Washington v. United States, 584 U.S. ___ (2018)

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 17–269

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WASHINGTON, PETITIONER v. UNITED STATES, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 11, 2018]

Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Kennedy took no part in the decision of this case.

August 17, 2017 Petition for a writ of certiorari filed. (Response due September 20, 2017)
September 15, 2017 Order extending time to file response to petition to and including October 20, 2017, for all respondents.
September 20, 2017 Brief amici curiae of Business Home Building, Real Estate, Farming and Municipal Organizations filed.
September 20, 2017 Motion for leave to file amici brief filed by Modoc Point Irrigation District, et al.
September 20, 2017 Brief amici curiae of State of Idaho, et al. filed.
October 12, 2017 Order further extending time to file response to petition to and including November 27, 2017, for all respondents.
November 27, 2017 Brief of respondents Suquamish Indian Tribe, et al. in opposition filed.
November 27, 2017 Brief of respondent United States in opposition filed.
December 11, 2017 Reply of petitioner Washington filed. (Distributed)
December 13, 2017 DISTRIBUTED for Conference of 1/5/2018.
January 8, 2018 DISTRIBUTED for Conference of 1/12/2018.
January 12, 2018 Motion for leave to file amici brief filed by Modoc Point Irrigation District, et al. GRANTED.
January 12, 2018 Petition GRANTED.
January 17, 2018 Blanket Consent filed by Petitioner, Washington
February 23, 2018 SET FOR ARGUMENT on Wednesday, April 18, 2018.
February 24, 2018 Brief of petitioner Washington filed.
February 24, 2018 Joint appendix (3 Volumes) filed. (Statement of costs filed)
March 2, 2018 Brief amici curiae of States of Idaho, et al. filed.
March 2, 2018 Brief amicus curiae of Pacific Legal Foundation filed.
March 2, 2018 Brief amici curiae of Modoc Point Irrigation District, et al. filed.
March 5, 2018 Brief amici curiae of American Forest & Paper Association and National Mining Association filed. (Distributed)
March 5, 2018 Brief amici curiae of Citizens Equal Rights Foundation, et al. filed. (Distributed)
March 5, 2018 Brief amici curiae of Business, Home Building, Real Estate, Farming and Municipal Organizations filed. (Distributed)
March 5, 2018 Motion for leave to file amici brief filed by Washington State Association of Counties and Association of Washington Cities. (Distributed)
March 7, 2018 CIRCULATED
March 19, 2018 Motion for leave to file amici brief filed by Washington State Association of Counties and Association of Washington Cities GRANTED.
March 23, 2018 Letter from Clerk of Court to counsel of record noting that Justice Kennedy will not continue to participate in this case.
March 26, 2018 Brief of respondents Suquamish Indian Tribe, et al. filed. (Distributed)
March 26, 2018 Brief of respondent United States filed. (Distributed)
March 30, 2018 Record request from the U.S.C.A. 9th Circuit.
March 30, 2018 Brief amici curiae of The Confederated Tribes of the Warm Springs Reservation of Oregon, et al. filed. (Distributed)
April 2, 2018 Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
April 2, 2018 Brief amici curiae of Washington State and Local Officials (Current and Former) filed. (Distributed)
April 2, 2018 Brief amici curiae of Law Professors filed. (Distributed)
April 2, 2018 Brief amici curiae of The National Congress of American Indians; Navajo Nation; Ute Mountain Ute Tribe; Confederated Salish and Kootenai Tribes filed. (Distributed)
April 2, 2018 Joint motion for divided argument filed by respondents.
April 2, 2018 Brief amici curiae of Pacific Coast Federation of Fishermen's Associations, et al filed. (Distributed)
April 2, 2018 Brief amicus curiae of Hon. Daniel J. Evans filed (corrected filing). (Distributed)
April 9, 2018 Reply of petitioner Washington filed. (Distributed)
April 13, 2018 Joint motion of respondents for divided argument GRANTED. Justice Kennedy took no part in the consideration or decision of this motion.
April 18, 2018 Argued. For petitioner: Noah Purcell, Washington State Solicitor General, Olympia, Wash. For respondent United States: Allon Kedem, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondents Suquamish Indian Tribe, et al.: William M. Jay, Washington, D. C.
June 11, 2018 Adjudged to be AFFIRMED by an equally divided Court. Justice Kennedy took no part in the consideration or decision of this petition. Opinion per curiam.
July 13, 2018 JUDGMENT ISSUED.
Prior History
  • United States v. Washington, No. 13-35474 (9th Cir. Mar. 02, 2017)
  • The court amended its previous opinion and affirmed the district court's order issuing an injunction to Washington. In 1854 and 1855, Indian tribes relinquished large swaths of land in the Case Area under the Stevens Treaties. In exchange for their land, the tribes were guaranteed a right to off-reservation fishing. In 2001, twenty-one Indian tribes, joined by the United States, filed a "Request for Determination" in district court contending that the State had violated, and was continuing to violate, the Treaties. In 2007, the district court held that, in building and maintaining culverts that prevented mature salmon from returning from the sea to their spawning grounds, Washington had caused the size of salmon runs in the Case Area to diminish and that Washington thereby violated its obligation under the Treaties. In 2013, the district court issued an injunction ordering Washington to correct its offending culverts. The court concluded that Washington has violated, and continues to violate, its obligation to the Tribes under the fishing clause of the Treaties; the United States has not waived the rights of the Tribes under the Treaties, and has not waived its own sovereign immunity by bringing suit on behalf of the Tribes; and the district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of the culverts' natural life or in the course of a road construction project undertaken for independent reasons. When considering Washington's appeal, the court did not understand it to argue that it should have been awarded, as recoupment or set-off, a monetary award from the United States. Although the argument was waived, the court noted that it was easily rejected. In this case, the United States sought injunctive relief against Washington and Washington sought a monetary award. The court explained that these two forms of relief are not of the same kind or nature. The court also rejected Washington's contention 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.

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