Carcassman raises a good point. The State is arguing they have the “right” to decrease the salmon stocks all the way to zero, in the name of the greater public good, without abrogating the Treaty right. That is, the State is saying the Treaties do not guarantee a specific number of salmon to the Tribes. The Tribes only get 50% of whatever the State decides to protect. So if there is no harvestable surplus, there would be no Treaty violation since the Tribes are only entitled to 50%, not a specific number. So if the harvestable surplus is zero, the Tribes (and the State) get 50% of zero.

As you might guess, the Tribes don’t agree with the math. According to the Tribes, if the salmon stocks decrease to the point where there is no harvestable surplus (personally, I think we’re already there), the State will have rendered their Treaties worthless. That’s not consistent with established Treaty law.

The District court and the 9th Circuit court both sided with the Tribes. The Tribes arguments were persuasive. But the implications of a ruling that normal human activity that degrades salmon habitat rises to the level of a Treaty violation, is a huge regulatory leap. It would implicate even minor habitat modifications such as building a single family home or withdrawing water for residential use. And in Puget Sound and the Oly Pen, there are very few human activities that do not adversely affect salmon habitat, in some manner. Just think about it - road building, residential development, logging, mining, municipal water supply, almost anything would fall under this definition. That’s why the Supreme Court may take this case.

Which brings up a critically important decision for the Tribes: Even though the Tribes legal arguments are persuasive, do they really want to risk their Treaty rights to this Supreme Court?? In my view, if the Supremes decide to take this case, the Tribes should re-double their efforts to settle it.

On a related note, I would add that the Supreme Court did not agree to re-hear the original Boldt Decision (circa 1974), despite the national implications of that interpretation of the Treaties. They agreed to let the original decision stand. It was only after civil disobedience in Washington State, and institutional intransigence by the State did the Supreme Court agree to a re-hearing. Upon rehearing, they agreed with the original decision by Judge Boldt.

But that was a very different Supreme Court than the one we have now…….