The U.S. Supreme Court today split 4-4 and will let stand a lower-court order requiring Washington to remove hundreds of culverts to protect tribal fishing rights, an order that farm groups warn will bolster legal challenges to dams and irrigation systems.
The tie, made possible by Justice Anthony Kennedy’s recusal, is a victory for 21 Western Washington tribes that had previously prevailed in U.S. District Court and the 9th U.S. Circuit Court of Appeals.
Washington appealed the case to the Supreme Court, arguing the order misinterpreted the Stevens Treaties, which the tribes signed in 1854 and 1855.
Several Western states, including Idaho, had filed briefs urging the high court to overturn the culvert-removal order. The Washington, Oregon and Idaho Farm Bureaus also filed briefs, echoing the states’ concerns.
Former Justice Department lawyer Nathanael Watson, who litigated tribal cases, said the tie vote improves the negotiating position of tribes over projects that could affect salmon runs.
“It certainly strengthens the tribes’ hand,” said Watson, who is with the Seattle law firm Stoel Rives. “If they had a seat at the table before, perhaps they are at the head of the table now.”
Kennedy recused himself because as an appeals court judge he participated in a related case in 1985. Today’s decision stems from a lawsuit filed by the U.S. government and tribes in 1970. A previous ruling set aside half the fish harvest to tribes. The current phase of the litigation addresses the state’s obligation to ensure a supply of fish.
The Supreme Court announced the tie vote without comment or announcing how justices voted.