United States v. Washington
| Decision Date | 27 June 2016 |
| Docket Number | No. 13-35474,13-35474 |
| Citation | 853 F.3d 946 |
| Parties | UNITED STATES of America; Suquamish Indian Tribe ; Sauk-Suiattle Tribe ; Stillaguamish Tribe ; Hoh Tribe ; Jamestown S'Klallam Tribe; Lower Elwha Band of Klallams; Port Gamble Band Clallam; Nisqually Indian Tribe; Nooksack Indian Tribe; Skokomish Indian Tribe ; Squaxin Island Tribe; Upper Skagit Indian Tribe; Tulalip Tribes; Lummi Indian Nation ; Quinault Indian Nation; Puyallup Tribe; Confederated Tribes and Bands of the Yakama Indian Nation ; Quileute Indian Tribe; Makah Indian Tribe; Swinomish Indian Tribal Community ; Muckleshoot Indian Tribe, Plaintiffs-Appellees, v. State of WASHINGTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Noah G. Purcell (argued), Solicitor General; Laura J. Watson, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Jessica E. Fogel, Assistant Attorney General; Office of the Attorney General, Olympia, Washington; for Defendant-Appellant State of Washington.
John C. Sledd (argued), Jane G. Steadman, Cory J. Albright, and Philip E. Katzen ; Kanji & Katzen, PLLC, Seattle, Washington; for Plaintiffs-Appellees.
David C. Shilton (argued), Vanessa Boyd Willard, and Evelyn S. Ying, Attorneys; United States Department of Justice, Environment & Natural Resources Division; Washington, D.C., for Plaintiff-Appellee United States.
Pamela B. Loginsky, Washington Association of Prosecuting Attorneys, Olympia, Washington; Douglas D. Shaftel, Pierce County Deputy Prosecuting Attorney; for Amicus Curiae Washington State Association of Counties.
Ellen F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor General; Michael A. Casper, Deputy Solicitor General; Stephanie L. Striffler, Senior Assistant Attorney General; Oregon Department of Justice, Salem, Oregon; for Amicus Curiae State of Oregon.
Colette Routel, Associate Professor and Co-Director, Indian Law Clinic, William Mitchell College of Law, Saint Paul, Minnesota, for Amicus Curiae Indian Law Professors.
Amanda W. Goodin and Janette K. Brimmer, Earthjustice, Seattle, Washington, for Amicus Curiae Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources.
Stephanie L. Striffler, Senior Assistant Attorney General; Michael A. Casper, Deputy Solicitor General; Anna M. Joyce, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; for Amicus Curiae State of Oregon.
Dale Schowengerdt, Solicitor; Timothy C. Fox, Attorney General; Attorney General's Office, Helena, Montana; for Amicus Curiae State of Montana.
Clay R. Smith, Deputy Attorney General; Clive J. Strong, Chief of Natural Resources; Lawrence G. Wasden, Attorney General; Office of the Attorney General, Boise, Idaho; for Amicus Curiae State of Idaho.
Dominic M. Carollo, Yockim Carollo LLP, Roseburg, Oregon, for Amici Curiae Klamath Critical Habitat Landowners Inc., Modoc Point Irrigation District, Mosby Family Trust, Sprague River Water Resource Foundation Inc., and TPC LLC.
Before: William A. Fletcher and Ronald M. Gould, Circuit Judges, and David A. Ezra,* District Judge.
The opinion filed on June 27, 2016 is amended as follows:
At 855 of the published opinion, U.S. v. Washington , 827 F.3d 836 (9th Cir. 2016), add the following subheading beneath "C. Washington's Cross-Request":
"1. Injunction."
On the same page, add "for an injunction" following "The district court struck the cross request ...".
At 855–56, change the numbering of the subheadings of "Sovereign Immunity" and "Standing" from 1, 2 to a, b.
At 856, just above subsection D, add the following text:
2. Recoupment of Part of Washington's Costs
In its Petition for Panel Rehearing and for Rehearing En Banc, filed after our opinion came down, see United States v. Washington , 827 F.3d 836 (9th Cir. 2016), Washington contends that we misconstrued its appeal of the district court's denial of its cross-request. Washington writes in its Petition:
The State's original [cross-request] sought a variety of remedies, including that the federal government be required to (1) pay part of the cost of replacing state culverts that were designed to federal standards; (2) take actions on federal lands to restore salmon runs; and (3) replace federal culverts in Washington. But on appeal, the State pursued only the first of these remedies.
