrier culverts above which there was less than 200 linear

meters of accessible salmon habitat only at the “end of the

useful life” of the culverts, or sooner “as part of a highway

project.” In Paragraph 8, the court allowed WSDOT to defer

correction of some of the culverts described in Paragraph 6. 

Deferred culverts can account for up to ten percent of

upstream habitat from the culverts described in Paragraph 6. 

WSDOT’s choice of which culverts to defer is to be made in

consultation with the Tribes and the United States. The court

specified that the choice of culverts could be guided by the

“Priority Index” methodology described in the WDFD

Assessment Manual. That methodology uses cost as a

permissible factor in determining priority. Assessment

Manual at 55. Culverts deferred under Paragraph 8 are to

be replaced on the more lenient schedule specified in

Paragraph 7.

In Paragraph 9, the district court ordered that the State

shall design and build fish passage at each

barrier culvert on the List in order to pass all

species of salmon at all life stages at all flows

where the fish would naturally seek passage. 

In order of preference, fish passage shall be

achieved by (a) avoiding the necessity for the

roadway to cross the stream, (b) use of full

span bridge, (c) use of the “stream

simulation” methodology . . . which the

parties to this proceeding have agreed

represents the best science currently available

for designing culverts that provide fish
50 UNITED STATES V. WASHINGTON

passage and allow fluvial processes. Nothing

in this injunction shall prevent the [State]

from developing and using designs other than

bridges or stream simulation in the future if

the [State] can demonstrate that those future

designs provide equivalent or better fish

passage and fisheries habitat benefits than the

designs required in this injunction.

In Paragraph 10, the court provided that the State may deviate

from the design standards specified in Paragraph 9 in cases of

emergency or where “extraordinary site conditions” exist.

The court specified that it would “retain continuing

jurisdiction . . . for a sufficient period to assure that the

[State] compl[ies] with the terms of this injunction.”

Washington declined to participate in the formulation of

the injunction on the ground that it had not violated the

Treaties and that, therefore, no remedy was appropriate. 

Washington now objects on several grounds to the injunction

that was formulated without its participation. Washington

specifically objects (1) that the injunction is too “broad,”

Brief at 50; (2) that the district court did not “defer to the

State’s expertise,” 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 significantly intrudes into

state government operations.” Id. at 63. Finally, Washington

objects that its four specific objections support a contention

that the court’s injunction is inconsistent with “federalism

principles.” Id. at 47, 65. We consider the State’s objections

in turn.
UNITED STATES V. WASHINGTON 51

1. Breadth of the Injunction

Washington contends in its brief that “[t]he Tribes

presented no evidence that state-owned culverts are a

significant cause of the decline [in salmon]. . . . Despite that

complete failure of proof, the district court found that stateowned culverts ‘have a significant total impact on salmon

production.’” Brief at 50 (emphasis in original). Washington

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 culverts have

significantly diminished fish runs or tribal fisheries, or that

replacing them will meaningfully improve runs.” Id.

Washington misrepresents the evidence and

mischaracterizes the district court’s order.

Contrary to the State’s contention, the Tribes presented

extensive evidence in support of the court’s conclusion that

state-owned barrier culverts have a significant adverse effect

on salmon. The 1997 report prepared for the Washington

State Legislature by two of the defendants in this case,

WDFW and WSDOT, stated, “Fish passage at human made

barriers such as road culverts is one of the most recurrent and

correctable obstacles to healthy salmonid stocks in

Washington.” The report concluded:

A total potential spawning and rearing area of

1,619,839 m

2

(249 linear miles) is currently

blocked by WSDOT culverts on the 177

surveyed streams requiring barrier resolution;

this is enough wetted stream area to produce

200,000 adult salmonid annually. These

estimates would all increase when considering
52 UNITED STATES V. WASHINGTON

the additional 186 barriers that did not have

full habitat assessments.

The report recommended that state funding be supplied to

remove “all barriers” under the control of the State:

Planning is underway for resolution of at least

seven more barriers during the 1997–99

biennium using dedicated funds, and to

resolve all barriers in the next two or three

decades. . . . Estimated cost is about $40

million, with resultant benefits exceeding

$160 million.

