The Supreme Court has agreed to take up a petition by the state of Washington that seeks to overturn what it has called a "remarkably unfair" ruling concerning tribal treaty rights.
On Friday afternoon, justices issued an order granting the petition, as well as a separate petition on the legal status of agency in-house judges.
In the tribal case, the Evergreen State is appealing a lower-court ruling that its management of tunnels has run counter to 19th-century treaties with tribes.
At issue is the network of culverts — which allow water to flow under roads and other structures — in the Puget Sound watershed and elsewhere in the state.
A three-judge panel of the 9th U.S Circuit Court of Appeals in June 2016 found the tunnels violated the terms of treaties from the 1850s that guaranteed Northwestern tribes continued access to fishing off their reservations.
The court ordered Washington state to fix 817 culverts (E&E News PM, June 27, 2016).
After failing in its attempt to convince the 9th Circuit to rehear the case, Washington brought an appeal to the Supreme Court.
The state’s lawyers have argued that the 9th Circuit ruling creates a "massive" new treaty obligation that will "significantly affect natural resource management throughout the Pacific Northwest."
But the federal government sided with tribes and had urged the Supreme Court to leave the 9th Circuit ruling in place.
"The court relied on well-established standards of treaty construction to hold that the treaties reserved the tribes’ right to continue to take fish and their usual and accustomed fishing places to maintain their livelihood, and that petitioner’s barrier culverts violated that right," the Justice Department said in a November brief.
The Supreme Court also agreed to decide whether in-house judges at the Securities and Exchange Commission are constitutional officers.
Justices granted a petition from a former investment adviser challenging the U.S. Court of Appeals for the District of Columbia Circuit’s split decision finding that administrative law judges are employees not subject to the appointments clause.
The case has attracted attention in administrative law circles. If the court finds that administrative law judges are officers, they will have to be nominated and confirmed similarly to those in other top positions at federal agencies.
Agency in-house judges preside over administrative hearings, weighing evidence, making factual determinations and rendering decisions. U.S. EPA, the Interior Department and the Federal Energy Regulatory Commission all have in-house judges.
Investment professional Raymond Lucia brought the case challenging an SEC administrative law judge’s conclusion that he had presented misleading statements in a slideshow. Administrative Law Judge Cameron Elliot barred Lucia from working as an investment adviser for life and also imposed civil penalties.
Lucia filed a lawsuit, challenging the authority of SEC’s in-house judges on the grounds that they should have been appointed as officers.
"They exercise significant discretion in conducting trials, making evidentiary and other rulings that shape the administrative record, and issuing initial decisions that become final in 90 percent of cases," Lucia’s lawyers said in a court document.
A three-judge panel of the D.C. Circuit, though, issued a split decision that the in-house judges at the Securities and Exchange Commission are employees not subject to the appointments clause. The court later reheard the case en banc, or in front of the whole court, but deadlocked in a 5-5 ruling last June.
The D.C. Circuit’s decision contradicted a 10th Circuit finding that administrative law judges are officers of the United States. Several other cases are pending in the lower courts over the authority of in-house agency judges.
Under the Trump administration, the federal government reversed its position on the issue, arguing in a Supreme Court brief that administrative law judges are not employees but rather are inferior officers subject to the appointments clause. It asked the Supreme Court to decide the legal status of agency in-house judges.
After the flip-flop, the Securities and Exchange Commission ratified its five administrative law judges "to put to rest any claim that administrative proceedings pending before, or presided over by, commission administrative law judges violate the appointments clause," the agency said in a statement.