On Monday, the Supreme Court issued its decision in Washington v. United States. This case dealt directly with whether various Indian Tribes in the Puget Sound could require the state of Washington to rebuild road culverts throughout the state to increase salmon populations (see our previous blog post here). PLF filed an amicus brief arguing that the Ninth Circuit’s interpretation of the Stevens Treaties massively expanded their traditional interpretation and improperly imposed an environmental servitude on the State of Washington.
Unfortunately, the Court split 4-4, due to a late recusal of Justice Kennedy. This means that the Ninth Circuit’s imposition of an environmental servitude upon the State of Washington will stand. The Supreme Court’s non-decision will likely have sweeping impacts on environmental law in the West. Tribes may now point to the Ninth Circuit’s upheld decision as an argument to regulate impacts of any development that affects any traditionally hunted animal. Furthermore, it likely gives Tribes a seat at the table that outweighs other stakeholders with legitimate concerns, stakeholders like states and their non-tribal citizens.
While it is unclear yet what the impacts of this case will be, one thing is certain, the split of the Supreme Court on this issue means there is an opportunity to bring a similarly situated case to challenge Treaty interpretations that impose broad environmental servitudes on State’s actions. While environmental protection is certainly an important consideration, advancing minuscule benefits to wildlife populations should not come at the cost of billions of dollars to taxpayers.