Based on later WDFW figures, the district court found

that at the time of trial state-owned barrier culverts in the

Case Area blocked access to approximately1,000 linear miles

of stream, comprising almost 5 million square meters of

salmon habitat. These figures, taken together with the 1997

figures supplied by WDFW and WSDOT, indicate that the

total habitat blocked by state-owned barrier culverts in the

Case Area is capable of producing several times the 200,000

mature salmon specified in the 1997 report.

The State contends that because of the presence of nonstate-owned barrier culverts on the same streams as stateowned barrier culverts, the benefit obtained from remediation

of state-owned culverts will be insufficient to justify the

district court’s injunction. The State writes:

[S]tate-owned culverts are less than 25% of

all known barrier culverts, and in some places,

non-state culverts outnumber state-owned

culverts by a factor of 36 to 1. Any benefit
UNITED STATES V. WASHINGTON 53

from fixing a state-owned culvert will not be

realized if fish are blocked by other culverts

in the same stream system.

There are several answers to the State’s contention. First,

it is true that in calculating whether a state culvert is a barrier

culvert, and in determining the priority for requiring

remediation, the court’s injunction ignores non-state barriers

on the same stream. But in so doing, the court followed the

practice of the state itself. Paul Sekulich, formerly division

manager in the restoration division in the habitat program of

the Washington Department ofFish and Wildlife (“WDFW”),

testified in the district court:

Q: When you calculate a priority index

number for a [state-owned] culvert, do you

account for the presence of other fish passage

barriers in a watershed?

A: . . . When the priority index is calculated,

it treats those other barriers as transparent. 

The reason we do that, we don’t know when

those other barriers are being corrected. So

by treating them as transparent, you do a

priority index that looks at potential habitat

gain as if all those barriers would be corrected

at some point in time.

Washington State law requires that a “dam or other

obstruction across or in a stream” be constructed in such a

manner as to provide a “durable and efficient fishway”

allowing passage of salmon. Wash. Rev. Code

§ 77.57.030(1). If owners fail to construct or maintain proper
54 UNITED STATES V. WASHINGTON

fishways, the Director of WDFW may require them do so at

their own expense. Id. at § 77.57.030(2).

Second, in 2009, on streams where there were both state

and non-state barriers, 1,370 of the 1,590 non-state barriers,

or almost ninety percent, were upstream of the state barrier

culverts. Sixty nine percent of the 220 downstream non-state

barriers allowed partial passage of fish. Of the 152 that

allowed partial passage, “passability” was 67% for 80 of the

barriers and 33% for 72 of them.

Third, the specific example provided by the state is a

culvert on the Middle Fork of Wildcat Creek under State

Route 8 in Grays Harbor County. The State is correct that

there are 36 non-state barriers and only one state barrier

culvert on this creek. The State fails to mention, however,

that all of the non-state barriers are upstream of the state

culvert. Further, it is apparent from the map in the district

court record that the nearest non-state barrier is almost a half

mile upstream.

Witnesses at trial repeatedly described benefits to salmon

resulting from correction of barrier culverts. One example is

evidence presented by Mike McHenry, habitat program

manager for the Lower Elwha Klallam Tribe. In his written

testimony, McHenry described several studies. One was a

2003 study of culvert removal projects on the Stillaguamish

River that opened up 19 linear kilometers of salmon habitat. 

According to the study, over 250 adult coho salmon were

observed spawning in the newly accessible habitat in each of

the two years immediately after the completion of the

projects. Based on his own experience as habitat manager for

the tribe, McHenry wrote that removal of barrier culverts on

the Lower Elwha River had had a similar effect. In
UNITED STATES V. WASHINGTON 55

McHenry’s view, “The systematic correction of barrier

culverts is an important place to focus restoration efforts.” 

He wrote, further, “The correction of human caused barriers

is generally recognized as the second highest priority for

restoring habitats used by Pacific salmon (following the

protection of existing functional habitats).”

In his live testimony, McHenry stated that his tribe had

corrected seventeen of thirty-one barriers in a particular

watershed:

McHenry: Because when we did the

watershed assessment, we found that there

were 50 miles of historically active stream

that salmon could access in this watershed,

and fully half that mileage was blocked by

culverts of various ownerships. So to us, we

applied our scientific knowledge and

recommendations from the literature which

indicated that when you’re going to restore a

place like this, you need to go after the

barriers first.

The Court: In your expert opinion, that was

the biggest bang for your buck?

McHenry: Yes.

