19535

PLAINTIFF-INTERVENOR TRIBES‘

CORRECTED POST TRIAL BRIEF

No. C70-9213 , SUBPROCEEDING 01-1

(CULVERTS)

1 KANJI & KATZEN, PLLC

401 SECOND AVE. S., SUITE 700 SEATTLE, WA 98104

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The Honorable Ricardo Martinez

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

UNITED STATES OF AMERICA, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.

No. C70-9213 Subproceeding No. 01-1 (Culverts) PLAINTIFF-INTERVENOR TRIBES‘ CORRECTED POST-TRIAL BRIEF

TABLE OF CONTENTS

I. INTRODUCTION. ..............................................................................................................5 II. SUMMARY OF PLAINTIFFS‘ PROPOSED REMEDY. ..................................................9 III. FACTS. ..............................................................................................................................10

A. Salmon And Tribal Salmon Fisheries Are In Trouble. ..........................................10 B. Habitat Is The Main Driver Of Fish Abundance. ..................................................12 C. Barrier Culverts Cause Serious Harm To Fish Populations And Fish Habitat, And

Their Correction Is A High Priority Amongst Efforts To Recover Washington‘s Wild Salmon. .........................................................................................................14 1. There Are More Than 1,000 WSDOT Barrier Culverts In The Case Area,

With More Than Four Million Square Meters Of Salmon Habitat Above Them. .........................................................................................................15

2. State Barrier Culverts Reduce Salmon Production By Preventing Or Delaying Adult And Juvenile Access To Habitat And By Reducing The Quality Of Accessible Habitat. ..................................................................17

Case 2:70-cv-09213-RSM Document 19535 Filed 02/12/2010 Page 1 of 119




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D. Correcting Culverts Is Recognized As An Effective Way To Restore Salmon And Treaty Fisheries. .....................................................................................................19 1. Plaintiffs‘ Witnesses Confirmed The Benefits To Salmon Of Barrier Culvert

Repair. ........................................................................................................19 2. The State Acknowledges That Barrier Repairs Are Very Cost-effective And

Essential To Salmon Recovery. .................................................................20

E. Elements Of An Adequate Barrier Culvert Correction Program Are Known, But The State‘s Programs Fall Short. ..................................................................................21 1. Summary Of The State‘s Existing Barrier Correction Programs. ..............22 2. The State‘s Inventory And Habitat Assessment Process Understates The

Scope Of The State Barrier Culvert Problem. ...........................................23 3. Designs That Best Pass Fish And Protect Their Habitat Are Known, But

Inconsistently Applied By The State. ........................................................25 a) There Is A Hierarchy Of Design Options From Avoidance Of A

Crossing, To Using Bridges, To Use Of Culverts. ........................25 b) Where A Stream Crossing Cannot Be Avoided, Bridges And Stream

Simulation Culverts Are Generally The Best Of Several Design Options In Providing For Fish Passage And Fluvial Processes. ....26

c) Hydraulic Designs Used By The State Fail To Provide Adequate Passage For Juveniles Or To Maintain Habitat-Forming Processes And Are Prone To Failure When Used To Retrofit Culverts With Fishways. .......................................................................................28

d) The No-Slope Design Is Better Than The Hydraulic Design But Still Fails To Adequately Account For Stream Processes Or Juvenile Passage At High Flows. .................................................................30

e) Despite Universal Support For The Stream Simulation Design, The State Has Failed To Correct Culverts In A Way That Meets The Stream Simulation Design Standards.............................................31

4. DNR, WDFW, And State Parks Have Committed To Correcting Their Barrier Culverts By 2016; WSDOT‘s Repeated 20-Year Goal For Its Corrections Has Disappeared. ....................................................................32

5. Because Streams Are Dynamic, Insuring Fish Passage Requires Ongoing Monitoring, Maintenance, Assessment, And Correction. ..........................33

IV. THE TRIBES MEET EACH FACTOR OF THE FOUR-PART STANDARD FOR

INJUNCTIVE RELIEF. .....................................................................................................35

A. The Tribes Have Been Irreparably Harmed By Culverts, And In The Absence Of An Injunction Future Harm Is Inevitable. ....................................................................35

B. There Is No Adequate Remedy At Law For The Injury To The Tribes‘ Treaty

Fishing Right Because Of The Incommensurable Value Of Salmon In Tribal History, Culture, Identity, And Worldview. ........................................................................41

C. The Serious Hardships To The Tribes In The Absence Of An Injunction Must Be

Weighed Against The Lesser Challenges To The State Should An Injunction Issue.43 1. The Nature And Extent Of State Barrier Culverts Have Caused The Tribes

Direct Economic Harm, Contributing Significantly To The Dramatic Decline Of Tribal Harvest And The Inability Of Tribal Members To Earn A Livelihood By Fishing. ..............................................................................44





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2. The Harm To The Tribes From The Loss Of Salmon Is Magnified Because Of The Enormous Importance Of Salmon And Fishing In Tribal Culture, Ceremony, And Identity.............................................................................48

3. Loss of Fishing Knowledge. ......................................................................52 4. Emotional Harm. ........................................................................................53 5. The Financial Hardship The State Alleges Is Not Supported By The

Evidence. ....................................................................................................54

D. The Public Interests In Upholding The Treaty Right And Creating More Salmon In Washington Waters Are Paramount. ......................................................................61 1. Upholding Treaty Rights Is A Public Interest Sufficient To Justify An

Injunction. ..................................................................................................61 2. The Injunction Plaintiffs Seek Would Also Advance The Strong Public

Interest In Salmon Recovery. .....................................................................62 3. The State‘s Argument That Barrier Correction Will Impede Salmon

Recovery Is Unsupported. ..........................................................................64 4. The State‘s Argument That Barrier Correction Will Negatively Impact

Programs Other Than Salmon Recovery Is Also Unsupported. ................68 5. The State May Not Use Alleged Conflicts Between Upholding The Treaty

Right and Funding Other State Programs to Negate Treaty Rights. ..........70 V. THE TRIBES PROPOSED INJUNCTION IS CAREFULLY TAILORED TO

REMEDY THE TREATY VIOLATION AND PROVIDE SIGNIFICANT BENEFITS, WHILE LIMITING THE BURDEN ON THE STATE AND RETAINING STATE DISCRETION. ...................................................................................................................72 A. By Correcting The State‘s Broken Culverts The Plaintiffs‘ Proposed Remedy Would

Directly Address The Violation of Their Federal Treaty Rights and Restore Them to the Position They Would Have Had But For the Violation ...................................73

B. The Existence of Other Harms to Treaty Fisheries Does Not Negate The Remedy Of

Barrier Culvert Correction. ....................................................................................76 1. This Case Is Limited To State Barrier Culverts, And The Proposed Injunction

Would Effectively Remedy The Harm Caused By Those Culverts. .........76 2. An Injunction Requiring Correction Of State Barrier Culverts Is Not

Rendered Inappropriate Or Ineffective By The Presence Of Other Entities‘ Barrier Culverts. .........................................................................................79

C. The Proposed Injunction Represents The Minimum Intrusion On State Conduct That

Is Compatible With An Effective Remedy For The Violation Of Tribal Treaty Fishing Rights. .......................................................................................................81 1. Granting The Injunction Would Not Challenge The Court‘s Competence Nor

Put ―Federalism‖ At Risk...........................................................................82 2. The Court Need Not Find Bad Faith In Order To Issue An Injunction, Or

Need It Defer To A State Proposed ―Remedy‖ That Would Perpetuate The Treaty Violation. ........................................................................................89

3. Each Of The Five Elements Required For An Effective Culvert Remedy Provides Flexibility And Deference To The State. ....................................91 a. Compliance With The Treaties Requires That The State Correct All

Its Fish-Blocking Culverts, As Determined By The State‘s Barrier Assessment Method. ......................................................................91





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b. The Injunction Should Establish A Schedule For Correction, Which Reflects The Equities Of Correcting Different Culverts. ...............95 i. DNR, WDFW, And State Parks Culverts Should Be Fixed