We did not, and do not, so understand the State's appeal. Contrary to Washington's statement, it did appeal the district court's denial of its cross-request for an injunction requiring the United States to repair or replace the United States' own barrier culverts. It did not appeal a denial of a request that the United States be required to pay part of its costs to repair or replace its culverts.
In the district court, Washington stated in the body of its cross-request that "[t]he United States has a duty to pay all costs incurred by the State to identify and fix any and all barrier culverts." But in its demand for relief, Washington did not demand any monetary payment from the United States, unless its boilerplate request ("The State of Washington further requests all other relief the Court deems just and equitable") could be deemed such a demand. Not surprisingly, in denying Washington's cross-request, the district court did not discuss a demand for monetary payment from the United States. In its brief to us, Washington writes in the introduction that the district court erred in denying its request to allow the State "to recoup some of the costs of compliance from the United States because it specified the culvert design and caused much of the decline in the salmon runs." But Washington makes no argument in the body of its brief that it should be allowed to recover from the United States any part of the cost to repair or replace its own barrier culverts.
When considering Washington's appeal, we did not understand it to argue that it should have been awarded, as recoupment or set-off, a monetary award from the United States. Given Washington's failure to make this argument in the body of its brief, the argument was waived. Smith v. Marsh , 194 F.3d 1045, 1052 (9th Cir. 1999). However, given the vigor with which Washington now makes the argument in its Petition for Rehearing and Rehearing En Banc, we think it appropriate to respond on the merits.
Washington's argument is easily rejected. As recounted above, a claim for recoupment must, inter alia , "seek relief of the same kind or nature as the plaintiff's suit."
Berrey , 439 F.3d at 645. Washington's claim does not satisfy this criterion. The United States, the plaintiff, sought injunctive relief against Washington. Washington sought a monetary award. These two forms of relief are not "of the same kind or nature."
At 859, just prior to the paragraph beginning, "Witnesses at trial ...", add the following text:
The State contends that because of the presence of non-state-owned barrier culverts on the same streams as state-owned barrier culverts, the benefit obtained from remediation of state-owned culverts will be insufficient to justify the district court's injunction. The State writes:
[S]tate-owned culverts are less than 25% of all known barrier culverts, and in some places, non-state culverts outnumber state-owned culverts by a factor of 36 to 1. Any benefit from fixing a state-owned culvert will not be realized if fish are blocked by other culverts in the same stream system.
There are several answers to the State's contention. First, it is true that in calculating whether a state culvert is a barrier culvert, and in determining the priority for requiring remediation, the court's injunction ignores non-state barriers on the same stream. But in so doing, the court followed the practice of the state itself. Paul Sekulich, formerly division manager in the restoration division in the habitat program of the Washington Department of Fish and Wildlife ("WDFW"), testified in the district court:
Washington State law requires that a "dam or other obstruction across or in a stream" be constructed in such a manner as to provide a "durable and efficient fishway" allowing passage of salmon. Wash. Rev. Code § 77.57.030(1). If owners fail to construct or maintain proper fishways, the Director of WDFW may require them do so at their own expense. Id. at § 77.57.030(2).
Second, in 2009, on streams where there were both state and non-state barriers, 1,370 of the 1,590 non-state barriers, or almost ninety percent, were upstream of the state barrier culverts. Sixty nine percent of the 220 downstream non-state barriers allowed partial passage of fish. Of the 152 that allowed partial passage, "passability" was 67% for 80 of the barriers and 33% for 72 of them.
Third, the specific example provided by the state is a culvert on the Middle Fork of Wildcat Creek under State Route 8 in Grays Harbor County. The State is correct that there are 36 non-state barriers and only one state barrier culvert on this creek. The State fails to mention, however, that all of the non-state barriers are upstream of the state culvert. Further, it is apparent from the map in the district court record that the nearest non-state barrier is almost a half mile upstream.
No new Petition for Panel Rehearing or Petition for Rehearing en Banc will be entertained. Pending petitions remain pending and need not be renewed.
In 1854 and 1855, Indian tribes in the Pacific Northwest entered into a...
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