Another example is the live testimony of Lawrence

Wasserman, environmental policy manager for the

Swinomish Indian Tribal Community. He testified that

culvert remediation provides substantial benefits:
56 UNITED STATES V. WASHINGTON

There’s an immediate access and

immediate benefit to additional habitat when

we replace a culvert . . . .

If you compare that to having to plant

trees, shade, it can take 10, 20, 50 years to get

the trees large enough . . . .

. . . We have a high confidence in design. 

By and large, we know how to fix

culverts. . . . So we have a high confidence

compared to many other more experimental

restoration activities.

It’s fairly easy to monitor. If there were

no fish there before, [then] we open a culvert

and we can count fish[.] . . .

A critical factor is that there’s minimal

impacts on adjacent land use or land

owners. . . . [I]t’s relatively infrequent where

there needs to be a condemnation of other

people’s land or asking people to sell their

land. . . .

. . . It’s cost effective. There have been

some studies that have shown that, really,

compared to other kinds of restoration

activities, the cost per smolt produced is

relatively low[.] . . .

And finally, we get benefits with a broad

sweep of culvert repairs. We get a very broad

geographic distribution of benefits, and the
UNITED STATES V. WASHINGTON 57

cumulative effects can accrue across a variety

of watersheds.

It is true, as the evidence at trial showed, that correction

of barrier culverts is only one of a number of measures that

can usefully be taken to increase salmon production in the

Case Area. It is also true that the benefits of culvert

correction differ depending on the culvert in question. For

example, Paul Wagner, manager of the culvert correction

program for WSDOT, presented evidence in 2013 identifying

817 WSDOT barrier culverts blocking 937 linear miles of

stream habitat in the Case Area. Wagner’s evidence showed

that correction of the 314 culverts blocking the most habitat

would open up 655 of the 937 miles of total habitat. 

Correcting the 232 culverts blocking the least habitat would

open up only 95 miles. Those 95 miles of habitat constitute

10.1 percent of the total habitat blocked by the 817 barrier

culverts. The 232 culverts blocking those 95 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 in salmon

recovery; that some culverts block more habitat than others;

and that some culverts are more expensive to correct than

others. The court ordered correction of high-priority culverts

— those blocking 200 linear meters or more of upstream

habitat — within seventeen years. For low-priority culverts

— those blocking less than 200 linear meters of upstream

habitat — the court ordered correction only at the end of the

useful life of the existing culvert, or when an independently

undertaken highway project would require replacement of the

culvert. Further, recognizing the likelihood that accelerated

replacement of some high-priority culverts will not be costeffective, the court allowed the State to defer correction of
58 UNITED STATES V. WASHINGTON

high-priority culverts accounting for up to ten percent of the

total blocked upstream habitat, and to correct those culverts

on the more lenient schedule of the low-priority culverts. 

Wagner’s evidence indicates that if the sole criterion for

choosing deferred culverts is the amount of blocked habitat,

there will be approximately 230 deferred culverts. If cost of

correction of particular culverts is added as a criterion, there

will be a somewhat smaller number of deferred culverts.

In sum, we disagree with Washington’s contention that

the Tribes “presented no evidence,” and that there was a

“complete failure of proof,” that state-owned barrier culverts

have a substantial adverse effect on salmon. The record

contains extensive evidence, much of it from the State itself,

that the State’s barrier culverts have such an effect. We also

disagree with Washington’s contention that the court ordered

correction of “nearly every state-owned barrier culvert”

without “any specific showing” that such correction will

“meaningfully improve runs.” The State’s own evidence

shows that hundreds of thousands of adult salmon will be

produced by opening up the salmon habitat that is currently

blocked by the State’s barrier culverts. Finally, we disagree

with Washington’s contention that the court’s injunction

indiscriminately orders correction of “nearly every stateowned barrier culvert” in the Case Area. The court’s order

carefully distinguishes between high- and low-priority

culverts based on the amount of upstream habitat culvert

correction will open up. The order then allows for a further

distinction, to be drawn by WSDOT in consultation with the

United States and the Tribes, between those high-priority

culverts that must be corrected within seventeen years and

those that may be corrected on the more lenient schedule

applicable to the low-priority culverts.
UNITED STATES V. WASHINGTON 59

2. Deference to the State’s Expertise

Washington contends that the district court made a clearly

erroneous finding of fact, concluding that correction of

human-caused barriers is the highest priority in habitat

restoration. It contends, further, that this finding led the court

to ignore the expert testimony presented by both the State and

the Tribes. Washington wrote in its brief:

The State has concluded — and the Tribes

agree — that a comprehensive approach to

preserving and restoring salmon runs is the

most productive and cost-effective . . . . The

district court concluded, however, that

“correction of human-caused barriers is

recognized as the highest priority for restoring

salmon habitat in the Case Area.” On that

basis, the court ordered injunctive relief

focused solely on culverts, even though the

cost of the injunction will likely reduce

funding available for other salmon restoration

efforts. The court’s finding was clearly

erroneous, and its approach was an abuse of

discretion.

