Washington v. United States (17-269)
argument 17-269Washington v. United States
Supreme Court of the United States
1h 1m
7 speakers
8 chapters
transcribed 6 days ago
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What is the central treaty right at issue in Washington v. United States?
We'll hear argument next in case seventeen two sixty nine, Washington versus the United States.
Mr Purcell. Thank you, Mr Chief Justice. It may have pleased the court. The state of Washington wants to protect salmon and has voluntarily spent billions of dollars to achieve that goal. Our objection is the unworkable treaty right the Ninth Circuit announced. Respondents have abandoned that court's reasoning here, but the alternative theories that they offer were not addressed by the courts below and cannot support the judgment. So this court should reverse, or at most, should clarify what legal rule the treaties imposed and then remand to the district court to apply it. I think you mean at least, right? Well uh sorry, we'd prefer that you reverse. Uh uh sorry, how you want to clear yeah, at most at least at sorry sorry, Mr.
Chief Justice. Y uh y y you're the better old advocate. I'll I'll just uh stipulate that. Uh the central question though is what legal standard the treaties apply imposed. And uh the uh again the respondents have abandoned the rule that the Ninth Circuit advanced and and rightly so, and instead they are arguing a new theory. But even under that theory The treaties would regulate virtually every uh significant human activity off reservation and federal courts in the North West would be regulating uh essentially would be imposing environmental laws, would be the primary environmental regulators uh rather than leaving most decisions to State and Federal policymakers, as should be the case.
You said the Stevens Treaty would not prohibit Washington From blocking completely every salmon stream into Puget Sound. Basically the right to take fish to you means the right to take fish if you decide you want to provide fish. Is that correct?
I I remember that answer well, Your Honor, and that it was a mistake at oral argument about how our what
is your position now? When can you and how much can you block fish?
So, Your Honor, we believe that to show a treaty violation, the tribe should have to show four things that a state barrier is causing a large decline in a particular river and that it's not justified by substantial public interest.
I think it has to be a material decline, no?
Well it every every the precise word, Your Honor, we're less concerned about than that it be a meaningful decline because otherwise, as I was saying, the concern is that there are many, many things that affect salmon, Your Honor, from zoning decisions to the climate change to uh transportation, and if you don't set the bar at least at some reasonable level, well
don't you think the court will do?
No, Your Honor, the Court below explicitly said that respondents did not need to show anything about the quant to quantify the effect of state culverts on salmon and and just said that any diminishment is a treaty violation. And under that rule, that's why courts applying the treaties. Well it
didn't quite do that, because as I look at its remedy it um it chose not to Have you fixed? culverts that were deg were degradating the fish. But it said they can wait until the normal life of the covert ends.
Yeah, yeah.
um gave you leeway. rather substantial leeway, two hundred cults, I think, or over two hundred. Not to fix it all. So what the court does did was take your plan and accelerated. You made the judgment already.
Your Honor, the court told us we could defer until the end of the useful life culverts that had less than two hundred meters upstream of useful habitat. So the the the those are culverts that will make extremely little difference to be replaced, and each one costs several million dollars. So that's
the court excluded those.
Well the court said that those are the ones we can do at the end of the useful at the end of the useful life. Fair enough, you don't remember. My point is the Court did not exclude ones even where there is another barrier ten yards upstream or ten yards downstream that the State does not control. So we have to replace culverts even where no salmon can reach them. And that is an utter waste of public funds and and and unreasonable even under the respondents' theory here.
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Chapters
8 chapters
1
What is the central treaty right at issue in Washington v. United States?
0:00–7:34
2
How do the parties define the scope of the tribe’s right to take fish?
7:34–15:14
3
What does “substantial degradation” mean for salmon populations under the treaty?
15:14–21:59
4
How does common‑law nuisance theory relate to treaty‑based fishing rights?
21:59–29:20
5
What is the “moderate living” standard and how does it affect the case?
29:20–37:28
6
How much would it cost to remediate the state’s barrier culverts?
37:28–46:29
7
Why do the parties argue for a remand and what would that entail?
46:29–55:26
8
What are the final arguments and the Court’s decision on the injunction?
55:26–1:01:31