F OR P UBLICATION



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

U N I T E D S T A T E S O F A M E R I C A ; S U Q U A M I S H I N D I A N T R I B E ; S A U K -S U I A T T L E T R

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

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

N S’K L A L L A M T R I B E ; L O W

E R E L W H A B A N D O F K L A L L A M S ; P O R

T G A M B L E B A N D C L A L L A M ; N I S Q U

A L L Y I N D I A N T R I B E ; N O O K S A C K I N D I A N T R I B E ; S K O K O M I S H I N D I A N T R I B E ; S Q U

A X I N I S L A N D T R I B E ; U P P E R S K

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

A L I P T R I B E S ; L U M M I I N D I A N N A T I O

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

N ; S U Q U

A M I S H I N D I A N T R I B E ; P U Y A L L U P T R I B E ; C O N F E D E R

A T E D T R

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

A M A I N D I A N N A T I O

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

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

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

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

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

v

.

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

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

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

OPI NI ONU N I T E D S T A T E S V

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

Appeal from the United States District Court

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

Arg ued and Submitted October 16, 2015

Seattle, W a shing ton

F iled J une 27, 2016

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

Opinion by

J udg e W

. F letcher

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

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

Haw ai’ i, sittin g b y

d esig n atio n

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

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

SUMMARY * *

Tribal F ishing Rights

The p anel affirmed the district court’s order issuing an injunction directing the State of W a shing ton t o c orrect culverts, which allow streams to flow underneath roads, because they violated, and continued to viol a t e , t he Stevens Treaties, which were e n tered in 1854–55 b etwe e n I ndian tribes in the Pacific Northw e st and the Governor o f W a shing ton Territory

.

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

sw a ths of land, watersheds, and offshore waters adjacent to those areas (collectively
, the “Case Area”), in what is no w the State of W ashing ton. I n ex chang e, t h e T ribes were g uaranteed a rig

h t to eng ag e in off-reservation fishing

.

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

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

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

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

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

co urt staf

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

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

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

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

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

.

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

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

co u r s e of r oad construction project undertaken for independent r easons

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

COUNSEL

Noah G. Purcell (arg

ued), Solicitor General; L aura J

. W atson, Deputy Solicitor General; Robert W

. F erguson, Attorney General; J e ssica E. F og e l, Assistant Attorney General; OfficeU N I T E D S T A T E S V

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

of the A ttorney G eneral, Oly mpia, W ashing ton; for Defendant-Appellant State of W ashing ton.

J ohn C. Sledd (arg

ued), J ane G. Steadman, Cory J

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

David C. Shilton (arg

ued), Vanessa B oy d Willar d, a nd Evely n S. Ying
, Attorney s; Unit e d States Department o f J u stice, Environment & Natural Resources D ivision; W a shing ton, D.C., for Plaintiff-Appellant United States.

Pamela B

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

mpia, Washing ton; Doug las D. Shaftel, Pierce County Deputy Pros e c uting Attorney ; for Amicus Curiae W a shing ton State Association of Counties.

E l len F

. Rosenblum, Attorney General; Anna M. J oy ce, Solicitor General; Michael A

. Casper, Deputy So l icitor General; Stephanie L

. Striffler, Senior Assistant Attorney General; Oreg on Department of J ustice, S alem, Oreg o n; for Amicus Curiae State of Oreg on.

Colette Routel, Associate Professor and Co-Director, I ndian L aw C linic, W illiam Mitchell Colleg e of L aw, Saint Paul, Minnesota, for Amicus Curiae I n dian L aw Professors.

Am a n d a W

. G oodin and J anette K. B rimmer, Earthjustice, Seattle, W ashing t on, for Amicus Curiae Pacific Coast F ederation o f F i shermen’s Associations and I nstitute for F isheries Resources.U N I T E D S T A T E S V

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

OP INION

W

. F L ETCHER, Circuit J udg e:

I n 1854 and 1855, I ndian tribes in the Pacific Northwest entered into a series of treaties, now k nown as the “Stevens Treaties,” n e g o tiated b y I saac I

. Stevens, Supe r i n t e ndent o f I ndian Affairs and Governor o f W ashing ton Territory

. Under the Stevens Treaties (“Treaties”) at i s s u e in this case, the tribes relinquished larg e swaths o f land west of the Cascade Mountains and n o r t h o f the Columbia River drainag e area, including the Pug et Sound w atershed, the water s h eds of the Oly mpic Peninsula north of the Gray s Harbor watershed, a nd the offshore waters adjacent to those areas (c o llectively
, the “Case A rea”), in what is n ow the S t a t e o f W ashing ton. I n

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

ht to off-reservation f

ishing
, in a clause that u s e d essentially identical lang uag e in each treaty

. T h e “fishing clause”
g uaranteed “the rig h t of taking fish, at a ll usual a nd accustomed g r ounds and stations

. . . in c o m m o n with all citiz ens of the Territory .”

I n 2001, pursuant to an injunction p reviously entered in this long

- running litig ation
, twenty

- one I ndian tribes (“Tribes”), joined by the U nited States, filed a “Request for Dete rm i n a tion” — in effect, a complaint — in the federal district court for t he W estern District of W ashing ton. The Tribes i nclude the Suquamish I ndian Tribe, J amestown S’Klallam, L ower E lwha B a n d of Klallams, Port Gamble Clallam, Nisqual l y I ndian Tribe, Nooksack Tribe, SaukSuiattle Tribe, Skokomish I ndia n T r i b e , S quax in I sland Tribe, Stillag uamish Tribe, Upper Skag it Tribe, Tulalip Tribes, Lummi I ndian N ation, Q u i nault I n dian Nation, Puy allup Tribe, Hoh Tribe, Confederated Tribes and B a n d s of theU N I T E D S T A T E S V

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

Yakama I ndian Nation, Quileute I ndian Tribe, Makah I ndian Tribe, Swinomish I ndian Tribal Community
, and the Muckleshoot I ndian Tribe. T he Tribes conte nded that W a s h i n g t o n State (“W ashing ton” or “ the State”) had violated, and was continuing to vio l a te, the Treaties by b uilding a nd maintainin g c ulverts that prevented mature salmon from returning from the sea to their spawning g rounds; prevented smolt (juvenile salmon) from moving downstream and out to
sea; and prevented v ery y oung salmon from moving freely to seek food and escape predators. I n 2007, the district court held that in building and maintaining these culverts W a shing ton had caused the siz e o f s a lmon runs in the Case Area to diminish and that W ashing ton thereby violated its oblig ation u n d er the Treaties. I n 2013, the court issued an injunction ordering W a s hing ton to correct its o ffending culverts.

W e affirm the decision of the district court.

I . Historical B ackg round

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

.

W h en white settlers arrived in the W a shing ton territory in the second half of the nineteenth century , many settled on riparian land and salt-water shoreline. Even thoug h the majority of these settlers were not themselves fishermen, they blocked access to many of the Tribes’ traditional fishing sites. B y the end of the century , white c o mmercial fishermen were catching e n ormous quantities of salmon, first on theU N I T E D S T A T E S V

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

Columbia River and t hen in Pug et Sound as well, supply ing larg e -scale canneries.

I n 1 894, L

. T. Erwin, the United States I ndian Ag ent for the Yakimas, complained t h at whites had blocked access to the I ndians’ “accustomed fisheries” on the Columbia River: “[ I ] nch by inch, [the I ndians] h ave been forced back until all the best g rounds have been taken up by w hite men, who n ow refuse to allow t h e m t o fish in common, as the treaty provides.” Report of the Sec retary of the Interior, 1894 (3 vols., Washing ton, D.C., 1894, I I
, 326). I n 1897, D. C. Govan, the Indian Ag e nt for the Tulalips on Pug et Sound

r e ported that “the Alaska Packing Company and o t h e r cannery companies have practically appropriated all the best fishing g rounds a t Point Roberts and Villag e Point, where the Lummi I ndians have been in the habi t o f f ishing from time immemorial.” Annual Reports of the Depart ment of the Interior, 1897: Report of the Commissioner of Indian Affairs (W ashing ton, D .C., 1897, 2 97). I n 1905, Charles B uchanan, the new I n dian Ag ent for the Tulalips, complain e d
, “ T he tremendous development of the fisheries by traps and by trust methods of consolidation, concentration, and lar ge local development are seriously d epleting the natural larders of our I ndians and c utting down their main reliance for support a nd subsistence. L iving f

or them is becoming mo r e precarious
y ear by y ear.” Annual Reports of the Department of the Interior, 1905: Indian A

ffairs (W ashing ton, D.C., 1906, Part I
, 362). During this period, “[ t] h e superior capital, larg e-scale methods, and ag g ressiveness of w hites

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

. Parman, Inconstant Advocacy: The E rosion of I ndian Fishing Rig h t s i n the Pacific Northwest
, 53 Pacific Hist. Rev. 163, 167 (1984).U N I T E D S T A T E S V

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

The United States Supreme Court first addres s e d the conflict ove r fisheries in United States v

. W inans
, 198 U.S. 371 ( 1 905). The W i n a n s brothers had acquired land at a prime Yakima fishing s i t e on the W ashing ton side of the Columbia River. See Michael C. B lumm and J ames B runberg
, ‘Not Much Less Nec e ssary

. . . Than the Atmosphere They Breathed’: Salmon, I n d i a n Treaties, and the Supreme Court — a Centennial Remembrance of United States v. W inans and Its Enduring Significance
, 4 6 Nat. Resources J

. 489, 523 (2006). U n der a n ex clusive license from the State, the W inanses operated “fish whe el s ” a t the site. F ish wheels were essentially mechaniz ed dip nets “capable of ca t ching salmon by the ton.” W ashington v

. W ash. State C o mmercial Passenger Fishing Vessel A ss’n
, 443 U.S. 658, 6 79 (1979). The W inanses refused to allow the Yakimas to cross o ver or to camp on their l and in order to fish at the site.