In concluding that fixing culverts is “the

highest priority for restoring salmon habitat in

the Case Area,” the court cited the declaration

of tribal expert Mike McHenry. Mr.

McHenry said no such thing.

Brief at 54–55.
60 UNITED STATES V. WASHINGTON

Washington is mistaken. It is true that the district court

made the factual finding to which Washington objects. Citing

McHenry’s evidence, the court wrote, “The correction of

human-caused barriers is recognized as the highest priority

for restoring salmon habitat in the Case Area.” But the

court’s finding is amply supported by the record. With

respect to restoring habitat (as distinct from preserving

habitat, which has a higher priority), McHenry wrote that it

is “generallyrecognized” that the correction of human-caused

barriers is the highest priority. Further, McHenry testified

that “you need to go after the barriers first” because that is the

“biggest bang for the buck.” Wasserman 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 of

restoration activities”; and that “the cumulative effects can

accrue across a variety of watersheds.”

It is also true that the district court’s injunction “focused

solely on culverts” and did not order other remedies. But it

is appropriate that the injunction should have done so. The

court was acutely conscious of the fact that, while barrier

culverts are an important cause of the decline of salmon in the

Case Area, they are not the only cause. It wrote, “A primary

cause of this decline is habitat degradation . . . . One cause

of the degradation of salmon habitat is blocked culverts[.]” 

(Emphasis added.) However, because the only treaty

violation alleged in this litigation was Washington’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 passage under State-owned roads.”
UNITED STATES V. WASHINGTON 61

Contrary to Washington’s contention, the district court

had a sophisticated record-based understanding of the various

causes of the decline of salmon in the Case Area, of what

could be achieved by the correction of state-owned barrier

culverts, and of the limitations on what could be achieved by

culvert correction. The court’s injunction is carefully crafted

to reflect that understanding.

3. Costs and Equitable Principles

Washington contends that the district court’s injunction

fails properly to take costs into account, and that its

injunction is inconsistent with equitable principles.

a. Costs

Washington writes in its brief that correction of WSDOT

barrier culverts will cost approximately $1.88 billion over the

course of the seventeen-year schedule ordered by the court,

or “roughly $117 million per year of the injunction.” (Using

Washington’s own estimates, a correct calculation is actually

$110.6 million per year rather than $117 million.) 

Washington’s estimated total cost is based on an assumption

of 817 corrected culverts, at an average correction cost of

$2.3 million per culvert.

Washington’s cost estimates are not supported by the

evidence. Washington contended at trial, as it now contends

to us, that the average cost to replace a WSDOT barrier

culvert would be $2.3 million. But the district court did not

accept this estimate. The court found that “the actual cost of

construction for twelve WSDOT stream simulation culvert

projects completed prior to the 2009 trial ranged from

$413,000 to $1,674,411; the average cost for the twelve was
62 UNITED STATES V. WASHINGTON

$658,639 each.” In 2013, the State submitted a declaration

from WSDOT official Wagner listing thirty-one culvert

correction projects completed state-wide since October 2009. 

Of these, twenty-four used either a stream simulation design

or a bridge. The declaration stated that the average cost for

each these twenty-four projects was $1,827,168, not

$2,300,000 as the State now contends. The district court

noted that even Wagner’s lower figure could not be

confirmed because cost data was missing for eight of the

twenty-four projects.

There are additional reasons to disregard the State’s

estimate of total cost. First, Washington assumes that all 817

of the state-owned barrier culverts will be corrected on the

seventeen-year schedule. This is demonstrably incorrect. 