By July 15, 2016. This Is The Date By Which State Law And Policy Now Call For Their Correction. ......................96

ii. Subject To Two Exceptions, WSDOT Barrier Culverts In The Case Area Should Be Made Passable To Salmon Within Twenty Years Of Judgment. ..................................97

c. The State Should Be Enjoined To Use Bridges And Stream Simulations Culverts – The Current Best Available Fish Passage Design Science – Except In Emergencies Or In Those Rare Instances Where Use Of Such Structures Is Not Feasible. ..........103

d. The State Should Be Enjoined To Monitor And Maintain Its Culverts And To Correct Any Newly-Discovered Fish Passage Barriers Within A Reasonable Time. ...........................................107 i. Because Development Of Additional Fish Passage

Barriers Is Likely, Periodic Re-Assessment Of Culverts Is Necessary. The State Currently Lacks Sufficient Programs For Such Re-Assessment. ................................107

ii. The State Should Be Enjoined To Correct Within A Reasonable Time All Its Barrier Culverts Discovered In The Future. .......................................................................108

iii. The State Should Be Enjoined To Undertake Reasonable Maintenance To Prevent Development Of Fish Passage Barriers, And To Conduct Maintenance In A Manner That Does Not Interfere With Fish Passage. ............................111

e. The State Should Be Enjoined To Monitor Its Implementation Of The Injunction, Evaluate Whether Its Efforts To Provide Fish Passage Are Effective, And Make Appropriate Corrections In Response To Such Monitoring And Evaluation. .........................112

f. The State Should Be Required To Provide Interested Tribes With Sufficient Notice Of Its Barrier Culvert Inventory, Assessment, And Correction Activities To Permit The Tribes To Monitor And Provide Effective Recommendations For Compliance With the Decree. .........................................................................................113

VI. CONCLUSION. ...............................................................................................................114





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I. INTRODUCTION. When Governor Stevens negotiated treaties with the Plaintiff Tribes in the mid 1850s,

salmon swarmed Washington waters, and salmon fisheries promised Indian and non-Indian alike an

inexhaustible source of food and commerce. Now, the salmon and the treaty fisheries that depend

on them are in trouble, and scientists point to degraded salmon habitat as the principal reason. The

Tribes recognized this threat in the 1970s, when United States v. Washington was filed, and in

Phase II of this case advanced the claim that the State‘s degradation of habitat violated their treaty

fishing rights. After the District Court declared a broad state duty not to degrade the habitat, a

Ninth Circuit en banc panel vacated that decision and directed that further litigation of the State‘s

treaty obligations to preserve salmon habitat take place in the context of some particular habitat

problem. United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc). Plaintiffs

took this admonition to heart, and initiated this subproceeding concerning state culverts, which are

one of the most destructive, but also most correctable, causes of degraded salmon habitat and

salmon decline. As the recent trial in this subproceeding showed, culverts have been a daunting

barrier to salmon and to salmon recovery for the past fifty years. More than 1,000 state-owned

culverts now restrict the passage of salmon into over one thousand miles of freshwater habitat in

western Washington.1

In 2007, the Court declared that these culverts deprive the Tribes of the fishing rights

reserved in the Treaties. Amended Order on Motions for Summary Judgment, p. 12 (Dkt. No.

18879/392) (―Amended Order‖). This Court found ―that the Treaties do impose a duty upon the

State to refrain from building culverts in such a manner as to block the passage of fish upstream or





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down, to or from the Tribes‘ usual and accustomed fishing places.‖ Id. at 12. It further found that

―the right of taking fish, secured to the Tribes in the Stevens treaties, imposes a duty upon the State

to refrain from building or operating culverts under State-maintained roads that hinder fish passage

and thereby diminish the number of fish that would otherwise be available for Tribal harvest.‖ Id.

at 12. The purpose of the recent trial was to answer one question: how should that violation of

treaty rights be remedied?

The Plaintiffs‘ have answered that question by proposing an injunction that would establish

which culverts should be made fish-passable, when, and to what standard, and how they should be

monitored and maintained to avoid recurrence of the current crisis. Plaintiffs supported the

propriety of that injunction with extensive evidence, much of it from state documents and the

State‘s own witnesses. The Tribes promised at the start of trial, and have presented, evidence that:

State barrier culverts, sprinkled like a pox over Western Washington, cause severe

harm to salmon, salmon habitat, and salmon fisheries. Broken state culverts have made it

harder than ever for the Tribes to achieve the purpose of the treaties—―that they should have

fish, not only now, but forever‖—and have inflicted cultural, personal and economic injury

on the Tribes.

Correction of the State‘s broken culverts will bring significant ―bang for the buck‖ to

the Tribes and the public. No matter what other recovery steps may be taken, the salmon

runs of western Washington will not recover if the culverts continue to block access to

freshwater habitat.

The best methods to fix the broken culverts are agreed upon by experts for all parties,

and are field-tested and affordable. The agreed approach would use bridges and stream

simulation culverts except where emergencies or unusual site conditions make those best

scientific solutions infeasible.

The State‘s programs to fix its broken culverts are too little, too late. The State uses

1 The six species of anadromous salmonids at issue in this case are the Chinook, Chum, Coho, Pink, and

Sockeye salmon, and the steelhead. Pretrial Order ( Dkt. No. 19409/614), Admitted Fact 1.2 (hereinafter Adm. Fact(s)).

These six species will be referred to in this brief as ―salmon.‖





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inferior designs, lacks deadlines to deal with current barriers, and has no sound plans to

prevent barriers from recurring. If the State‘s programs are not changed, the problem of

state barrier culverts will fester for generations to come.

Regrettably, the trial showed that the State will not voluntarily change its programs. The

State‘s answer to the question, ―what should the Court do to remedy the treaty violation?‖ is simple:

nothing. In the State‘s world, its culvert repair programs need no adjustment—no scientific

adjustments based on increased information, no fiscal adjustments to more efficiently use available

transportation resources, and no policy adjustments in response to federal treaty law. In fact, the

State insists that any adjustments in its programs will upset the salmon recovery ―applecart‖ and

asks the Court to defer to the State‘s decisions whether to fix culverts as part of an overall salmon

recovery effort. The State seeks to divert attention from its culverts, insisting that the Court take all

salmon recovery efforts into consideration despite the Ninth Circuit‘s admonition against

articulating treaty-based habitat duties in a context that broad, and despite the fact that this is the

―culverts,‖ not the ―salmon recovery,‖ subproceeding. It argues that any adjustments in its

programs will compromise highway safety and sacrifice the welfare of vulnerable citizens by

diverting money from social programs. The State proposes that the Court do no more than monitor

its existing programs.

The State articulated these arguments in its opening statement and pre-trial brief, and

promised that the evidence would bear them out. But after calling nine witnesses and introducing

more than 120 exhibits, the State did not make good on its promise. The evidence at trial did not

show an exemplary culvert program, but one dogged by inadequacies and delays. The State‘s key

salmon recovery witness revealed that there is no salmon recovery ―apple cart‖ to upset; his vision

of a holistic, coordinated, watershed-based salmon recovery program is just that, a vision, not an

existing program. Other witnesses testified that improving state culvert corrections would not





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undermine recovery efforts in any event. Nor did the State present credible evidence that correcting

state road culverts would divert money from either salmon recovery programs or social programs to

the completely separate state transportation budget, or that correction of the worst state highway

culverts within twenty years, as requested by Plaintiffs, would deplete the nearly $6 billion biennial

transportation budget—a budget swollen by two enormous gas tax increases enacted while this

litigation was pending.

The Plaintiffs urge this Court to reject the State‘s ―just do nothing‖ approach in favor of the

injunction they propose which, while sufficiently robust to deal with the culvert problem is also

carefully tailored to minimize burden on the State. The injunction would require the State to

correct all its broken culverts eventually, to abide by a schedule for correction of the most important

barriers, and to follow the advice of its own experts on culvert design, maintenance, and

monitoring. The injunction would use the State‘s methods to identify barriers, and allow the State

to prioritize culvert corrections as it chooses within the limits of the schedule. The injunction

would set a performance standard—―pass all fish at all life stages‖—that is also derived from

current state law, and would establish the State‘s preferred, stream simulation culvert design as the

default wherever feasible. Because culverts wear out, and state law requires that the repaired or

replaced culvert be fish-passable, the cost of the injunction would be only the marginal cost of

providing fish passage sooner, using designs that the State itself prefers. That cost will be a

miniscule fraction of the State‘s road budgets.