T h e Ya k imas h ad sig ned one o f the Stevens Treaties in 1855. The United States broug ht suit ag ainst the W inanses

on the Yakimas’ b ehalf. The Supreme Court he l d that the land o w ned by the W inanses, previously convey e d by patent from the g overnment, was b y virtue o f the treaty subject to an easement allowing access to the Y akim a s ’ “usual a nd accustomed” fishi n g s i t e

. The Court held, f urther, that the State could not license the W inanses to “construct and use a device which g ives them ex c lusive possession of the fishing places, as it is a dmitted a fish wheel does.” W inans
, 198 U.S.
at 382. See also Seufort Bros. Co. v. United States
, 249 U.S. 194 (1919) ( holding that the Yakimas had r ig hts u n der the treaty o n the Oreg on, a s well as the W a shing ton, side of the river).U N I T E D S T A T E S V

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

diminished supply of salmon and the harsh ap p l ication o f W a shing ton’s fish and g ame laws ag a inst the I ndians. He
wrote:

[ M] ore recently
, the use of larg e capit a l
, mechanical assistance, n u m erous g reat traps, canneries, etc., and other activities allied to the fishery industry
, have g reatly lessened a nd deplete d t h e I ndians’ natural sources of food supply

. I n addition thereto the string ent a nd harsh application to I ndians of the State g ame and fish l aws have made it still a nd increasing ly precarious for him to procure his natural foods in his natural way

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

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

. . . of g ame and fish laws” of whic h Bu c h anan c omplained. I n State v

. Towessnute
, 1 54 P. 805, 806 (W ash. 1916), a member of the Yakima Nation named T o wessnute was charg ed with offreservation fishing without a license in a manner forbidden b y state law. T owessnute defended o n the g roun d that he was fishing in the tradit i o n a l manner at one the Yakimas’ usual and acc ustomed places, and that he was entitled to do so under the treaty at issue in W inans

. Id. Character i z i n g the treaty as a “dubious document,” id.
, the W ashing ton Supreme Court rejected the defense:

The premise of I n dian sovereignty we reject. The treaty is n ot to be interpreted in that lig ht. At no time did our ancestors in g etting title toU N I T E D S T A T E S V

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

this continent, ever reg ard the ab o rig ines a s other than mere occupants . . . of the soil.

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

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

ex er c i se of its “police power,” to enact regulatory laws restricting I ndian fishing rig hts. Id. at 809. S ee also State v

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

with the Lu mmi Tribe in Pug et Sound).

Much tr a d itional I ndian f ishing was done with traps a nd
nets in rivers, c atching mature salmon when they returned to their native habitat to spawn. W hite commercial fishermen, by contrast, often fi shed in salt water, using equipment that
most I ndians could not afford and catching b o t h mature a nd immature salmon. B e g inning in the early 1900s, the State
regulated the salmon fishery in Pug et S o u n d in such a way that I ndians who fished in rivers were increasing ly unable to

ex e r cise their off-reservation treaty rig ht to fish in their usual and accustomed places and in their t r a d i t ional manner. F o r

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

I n 1934, W ashing ton voter s adopted I nitiative 77, a

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

ny fix ed appliance,” to catch salmonids. I nit. Measure No. 77, State of W a sh. Voting Pamphlet 5 (Nov. 6, 1934). According to a report commissioned by the federal B ureau of I ndian Affairs, the passag e of I nitiative 77U N I T E D S T A T E S V

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

“constituted a serious b low to the I ndian f ishing being carried on at usual and accustomed g rounds”:

[ D] ue to their ex tremely limited financial
means, [ the I ndians’] g ear necessarily must be obtainable at a minimum o f e x pense. Generally speaking , the I ndians are unable to finance the purchase of other more ex pensive
g ear and operating equipment, the u se o f which was not entirely outlawed. I n order to continue to provide the necessities of life, the I ndians, as a r esult of the above c onservation statute, were literally forced to confine their fishing with such g ear to reservation waters. The fact that such was the situ a t i o n led to

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

.

Edward Swindell, Report on Source

, N a t ure and Extent of Fishing, Hunting, and Miscellaneous Rights of C e r tain Indian Tribes in W

a shington and Oregon 95 (1942).

I n subsequent y ears, the St a t e continued to assert authority to regulate off-reservation fishing by I ndians, including a

uthority to require purchase of fishing licences. I n 1939, S a m p son Tulee, a Yakima I ndian, was criminally charg ed w ith off-reservation commercial fishing with a dip
net on the Columbia River without a state license

. Citing Towessnute a

nd A lexis
, the W ashing ton Supreme Court affirmed the conviction as a valid ex ercise of the State’s police powers. W

ashington v. Tulee
, 1 0 9 P

. 2 d 280, 287 (W ash. 1941) (“W ashing ton enjoy s to the full the ex e rcise o fU N I T E D S T A T E S V

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

its police powers.”). The Un i t e d States Supreme Court reversed. The Court h eld that w hile the State had the power, consistent with the treaty , to regu late fishing by both I n dians and non-I ndians to the deg ree “necessary for the conservation of fish,” the ex action of a li ce nse fee “cannot be reconciled with a fair construction o f the treaty .” Tulee v. W a shington
, 315 U.S. 681, 684–85 (1942).

After Tulee
, state officials c o n tinued to e nforce restrictions on off-reservation fishin g b y Pug et Sound I ndians, even when that fishing was conducted at the I n dians’ usual and accustomed places:

Over the y ears the state f ish and g ame authorities have asser t e d that I ndian treaty

pr o t e c t e d f

i s h i n g ex i s t s o n ly on the reservations, and have acted to enforce this position. I njunctions a g ainst o ff-reservation fishing by I n dians of the Nisqually
, Puy allup, and Mucklesh o ot tribes have been o btained and enforcement a c t ions carried out even while the injunc t i o ns are being contested in the courts. A r rests of fishermen a nd confiscation of g ear have seriously hampered the Indians. Valuable g ear h eld by the state a s evidence can e ffectively p ut the fisherman out of b usi ness during several runs of fish, even thoug h he may

eventually

win his case.

W a lter Taylor, Uncommon Cont r o v e r s y : F i s h i ng Rights ofthe Muckleshoot, Puyallup, a nd Nisqually Indians 60 (1970). A s

a result of the State’s hostility to o f f-reservation fishing
, the I n d ians’ share of the overall catch was relatively small. F o r

ex ample, from 1958 throug h 1 9 67, the shares of the totalU N I T E D S T A T E S V

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

salmon catch in Pug et Sound were 6 % for I ndian fishing
, 8

. 5% for sports fishing
, and 85.5% for commercial fishin g. Id. at 123, 126.

B e g inning in the early 1960s, the State substantially increased its enforcement ag ainst off-reservation fi s h i ng in Pug et Sound. See generally B r adley G. Shreve, “From Time Immemorial”: T

h e F ish-in Movement and the Rise of Intertribal Activism
, 7 8 Pacific Hist. Rev. 403
, 4 1 1 –15 (2009). I n response, in 1964 the National I ndian Yo u th Council org aniz ed a larg e demonstra t ion in Oly mpia to demand that the State acknowledg e their treaty fishing rig hts. See Uncommon C o n troversy , supra , at 107–13. During the 1960s a nd early 1970s, in what came to be ca l l e d t h e “fish wars,” some I ndians f

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

. State reaction t o t he “fish-ins” sometimes led to violence. See, e.g

. , Associated Press, “Shots F ired, 60 Arrested in I ndian-F ishing Sho w d own,” Seattle Times
, Sept. 9
, 1970; Alex Tiz on, “The B oldt Decision / 25 Years — The F ish Tale That Chang ed History
, ” Seattle Times
, F eb. 7, 1999 (describing the State’s “military

sty le campaig n,” empl o y ing “surveillance planes, hig h

powered b oats and radio communications,” as we ll as “tear
g as,” “billy

clubs,” and “g

uns”).

I n 1970
, i n an effort to resolve the persistent conflict between the State a

nd the I ndians, the United States broug ht

s u i t a gainst the State on behalf of the Tribes. The disp u t e now before us is part of that litig ation.U N I T E D S T A T E S V

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

I I

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

Culverts

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

isheries, of which the salmon fishery i s by far the most important. B efore the arrival o f w h i t e settlers, ret u r n i n g salmon were abundant in the streams a nd rivers of the Pacific Northwest. Present-day I ndian tribes in the Pacific Northwest eat salmon as an important part of their diet, use salmon in relig ious a nd c u ltural ceremonies, and fish for salmon commercially

.

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

. Road builders construct culverts to allow the streams to flow underneath r o a ds, but
many culverts do n ot allow f ish to pass e a s i ly

. Sometimes they do not allow f

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

can avoid constructing barrier culverts b y b uilding roads
away f rom streams, by building b ridg es th a t e n t irely span streams, or by building culverts that allow unobstructed fish
passag e.

F our state ag encies are responsible f o r building a

nd
manag ing W ashing ton’s roads and the culverts that p a ss under them: W ashing ton State Department of Transportation (“W SDOT”), W ashing ton State D e partment of Natural Resources (“W SDNR”), W ashing ton State Parks a nd Rec r e ation Commission ( “State Parks”), and W ashing ton Department of F isheries and W ildlife ( “W DF W ”). Of these, W SDOT, the ag ency r espons ible for Washing ton’s hig hway s, builds and maintains by

far the most roads and culverts.U N I T E D S T A T E S V

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

I I I . Earlier Proceeding s

I n 1970, the United States, o n its own beha l f a nd a s trustee for Pacific Northwest tribes, sued W ashingt o n in federal court in the W es t e r n D istrict of W ashing ton. The United States soug ht declaratory a nd injunctive reli e f based

on the fishing clause o f the Treaties. United States v

. S tate of W ashington
, 3 84 F

. Supp. 3 12, 327–28 (W .D. W ash. 1 974) (“ W ashington I

”). I n what has c o m e t o b e known as the “B oldt decision,” District J udg e Georg e H. B oldt divided the

case into two phases. Phase I was to determine what portion, if a ny , o f annually harvestable fish were g uaranteed to the Tribes by the fishing c l a u s e

. Phase I I was to determine whether the fishing clau s e e x tends to hatchery fish, a nd whether it requires W a shing ton to prevent environmental deg radation within the Case Area.