According to the State’s own evidence, Paragraph 8 of the

injunction will allow the State to defer correction of

approximately 230 of the 817 culverts. If cost of barrier

correction (rather than merely amount of upstream habitat) is

taken into account in deciding which culverts to defer, fewer

but more costly culverts will be deferred. Second, and

perhaps more important, Washington must eventually correct

its barrier culverts, irrespective of the court’s order in this

suit. The district court wrote that federal and state law

require Washington to correct its barrier culverts “in any

case,” and that the only consequence of its order will be an

“acceleration of barrier correction.” The net costs imposed

on Washington by the injunction are thus not the full costs of

barrier correction, but rather only the “marginal costs

attributable to an accelerated culvert correction schedule.”

Finally, we note that a portion of WSDOT’s funding for

correcting its barrier culverts will come from the United

States. The court wrote, “[T]he state expects to receive over
UNITED STATES V. WASHINGTON 63

$22,000,000 for fish passage barrier projects from the federal

government in the years 2011 to 2017. Of this amount,

$15,813,000 is expected in the 2013–2015 biennium.”

b. Equitable Principles

Washington makes one specific objection based on

equitable principles. It objects that the court abused its

discretion in requiring that “the State alone,” rather than State

in conjunction with the United States, be “burdened with the

entire cost of culvert repair.” Brief at 63. We disagree. The

court’s order required correction of only those barrier culverts

that were built and maintained by the State. It was not an

abuse of discretion to require the State to pay for correction

of its own barrier culverts.

Further, we note more generally that the district court did

consider equitable principles, and concluded that those

principles favored the Tribes and the citizens of the State. 

The court wrote:

The Tribes and their individual members

have been harmed economically, socially,

educationally, and culturally by the greatly

reduced salmon harvests that have resulted

from State-created or State-maintained fish

passage barriers.

This injury is ongoing, as efforts by the

State to correct the barrier culverts have been

insufficient. . . . Remedies at law are

inadequate as monetary damages will not

adequately compensate the Tribes and their

individual members for these harms. . . .
64 UNITED STATES V. WASHINGTON

The balance of hardships tips steeply

toward the Tribes in this matter. The promise

made to the Tribes that the Stevens Treaties

would protect their source of food and

commerce was crucial in obtaining their

assent to the Treaties’ provisions. . . . Equity

favors requiring the State of Washington to

keep the promises upon which the Tribes

relied when they ceded huge tracts of land by

way of the Treaties.

. . .

The public interest will not be disserved

by an injunction. To the contrary, it is in the

public’s interest, as well as the Tribes’ to

accelerate the pace of barrier correction. All

fishermen, not just Tribal fishermen, will

benefit from the increased production of

salmon. . . . The general public will benefit

from the enhancement of the resource and the

increased economic return from fishing in the

State of Washington. The general public will

also benefit from the environmental benefits

of salmon habitat restoration.

4. Intrusion into State Government Operations

Washington contends that the court’s order

“impermissibly and significantly intrudes into state

government operations.” Brief at 63. Washington contends

that it “was making great strides in repairing culverts before

any federal court intervention,” and that “there was no need

for the court to issue a detailed and expensive injunction that
UNITED STATES V. WASHINGTON 65

sets an inflexible and tight schedule for culvert repair.” Id. at

63–64. Washington implies that the cost of complying with

the court’s order will oblige the State to cut other important

state programs:

[T]he injunction will require the State to

devote roughly $100 million per year more

than it otherwise would have to culvert repair. 

This at a time when the State faces recurring

budget shortfalls in the billions of dollars and

has already made deep and painful cuts to

subsidized health insurance for low income

workers, K-12 schools, higher education, and

basic aid for persons unable to work.

Id. at 58. We disagree.

The district court disagreed with Washington’s contention

that there was “no need” for the court to order correction of

its barrier culverts. Based on the State’s slow rate of barrier

correction, the court concluded that “under the current State

approach, the problem of WSDOT barrier culverts in the Case

Area will never be solved.” The district court also disagreed

with the Washington’s cost estimates. As seen above,

Washington’s estimate of its cost to comply with the court’s

order (“roughly $100 million per year” more than it would

otherwise spend) is dramatically overstated.

The district court carefully considered the marginal cost

imposed on Washington by its injunction and concluded that

the State could comply with the order without cutting vital

state programs. The court relied on a state budget document

showing that $9.9 billion was allocated to the state

transportation budget for the 2011–2013 biennium. Of that
66 UNITED STATES V. WASHINGTON

$9.9 billion, $7.88 billion was allocated to WSDOT. Noting

the separation of the transportation budget from other state

budgets, the court concluded, “The separation of the

Transportation Budget from the Operating and Capital

Budgets ensures that moneywill not be taken from education,

social services, or other vital State functions to fund culvert

repairs.”

