Here is the link the oral hearing transcript before the court (occurred on Wednesday): https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-269_o75q.pdf

Seems like the state got spanked and the tribes are going to notch another win. Plus at the end the court said this:

JUSTICE SOTOMAYOR: Then my words are
-- are wrong. They caught X amount. If the
proof is that Y amount would have happened
absent the obstruction, they're entitled to
50 percent of Y amount. I don't care what
caused the decimation.

Seems like the court picked up on that the tribes should be getting more fish due to habitat degradation.

Here's a blog post that summarizes the hearing if you don't want to read the transcript: http://www.scotusblog.com/2018/04/argume...fishing-rights/

Final decision is in June.

If the Supremes follow Sotomayor they slope might just have gotten a tad slicker. IF the Tribes are owed what should have returned, absent destroyed habitat, a very simple solution is to give them that number and take the NI side as development, saved tax dollars from not fixing anything, and so on.

It's a very attractive and simple argument to make...and once you remove the non-tribal share caught in Alaska and BC, and the non-tribal share killed by development, I suspect that the tribes would still be getting shorted a lot.

I may not have been a fan of how it has played out, but I am generally supportive of tribal fishing rights...they have treaties, treaties are the law of the land, and overall they got royally screwed...but that being said, I would caution the tribes to take to heart the axiom that "Pigs get fat, and hogs get slaughtered".

Tribal fishing rights/techniques aren't going anywhere until they have been pushed far enough to effectively exclude all other options and fishers, and when that happens, then there will be political will to abrogate the treaty right. If they think that can't happen then they, too, haven't been paying attention the last 200 years.

I feel like we have been heading that way the last several years. Start shutting down Alaska commercial fishing so that six more Chinook can swim through a culvert under a logging road in the Willapa hills and this will stop being a small scale problem where a handful of redneck sporties in Washington are getting bent, and will become an economic problem of large enough proportions to get some attention.

Fish on...

Todd

This is going to get real interesting really quick if the court adopts the tribal position without modification.

Their argument is that their opportunity is limited by habitat issues (in this case the culverts). Even if the feds closed all non-tribal fisheries in the Pacific, Puget Sound and Puget Sound rivers the habitat is so trashed on many of the Puget Sound rivers that even without any fishing runs would not be any where enough to support any thing close to half of the historic numbers.

Using the Stillaguamish as an example the co-managers following the ESA listing in 1990 of Puget Sound Chinook developed estimates that under properly functioning habitat conditions (PFC) the river would support 30,000 Chinook. From the estimates I have seen the current habitat can not support more than 1,000 fish (without any fishing). Restoring the basin's salmon habitat to support that number of fish would make the economic impacts from replacing those culverts look like pocket change.

Could see immediate bans on any further development, no more logging, no more water withdrawals (including domestic wells), no replacement of infrastructure, etc. We are arriving at Stage 2 of Boldt; the Tribes will find themselves in a very strong position to play lets make a deal with little to no input from non-tribal citizens.

Curt

Have you driven I-5 through Tacoma recently and noticed the Puyallup tribe's new Emerald Queen casino under construction? Or seen the plans for the new facility at the Tulalip gaming facility? I cite those as plain view examples of how many of the treaty tribes have adapted; that is, no longer relying on fishing for subsistence. They have exploited the region's economic boom and associated development and clearly are a part of that reality - both the good and the bad.

Todd - Neither the Feds nor the State can abrogate the Treaty right to fish.

The courts have recognized that the Stevens Treaties held that the tribal right to fish in their 'usual and accustomed places' is a reserved right. In other words, their fishing rights were NOT granted to the Tribes via the Treaty. Rather, the treaty recognized that the Tribes ALREADY had those rights since the Tribes were living in the area since time immemorial, and fishing was critically important to their culture and survival.

So, abrogating the Treaty itself would have no effect on the right to fish. That would still be there, even if the absence of the Treaties.

The Treaties could be abrogated by an act of Congress. But if Congress abrogated the Treaties, the Tribes would immediately ask for their land back, since that is what they gave up when they signed the Treaties. So virtually all of the land that is now in the State of Washington would revert back to the Tribes. The Tribes would become sizable land barons overnight. And they would still have the right to fish in their usual and accustomed places…….

My sense is that Congress won’t be abrogating the treaties anytime soon.



Also, I read the transcript of the Supreme court hearing. The justices torn the State attorney general limb-from-limb. By the time they were done, he was a mumbling mess. I sorta felt bad for him. But any attorney will tell you that the Justices questions and cross-examinations are not a good predictor of their final verdict. The State could still win this case.