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

. . . in common with a ll citiz ens” g ives the Tribes the rig ht t o t a k e up to fifty p e r cent o f the harvestable fish in the Case Area, subject to the rig h t of non-treaty fishers to do the same. Id

. a t 343. The S u p r eme Court affirmed in W ashington v

. W

ashington S t ate Commercial Passenger Fishing V

essel Ass’n
, 443 U.S. 658 (1 9 7 9 ) ( “Fishing Vessel ”). T he Court specified that fifty percent was a c eiling rather than a floor, and that the fishing clause g uaranteed “so much a s, but no more than, is necessary to provid e t he I ndians with a livelihood—that is to say , a moderate living

. ” Id. at 686. I n a c c o rdance with its standard p ractice o f interpreting I n dian treati es i n favor of the tribes, the Court interpreted the c l a use a s promising protection for the tribes’ supply o f f

i s h
, not merely their share of the fish. The Court
wrote:U N I T E D S T A T E S V

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

Governor Stevens a

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

were likely to view assurances reg arding their fishing rig hts. D u r ing the neg otiations, the vital importance o f the fish to the I ndians was repeatedly

emphasiz ed by

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

the I ndians’ assent.

Id. at 676.

I n 1976, the United States initiated Phase I I o f t h e litig ation, asking for a declaratory judg ment clarify ing the Tribes’ rig h ts with respect to the “hatchery f ish” issue and to the “ environmental” issue. U nited States v. State of W ashington
, 506 F

. Supp. 187, 194 ( W .D. W ash. 19 80) (“ W ashington II

”). The district court held, first, that hatchery fish must be included in determining t h e share of fish to which the Tribes are e ntitled. Id. at 197. I t held, second, that the Tribes’ r ig ht to “a sufficient quantity o f f i sh to satisfy their moderate living needs” entaile d a “rig ht to have the fishery habitat protected from m a n

- made despoliation.” Id. at 208, 203.

Sitting en banc, we affirmed in part and vaca t e d i n part. United S tates v

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

ashington I

II ”). W e affirmed the district court’s decision that hatchery fish m u s t b e included in determining the share of salmon to be allocated to the Tribes:

The hatchery prog rams h ave served a mitiga t i ng function since their inception in 1895. T h e y are desig n ed essentially toU N I T E D S T A T E S V

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

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

. Under these circu m s t ances, it is only just to consider such replacement f ish a s subject to treaty allocation. F or the tribes to bear the full burden of the decline caused by their nonI n d i a n n e i gh b o r s w i t h o u t s h a r i n g t h e replacement achieved throug h the hatcheries, would be an inequity and inconsistent with the Treaty

.

Id. at 1360 (citations omitted).

W e vacated the cour t ’s decision on the environmental issue. W e held that the issue was too broad and varied to be

r e s olved in a g eneral and undifferentiated fashion, and t h at the issue of human-caused environmen t a l deg radation must be resolved in the contex t of particula r i z e d disputes. W e wrote:

W e choose to rest our decision in this case on t h e p r o p osition t h a t i s s u an c e o f t h e declaratory judg ment o n the environmental issue is contrary to the e x ercise o f s o und judicial d iscretion. T h e leg a l standards that will g o vern the State’s p recise o blig ations a nd duties under the trea t y w i th respect to the
my riad State acti o n s that may affect the environment of the treaty area will depend for their definition and articulation upon concrete facts w hich un derlie a dispute in a p a rticular

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

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

Id. at 1357. Althoug h w e vacated the district court’s decision with respect to the environmental i ssue, we made clear that

we w ere not a

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

J udg e B o ldt’s 1974 decision authoriz ed the p arties to invoke the c o n t i n uing jurisdiction of the district court to resolve disputes “ concerning the subject matter of this case.” W ashington I

, 384 F

. Supp. at 419; see also United States v. W ashington
, 573 F

. 3 d 701, 705 ( 9 th Cir. 2009). F or such disputes, the court d irected the parties to “file with the clerk of t h i s c o u r t

. . . a ‘ Request f or D etermination’ setting forth the factual nature of the r e q uest and any leg a l authorities a nd
argument which may assist the court, along with a statement that unsuccessful efforts have b een made by the parties to resolve the matter, whether a h e a ring is r e q uired, a

nd any factors which bear on the urg ency of t h e request.” W ashington I

, 384 F

. Supp. at 419.

I n 2001, the Tribes filed a R e q u est for Determination (“Request”), seeking “to e nforce a duty upon the State o f W a shing ton t o refrain from constructing and maintaining culverts under St ate roads that deg r ade fish habitat so that adult fish p roduction i s r educed.” The Tribes soug ht a permanent injunction from t h e d istrict court “requiring W a shing ton to identify and then to open culverts under state

r o a ds and hig hway s that obstruct fish passag e, for fish ru n s returning to or p a s s ing throug h the u sual and accustomed
g rounds and stations of the plaintiff tribes.”

Th e U n ited States joined the Tribes’ Request, seeking a declaration from the court that:U N I T E D S T A T E S V

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

The rig h t o f taking fish secured to the plaintiff tribes in the Stevens Treaties imposes

a duty u pon the State of W ashing ton to refrain from deg radin g the fishery resource throug h
t h e construction or maintenance of culvert s

u nder State owned roads and hig hway s in a way that deprives the T ribes of a moderate living from the fishery

.

The State has violated and co ntinues to violate the d u t y owed to the plaintiff tribes under th e Stevens Treaties throug h the operation and ma i ntenance of culverts which reduce the number of fis h that would otherwise return to or pass throug h the Tribes’

us u a l and accustomed fishing g rounds a nd stations to such a deg ree a s would deprive the Tribes of the ability to earn a moderate living from the fishery

. The United States soug ht a permanent injunction that would require W a shing ton “within f ive y ears of the d a t e o f judg ment (or such oth e r time period as the Court deems
necessary and just)” to “repair, retrofit, maintain, or replace” culverts that “degrade appreciably ” the passag e of fish.

W a shing ton and the defendant state ag encies (c o l lectively “W a shing ton” or “the State”) ans wered by declaring that there is “no treaty -based rig ht or du t y o f fish habitat protection as described” in the Reques t

. I n the alternative, W a shing ton emphasiz ed that some of its barrier culverts p ass under h ig hway s f

unded in part by the United States, and that these hig hway s were “desig ned according to standards set o r approved” by the F ederal High way Administration, leadingU N I T E D S T A T E S V

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

W a shing ton to believ e t h a t its culverts complied with the Treaties. F urther, Washing ton asserted that the United States and the Tr ibes have built a nd maintained barrier culverts on t h eir own lands w ithin the Case Area. W ashing ton asse rt e d
t h a t the United States “has a duty to take action on its o w n lands so as not to place o n the State of W ashing ton an unfair burden of comply

ing with any such treaty -based duty .”

W a shing ton also m a d e a “cross-request”

— in effect, a

co u n t e rclaim — ag a inst 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 o wn barrier culverts. The district court dismis sed the crossrequest on the g round that the United States had not w ai v e d its sovereig n immunity

. T he court later denied W ashing ton’s request to file an amended cross-request o n the additional
g round that W ashing ton did n ot have s t a n d i ng

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

. . . The decision as whether a n d w hen to assert that claim ag ainst the United States is for the Tribes alone.”

The district court g ranted summary judg ment in favor of the Tribes and the United States, concluding that the dispute involved the kind of “concrete fa c t s ” t hat were lacking in W ashington III

. The court held, first, that “the rig ht of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon [ W ashing ton] to refrain from building or operating culverts under State-maintained roa d s t h a t hinder fish passag e and thereby d iminish the number of f ish that would otherwise be available for Tribal harvest

. ” I t held, second, that “the State of W ashing ton currently owns and operates culverts that violate this duty .”U N I T E D S T A T E S V

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

The district court conducted a b ench trial in 2009 a nd 2010 to dete r m i n e the appropriate remedy

. After failed efforts to reach a settlement, the court is sued both a Memorandum and Decision and a Permanent I njunction. I n its M e m o r andum 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:

During the neg otiations leading u p to t h e sig ning of the treaties, Governor I saac Stevens and other neg otiators a ssured t h e Tribes o f their continued access to their usual fisheries. G overnor Stevens assured the Tribes that e v e n after they ceded huge quantities of land, they would st i l l be able to feed themselves and their familie s forever. As Governor Stevens stated, “I want that you shall not have simply food a nd drink now but that you may have them forever.”

(Emphasis added.)

The court found that salmon stocks in the Case Area have declined “alarming ly ” since the Treaties wer e sig ned, a nd “dramatically

” since 1 985. The court wrote, “A primary cause of this decline is habitat deg radation, both in breeding habitat (f reshwater) and feeding h abitat (freshwater a nd marine a reas)

. . . . One cause of the d eg ra dation of salmon habitat is

. . . culverts which do not a llow the free passag e o f both adult and juve n i l e salmon upstream and d ownstream.” The “consequent reduct ion in tribal harvests has d amag ed tribal e conomies, has left individual tribal members unable toU N I T E D S T A T E S V

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

earn a living by f

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

The d istrict court entered a Permanent I njunction on the

same day it issued its Memorandum and Decision. The court ordered the State, in c onsultation with the Tribes a nd the United States, t o p r e p a

re within six months a current list o f all state-owned barrier c ulverts within the Case A rea. I t ordered W SDNR, State Parks, and W DF W to c orrect all their barrier culverts on the list by t h e end of October 2016. I t ordered W SDOT to correct many of its barrier culverts within
seventeen y ears, and to correct the remainder only at the e nd of the culverts’ natural life or in connection w i th independently undertaken hig hway projects. W e provide a more detailed description of the injunction below.

I V. Standard of Review

W e r e view de novo dismissals for want of jurisdiction under Rule 12(b)(1) and for failure to s t a t e a claim under Rule 12(b)(6). Rhoades v. Avon Products
, Inc
., 504 F .3d 1151, 1156 (9th Cir. 2007). W e also review de n ovo a g rant

or denial of summary judg ment. Scott v. P a s a dena Unified Sch. Dist.
, 3 06 F .3d 646, 652 (9th Cir. 200 2 ). We r eview permanent injunct ions under three standards: we r eview factual finding s for clear error, leg al conclusions de novo, a nd the scope of the injunction for a b u se of discretion. Id

. at 653.

V. Discussion

W a shing ton objects to the d ecision o f the district court on

a number o f g r ounds. I t objects to the c ourt’s interpretation of the Stevens Treaties, contending that it has no treaty -based duty to refrain from building and maintaining barrier culverts;U N I T E D S T A T E S V

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

to the overruling of its w aiver defense; to the dismissal of its cross-request ag ainst the U nited States; and to the injunction. W e take the State’s objections in turn.