5. Federalism Principles

Washington contends, based on the four specific

objections just reviewed, that the district court’s injunction

violates principles of federalism. Washington asserts four

principles of federalism:

First, the remedy must be no broader than

necessary to address the federal law violation. 

Second, courts must grant deference to a

state’s institutional competence and subject

matter expertise. Third, courts must take cost

into consideration and not substitute their

budgetary judgment for that of the state. And

finally, relief must be fashioned so that it is

the least intrusive into state governmental

affairs. The district court’s injunction here

contravenes all of these principles.

Blue Brief at 49. We will not quarrel here with these

principles, stated at this level of generality. However, for the

reasons given above, we have concluded that the district

court’s injunction violates none of them.

Further, a federalism-based objection to an injunction

enforcing Indian treaty rights should not be viewed in the
UNITED STATES V. WASHINGTON 67

same light as an objection to a more conventional structural

injunction. Washington cites two Supreme Court cases in

support of its federalism objection — Rizzo v. Goode,

423 U.S. 362 (1976) (structural injunction requiring reform

of the Philadelphia police department), and Horne v. Flores,

557 U.S. 433 (2009) (structural injunctions requiringArizona

to comply with Equal Educational Opportunities Act of

1974). However, Washington fails to cite the Supreme Court

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

— in which the Court affirmed detailed injunctions requiring

Washington to comply with the very Treaties at issue in this

case.

The district court in Fishing Vessel had entered a series of

detailed injunctions implementing its holding that the Treaties

entitled the Tribes to take up to fifty percent of harvestable

salmon in any given year. Washington strenuously resisted,

with the result that the district court effectively took over

much of the State’s management of the salmon fishery. 

Washington objected both to the district court’s interpretation

of the Treaties, and to the court’s intrusion into its affairs. 

The Supreme Court affirmed the district court’s holding on

the meaning of the Treaties. It then rejected, in no uncertain

terms, federalism-based objections to the injunctions

enforcing the Treaties:

Whether [Washington] Game and

Fisheries may be ordered actually to

promulgate regulations having effect as a

matter of state law may well be doubtful. But

the District Court may prescind that problem

by assuming direct supervision of the fisheries

if state recalcitrance or state-law barriers

should be continued. It is therefore absurd to
68 UNITED STATES V. WASHINGTON

argue . . . both that the state agencies may not

be ordered to implement the decree and also

that the District Court may not itself issue

detailed remedial orders as a substitute for

state supervision.

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

6. Modification of the Injunction

It is possible that changing or newly revealed facts or

circumstances will affect the fairness or efficacy of an

injunction. In the case before us, the district court has

ordered that many of WSDOT’s high-priority barrier culverts

be corrected over the course of seventeen years, and that the

remainder be corrected only at the end of the culvert’s natural

life or when road work undertaken for independent reasons

would in any event require replacement of the culvert. It is

possible that, during this extended period, changed or newly

revealed facts or circumstances will justify a modification of

the injunction. The district court should not hesitate to

modify its injunction if this proves to be the case. As the

Supreme Court wrote in System Federation No. 91 v. Wright,

364 U.S. 642, 647 (1961), “a sound judicial 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 have changed, or new ones have since

arisen.” See also Rufo v. Inmates of Suffolk Cnty. Jail,

502 U.S. 367, 380–81 (1992). In affirming the judgment

entered by the district court in this case, we emphasize that

the flexibility inherent in equity jurisdiction allows the court,

if changed or newly revealed facts or circumstances warrant,

to modify its injunction accordingly.
UNITED STATES V. WASHINGTON 69

Conclusion

In sum, we conclude that in building and maintaining

barrier culverts Washington has violated, and continues to

violate, its obligation to the Tribes under the fishing clause of

the Treaties. The United States has not waived the rights of

the Tribes under the Treaties, and has not waived its own

sovereign immunity by bringing suit on behalf of the Tribes. 

The district court did not abuse its discretion in enjoining

Washington to correct most of its high-priority barrier

culverts within seventeen years, and to correct the remainder

at the end of their natural life or in the course of a road

construction project undertaken for independent reasons.

AFFIRMED.