William H. Rodgers, Jr., Judicial Regrets and the Case of the Cushman Dam, 35 Envtl. L. 397 (2005), https://digitalcommons.law.uw.edu/faculty-articles/242
Skokomish Indian Tribe v. United States, treaties
This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.
The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.
It concludes by describing the court's judicial techniques as being grim, narrow, and stilted. This comment will call attention to Judge Kozinski's 1) characterization of the treaty, 2) his misrepresentation of its purposes, 3) his treatment of continuing nuisances under state law, and 4) the want of judiciousness of his approach to these important matters. It will also address the strategy of redaction that his colleagues on the Ninth Circuit used to restrain the excesses of this opinion.
This comment will treat everything said as truly said, but will indicate if the language discussed has been stricken from the amended opinion.