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

The f i s hing clause of the Stevens Treaties g u arantees to the Tribes a rig ht to eng ag e in off-reserv ation fishing

. I t provides, in its entirety :

The rig ht of ta k ing fish, at all usual a nd accustomed g rounds and stations, is f urther secured to said I n dians, in common with all citiz ens of the Territory
, a n d of erecting temporary houses for the p urpos e of curing
, tog et h e r w ith the privileg e of hunting
, g athering roots a

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

n d unc l a i m ed lands: Provided, however
, That they shall not take shell fish f

rom any beds staked or cultivated by citiz ens.

Fishing V

e s sel
, 443 U .S. at 674 (emphasis in orig inal). W a shing ton concedes that the c lause g uarantees to the Tribes the rig h t to take up to fifty p ercent of the fish available for harvest, but it c ontends that the clause imposes no oblig ation

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

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

[ T] he Tribes here a

rg ue for a treat y rig ht that finds no b a s i s in the plain lang uag e o r historical interpretation of the treaties. On itsU N I T E D S T A T E S V

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

face, the rig ht of taking fish i n c o mmon with all citiz ens does not include a rig ht to prevent the State from making land use decisions that could incidentall y impact f ish. Rather, such

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

B rief at 27–28. At o ral argument, W ashing ton e v en more forthrig h tly denied any treaty

- based d u t y

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

The Court: W o uld the Sta t e h ave the rig ht, consist e n t with the treaty , to dam every salmon stream into Pug et Sound?

Answer: Your honor
, w e would never a nd could never do that. . . .

The Court:

. . . I ’ m a sking a d iffer e n t question. W ould y ou have the rig ht to d o that under the treaty ?

Answer: Your hono r , t h e treaty would not prohibit that[

. ]

The Court: So, let me make sure I understand
y our answer. You’re say ing
, c o nsistent with the treaties that Governor Stevens entered into with the Tribes, y ou could block e very salmon stream in the Sound?U N I T E D S T A T E S V

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

Answer: Your honor, the treaties would no t prohibit that[

. ]

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

The State misconstrues the Treaties.

W e h ave long construed treaties b etween the United States and I ndian tribes in favor of the I ndians. Chief J u stice Marshall w rote in the third case of the Marshall Trilog y , “The lang uag e used in treaties with the I ndians shou l d never be construed to their p r ejudice.” W orcester v. Georgia
, 31 U.S. 515, 582 (1832). “I f w ords be made use of which a re susceptible o f a m o r e ex tended 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.

Neg otiations for the Stevens Treaties were conducted in the Chinook lang uag e, a trading jarg o n o f o n l y about 300 words. Fishing Vessel
, 4 43 U.S. at 667 n.10. The Treaties

were written in Eng lish, a lang uag e the I ndians could neither read n or write. B ecause treaty neg otiations with I ndians were conducted by “representatives skilled in diplomacy ,” because
neg otiators representi n g t he U nited States were “assisted b y

. . . interpreter[ s] employ ed by themselves, ” b e cause the treaties were “drawn up by [ the neg otiators] and in their o wn lang uag e,” and because the “ only knowledg e o f the terms in which the treaty is framed is that imparted to [ the Indians] b y the interpreter employ ed by the United States,” a “treaty must

. . . be construed, not a ccording to the technical meaning o f its words to learned la w y e r s , b ut in the sense in which they would n aturally be und e r s t o od by the I ndians.” Jones v

. Meehan
, 175 U.S. 1, 11 (1899). “[ W ] e w ill construe a treaty with the Indians as [they ] under stood it, and as justice a ndU N I T E D S T A T E S V

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

reason demand, in al l c as es where power is ex erted by the strong over those to whom they owe care and protection, a nd counterpoise the inequ a l i t y by the superior justice which looks only to the substance o f t he rig h t, without reg ard to technical rules.” United S tates v. W inans
, 198 U.S. 371, 380 (1905) ( in t e rnal q

u otation marks omitted). “[ W ] e look bey ond the written w ords to the larg e r contex t that frames the Treaty
, including the history of the t r e a t y , the neg o tiations, and the practical construction adopted by the parties.” Minnesota v. Mille Lacs Band of Chippewa Indians
, 5 26 U.S. 172, 196 (1999) (internal quotation marks omitted).

The S u p r eme Court has interpreted the Stevens Treaties

o n s e veral occasions. I n affirming J u dg e B oldt’s decisio n , the Court wrote:

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

c o ntrol any attempt to interpret the treaties

. W h en I ndians a re involved, this Court has long g iven special meaning to this rule. I t has held that the United S t a tes, a s the party with the presumptively superior neg otiating ski l ls and superior knowledge o f the lang uag e in which t h e t reaty is recorded, has a responsibility to avoid taking advantag e of the other side. “[ T] h e t r eaty must therefore be construed, not according to th e technical meaning of its w ords to learn ed lawy ers, but in the sense in which they would naturally be understood by the I ndians.” Jones v. M eehan
, 175 U. S

. 1, 11. This rule, in fact, has thrice been ex plicitly relied on b y th e C o u rt in b r o a dly interpreting these very treaties in theU N I T E D S T A T E S V

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

I ndians’ favor. Tulee v. W ashington
, 315 U.S. 681 [ 1 947] ; Seufort Bros. Co. v. U nited States
, 249 U.S. 194 [ 1919] ; United States v

. W inans
, 198 U.S. 371 [ 1905]

. See also W ashington v. Y

ak i m a Indian Nation
, 439 U.S. 463, 484 [ 1979]

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

W a shing ton has a remarkably one-sided view o f t h e Treaties. I n its brief, W a shing ton characteriz es the “treaties’ principal purpose” as “opening up the reg ion to settlement.” Br i e f a t 29. Opening up the Northwest for white settlement

was indeed the principal purpose o f the U nited States. B ut it

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

S a l mon w ere a central concern. An adequate supply o f salmon was “ not much less necessary to the ex istence of the I ndians than the atmosphere they b reathed.” W inans
, 198 U .S. at 381. Richard W hite, a n ex pert o n the history o f the American W est and Professor of American History at Stanford University
, wrote in a declaration filed in the district
court that, during the neg otiatio n s f o r the Point-No-Point Trea t y , a Skokomish I ndian worried aloud about “how they

were to feed themselves once they ceded so much land to the whites.” Professor W hite wrote, to the same ef fe ct, that during ne g otiations at Neah B ay , Makah I ndians “raised questions about the r ole that fisherie s w ere to p lay in their future.” I n response to these concerns, Governor S t e vens repeatedly assured the I ndians that there alway s would be an adequate supply of fish. Professor W hite wrote that Stevens told the Indians during n e go tiations for the Point ElliottU N I T E D S T A T E S V

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

Treaty
, “ I w ant that y ou shall not have simply food and drink

now but that y ou may have them forev e r

. ” During
neg otiations for the P oint-No-Point Treaty
, Stevens said, “This paper is such as a man w o u l d give to his children a nd I w ill tell y ou why

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

a father g ive his c hildren a home?

. . . This paper secures y our fish. Does not a f

a t h e r g ive food to his children? ” Fishing Vessel , 443 U.S. at 667 n.11 (ellipsis in orig inal).

The Indians did not understand the Tre a ties to p romise that they would have a ccess to t h e ir u sual and accustomed fishing p laces, but with a qualification t h a t w o uld allow the
g overnment to diminish or destroy the fish runs. Governor Stevens did n ot make, and the I ndians did not understand him
to make, such a cy

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

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

Governor Stevens a

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

were likely to view assurances reg arding their fishing rig hts. During the n e g otiations, the vital importance o f the fish to the I ndians was repeatedly

emphasiz ed by

both sides, and the Governor’s promises that the treaties would protect that s o urce of food and commerce

w ere c rucial in obtaining the I ndians’ assent

. I t is a b s olutely c lear, as Governor Stevens himself said, that nei ther he nor the I ndians intended that the latte r s h ould be ex cludedU N I T E D S T A T E S V

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

from their ancient fisheries, and i t is according ly inconceivable that either party deliberately ag reed to authoriz e f uture settlers
to c rowd the I n d i a n s out of any meaningful

use of their accustomed places to fish.

Id. at 6 76–77 (citations and internal quotation marks omitted) (emphases added).

Even if Governor Stevens had not ex plicitly promised that “this p aper secures y our fi s h
, ” a n d that there would be food “forever,” w e woul d infer such a promise. I n W inters v

. U nited States
, 207 U.S. 564 (1908), the treaty creating the F ort B elknap R e servation in Montana did not include an

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

. . . practically valueless.” Id. at 576. “[ B ] etween tw o i n f e r e nces, one o f which would support the purpose of the ag reem e n t and the other impair or defeat it,” the Court chose the former. Id. at 577.

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

ex p licit r e servation of wat e r rig hts. A prime hunting a nd fishing a rea on the reservation was the Klamath Marsh, whose suitability for hunting and fishing depended on a flow of water from the W illiamson River. A primary purpos e o fU N I T E D S T A T E S V

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

the treaty was to “secure to the Tribe a continuation of its traditional hunting and fishing ” way of living

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

o f the ag reement,” W

inters
, 207 U .S. at 577, we infe r r e d a promise of water su f

f icient to ensure an adequate supply o f
g ame and fish. A dair , 723 F .2d at 1411.

Thus, ev e n if Governor Stevens had made no ex plicit promise, we would infer, as in W inters and Adair
, a p romise
to “ support the purpose” of the Treaties. That is, e ven in the absence of an ex plicit promise, we would infer a promise that the number o f fish would a lway s be sufficien t t o p r ovide a “moderate living ” to the Tribes. Fishing Vessel
, 4 43 U.S. at 686. J ust as the land on the B elknap Reservation would have been worthless without water to irrig ate the arid land, and just

as the rig ht to hunt and fish on the Klamath Marsh would have been worthless without water to pr o v i d e habitat for
g ame and fish, the Tribes’ rig h t of access to t h e i r u sual a nd accustomed fishing places would b e w orthless without harvestable fish.