By proposing this tailored injunction, Plaintiffs have met the State more than halfway. In

response, the State has refused to make any move to solve a problem that it created, and realized it





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had created, decades ago. The State‘s position is absolute: the Tribes may join other suitors at

state government‘s door, but ultimately the State alone should determine how and when culverts are

fixed, and therefore how many fish are available for treaty harvest. But the State‘s right to dictate

how many fish the Tribes may catch was relinquished more than 150 years ago in exchange for

millions of acres that are now Washington. That exchange is a part of federal law every bit as

sacrosanct as a statute in the United States Code or a decision rendered by the United States

Supreme Court. Too often the federal courts have had to remind the State of this bargain, and that

the bargain endures absent Congressional action to the contrary. Plaintiffs respectfully request that

the Court issue this reminder again, and enter the injunction they seek.

II. SUMMARY OF PLAINTIFFS’ PROPOSED REMEDY.

The relief Plaintiffs seek is detailed in the Proposed Injunction, filed with their Proposed

Findings of Fact and Conclusions of Law. Dkt. Nos.659. 659-2 and 660 (hereinafter Pltfs. Prop.

Finding # or Pltfs. Prop. Conclusion #). The main elements of that injunction are as follows:

Within six months of judgment the State shall prepare a list of all state culverts in the

Case Area that it has identified as barriers according to Washington Department of Fish and

Wildlife‘s (―WDFW‖) current barrier assessment standards;

All state culverts that are now barriers or become barriers in the future shall be made

passable to all species and life stages of salmon, at all flows where the fish would naturally

seek passage—a standard largely borrowed from state Forest Practices law;

The Washington State Department of Transportation (―WSDOT‖) barrier culverts that

have 200 meters or more of salmon habitat upstream shall be made fish passable within 20

years—with an exception detailed in the injunction that provides the State flexibility to

defer correction of more than two hundred of the approximately 800 WSDOT culverts in

this category;

WSDOT barrier culverts in the Case Area with fewer than 200 meters of upstream

salmon habitat shall be made fish-passable at the end of their useful lives, or sooner if

altered as part of a highway project, as is currently required by state fish passage law and

policy;





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WDFW, Washington Department of Natural Resources (―DNR‖), and Washington

State Parks and Recreation Commission (―State Parks‖) barrier culverts shall be made fish

passable by July 2016, the deadline under current state law and policy;

New stream crossings and structures built to correct existing barrier culverts will

utilize a bridge or the stream simulation design unless an emergency or extraordinary site

conditions make that not feasible, or another alternative will more effectively pass fish;

The State shall make ongoing efforts to identify its culverts that become barriers after

the compilation of the list, and make them fish-passable within a reasonable time;

The State shall monitor its implementation of the injunction and evaluate whether its

efforts to provide fish passage are effective, and take reasonable steps to maintain its

culverts to prevent fish barriers and protect fish habitat.

The facts and the law set forth below demonstrate that Plaintiffs have met their burden to

obtain an injunction, and that the injunction they propose is carefully tailored to remedy the harm at

hand with minimal intrusion on state authority.2

III. FACTS.

A. Salmon And Tribal Salmon Fisheries Are In Trouble.

Salmon populations and salmon harvest in western Washington have been diminishing

more or less consistently for decades – perhaps a century. Pretrial Order (Dkt. No. 19409/614),

Adm. Facts 2.4, 3.2. The decline was lamented by the Department of Fisheries in its 1949

pamphlet, ―The Salmon Crisis.‖ Ex. AT-011, The Salmon Crisis (Wash. Dep‘t of Fisheries, 1949)

(hereinafter The Salmon Crisis); described in an extensive Joint Statement Regarding the Biology,

Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and

Olympic Peninsular Drainage Areas of Western Washington, Ex. JX-2a, at 13-14, prepared by state

2 Plaintiffs also ask that the State‘s counterclaims regarding alleged tribal barrier culverts be dismissed on the

basis of the Tribes‘ sovereign immunity, which the Pretrial Order acknowledges is a bar to those counterclaims.

Pretrial Order, Claims and Defenses, ¶2. The State appears to seek dismissal without prejudice under LR 41(b), for

non-prosecution. See Washington‘s Proposed Findings of Fact and Conclusions of Law, Dkt. No. 19505/658,

Conclusion 40 (hereinafter State‘s Prop. Finding # or State‘s Prop. Conclusion #) . That would be inconsistent with the





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and federal biologists for the original trial in this case; and noted by the Supreme Court in

Washington v. Washington Commercial Passenger Fishing Vessel Ass‘n., 443 U.S. 658, 669 (1979)

(Fishing Vessel).3 Tribal harvest enjoyed a brief boom in the decade after that decision. Since

about 1985, however, tribal harvest of salmon in the case area has declined dramatically, from a

peak of 5.3 million fish harvested in 1985 to 1.5 million in 2007. Adm. Fact 2.7; Ex. JX-25,

Stipulation Re: Treaty and Non-Treaty Harvest Data (Sept. 24, 2009).

Many stocks of all species of salmon in the Puget Sound region have declined to such a

level that they are endangered, threatened, or of concern, and all salmon stocks in Puget Sound have

declined to much lower than historic levels. Rawson Testimony, 10/14/09, at 105:6-144; see also

Rawson Written Testimony, Ex. AT-007(B) (hereinafter Rawson Dec.), Table 1; Ex. W-085-D,

Endangered Species Act Section 7(a)(2) Consultation Biological Opinion and Magnuson-Stevens

Fishery Conservation and Management Act Essential Fish Habitat Consultation (NMFS, December

2008) (hereinafter 2008 BiOp) at 86-111.5 Tribal biological witness Mike McHenry confirmed that

Olympic peninsula stocks are also depressed. Testimony of Mike McHenry, 10/13/09 at 140:7-12.6

In a comprehensive assessment by the Tribes and WDFW in 1992, 149 of the 209 salmon stocks in

the case area were rated and 37% were determined to be either depressed or critical. Rawson Dec.,

Ex. AT-007-B at 2-3. Stocks of chinook, coho, and steelhead are more likely to be in poor

Pretrial Order‘s acknowledgment of the sovereign immunity defense and would, in effect, permit a voluntary dismissal

long after trial in a manner inconsistent with Fed. Rule. Civ. Pro. 41(c). 3 The contents of Ex. JX-2a were incorporated as findings of fact in United States v. Washington, 384 F.Supp.

312, 382-83 (W.D. Wash, 1974) (Final Decision I). 4 Mr. Rawson, B.S. Biology, M.S. Biomathematics, is Senior Management Biologist for the Tulalip Tribes,

and has nearly thirty-five years experience in salmon biology and harvest management. Resume of Kit Rawson, Ex.

AT-007-1. 5 Salmon of the same species, originating in the same area and returning to spawn at the same time of year, are

referred to as a ―stock.‖ Adm. Fact 2.13. 6 Mr. McHenry, B.S. Fisheries, M.S. Wildlife Science, is Fisheries Habitat Program Manager for the Lower

Elwha Klallam Tribe. He has over twenty years experience in fisheries habitat and habitat restoration. McHenry

Resume, Ex. AT-004-1.





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condition (55% of Chinook stocks, 46% of coho stocks, and 48% of steelhead stocks). Rawson

Dec., Ex. AT-007-B at 1-4. These are the species with the longest freshwater juvenile phases. Ex.

JX-2a; AT-114, Summary: Statewide Strategy to Recover Salmon, Extinction is Not an Option

(Governor‘s Salmon Recovery Office, Sept. 1999) (hereinafter Extinction is Not an Option –

Summary), at II.10 (―Anadromous species that rear in freshwater for extended periods (up to a

year), including spring/summer chinook, coho, sockeye, sea-run cutthroat and steelhead … are

generally extinct, endangered, or threatened over a greater percentage of their historic ranges than

species with abbreviated freshwater residence….‖). If this inventory were repeated today, the

statistics would likely indicate an even more degraded resource. See Rawson Dec., Ex. AT-007-B

at 4.

As a result of decreased abundance, the Tribes have been forced to greatly curtail the areas

they fish, the gear they use, and the times during which they permit fishing. Testimony of Mike

McHenry, 10/13/09 at 141:4-10; Testimony of Lorraine Loomis, 10/13/09 at 71:21-24 (where

production is low, Tribes will prohibit commercial fishing and allow only ceremonial fishing); id. at

81:10-83:2 (Tribes may close down a mixed stock fishery, close a particular area, or change gear to

avoid catching species listed as threatened or endangered under Endangered Species Act (ESA)).

