Opinion analysis: Court affirms without opinion in tribal-fishing-rights case

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Opinion analysis: Court affirms without opinion in tribal-fishing-rights case

By Miriam Seifter on Jun 12, 2018 at 9:18 am

Yesterday, the Supreme Court announced its decision — but no opinion — in Washington v. United States, a case addressing tribal fishing rights under 19th-century treaties between the United States and northwest Indian tribes. The justices divided 4-4; the effect of the tie vote is affirmance of the lower court ruling. Justice Anthony Kennedy was recused because he participated in an earlier phase of the case — over 30 years ago, as a judge on the U.S. Court of Appeals for the 9th Circuit. As Tony Mauro writes for the National Law Journal, “recusals matter.”

 Affirmance of the lower court’s opinion here means a win for the tribes and the United States and a loss for the state of Washington. As I described in my preview of the case, the district court had entered an injunction requiring the state to modify under-road culverts, which obstruct salmon passage, within 17 years. According to the state, the price tag for those modifications could approach $2 billion and would not meaningfully improve salmon populations, because barriers built by federal and private actors also obstruct fish passage.

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