I n W a shingto n III

, we vacated the district court’s declaration of a broad and undifferentiated o b lig ation to prevent environmental deg radation. W e did not dispute that the State had environmental oblig ations, but, in the ex ercise of dis c r e t i on under the Declaratory J udg ment A ct, we declined to sustain the sweeping d eclaratory judg ment issued by the d istrict court. W e wrote, “The leg a l standards that will
g overn the State’s precise oblig ations and duties under the treaty w ith respect to the my riad State actions that may affect the e nvironment of the tr e a t y area will depend for their definition and articulation upon concrete facts which underlieU N I T E D S T A T E S V

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

a dispute in a particular case.” W ashington III

, 759 F .2d at 1357.

W e concluded:

T h e State of Washing ton is bound by t h e treaty

. I f the State a c t s for the primary
purpose or object of a ffecting or regulating the fish supply or catch in noncompliance with t h e t reaty as interpreted by past decisions, it will b e subject to immediate correction and remedial action by the c ourts. I n other instances, the measure of the State’ s oblig ation will depe nd for its precise leg al f o r mulation on all o f the facts presented by a particular dispute.

I d

. There is no alleg ation in this case that in building a nd maintaining its barrier culverts the State has acted “ f o r the primary purpose or object of affecting or regul a t i n g the fish supply or catch in noncompliance with the treaty .” T he
consequence of building a n d 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 oblig ation” therefore depends “on all the facts presented” in the “particular dispute” now before us.

The facts p r e s e nted in the district court establish that W a shing ton h a s a c ted affirmatively to build and maintain barrier c ulverts u n d e r its roads. The State’s barrier culverts within the Case Area block approx imately 1,000 linear miles of streams suitable f

or salmon habitat, comprising a l most 5 million square meters. I f these cu lverts were replaced o r modifie d to allow free passag e of fish, several hundredU N I T E D S T A T E S V

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

thousand additional mature salmon w ould be produced every y ear. Many o f these mature salmon would be available to the Tribes for harvest.

Salmon now available f

or harvest are not sufficient to provide a “ moderate li v i n g” 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 i n t r ibal harvests has damag ed tribal economies, has left i ndividual tribal members unable to earn a living by fishin g, a nd has caused cultural and social h a rm to the T ribes in addition to the economic harm.” The court found, further, that “[ m] any members of the Tribes would eng ag e in more commercial a nd subsistence salmon fisheries if more fish were available.”

W e therefore conclude that in building and maintaining barrier culverts within the Case Area, W ashing ton has

v i o l a t ed, and is continuing to violate, its oblig ation to the Tribes under the Treaties.

B

. W aiver by

the United States

I n the district court, W ashing ton asserted a defense o f “waiver and/or estoppel” based on action and inaction by the United States that, a c cording to Washing ton, led the State to believe that its barrier culverts did not violate the Treati e s. On appe a l
, W ashing ton has dropped its estoppel argument, pressing only

its waiver arg

ument.

W a shing ton alleg ed in the district court that W SDNR h ad developed, in consultation w ith the United States, a 1 9 99 “F orest and F ish Report” that contemplated a fiftee n -y e ar

s c h e d ule for “remediation of f ish problems on forest r oads” under t h e c o n trol of W SDNR. W a shing ton alleg e d that itU N I T E D S T A T E S V

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

“reasonably concluded that by approving or failing to object
to the State’s 15-y ear remediation schedule for f or est roads, the NMFS [ N ational Marine F isheries Service] h ad determined that the schedule satisfied a n y treaty oblig ation.” W a s h ing ton also alleg ed, with r e spect to “many ” of the culverts under the c o ntrol of W SDOT, that the culverts a re “in hig hway s funded i n p art by the United States,” and that “[ t] hese h ig hway s were desig ned according to stand a r ds set

or a p prov e d b y the F ederal Hig hway A dministration (F HW A) and its predecessors.” Washing ton alleg e d that it “reasonably concluded that by approving or failing to object to the State’s culvert desig n and maintenance, the F HW A had determined
t hat the desig n and maintenance satisfied any tre at y oblig ation.” W ashing ton further alleg ed that the Army Corps of Eng ineers, in administering the Clean W ater Act, and the NMF S and U.S. F ish & W ildlife Service, in administering the Endang e red Species Act, issued permits to, or failed to object to, W SDOT culverts, and that W ashing ton reasonably relied

o n t h e ir a ction and inaction to conclude that it had satisfied
any treaty oblig ations.

The United S t a tes may a brog ate treaties with I ndian tribes, just as it may abr o ga te treaties with fully sovereign nations. However, it may abrog ate a t r eaty with an I ndian tribe only by an Act of Cong ress that “clearly e x press[ es an] intent to do so.” Minnesota v. Mille Lacs Band of Chippewa Indians
, 526 U.S. 172, 202 (1999). Cong ress ha s n ot abrog ated the S t e v e n s Treaties. So long as this is so, the Tribes’ rig ht s u n der the fishing clause remain valid a nd enforceable. The United States, a s trustee for the Tribes, may bring suit on their behalf to enforce the Tribes’ rig h ts, b ut the rig hts belong to the Tribes.U N I T E D S T A T E S V

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

The U nited States cannot, bas e d o n laches or estoppel, diminish or render unenforceable otherwise valid I ndian treaty r i gh t s

. See, e.g. , Cramer v. United States
, 261 U.S. 219, 2 34 ( 1923) (where I ndians had treaty rig hts to land, leasing of the land to a n on-I ndian defendant “by ag ents o f the g overnment was

. . . unauthoriz ed and could not bind the
g overnment; much le s s c o uld it deprive the I ndians o f their rig hts”); United States v. W ashington
, 1 57 F .3d 630, 649 (9th Cir. 1998) (“[ L ] aches or estoppel is not available to defeat I ndian tre a t y rig hts.”) (quoting Swim v. Bergland
, 696 F .2d 71 2
, 718 ( 9th Cir. 1983)); and United States v. Ahtanum Irrigation Dist
., 236 F .2d 3 21, 3 34 (9th Cir. 1956) (“No defense of laches or estoppel is available to the defendants here for the Government[ ,] as trustee for the I ndian Tribe, is
not subject to those defenses.”). The same is true for waiver. B ecause the treaty rig hts belong to the Tribes rather than the United States, it is not the prerog ative of the United States to waive them.

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

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

was broug ht in Sherrill by the Oneida I n dian Nation (“OI N”), whose lands once comprised six million acres in central New York State. I n 1788, in the Treaty of F ort S c h u y l e r, OI N reserved 300,000 acres of its tribal land and ceded the rest to New York. T wo y ears later, C o n gress passed the I n dians Trade a nd Intercourse Act (the “Nonintercourse Act”), which required fed eral approval for the sale of tribal land. New York larg ely ig nored the law and in the fo l l o w i n g y ears obtained larg e qu a n tities of tribal land throug h treaties with OI N. Th e U n i t ed States did little to stop these transactions; indeed, its ag e nts took an active role in e ncourag ing Oneidas
to move west. B y 1838, O neidas h ad sold all but 5,000 acresU N I T E D S T A T E S V

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

of their r eserved lands. B y 1 9 20, their ownership h ad dwindled to 32 acres.

I n 1985, the Supreme Court h eld that the sale of OI N lands had been unlawful, and that the OI N was entitled to monetary compensation for these sales. See Cnty. of O neida

v. O neida Indian Nation of N.Y

. State
, 470 U.S. 226 (1985). I n 1997 a nd 1998, OI

N pu r c h a s e d on the open market two parcels of land, located within the boundaries of its ancestral reservation, that had been sold to a non-I ndian in 1 807. OI N claimed tribal sovereig n status for the purchas e d parcels, including the sovereig n r ig ht to be free of lo c al property tax es. I n Sherrill
, the Court held a ga inst OI N, writing that “the Tribe cannot unilaterally r evive its ancient sovereig nty , in whole or in part, o v e r t h e p arcels at issue.” 544 U.S. at 203.

The case before us is radically diff e r e nt from Sherrill

. The question in our case is not whether, as in Sherrill
, a tribe has sovere i gn t y over land within the boundaries of an abandoned reservation. The Tribes h ave not abandoned their reservations. Nor is the question whether, as in Sherrill
, the Tribes have acted to relinquish their rig hts under the T reaties. The Tribes have done nothing t o authoriz e the State to construct a nd maintain barrier c ulverts. Nor, finally
, is the question whether, as in Sherrill
, to allow the revival o f dispute s o r claims that have long been left dormant. A s described above, W ashing ton and the Tribes h ave been in a

more or less c ontinuous state of conflict over treaty -based fishing rig hts for over one hundred y e ars.U N I T E D S T A T E S V

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

C. W ashing ton’s Cross-Request

W a shing ton asserted a “cross-request” ( in effect, a

c ounterclaim) based on the United States’ construction a n d maintenance of barrier culverts on its own land. W ashing ton contended that if its barrie r c ulverts violate the Treaties, so too do the United States’ barrier cul verts. W ashing ton contended that an injunction requiring it to c orrect its barrier culverts, while leaving undisturbed those of the United States, imposed a d isproportionate and therefore unfair burden o n the State. W ashing ton soug ht an injunction that wo u l d require th e U n i t e d States “to fix and thereafter maintain all culverts built or maintained by [ the United States]

. . . before the State of W ashing ton is require d t o r e p air or remove any o f its culverts.”

The d istrict court struck the cross-request a nd subsequently denied W ashing ton’s moti o n to amend. I t did

so on two g rounds. F irst, it held that W a s h i n gton’s crossrequest was barred by sovereig n immuni t y

. S e cond, it h eld that Washing ton did not have standing to assert treaty rig hts belong ing to the Tribes. W e ag ree with both g rounds.

1 . Sovereig n I mmunity

The United S t a t es enjoy s sovereig n immunity from unconsented suits. However, when the United S tates f iles suit, consent t o co u nterclaims seeking offset or recoupment will be inferred. United States v. Agnew , 423 F .2d 513, 514 (9th Cir. 1970). W ashing ton contends that the injun c t i on it seeks ag ainst the United States is “ rec o u p m e n t.” W e disag ree.U N I T E D S T A T E S V

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

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

To c o nstitute a c laim in recoupment, a defendant ’ s claim must (1) arise from the

same transaction or o c currence as the plaintiff’s suit; ( 2) seek relief of the same kind

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

Berrey v. Asarco Inc.
, 439 F .3d 636, 6 45 (10th Cir. 2006); see Fed. De p o s i t Insur. Corp. v. Hulsey
, 22 F .3d 1472, 1487 (10th Cir. 1994). W e adopt these c riteria as o u r o w n , a nd make ex p licit that the r emedy (the “amount”) soug ht b y the United States and b y the d e f e n d a n t in r ecoupment must be monetary

.