Weakening of one stock due to habitat constriction may also limit the harvest of stronger stocks in

mixed stock fisheries. Adm. Fact 2.19. Reduced fishing opportunity has contributed to a decline in

the number of tribal members engaged in fishing. See, e.g., Loomis Testimony of 10/13/09, at

68:23-69:4 (stopped fishing salmon because not plentiful enough; if salmon were more plentiful,

she would fish for them); see also Rawson Dec., Ex. AT-007-B at 12-13, 20.

B. Habitat Is The Main Driver Of Fish Abundance.

Since Treaty time, human-caused factors including overharvest, poor hatchery practices,





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and hydropower development have reduced the abundance of salmon available for tribal harvest in

the case area. Adm. Fact 2.5. However, habitat degradation is the principal factor contributing to

decline of salmon, and thus of the tribal harvest, in the case area. Rawson Dec., Ex. AT-007-B at

10, 11; Roni Testimony, 10/26/09, at 153:19-24.7

Fresh water habitat is crucial to the salmon life cycle and the fish need the ability to move in

that habitat. Adults need unobstructed passage to spawning areas so that their limited energy

reserves are not depleted prior to spawning. Declaration of Lawrence J. Wasserman, Ex. AT-010,

at 4-5 (Wasserman Dec.). 8

Juveniles may utilize many types of freshwater habitat including

springs, ponds, marshes, and seasonal streams. Ex. AT-052, Fish Passage Program Progress

Performance Report for the Biennium 1991-1993 (DOF/WSDOT, Dec. 1992), at 3. Juveniles need

passage to the sea as smolts, and they need unobstructed movement in fresh water to find the right

depths and velocities of water to maximize food intake and minimize expenditure of energy.

Wasserman Dec., Ex. AT-010 at 4-5. Some species, especially chinook, coho, and steelhead,

remain in fresh water for extended periods as juveniles. Ex. AT-114, Extinction Is Not An Option --

Summary, II.10. Juveniles also need to find refuge from predators and from high velocity stream

flows, which may result in their being swept downstream and out to sea before they have ―smolted‖

and can tolerate salinity. Wasserman Dec., Ex. AT-010 at 7; Fox Written Testimony, Ex. AT-001

(hereinafter Fox Dec.) at 23-24.9 Juveniles often seek such refuge in tributary streams. Id.

7 Dr. Roni is a Research Scientist and Watershed Program Manager for the Northwest Fisheries Service

Center of the National Oceanic and Atmospheric Administration (NOAA) Fisheries. He has been a fisheries scientist

since 1990 and has written extensively on fish habitat restoration in the Northwest and elsewhere. Ex. USA-191, Roni

Curriculum vitae. 8 Mr. Wasserman, B.A. Biology, M.S., Fisheries, is the Environmental Policy manager for the Swinomish

Indian Tribal Community and has over twenty-five years experience in salmon habitat biology. Wasserman Dec., Ex.

AT-010, AT-010, ¶¶ 2-11. 9 Dr. Fox is a fisheries biologist with the Muckleshoot Tribe and also holds a Ph.D. in forest hydrology and

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Although many factors affect salmon abundance and harvest opportunity from year to year,

such as cyclical changes in ocean conditions, the overall downward trend over decades can only be

attributed to loss of habitat quantity and quality. Rawson Dec., Ex. AT-007-B at 12. Sufficient

healthy habitat is therefore the key to increased production. Id.

The fact that habitat quality and availability is the principal factor contributing to the decline

of salmon in the case area is not news. In The Salmon Crisis, the Department of Fisheries noted

that ―[t]here is a close relationship between the amount of available spawning and feeding space

and the number of salmon that a stream can produce.‖ Ex. AT-011, The Salmon Crisis, at 6. This

document went on to note the dramatic harvest declines since 1910 and stated: ―This

phenomenal—and costly—decline can be attributed to two causes: blocking of the Fraser River

…below the main British Columbia spawning grounds, … and constriction of spawning and rearing

area in Washington streams….‖ Id. at 5. The Department of Fisheries further noted that

obstructions by hydroelectric dams and the ―myriad smaller obstructions such as … road culverts‖

had created ―an immense ‗lost frontier‘ which no longer produces salmon.‖ Id. at 6. State

publications have continued to admit the critical relationship between habitat and salmon

populations. See, e.g., Ex. AT-114, Extinction is Not an Option – Summary at IV.65, IV.69, V.87;

Ex. AT-156, Briefing Document: Fish Passage A Key to Fish Health (WDFW, 4/8/97) (hereinafter

Fish Passage Briefing Document), at 1; Ex. W-085-E, Excerpt from 2009 State of Salmon in

Watersheds: Salmon Recovery Act 10th

Anniversary (Governor‘s Salmon Recovery Office, 2009),

at 33.

C. Barrier Culverts Cause Serious Harm To Fish Populations And Fish Habitat,

And Their Correction Is A High Priority Amongst Efforts To Recover

Washington’s Wild Salmon.

The salmon crisis identified by the State in 1949, and brought about in large part by fish





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passage barriers, has not abated. The State‘s own role in creating that crisis has become much

clearer, however, as a result of culvert inventories completed in the late 1990s.

1. There Are More Than 1,000 WSDOT Barrier Culverts In The Case

Area, With More Than Four Million Square Meters Of Salmon Habitat

Above Them.

WDFW began an inventory to identify fish passage barriers on WSDOT rights of way in the

early 1990s, Adm. Fact 6.8, and finally finished that inventory within the case area in 2007. Adm.

Fact 6.22; Ex. AT-071, WSDOT/WDFW Fish Passage Inventory Progress Performance Report

(June 2008), at 5. In 1998, DNR began identifying barrier culverts located on its forest lands, and

its formal inventory efforts were completed in December 2000. Adm. Facts 6.10, 6.17. Barriers on

lands owned or managed by WDFW, and some in State Parks, have been inventoried as well. Adm.

Facts, 6.9, 6.11. WDFW‘s data is maintained in the Fish Passage and Diversion Screening

Inventory database or ―FPDSI.‖ Adm. Fact 6.14. It is a live database which is periodically

updated, so inventory numbers relate to a specific time the database was consulted. Adm. Fact

6.15. DNR keeps a separate database for its culverts which, like the FPDSI, is adjusted over time to

reflect culverts removed or added to the inventory. Adm. Facts 6.14, 6.19, 6.20, 6.21.

As of March 2009, the FPSDI database showed 1,215 anadromous and resident salmonid

passage barrier culverts under WSDOT roads in the case area.10

Adm. Fact 6.16. State Parks has

yet to complete its inventory , but the WDFW database already has 89 fish passage barrier culverts

on Park lands within the case area. Adm. Facts 6.11, 6.12, 6.23; Barber Testimony, 10/19/2009, at

159:5-6 (State Parks has yet to complete its inventory ). As of July 2009, WDFW had identified 71

fish passage barrier culverts under roads on its lands in the Case Area. Adm. Fact 6.24. As of April

2009, the DNR culvert database showed 455 remaining culverts that are barriers to either resident





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or anadromous fish under roads it manages within the case area, and of these, 228 are barriers to

anadromous fish.11

Adm. Fact 6.21. Together, these four agencies have over 1800 barriers in the

Case Area. Plaintiffs‘ cartographer, Tyson Waldo, presented at trial maps derived from the State‘s

databases which display the ubiquity of these barriers throughout the case area.12

Waldo Written

Direct Testimony, Ex. AT-008(B) (hereinafter Waldo Dec.), Exs. AT-008-4, AT-008-6.

WDFW has been assessing the extent and condition of habitat above and below WSDOT

barriers to help prioritize corrections. WDFW expects to complete these habitat assessments in

2013. Adm. Facts 7.13, 7.14. The extent of habitat blocked gives some sense of the enormity of

the harm caused by these barriers. Of the 1,215 WSDOT barriers, 807 have more than 200 meters

of blocked anadromous salmonid habitat upstream, a length of habitat that WDFW treats as a

―significant reach.‖ Adm. Facts 6.16, 8.8.13

State fish passage scientists have estimated that there

are more than 1,000 miles and nearly 4.8 million meters of habitat above known WSDOT barriers.

