Tribal and environmental attorney Nathanael Watson was quoted in Law360 in an article titled “Justices May Add Muscle To Wash. Tribes' Treaty Rights,” published April 19, 2018. (Subscription required.) The article discusses a 2016 Ninth Circuit decision that ordered the State of Washington to replace hundreds of culverts — structures built to allow water to flow under a road or railway — in order to aid the passage of salmon and protect several tribes’ treaty fishing rights. An appeal brought by the state is currently before the U.S. Supreme Court.
In recent oral arguments, the justices seemed to be leaning toward protecting the tribes’ treaty fishing rights by requiring the replacement of the culverts, but the larger question is whether the court will restrict its decision to specific facts around the culverts’ impact or fashion a rule that also addresses dams, agricultural activity or other projects that impact the tribes’ fishing.
According to Watson, a decision that sets a “bright line” for when states or other parties have violated the tribes’ fishing rights, rather than pursuing a more fact-based analysis dependent on the projects involved and fish affected, could impact how projects other than culverts with environmental impacts on tribal rights are regulated—leading to more possible litigation.
“If you’re an optimist, you look at this and say the Supreme Court is not going to create a new standard which creates a lot of confusion, but will create an opening for the parties to work out a reasonable approach that works out for all of them," he said.