I t is implicit in the use of the word “amount” in Berrey ’s third c riterion that a r ecoupment c laim is a mo n etary c laim. A claim for recoupment, if successful, can reduce o r eliminate the amoun t o f money that w ould otherwise be awarded to the plaintiff. I t can n o t result in an affirmative monetary judg ment in favor of the party asserting the claim: “Althoug h a counterclaim may be asserted ag ainst a sovereig n by way of set off or reco u p m e nt to defeat o r diminish the sovereig n’s recovery
, no affirmative relief may be g ive n a g ainst a sovereign in the a bsence of consent.” Agnew
, 423 F .2d at 514; see also United States v. U.S. Fid. & Guar. Co
., 30 9 U.S. 506, 511 ( 1940) (“[ A] defendant may , without statutor y a u thority
, r e c oup on a counterclaim an amount e qual to the princi pal claim.”); Black’s Law Dictionary 1 4 6 6 ( 10th e d

. 2009) (“Recoupment: 1. The
g etting back or reg a ining of something
, esp. e x penses. 2. The withholding
, for equitable r easons, of a ll or part of somethingU N I T E D S T A T E S V

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

that is due.

. . . 3. Reduction of a plaintiff’s damag es because of a demand by the defendant ari s i n g out of the same transaction.

. . . 4. The rig h t of a d efendant to have the plaintiff’s claim reduced or eliminated because o f t he plaintiff’s breach of contr a ct or duty in the same transaction.”). The parties have cited no case, and w e h a v e found none, in which the t erm recoupment has b een a pplied to non-monetary

relief such as an injunction.

W a shing ton’s cross-request for an inju n c t i on thus does
not qualify as a claim for recoupment and is b a r red b y sovereig n immunity

. 2. Standing

W a shing ton seeks an injunction requ i r i ng the United States t o c orrect its b arrier c u lverts o n the g round that the United States is bound by the Treatie s i n t h e same manner and to the same deg ree as the State. W ash i n gton is, o f
course, correct that the United States is bound by the T reaties. I ndian treaty rig hts were “intended t o be continuing ag ainst the United States

. . . as well as a g ainst the state[ .] ” W inans
, 198 U

. S

. a t 381–82. O ur h olding that W ashing ton has violated the Treati e s in building and maintaining its barrier culverts necessarily means that the United States has also violated the Treaties in building and maintaining its o wn barrier culverts.

However, any viol a tion of the Treaties by the United States violates rig hts held by the Tribes rather than the State. The Tribes have not soug ht redress ag ainst the United States in the proceeding

now before us.U N I T E D S T A T E S V

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

D. I njunction

The district court h e l d a trial in 2009 and 2010 to determine the appropriate remedy f or W ashing ton’s violation of the Treaties. At the time of trial, t h e r e w e r e 1,114 stateowned culv e r t s in the Case Area. A t least 886 of them blocked access to “sig nificant habitat,” d efined as 200 linear
meters or more of salmon habitat upstream from the culvert
to the first natural passag e b arrier. More barrier culverts were identified o r constructed within the Case Area a f t e r 2009. Th e court estimated in its 2013 Memorandum and Decision that a t the then-current rate of remediation, all o f t he barrier

c u l v er ts under the control of W SDNR, State Parks, a nd W D F W would be c orrected by October 31, 2016. The g reat majority of barrier c ulverts, however, w ere under W SDOT’s control. I n 2009, when trial beg an, there were 807 identified W SDOT b a

rrier culve r t s

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

I n 1 9 9 7
, WD F W and WSDOT reported to the W ashing ton State leg islature that W SDOT culverts blocked 2 4 9 linear miles of stream, comprising over 1.6 million square meters o f salmon habitat, which they estimated was sufficient to produce 200,000 adult salmon p er y ear. B ased o n W DF W records, the district court found that at the time of trial, stateowned barrier culverts in the Case Area block e d access to approx imately 1,000 miles of stream, comprising a l m o s t 5 million square meters of salmon habitat.

The district court issued a permanent injunction in 2013,

on the same day it issu e d i t s Memorandum and Decision. The court ordered the State, in consultati o n w i th the Tribes and the United States, to prepare within six months a current list of all state-owned barrier culverts within the C a s e Area.U N I T E D S T A T E S V

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

The court o rdered that identification of a c ulvert as a “barrier” be based on the methodol o gy specified in the F ish Passag e B arrier and Surface W ater D iversion Screening and Prioritiz ation Manual (“Assessment Manual”) publis h e d b y W D F W in 2000. The court ordered W SDNR, State Parks, and WDF W to provide fish passag e throug h all their b ar r i er culverts o n the list by October 31, 2 016 — the date by which these three ag encies wer e already ex p ected to complete correction of their barrier culverts.

F or barrier culverts under the c ontrol of W SDOT, the injunction was more nuanced. I n P a r a gr a p h 6 of the injun c t ion, the c ourt o rdered W SDOT to provide, within
seventeen y e a rs o f the date of the order, and “in accordance with the standards set out in this injunction,” fish passag e for each barrier culvert with more t h a n 2 00 linear meters o f salmon h a b itat upstream to the f irst natural passag e barrier. I n Parag r aph 7
, the c o urt ordered W SDOT to replace ex isting barrier culverts above which there was les s t h an 200 linear
meters o f a ccessible salmon habitat onl y a t the “ end o f the useful life” of the culverts, or sooner “ a s part of a hig hway project.” I n Parag raph 8
, the court allowed WSDOT to defer correction of some of the culverts described in Parag raph 6. Deferred c ulverts can a ccoun t f o r u p to ten percent o f upstream habitat from the culverts d e scribed in Parag raph 6. W SDOT’s choice o f w hich c ulverts to defer is to be made in consultation with the Tribes and the U nited States. The court sp e c ified that the choice o f c ulverts could be g uided by the “Priority I n dex ” methodolog y describe d i n the WDF D Assessment Ma n u a l

. That methodolog y uses cost as a permissible factor in determining priority

. As s e s s ment Manual at 55. Culverts deferred under Parag raph 8 are to be replaced on the more lenient schedule specified in Parag raph 7.U N I T E D S T A T E S V

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

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

shall desig n and build fish passag e a t e ach barrier culvert o n the L ist in order t o pass all species of salmon at all life stag e s at a ll flows where the f

ish would n at u ra lly seek passag e

. I n order of preference, fish p assag e shall be achieved by (a) avoiding the necessity for the roadway to c ross t h e stream, (b) use of full

s pan bridg e , (c) use o f the “str e a m simulation” met h odolog y

. . . which the parties t o this proceeding have ag reed represents the best science currently available for desig nin g culverts that provide fish
passag e and allow f

luvial processes. Nothing in this injunction shall preve n t t he [ State] from developing and using desig ns other than bridg es o r stream simulation in the f uture if the [ State] can demonstrate that t h o se future desig ns provide e quivalent or better fish
passag e and fisheries habitat benefits than the desig ns required in this injunction.

I n Parag raph 10, the court provided that the State may deviate from the desig n standards specified in Parag r aph 9 in cases o f
emerg ency or where “ ex traordinary site condit ions” ex ist. The court specified that it would “retain conti nuing jurisdiction

. . . for a sufficient period to assure t h a t the [ State] compl[ ies] with the terms of this injunction.”

W a shing ton declined to participate in the formulation of the injunction on the g round that it had not v iolat e d t h e Treaties and that, theref o r e, no remedy was appropriate. W a shing ton now objects on several g r ounds to the injunctionU N I T E D S T A T E S V

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

t h a t w as formulated without its participation. W ashing to n specifically o b

jects (1) that the injunction is too “broad,” B rief at 50; (2) that the district court did not “defer to the State’s e x pertise,” id. at 54; (3) that the court did n ot properly consider costs and equitable principles, id. at 57; (4) and that the injunction “impermissibly and sig n ificantly intrudes into
state g overnment operations.” Id. at 63. F inally
, W ashing ton objects that its four specific objecti o n s support a contention that the court’s injunction is incons i s t e nt with “federalism principles.” Id. at 47, 65. W e consider the State’s o bjections in turn.

1. B readth of the I njunction

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

. . . . Despite that complete failure of

pr o o f
, the district c o urt found that stateowned culverts ‘have a sig n ificant tot a l i mpact on salmon production.’” B rief a t 50 (emphasis in orig inal). W ashing ton contends, further, that the district court “ordered replacement of nearly every state-owned barrier culvert within the case

area without any specific showing t h a t those culverts have sig nificantly dimin i s h e d fish runs o r tribal fisheries, or that replacing them will meaning fully

improve runs.” Id.

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

Contrary to the S t a te’s contention, the Tribes presented

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

on salmon. T he 1997 report prepared for the W ashing ton State L eg islature by two of the defendants in this c ase,U N I T E D S T A T E S V

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

W D F W and W SDOT, stated, “F ish passag e at hum a n m a d e barriers such as road culverts is one o f the most recurrent a nd correctable obstacles to healthy salmonid stocks in W a shing ton.” The report concluded:

A total potential spawning a n d rearing area o f 1,619,8 3 9 m 2 (249 linear miles) is currently blocked by W SDOT culverts on the 177
survey e d streams requiring barrier resolution;
t h is is e noug h wetted stream area to produce 200,000 adult s a l m onid annually

. These estimates would a ll increase when con s i d ering the a dditional 18 6 b a r r iers that did not have full habitat assessments.

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

Planning is underway for resolution of at least

seven more barri ers during the 1997–99 biennium using dedicated f unds, and to resolve all barri e r s i n the nex t two or three d e c ades.

. . . Estimated cost is about $4 0 mill i o n, with resultant benefits ex ceeding $160 million.