Ex. AT-323, Spreadsheet, WSDOT CA Barriers Habitat 3-11-09 OHW update.xls, ‗Anadromous All

PI‘ worksheet at 13.14

The amount of habitat blocked by individual culverts varies widely. State

witness Brian Benson prepared Ex. AT-323, Benson Testimony, 10/23/09, at 132:13-137:1. That

exhibit identifies for each WSDOT culvert the amount of stream length (lineal gain) as well as the

amount of spawning and rearing habitat to be gained upon the repair of the culvert; it also provides

10

Resident salmonids include trout and kokanee (non-anadromous sockeye). 11

Unlike WFDW, DNR‘s database does not classify barrier culverts based on the amount of habitat. 12

The maps are derived from the state databases. Declaration of Tyson Waldo, AT-008(B); AT-008-4, AT-

008-6. Mr. Waldo also prepared other maps that display case area geography including Indian reservations, Ex. AT-

008-7; State lands and highways, AT-008-5; and the boundaries of the Water Resource Inventory Areas (WRIAs)

discussed in many exhibits, AT-008-10. 13

The evidence shows that 279 WSDOT culverts in the Case Area block fewer than 200 meters of habitat,

but the number of these that block only resident fish, not anadromous ones, is not reflected in the record. Barber Dec.,

Ex. W-088, at 4:21-26. 14

Tribal witness Tyson Waldo prepared a similar analysis based on a smaller state data set from 2008, and

concluded that there are more than 700 miles of salmon habitat upstream of those sites, and over 3.7 million square





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cumulative amounts. After reviewing Ex. AT-323, Mr. Benson testified that WSDOT would need

to correct approximately 577 of 807 culverts blocking more than 200 meters of habitat in order to

remove state barriers to 90% of the habitat blocked by WSDOT culverts. Benson Testimony,

10/23/09 at 138:5 – 139:13.

Since 1991, WSDOT reports that it has corrected 176 culverts statewide that now meet

WDFW fish passage standards. Ex. AT-072, WSDOT Fish Passage Inventory Progress

Performance Report (July 2009) (hereinafter 2009 WSDOT/WDFW Fish Passage Progress Report),

at 4-5, fn 2 (225 corrections, but 49 require additional work); see also Ex. AT-302. DNR has

removed 834 barrier culverts in the Case Area from its inventory since 2001, but about half of these

culverts were removed by reclassifying streams as non-fish-bearing, or closing or permanently

decommissioning roads. Nagygyor Written Testimony, Ex. W-094 (herein after Nagygyor Dec.), at

17:2-16 and 18 (DNR‘s Barrier Accounting Table); Nagygyor Testimony, 10/20/2009, at 37: 6-23;

40:10 – 41:4; Ex. W-094-C, DNR‘s Barriers Removed from List in 2008 by Activity; Ex. AT-130,

Barrier Removal Implementation Plan (DNR, June 2007) at R0009532; Ex. AT-147, Letter from

Alex Nagygyor to Hurst, Wolfer re: State of Fish Barrier Culvert Address (DNR, 2/23/05) at 1, 4.

2. State Barrier Culverts Reduce Salmon Production By Preventing Or

Delaying Adult And Juvenile Access To Habitat And By Reducing The

Quality Of Accessible Habitat.

The mechanisms by which these hundreds of state barrier culverts contribute to salmon

decline, and by which they damage the habitat around them, are well-known. They are summarized

in several exhibits prepared by government agency scientists and relied upon by all parties at trial,

including WDFW‘s manual, Ex. W-089-B Design of Road Culverts for Fish Passage (WDFW

meters of rearing habitat above the 458 sites for which that data was available. Waldo Dec., Ex. AT-008-B, at 16, ¶

37.4.





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2003)(WDFW Design Manual); Ex. AT-120, Design For Fish Passage at Roadway-Stream

Crossings: Synthesis Report, (USDOT/Fed. Hwy. Admin. 2007) (hereinafter FWHA Synthesis

Report); Exs. USA-198 and W-089-D, Anadromous Salmonid Passage Facility Design (Nat‘l

Marine Fisheries Service, NW Region, Portland, OR, 2008) (hereinafter 2008 NMFS Fish Passage

Design). The effects of culvert design on fish passage and habitat were also the subject of extensive

Testimony by the Tribes‘ witness Dr. Martin Fox. See generally Fox Dec., Ex. AT-001; see also

Barnard Written Testimony, Ex. W-089 (hereinafter Barnard Dec.), at 7:13-8:11, 12:8-12.

As described in the WDFW Design Manual and the NMFS and FHWA design reports,

culverts may be complete barriers – blocking all fish at all times – or they may be partial barriers –

blocking some fish, or some of the time. Ex. W-089-B, WDFW Design Manual, at 10-13. Because

the hydraulic factors that affect fish passage vary with stream flow, culverts may be barriers at some

flows and not others. Fox Dec., Ex. AT-001 at 8-12. Even partial barriers can significantly harm

salmon. They may delay fish movement or demand additional energy for fish to pass. Ex.W-089-

B, WDFW Design Manual, at 13; see also Ex. AT-183, Salmon 2000 Technical Report (Dep‘t of

Fisheries, May 1992) at 00009739. ―[D]elay in their migratory timing can be as catastrophic as a

total block.‖ Ex. JX 2a, Joint Biological Statement at 18; see also Ex. AT-120, FWHA Synthesis

Report, at 3-2 to 3-9, 4-13, 5-3 to 5-4.

Poorly designed or built culverts not only block fish passage directly; they also affect stream

or ―fluvial‖ processes in ways that lower the quality and production potential of salmon habitat.

Fox Dec., Ex. AT-001 at 2, 7; Ex. W-089-B, WDFW Design Manual at 7, 11; see also Adm. Fact

1.4 (―Transport and storage of wood, large woody debris, and sediment in fish bearing streams are

important components of healthy productive salmon habitat.‖) By impeding the downstream

movement of sediment, wood, and vegetative debris, culverts can harm habitat both upstream and





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downstream. Wasserman Dec., Ex. AT-010 at 14 (―[W]ithout adequate instream structures or water

depths, juvenile salmon are at greater risk of predation from both avian and piscatorial predators. . .

.Much of the wood found in the stream is the result of its floating downstream from upstream

locations during high flow events. Unimpeded movement of wood is critically important to insure

adequate, well-distributed wood supplies.‖) id. at 18-22; Declaration of Mike McHenry, Ex. AT-

004 at 4-5 (McHenry Dec.) (explaining that improperly sized culvert failed to transport sediment,

creating stranding pools and killing salmon); Fox Testimony, 10/14/09, at 58:9-59:19.

Plaintiffs presented volumes of evidence demonstrating that the more than 1,000 state

barrier culverts in the case area block over four million square meters and over 1000 miles of

salmon habitat, thereby substantially reducing salmon production by adversely impacting juvenile

and adult access to spawning and rearing habitat and the quality of accessible habitat. See Parts

III.C.1 and III.C.2, supra. The overwhelming weight of evidence therefore supports the Court‘s

conclusion on summary judgment, that it is ―inescapable that if culverts block fish passage so that

they cannot swim upstream to spawn, or downstream to reach the ocean, those blocked culverts are

responsible for some portion of the diminishment [of fish runs].‖ Amended Order on Cross-

Motions for Summary Judgment (Dkt. No. 18879/392), at 5.

D. Correcting Culverts Is Recognized As An Effective Way To Restore Salmon

And Treaty Fisheries.

1. Plaintiffs’ Witnesses Confirmed The Benefits To Salmon Of Barrier

Culvert Repair.

Larry Wasserman testified that culvert correction is an especially effective tool in salmon

recovery. The effects are ―immediate, as compared to other types of restoration efforts that might

take years to have an effect, such as riparian planting.‖ Wasserman Dec., Ex. AT-010 at 29. There

is a high level of confidence in design of repairs. Id. Monitoring for effectiveness of culvert repair





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is much easier than for many other habitat restoration efforts. Id. Installation of a culvert generally

requires few changes in surrounding land uses, so impacts to private landowners are minimal. Id;

see also Wasserman Testimony, 10/13/09, at 123:11-13, 125:9-14, 125:17 – 126:13, 126:22-25).