But at this point, the State would likely be happy with a remand to redo the analysis. In fact, the Court was angling towards establishing some level of impact on the reduction of salmon productivity as a treaty violation. Judge Gorsuch suggested 5%. But clearly the Justices are wary of making an overall judgement that says any reduction in salmon productivity becomes a Treaty violation. They may ask the lower court to re-think the analysis and provide some number, past which the impact would be a treaty violation. For example, a reduction of 2% might not be a treaty violation, but 10% would be.

But that's just my guess.

There comes a point where there literally is nothing more that the State/Feds can do, and that's the time that either the tribes have to stop pushing (well, before that time, really), or that's the time that Congress will have to step in and put a stop to it.

You can't get blood out of a turnip. You can't re-make Puget Sound into 1886 Puget Sound. You not only can't turn back the clock to 1886, you can't really stop the march that we are on, either...it's not like they are going to shut down all development, water withdrawals, road use, shipping, or anything like that.

The tribes also aren't going to get their land back.

Even if justified in asking for all of those things (which the tribes very well may be), they are literally impossible to give.

I think that fighting over culverts was silly, unless the State really thought that the "we can literally destroy entire populations of salmon without impairing the treaty right" was a winner...and if they thought that, then they were really, really wrong.

Fish on...

Todd

In one of the transcripts I read they asked the Fed attorney about dams. He said that for some they put in ladders, even if that ignores the reservoir, or the paid them off. Get ready to write checks...

I think part of the question should focus on the historical facts rather than the present day reality. At the time of the treaty, the tribes were taking 10X salmon and the state 10X salmon, but there were 100X salmon to be taken. I do not think the sound had started any large commercial fisheries and the tribes were mainly subsistence, with some regional trading. Neither side likely anticipated a future where the fish would be exploited at the rate they are. So, what the treaty guaranteed, was the right to 50% of the harvest at that time, not 50% of the fish at that time. As the ability and desire to take more fish occurred, both sides could argue for 50% of the harvest. Now that levels have fallen, the desire for more than the original harvest (rather the original available harvest) is wanted, but not available. Could it not be argued that as long as the Tribes are able to get 50% of the fish available, with a minimum of what was originally intended guaranteed, that is the right for subsistence and minimal trade, we meet the intent and understanding of the treaty. As long as the tribe gets 50% of what was originally intended that should meet the treaty. The tribe's argument must involve an original intent that includes both the intent of 50% of the harvest at that time, plus 50% of all available resources that become available in the future, for economic reasons alone. That seems to me to be a bit too broad of an interpretation.

Just for an added note, the tribes want 50% of the Lake Washington sockeye run that was non-existent, but also 50% of the originally available chinook. Can they really argue the treaty promises both the original harvests levels of some fish, plus the future levels of others.

There really is no end to the tribes' argument if it is adopted by the court. Substitute anything that harms salmon returns for "culvert" and you can guess what is attacked next. Logging, fishing, runoff, impervious surfaces, houses, malls, etc. There will end up being a political solution if this gets pushed that far.

Holy mackerel! I can hear all the new Hatchery Construction coming in the distance!

Todd's comments seem to be reasonable and make perfect sense. Eventually the Hogs would get slaughtered if this kept going at the rate it seems to be.

The courts determined that the Tribes get 50% of the available harvest. The courts did NOT determine that the Tribes get 50% of the fish. I find it difficult to believe there is an "available harvest", given the low returns we're seeing. If there is no available harvest, nobody gets anything.

That's an easy conclusion if all the harvest is in-river. But since alot of harvest occurs in the ocean, and in foreign countries (Canada and Alaska), the Tribes can easily claim that ocean harvest is taking the non-Indian share.

So, if we can eliminate harvest in the ocean, we would have alot more salmon returning to the rivers, and we would be able to allocate the catch between the Tribes and the State-managed fisheries much easier (commercial/recreational).

But that's not reality either......

The Courts also determined that the tribes right meant "Dead Fish in the Boat" and not the opportunity to put a net in fishless water.

As an infrequent poster around here, I can add a bit of personal knowledge that the goal here is co-management of not just fish but co-management of all things affecting fish. Tribes are asking for the right to have a say prior to any land use or water use decision is made. Yes, that includes individual wells and individual homes being built.

However you feel about tribal rights and treaty rights, if that is the outcome of the culverts case, things will change in a big, big way. And many people will be pissed. Thinking about national politics and how things swing when people get angry, it's uncertain how things will end up. I don't know if the fish will end up ahead.

But, I do see more hatchery Chinook production in the near future. I just don't know if that means non-Indians will be able to fish on those new fish.