B a sed on later W DF W f ig ures, the district court f ound that at the time of trial state-owned barrier culver ts in the Case Area blocked access to approx imately 1,000 linear miles of stream, comprising almost 5 million squ are meters o f salmon habitat. These figures, taken tog ether with the 1997 fig ures supp l ied by W DF W and W SDOT, indicate that the total habitat blocked by state-owned b arrier culverts in theU N I T E D S T A T E S V

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

Case Area is capable of p roducing several times the 200,000 mature salmon specified in the 1997 report.

W itnesses at trial repeatedly described benefits to salmon resulting from correction of barrier c ulverts. One ex ample is evidenc e presented by Mike McHenry
, habitat prog ram manag er for the L ower Elwha Klallam T ribe. I n his w r itten testimony
, McHenry described several studies. One w as a 2003 study of c ulvert removal projects o n the Stillag uamish River that opened up 19 linear kilometers of salmon habitat. Ac c o r d ing to the study
, over 250 adult coho salmon were observed spawning in the newly accessible habitat in each o f the two y ears immediately a f ter the completion of the projects. B ased on his own ex p erience as habitat manag er for the tribe, McHenry

wrote that removal of barrier culverts on the L ower Elwha River had had a sim ilar effect. I n McHenry ’ s view, “ The sy stematic correction of barrier

c ulverts is an important place to focus restoration efforts.” He w rote, further, “The correction of human caused barriers is g enerally recog niz ed as the second h ig hest priority for restoring habitats used by Pacific salmon ( fo l l o w ing the protection of ex isting functional habitats).”

I n his live testimony
, McHenry stated that his tribe h ad corrected seventeen of thirty -one b a r r iers in a particular watershed:

McHenry : B ecause w hen we did the watershed assessment, we f ound that there

were 50 miles of historically active s t ream that salmon could acce s s i n this watershed,

a n d fully half that mileag e was blocked by culverts of v arious ow n e rs hips. So to us, we

a p p l i e d o u r scientif

i c k n o w l e d ge a n dU N I T E D S T A T E S V

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

r ecommendations f rom the literature which indicated th a t when y ou’re g oing to restore a place like this, y ou n eed t o go after the barriers first.

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

McHenry : Yes.

Another ex ample is the live testimony of L awrence W a sserman, environmental policy manag er f o r the S wi n o mish I ndian Tribal Community

. He testified that culvert remediation provides substantial benefits:

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

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

. . . .

. . . W e have a high confidence in desig n. B y and larg e, w e know h o w to fix culverts.

. . . So we have a hig h co nfidence compared to many other more e x perimental restoration activities.

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

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

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

A c ritical factor is that th ere’s minimal impacts on a d

j a c e nt land use or land

owners.

. . . [ I ] t’ s r elatively infrequent where there needs to be a condemnation of other people’s land or asking people to sell th eir land. . . .

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

some studies that have shown that, really
, compar e d to other k inds of restoration activities, the cost per smolt produced is relatively low[ .]

. . .

And fi n a l ly
, we g et benefits with a broad
sweep o f culvert repairs. W e g et a very broad
g eog raphic distribution of b en e fits, a nd the cumulative e f

fects can accrue across a variety of watersheds.

I t is true, as the evidence at trial showe d
, t h a t correction of barrier culverts is only o ne of a n u m b e r of measures that

can usefully be taken to increase sa lmon production in the Case Area. I t is also true that the benefits of cu l v e rt correction differ depe n ding on the c ulvert in question. F o r

ex ample, Paul W agn e r, manag er of the culvert correction
prog r am for W SDOT, presented e v idence in 2013 identify ing 817 W SDOT barrier culverts b l o c k i n g 937 linear miles o f
stream habitat in the Case A rea. W ag n er’s e vidence showed that c orrection of the 314 c ulverts blocking t h e most habitat would open up 6 5 5 of the 937 m i l e s of total habitat. Correcting the 232 culverts blocking the least h abitat would
open up only 95 miles. Those 95 miles of habitat constitute 10.1 percent of the total habitat b lo c k ed b y the 817 barrierU N I T E D S T A T E S V

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

culverts. The 232 culverts blocking those 9 5 miles constituted 28.4 percent of the total barrier culverts.

The district court’s injunction took into account the facts that culvert correction is not the only factor in sal mon recovery ; that some culverts block more habitat than others; and that some culverts are m o re ex pensive to correct than others. The court o rdered correction of hig h-priority culverts

— those blocking 200 linear meters or more of upstream habitat

— within seventeen y ears

. For low-priority culverts

— those blockin g less than 200 linear meters of upstream habitat — the court ordered correction only at the end of the useful life of the ex isting c ulvert, or when an independently undertaken hig hway project would require replacement of the culvert. F urther, recog niz ing the li k e lihood that accelerated replacement of some h ig h-priority culverts will not be costeffecti v e , the c ourt allowed the State to defer correction o f hig h-priority

culverts accounting

for u p to ten percent of the total blocked upstream habitat, and to correct those c u lverts

on the more lenient schedule of the lo w

- p r i ority culverts. W a g n er’s evidence indicates that if t h e sole criterion for choosing deferred culverts is the amount of blocked habitat, there will be approx imately 230 deferred culverts. I f cost o f correction of particular culverts is added as a criterion, there will be a somewhat smaller number of deferred culverts.

I n sum, we disag ree with W ashing ton’s contention that the Tribes “ p resented no evidence,” a nd that there was a “complete failure of proof,” that state-owned barrier culverts have a substantial adverse effect on salmon. The record contains ex tensive evidence, much of it f rom the State itself, that the State’s barrier culverts have such an effect. W e also disag ree with W ashing ton’s c o n tention that the court ordered correction of “nearly every state-owned barrier culvert”U N I T E D S T A T E S V

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

without “any specific showing ” that such correction will “meaning fully improve r uns.” T he St a t e ’ s own evidence shows that hundreds of thousands of adult salmo n w i ll be produced by opening up the s a lmon habitat that is currently blo cked by the State’s barrier c ulverts. F inally
, we disag r ee

w ith W ashing ton’s contention that the court’s injunction indiscriminately orders correction of “nearly every s t a teowned barrier cu l v e r

t” in the Case Area. The court’s order carefully disting uishes between hig h- and low-priority culverts bas ed on the amount o f upstream habitat culvert correction will open up. The order then allows f o r a f urther distinction, to be drawn by W SDOT in consultation with the United States and the Tribes, be t w e e n those hig h-priority culverts that must be corrected within seven t e en y ears a nd those that may be corrected o n t h e more lenient schedule applicable to the low-priority culverts.

2. Deference to the State’s Ex pertise

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

erroneous f

inding of fact, concluding that co r r e ction o f human-caused barriers is the hig hest priority in h abitat restoration. I t contends, further, that this finding led the court to ig nore the ex pert testimony presented by both the State a nd the Tribes. W ashing ton wrote in its brief:

The State has concluded — and the Tribes
ag ree — that a compreh e n s i ve approach to preserv i n g and restoring salmon runs is the
most productive and co s t

- effective

. . . . The district court concluded, however, that “correction o f human-caused barriers is
recog niz ed as the hig hest priority for restoring salmon habitat in th e C a s e Area.” On thatU N I T E D S T A T E S V

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

basis
, t he court ordered injunctive relief f o cused solely on culverts, even thoug h t h e cost of the injunction wi l l likely reduce funding available for other salmon restoration efforts. T he court’s finding was clearly
erroneous, and its approach w as an abuse o f discretion.

I n concluding that fix ing culverts is “the hig hest priority for r estoring salmon habitat in the Case Area,” the court cited the declaration of tribal e x pert M ike McHenry

. Mr. McHenry said no such thing

.

B rief at 54–55.

W a shing ton is mistaken. I t is true that the dis t r i ct c ourt made the factual finding to w hich W a shing ton objects. Citing McHenry ’ s evidence, the court wrote, “The c o r rection o f human-caused barriers is recog niz ed as t he hig hest priority for restoring salmon habitat in the Case Area

. ” Bu t the

co u r t ’ s finding is amply supported by the record. W ith respect to restoring habitat (as distinct f ro m preserving habitat, w hich has a hig her priority )
, McHenry wrote that it is “g enerally recog n iz ed” that the correction of human-caused barri er s i s the hig h est priority

. F urther, McHenry testified that “y ou n eed to g o after the barriers f irst” because that is the “big g est bang for the buck.” W asserman testified to the same effect, saying th a t “there’s an immediate access a nd immediate benefit to additional habitat when we replace a culvert”; that “it’s cost e ffective” compared to “ other kinds o f restoration activities”; and that “the cumulative effects can accrue across a variety of watersheds.”U N I T E D S T A T E S V

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

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

. Bu t it is a p p r o p riate that the injunction should have done so. The
court was acutely conscious o f 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. I t wrote, “ A p rimary

cause of this dec l i n e is habitat deg radation

. . . . O ne cause of the deg radation o f salmon habitat is bl o c k e d culverts[ .] ” (Emphasis added.) However, because the only t r eaty violation alleg ed in this litig ation was W ashing ton’s ba rrier culverts, the court acted a ppropriately in ordering o nly the correction of these culverts. As the court wrote, “The scope of this subproceeding includes only those culverts that block fish passag e under State-owned roads.”

Contrary to W ashing ton’s c o n t ention, the district court had a sophisticated r ecord-based understanding of the v arious

causes of the d ecline of salmon in th e Case Area, o f what could be achieved by the correction of s t a t e-owned barrier culverts, and o f the limitations on w hat could be achieved b y culvert c orrection. The court’s injunction is carefully crafted to reflect that understanding

.

3. Costs and Equitable Principles

W a sh i n gt on contends that the district court’s injunction fails properly to take cost s into account, and that its injunction is inconsistent with equitable principles.

a. Costs

W a shing ton writes in its brief that c o rrection of W SDOT barrier culverts will cost approx imately $1.88 billion over the

c o u r se of the seventeen-y ear schedule o rdered by the c ou r t ,U N I T E D S T A T E S V

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

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

W a shing ton’s cost estimates are not supported b y t h e evidence. W ashing ton contended at trial, as it now contends
t o u s, that the averag e cost to replace a W SDOT barr i e r culvert would be $2.3 million. B u t the district court did not accept this estimate. The c ourt found that “the actual cost o f construction fo r twelve W SDOT stream simulation culvert projects c om p leted prior to the 2 009 trial r ang ed from $413,000 to $1,674,411; the averag e cost for the twelve was $658,639 each.” I n 2013, the State submitted a dec l a r ation from W SDOT official W ag ner listing t h i r t y

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

- four used either a stream simulation desig n

or a bridg e. The declaration stated that the av e r a ge cost for

e ach these twenty -four p r ojects w as $1,827,168, n o t $2,300,000 a s the State now contends. Th e d istrict court noted that even W ag n er’s lower fig ure could not be confirmed because cost data was missing for eig ht o f t h e twenty -four projects.