Mike McHenry testified about the benefits of culvert corrections based on his extensive,

hands-on experience in salmon habitat restoration. See generally, McHenry Dec., Ex. AT-004 As

Mr. McHenry notes, his work and the scientific literature on watershed restoration emphasize the

importance of a hierarchical process that would ―protect areas of high quality and functional

habitat; reconnect isolated habitat areas isolated by human caused barriers; restore hydrologic,

geologic, and riparian processes; conduct in stream habitat enhancement; conduct meaningful

watershed scale monitoring.‖ Id. at 7-8. Thus, the correction of human caused barriers is generally

recognized as the highest priority for restoring habitat used by Pacific salmon, following the

protection of existing functional habitats. Id. at 1. Correction of barriers often results in a rapid

response by colonizing salmon and has been shown to quickly result in increases in juvenile and

adult salmon. Id.

Dr. Philip Roni testified similarly concerning studies showing that after barrier correction

fish colonize new habitat (i.e., areas opened up) very quickly (within a week) in contrast to other

habitat improvement techniques. Roni Testimony, 10/26/09, at 158:7– 159:8. Additionally, those

other techniques might only last a few decades before they have to be repeated. Id. at 158:7-13.

2. The State Acknowledges That Barrier Repairs Are Very Cost-effective

And Essential To Salmon Recovery.

Myriad state documents tout the cost-effective nature of barrier correction. See Ex. AT-053,

Fish Passage Program Progress Performance Report for the Biennium 1993-1995

(WDFW/WSDOT), at 1 (―Correction of human-made barriers to fish migration is one of the most





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cost effective habitat restoration strategies available.‖); see also Ex. AT-094, 1997 Salmonid

Screening, Habitat Enhancement and Restoration Division (SSHEAR) Annual Report (WDFW)

(hereinafter 1997 SSHEAR Annual Report), at 1 (―Correction of human-made fish passage barriers

such as impassable culverts . . . is one of the most cost effective methods of salmonid enhancement

and restoration.‖); Ex. AT-159, Washington Transportation Plan 2007-2026(WSDOT, 11/14/06) at

44 (same conclusion); Ex. AT-178, Fish Passage Grant Proposal (WSDOT and WDFW made to

Federal Hwy. Administration (date unknown)) at 2 (same); Ex. AT-180, Governor‘s Fiscal Year

1999 Transportation Plan at 2 (same).

WDFW has referred to barrier culvert correction as a ―critical component in the effort to

restore wild salmon…,‖ whose benefits greatly exceed the costs. AT-054, Fish Passage Program

Department of Transportation Inventory Final Report (WSDOT/WDFW, 1997) at 2; see also Ex.

AT- 073, Second Substitute Senate Bill 5886, Fish Passage Task Force Report to the Legislature

(WDFW/WSDOT 1997) at 12 (barrier correction ―is a very cost effective means for habitat

restoration‖) The State has reported that it ―has been estimated that every dollar spent on fish

passage work will return a minimum of four dollars in fish benefits, even when not considering

non-consumptive values.‖ Ex. AT-156, Fish Passage Briefing Document, at 3-4.

E. Elements Of An Adequate Barrier Culvert Correction Program Are Known,

But The State’s Programs Fall Short.

The State organized a program for fixing its broken culverts in 1991, when WDFW and

WSDOT entered into an agreement for the assessment and correction of state highway barriers. Ex.

W-093-D, 1990 WSDOT/WDFW MOU Concerning Compliance With The Hydraulic Code

(08/29/1990). See also, AT-072, WDFW/WSDOT Fish Passage Inventory Progress Performance

Report, (July 2009), at 4. In subsequent years, the State developed correction programs for





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WDFW‘s own broken culverts, and for those of the Washington Department of Natural

Resources.15

An examination of the State‘s programs, however, shows that they lack elements

recognized as essential by state, tribal, and federal fish passage experts.

1. Summary Of The State’s Existing Barrier Correction Programs.

The barrier correction programs at each state agency are organized differently. WSDOT

contracts with WDFW for barrier and habitat assessment, prioritization and preliminary design. Ex.

W-088-H, Fish Passage Barrier Agreement (June 12, 2009) . WSDOT‘s barrier culverts are

largely remediated through two different funding structures: (1) as part of a capital construction

project when the barriers fall within the boundaries of a highway construction project, in which case

the funding comes from the capital part of the Transportation budget; and (2) as part of a dedicated

corrections program with funding from the WSDOT I-4 (aka, Environmental Retrofit) budget.

Adm. Fact 8.9. As a result of an interagency agreement, WDFW and WSDOT have agreed that

WSDOT need only correct during a highway project those fish passage barriers located at a site

where WSDOT must work in the stream and thus obtain a Hydraulic Project Approval (HPA).

Adm. Fact 8.10.

As a result of changes to the State‘s Forest Practices Act, DNR is required to correct its

barrier culverts by the year 2016. Ex. AT-063, Fish Passage Barrier Inventory and Assessment

Project Report (DNR, Apr. 26, 2001), at R0004141. DNR principally remediates its barrier

culverts either by requiring timber purchasers to correct culverts as part of a timber sale contract or

by assessing fees on timber sales that are credited to the Access Road Revolving Fund (ARRF

Fund). Adm. Fact 8.13. That fund is a non-appropriated account managed by the DNR to maintain,

15

There is no evidence that the State Parks and Recreation Commission has or ever had anything that could be

called a correction ―program.‖





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repair, and reconstruct access roads, or public roads used to provide access to public lands. RCW

79.38.050.

WDFW does its own inventory and design and its corrections are funded in the State‘s

capital budget. Barber Dec., Ex. W-088 ¶¶ 22 and 23.

2. The State’s Inventory And Habitat Assessment Process Understates The

Scope Of The State Barrier Culvert Problem.

The first step in barrier correction is to locate culverts on salmon streams. The WDFW‘s

inventory process is widely used, including by the Tribes, but it is not perfect. As tribal biologist

Mike McHenry explained in his Testimony, an inventory can miss streams, and even old roads, in

dense brush and timber. McHenry Dec., Ex. AT-004 at 10. The locations of water suitable for

salmon may also be ill-defined, either because the water body‘s location is known but its suitability

for salmon is unclear, or because the inventory team relies on maps or ―stream layers‖ in

Geographic Information System, which may omit some water features. Id. Tribal biological

witness Karen Walter testified that WSDOT does not follow state regulations in assessing fish

presence, e.g., WAC 222-16-031(3), but instead limits its evaluation to pre-existing data and

occasionally its own limited habitat surveys. As a result, there are many streams that are incorrectly

assessed by WSDOT as non-fish-bearing. Walter Written Testimony, Ex. AT-009 (hereinafter

Walter Dec.), at 2-4.

Once a road-stream intersection with a culvert is located, the next step in the inventory

process is to determine whether the culvert is a barrier. That determination requires a definition of

what a barrier is, and it requires a methodology to determine whether the culvert meets that

definition. As Dr. Martin Fox testified, to avoid being fish passage barriers, culverts must

accommodate passage for the weakest species and life history stage. Fox Dec., Ex. AT-001 at 15.





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WDFW professes the same goal: ―It is the intent of the department to provide protection for [‗all

fish species . . . and all stages of development of those species‘] through the development of a

statewide system of consistent and predictable rules.‖ WAC 220-110-020(36); WAC 220-110-010.

Similarly, DNR has the passage of all species and life stages as the standard for fish passage under

its Forest Practice rules. WAC 222.24-010(2) (providing for fish passage at all ―life stages‖). See

also, Ex. AT-176, Family Forest Fish Passage Program Guidelines (WDFW et al., Dec. 2004), at 4

(―A fish passage barrier . . . impedes free passage of fish—any species, any life stage—to habitat

upstream or downstream.‖).

Despite the parties‘ shared goal of passing all species and life stages of fish, in practice the

State‘s barrier assessment methods are insufficient to reliably insure juvenile salmon passage. Fox

Dec., Ex. AT-001 at 26. WDFW has assessed WSDOT and State Parks culverts as well as its own

using criteria contained in the Fish Passage Barrier and Surface Water Diversion Screening

Assessment and Prioritization Manual (herein after WDFW Assessment Manual) (Ex. W-087-E). In

determining whether or not a culvert is a fish passage barrier, WDFW first evaluates the physical

characteristics of the culvert. This is known as a ―Level A‖ barrier assessment. Adm. Fact 7.2.

Sometimes physical characteristics alone are insufficient to assess barrier status and WDFW must

conduct a ―Level B‖ analysis and an hydraulics analysis. Adm. Facts 7.3, 7.4. The State uses the

adult trout criteria from Table 1 of WAC 220-110-070(3) (Ex. W-089-F) when determining whether

or not a culvert is fish-passable in its Level B Assessment. See Ex. W-087-E, WDFW Assessment

Manual, at 18. The maximum permitted average velocity for trout is 4.0 feet per second. Table 1

of WAC 220-110-070(3) (Ex. W-089-F). As both Tribal (Dr. Fox) and WDFW (Mr. Barnard and

Dr. Sekulich) witnesses testified, this is too high to reliably pass juvenile salmon. Fox Dec., Ex.

AT-001 at 27-28; Sekulich Testimony, 10/15/2009, at 125:1-3 (admitting that six-inch trout





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standard is too liberal in that it will not pass all juveniles). Dr. Fox recommends a maximum

average velocity of 1 foot per second to ensure juvenile passage or 2 feet per second if there is

sufficient roughness in the bed of the culvert to create an adequate and consistent boundary layer of

slower velocity in which a juvenile can travel. Fox Dec., Ex. AT-001 at 27-28. Mr. Barber

acknowledged that despite the understanding that 4.0 feet per second velocity will not reliably pass

juveniles, the 2009 update to the WDFW Assessment Manual did not consider juvenile salmonid

passage and thus would need to be modified to allow for their passage in the future. Barber

Testimony, 10/19/2009, at 156:10-20. And Mr. Barnard admitted that the adult trout standard was

not adequate since it only addresses adult fish and not juveniles. Barnard Testimony, 10/20/2009,

at 82:1-7.

3. Designs That Best Pass Fish And Protect Their Habitat Are Known, But

Inconsistently Applied By The State.

Once a barrier is identified a design for a correction must be chosen. To pass salmon and

protect salmon habitat, stream crossing design must insure that water passes without damaging the

road, and must minimize interference with fluvial processes such as wood and sediment transport

that shape both habitat and passability. A variety of design solutions have been developed that

address these objectives to varying degrees. The current science is reflected in the WDFW Design

Manual, Ex. W-089-B, a document intended to guide construction by all culvert owners in the

State, not only state agencies. Other major summaries of design science are the FWHA Synthesis

Report (Ex. AT-120 (in full)), Ex. W-089-E (excerpts), and the 2008 NMFS Anadromous Salmonid

Passage Facility Design (Exs. USA-198, W-089-D).

a) There Is A Hierarchy Of Design Options From Avoidance Of A

Crossing, To Using Bridges, To Use Of Culverts.

The current science establishes a hierarchy of stream crossing design options and, within





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those, a hierarchy of culvert design options. See Pltfs. Prop. Finding #10.1 (Dkt. No. 659). Most

preferred is to locate or relocate the road so that no crossing is needed. Ex. W-089-B, WDFW

Design Manual, at 7 (―Access solutions that do not require water crossings are preferred.‖); id. 9

(―Because the impact to stream habitat can be significant, the best option for roadway design is to

avoid or minimize the number of steam crossings needed.‖). The next preference is to use a bridge.

The lowest preference is to use a culvert. See, e.g., WAC 220-110-070 (―In fish bearing waters,

bridges are preferred as water crossing structures by the department in order to ensure free and

unimpeded fish passage for adult and juvenile fishes and preserve spawning and rearing habitat. . . .

Other structures which may be approved, in descending order of preference, include: Temporary

culverts, bottomless arch culverts, arch culverts, and round culverts.‖); Ex. AT-120, FHWA

Synthesis Report, at 6-10, 6-15 (―Aside from road removal or relocation, bridges provide optimum

biological, geomorphic, and hydraulic connectivity‖); Ex. USA-198, 2008 NMFS Anadromous

Salmonid Passage Facility Design, at 68 (―The following alternatives and structure types are listed

in general order of NMFS‘ preference: Road abandonment and reclamation or road alignment to

avoid crossing the stream. Bridge or stream simulation spanning the stream flood plain. . . .

Embedded pipe culvert. . . .‖). See also Adm. Fact 5.1.16

b) Where A Stream Crossing Cannot Be Avoided, Bridges And

Stream Simulation Culverts Are Generally The Best Of Several

Design Options In Providing For Fish Passage And Fluvial

Processes.

Where a culvert is used, the WDFW Design Manual summarizes three culvert design

options: stream simulation, hydraulic design, and no-slope. Ex. W-089-B, WDFW Design Manual,

Chapters 4-6, at 17-39. The WDFW Design Manual describes the design option known as ―stream

16

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simulation.‖ Other entities, including the U.S. Forest Service, have developed and use similar

―stream simulation‖ culvert design methodologies. See Ex. AT-119, Stream Simulation: An

Ecological Approach to Providing Passage for Aquatic Organisms at Road-Stream Crossings,

(May 2008). A number of permutations on stream simulation are described in the FHWA Synthesis

Report. Ex. AT-120, FHWA Synthesis Report, at sections 7.1, 7.2. Stream simulation is useful only

for new structures, not retrofits. Ex. W-089-B, WDFW Design Manual, at 29.

Stream simulation stands in contrast to hydraulic design, which addresses only water

conditions. Stream simulation culverts are designed to create or maintain natural stream processes

within the culvert, i.e., simulate stream conditions. Adm. Facts 5.4. These processes include

movement of water, sediment, and wood, and the horizontal and vertical movement of the channel

in response to deposition and erosion of sediment. See Ex. W-089-B, WDFW Design Manual, at

29. By allowing natural sediment and wood transport in and through the culvert, habitat can be

created within the culvert itself, and there will be less effect on habitat upstream and downstream.

Id.

To accomplish its objective, all stream simulation designs dictate that a culvert should be

wider than the bank-full width of the stream. Adm. Facts 5.4. Different government agencies

calculate the width of the buffer differently but the required culvert size is not significantly

different. Id. The WDFW stream simulation design expresses the requisite width in the formula

[(1.2 X Bank Full Width) + 2 feet]. Ex. W-089-B, WDFW Design Manual, at 31.

Stream simulation‘s emphasis on stream processes is consistent with current science

regarding salmon and salmon habitat restoration generally. Salmon habitat results from natural

processes in the places salmon live. Id. at 5. Restoring those processes insures creation and

which is not consistent with this hierarchy.





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maintenance of habitat. The WDFW, NMFS, and USFS all currently recommend use of the stream

simulation method. Adm. Fact 5.6.17

The parties agree that the WDFW stream simulation option,

as well as the stream simulation option of the United States Forest Service,18

represent the best

science currently available for designing culverts that provide fish passage and allow fluvial

processes. Adm. Fact 5.7.

c) Hydraulic Designs Used By The State Fail To Provide Adequate

Passage For Juveniles Or To Maintain Habitat-Forming

Processes And Are Prone To Failure When Used To Retrofit

Culverts With Fishways.

As explained in the WDFW Design Manual, the FHWA Synthesis Report, and the 2008

NMFS Anadromous Salmonid Passage Facility Design, hydraulic design involves manipulation of

the culvert‘s physical parameters to achieve predetermined water characteristics, such as maximum

velocity, minimum depth, and maximum vertical drop. See, e.g., Ex. W-089-B, WDFW Design

Manual, at 19. In Washington, the velocity, drop, and depth standards for a hydraulic design are

based on what species and age class are intended to pass, and standards for different species and

ages are specified in WDFW regulations. WAC 220-110-070.