There are additional r e a s ons to disreg ard the State’s estimate of total cost. F irst, W ashing ton assumes that all 817 of the state-owned barrier culverts w ill be c orrected on t he seventeen-y

ear schedule. This is d emonstrably in c o rrect. According to the State’s own evidence, Parag raph 8 of the injunction will allow the Stat e t o defer correction o f
approx imately 230 of the 8 1 7 c ulverts. I f cost of barrier correction (rather than merely amount of upstream habitat) isU N I T E D S T A T E S V

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

taken into account in deciding w hich c ulverts to defer, fewer but more cos t l y c u lverts will be deferred. Second, a nd perhaps more important, W ashing ton must e ventually correct its barrier culverts, irrespective of the court’s o r d e r in this

s u i t. The district c ourt wrote that federal and stat e l a w require W ashing ton to c orrect its barrier culverts “ i n a n y case,” and that the only c onsequence of its ord e r wi l l be an “acceleration of barrier correction.” The n e t costs imposed

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

F inal l y , we note that a portion of WSDOT’s funding for correcting its barrier culverts will come from the United States. The c ourt wrote, “[ T] h e state e x pects to receive over $22,000,000 for fish passag e barrier projects from the federal
g overnment in the y ears 2011 to 2 0 1 7

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

b . Equitable Principles

W a shing ton makes one specific o b j e c t ion based on equitable p rinciples. I t o bje cts that the court abused its discretion in requiring that “the State alone,” rather than State in c onjunction with the United States, be “burdened w ith the entire cost of culvert r epair.” B rief a t 63. W e d isag ree. The court’s order required correction of only those barrier culverts that were built a n d m a i ntained by the State. I t was not an abuse of discretion to require the S t a t e to pay for correction of its own barrier culverts.

F urther, w e note more g enerally that the district court did

co n sider equitable p rinciples, and concluded that thoseU N I T E D S T A T E S V

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

principles favore d t h e T ribes and the c itiz ens of the State. The court wrote:

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

This injury is o ng oing
, a s eff o r t s by the State to correct the barrier culverts have been insufficient.

. . . Remed ies at law a re inadequat e as monetary d amag es will not adequately compensa te the T r ibes and their individual members for these harms. . . .

The balance of hardships tips steeply toward the Tribes in this matter. The promise made t o the Tribes that the Stevens Treaties would protect their source of food a nd

commerce was crucial in obtainin g their assent to the Treaties’ provisions. .

. . Equity favors requiring the State of W ash i n gton to keep the promises upon whi c h the Tribes relied w hen they ceded hu g e tracts of land b y way of the Treaties.

. . .

The public interest will n ot be di s s e rved b y an injunction. To the contrary , it is i n t h e publi c ’ s interest, a s well as the Tribes’ to

a cc e l erate the pace of barrier c orrection. AllU N I T E D S T A T E S V

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

fishe rm e n , not just Tribal f ishermen, will benefit f rom the increased production o f

s almon.

. . . The g eneral public will benefi t from the enhancement of the resource and the increased economic r e turn from fishing in the State o f W ashing ton. The g e neral public will also be n e fit from the e nvironmental benefits of salmon habitat restoration.

4. I ntrusion into State Government Operations

W a sh i n gt o n c o n t e n d s t h a t t h e c o urt’s order “impermissibly and sig nificantly intrudes into state g overnment operations.” B r ief at 63. W ashing ton contends that it “was making g reat strides in repairing culverts before

an y federal court intervention,” and that “there was no need for the court to issue a detailed and ex pensive injunction that
sets a n inflex ible and tig h t schedule f or culvert repair.” Id. at 63–64. Washing ton implies that the cost of comply ing with the court’s order will oblig e the State to cut other important state prog rams:

[ T] he inj u n ction will require the State to devote roug hly $100 m i l lion per y ear more than it otherwise would have to culvert r epair. This at a time when the Sta t e fa ces recurring budg et shortfalls in the billions o f dollars a nd has a lready made deep and pain f u l cuts to subsidiz ed health insurance for l ow income workers, K-12 schools, hig her education, a nd basic aid for persons unable to work.

Id. at 58. W e disag ree.U N I T E D S T A T E S V

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

The d istrict court d i s a g r e e d w i t h W a shing ton’s contention that there was “no need” f or the court to order cor r e ct ion o f its barrier culverts. B ased on the State’s slow rate of barrier correction, the court concluded that “under the c urrent State approach, the problem of WSDOT barrier culverts in the Case Area w ill never be solved.” T h e district court also disag reed

w i t h the W ashing ton’s cost estimates. As seen above
, W a shing ton’s estimate of its cost to comply with the court’s order (“roug hly $100 million per y ear” more than i t would otherwise spend) is dramatically overstated.

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

o r the 2011–2013 b i e n nium. Of that $9.9 billion, $7.88 billion w as allocated to W SDOT. Noting the separation of the transportation budg et fro m o t h e r state budg ets, the court con c l u d e d, “The separation of the Transportation B udg et from the Operating a nd Capital B udg ets ensures that money w ill not be taken from education, social services, or other vita l State f unctions to fund culvert repairs.”

5. F e deralism Principles

W a shing ton contends, based on the four specific objections just reviewed, that the d i s trict court’s injunction violates p r i n c iples of federalism. W ashing ton asserts four principles of federalism:

F irst, the remedy must be no broader than
necessary to address the federal law violation.U N I T E D S T A T E S V

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

Second, courts must g rant d eference to a stat e ’ s institutional competence and subject
matter ex pertise. Third, c o urts must take cost into consider a tion a

nd not substitute their budg etary judg ment for that o f the state. And finally
, relief must be fa s h ioned so that it is the least intr u s ive into state g overnmental affairs. The district court’s injunction here contravenes all of these principles.

B lue B r ief at 49. W e will not quarrel here w i th these principles, stated at this level of g enerality

. H owever, for the

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

F urther, a federalism-base d o b jection to an injunction enforcing I ndian treaty r ig hts should not b e viewed in the

same lig ht a s an objection to a more conventional structural injunction. W ashing ton cites two Supre m e Court cases in support of i t s federalism objection — Rizzo v. Goode
, 423 U.S. 362 (1976) (structural inju nction requiring r eform of the Philadelphia police d epartment), and Horne v. Flores
, 557 U.S. 433 (2009) ( structural injunctions requiring A riz o na to comply with Equal E d ucational Opportunities A ct o f 1974). However, W ashing ton 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 W a shing ton to comply with the very Treaties at issue in this

case.

The district court in Fishing Vessel had entered a series o f d e t a i l e d injunctions implementing its holding that the Tr e a t i e s

e ntitled the Tribes to take up to fifty percent of harvestabl e salmon in any

g iven y ear. W ashing ton strenuously resisted,U N I T E D S T A T E S V

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

with the result that the district court effectively took o v e r much of t h e S tate’s manag ement of the salmon fishery

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

nd to the court’s intrusion into its affairs. The Supreme Court affirmed the district court’s holdi n g o n the meaning of the Treaties. I t then rejected, in no uncertain terms, federalism-based objections to the injunction s enforcing the Treaties:

W h ether [ Washing ton ] Game a nd F is h eries may be ordered actually to promulg ate r eg ulations having effec t a s a matter of state law may w ell be doubtful. B ut the D istrict Court m ay prescind that problem by assuming direct supervision of the fisheries if state recalcitrance or stat e

- law barriers should be continued. It is therefore absurd to argue

. . . both that the state agencies may not be ordered to impl e m ent the decree a nd also that t h e D i strict Court may not itself issue detailed remedial o rders as a substitute for state supervision.

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

6. Modification of the Injunction

I t is possible that chang ing or n e w l y r evealed facts o r circumstances w i ll affect the fairness or efficacy of an injunction. I n the c ase bef o r e u s , the district court has ordered that many o f W SDOT’s h ig h-priority barrier culverts be corrected over the course of seventeen y ears, and that the remainder be corrected only a t the e nd of the culvert’s natural life or when r oad work undertaken for independent reasonsU N I T E D S T A T E S V

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

w o uld in any event require r eplacement of the culvert. I t i s possible that, during this ex tended period, chang ed or newly revealed facts or circumstances will justify a modification o f
t h e injunction. The district court should not h esitat e t o

m o d i f y its injunction if this proves to be the case. A s t h e Supreme Court wrote in System F ederation No. 91 v. W

right
, 364 U.S. 642, 647 (1961), “a sound judicial discret i o n may call for the modification o f the terms o f an injunctive decree if the circumstances, whether of law or fact, obtainingat the time of its issuance h ave cha n ge d
, or n ew ones have since arisen.” See also Rufo v. Inm a t e s o f Suffolk Cnty. Jail
, 502 U .S

. 3 6 7
, 380–81 (1992). I n affirming the judg ment entered by the district court in th i s c a s e , we emphasiz e that the f lex ibility inherent in equity jurisdiction allows the court, if chang ed or newly revealed facts or circumstances warrant, to modify its injunction according ly

.

Conclusion

I n sum, we conclude th a t i n building and maintaining barrier culverts W ashing ton has viola t e d
, and c ontinues to violate, its oblig ation to the Tribes under the fishing clause o f the Treaties. The U nited States has not waived the r ig hts o f the Tribes under the Treaties, a nd has not w a i v e d its o wn sovereig n immunity b y bring ing suit on behalf of the Tribes. The district court d id not abuse its d iscretion in enjoining W a shing ton to correct most o f i ts h ig h-priority barrier culverts w ithin seventeen y ears, and to c orrect the remainder
at the end o f t h e ir natural life or in the course of a road construction project undertaken for independent reasons.

AF F IRMED.