19 The hydraulic design requires

detailed engineering calculations. Ex. W-089-B, WDFW Design Manual, at 19. It may be used for

new structures or to retrofit existing culverts to improve passage. Id. Examples of retrofits include

log or rock weirs downstream, which can create a stair step of pools and smaller jumps into a

17

Despite the recommendation of the WDFW Design Manual, the stream simulation design option is not

mentioned in – and so, of course, not required by – the WDFW fish passage regulations. 18

Robert Barnard praised the USFS‘ Stream Simulation: An Ecological Approach to Providing Passage for

Aquatic Organisms at Road-Stream Crossings (May 2008) (Ex. AT-119) as ―an absolutely stunning guidance manual

on stream simulation." Barnard Testimony, 10/20/2009 at 122:20-22. 19

These regulations govern the issuance of Hydraulic Project Approvals (HPAs) for culverts on fish-bearing

streams. An HPA is required for any in-water work on fish bearing waters in the State; the sole purpose of the HPA

requirement is to provide protection for fish life. WAC 220-110-010 (―It is the intent of the department to provide

protection for all fish life through the development of a statewide system of consistent and predictable rules [i.e. the

Hydraulic Code]‖); WAC 220-110-030(15) (―Protection of fish life shall be the only grounds upon which the

department may deny or condition an HPA.‖).





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culvert. Id. at 53. A culvert can also be retrofitted with a fish ladder, commonly build of concrete

and consisting of a series of pools and jumps or chutes. Fox Dec., Ex. AT-001 at 45-46. Another

common hydraulic retrofit is to place baffles – vertical plates of metal or plastic – inside the culvert

to slow the water. Id.20

The hydraulic design, and especially hydraulic retrofits, have significant drawbacks for

salmon. As the WDFW Design Manual candidly admits, and Dr. Fox testified, hydraulic design

generally results in smaller culverts and thus more constricted streams and increased risk to fish.

Ex. W-089-B, WDFW Design Manual, at 11; Fox Dec., Ex. AT-001 at 3, 27-28, 31. Moreover, the

design is only as good as the standards for passing the target species and age. Fox Dec., Ex. AT-

001 at 27-28. As noted above, supra, p.24, WDFW regulations have no standard specific to

juvenile salmon, even though some species rear in streams for extended periods. Wasserman Dec.,

Ex. AT-010 at 7-9. Consequently, in designing fish passage, WDFW uses the hydraulic criteria for

adult trout as a surrogate for juvenile passage, just as it does in barrier assessment. The adult trout

standard is an inadequate surrogate. See supra, pages 24-25. As a consequence, hydraulic design

in accordance with the WAC cannot assure juvenile passage.

The evidence at trial highlighted an additional and serious drawback to hydraulic retrofits –

the need for frequent maintenance. See generally Pltfs. Prop. Finding #10.10 (Dkt. No. 659).

Baffles and fishways tend to trap debris. Fox Dec., Ex. AT-001 at 29, 45-46. They can fill with

sediment and wood debris that block fish movement. Ex. W-089-B, WDFW Design Manual, at 24;

Ex. AT-120, FHWA Synthesis Report, at 6-15, § 6.3.4.5. Debris can alter hydraulic effects so the

structures are less efficient at reducing velocity. Ex. W-089-B, WDFW Design Manual, at 24.

20

WDFW treats all these types of retrofits as ―fishways.‖ A ―fishway‖ is any structure intended to facilitate

the passage of fish over or through a barrier. Ex. W-087-E, WDFW Assessment Manual, at 20; Ex. W-089-B, WDFW





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High flows can damage or break baffles and weirs. Documents prepared for a former WDFW

fishway inspection program show that a high percentage of fishways inspected during that program

were in need of maintenance. Ex. AT-094, 1997 SSHEAR Annual Report. The WDFW cautions

against use of the hydraulic method, and treats these retrofits as ―temporary‖ stopgaps until a more

suitable correction is done. Ex. W-089-B, WDFW Design Manual, at 19. Similarly, DNR states

that use of the hydraulic design option is ―not recommended for fish passage.‖ Ex. AT-212, Draft

Forest Roads Guide (DNR 2009), at 4-18.

d) The No-Slope Design Is Better Than The Hydraulic Design But

Still Fails To Adequately Account For Stream Processes Or

Juvenile Passage At High Flows.

The no-slope design option is the second culvert design option described in the WDFW

Design Manual. The no-slope design option requires that the culvert be set level in the stream, and

partly buried. Ex. W-089-B, WDFW Design Manual, at 17; WAC 220-110-070. The culvert must

be at least the width of the average channel bed width at the elevation the culvert meets the

streambed. Ex. W-089-B, WDFW Design Manual, at 17. The WDFW Design Manual explains that

the no-slope option is suitable in limited circumstances of small roads, crossing small streams that

have a gradient of less than 3%. Id. at 17. The National Marine Fisheries Service accepts the no-

slope design under the Endangered Species Act for use only in very small low-gradient streams.

Adm. Fact 5.13. WDFW intended the no-slope design to approximate the results of hydraulic

design but without the need for detailed and expensive engineering. Ex. W-089-B, WDFW Design

Manual, at 17. It was supposed to be a cheaper, easier alternative for small entities on driveways

and small roads. Id.; see also Barnard Testimony, 10/20/10, at 76:7-13. The design can only be

used for new installations or full replacement of an existing structure. Id. It cannot be used for

Design Manual, at 53; see also WAC 220-110-020 (37).





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retrofits. Id.

The key disadvantage of this design is shared with the hydraulic design: insufficient size.

As noted by Dr. Fox in his Testimony, because a no-slope culvert is sized to bank-full width, it is

too narrow for flood periods, resulting in increased velocity inside and therefore decreased passage.

Fox Dec., Ex. AT-001 at 24. There is also a greater chance of scour during floods greater than

bank-full flows, which can result in a perched outlet. Id. In addition, in circumstances where this

design can be used, a stream simulation culvert could be used instead. Barnard Testimony,

10/20/09 at 114:20-23 (if the circumstances in the river would allow the construction of a no-slope

culvert, a stream simulation culvert could also be built there).

Once an open excavation is made to install a new culvert, the added cost of moving up to a

larger stream simulation structure is small. Barber Testimony, 10/19/2009, at 159:20 – 160:3;

Barnard Testimony, 10/20/09, at 115:19 - 116: 1.

e) Despite Universal Support For The Stream Simulation Design,

The State Has Failed To Correct Culverts In A Way That Meets

The Stream Simulation Design Standards.

Despite the unanimous preference of the natural resource agencies for stream simulation

structures, hydraulic design structures comply with the WDFW fish passage regulations. See WAC

220-110-070(3)(b)(ii). WSDOT has made and continues to make use of them. Ex. AT-072, 2009

WSDOT Progress Report, Table 4; see generally Pltfs. Prop. Finding #13.2 (Dkt. No. 659). Of the

72 culverts corrected by WSDOT with dedicated I-4 funds from 1991-2007, 58% were retrofits, Ex.

AT-101, Table 3: Fish Passage Projects Completed with Dedicated 1-4 Funds (WSDOT), at

T1002983-88. Their failure rate is high. Of the 10 WSDOT I-4 fish passage projects since 1992

that remain, or have again become fish passage barriers, 8 involved retrofit barriers. Ex. AT-072,

2009 WDFW/WSDOT Fish Passage Progress Report, Table 4, at 17-19.





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Moreover, structures that the State calls ―stream simulation‖ are not. In a study of 28

culverts purportedly corrected using the preferred stream simulation design, Dr. Fox determined

that only eight culverts qualified as stream simulation under the State‘s study plan criteria (Barnard

2007), and only one of these eight culverts actually qualified as stream simulation according to the

culvert design standard (Bates et al. 2003). Fox Dec., Ex. AT-001 at 38.

4. DNR, WDFW, And State Parks Have Committed To Correcting Their

Barrier Culverts By 2016; WSDOT’s Repeated 20-Year Goal For Its

Corrections Has Disappeared.

Good inventory and design come to naught if corrections are not timely. Under the State‘s

present ―Forest and Fish‖ law, DNR is obligated to provide fish passage ―at all life stages,‖ WAC

222-24-010 (2), by the year 2016 at all of its culverts under roads constructed or used for forest

practices after 1974. WAC 222-24-050. WDFW and the Parks Commission have also adopted the

2016 date as the goal for providing fish passage at all stream crossings at roads they own or

manage. Adm. Facts 8.4. However, without sufficient funding, none of these agencies will meet

their mandatory deadline. Adm. Fact 8.6. See also generally, Pltfs. Prop. Findings #15.4, #15.5

and #15.6 (Dkt. No. 659).

At the outset of its barrier correction program, WSDOT adopted a goal of correcting all its

barriers within twenty years, that is, by the year 2011. Ex. AT-052, Fish Passage Program

Progress Performance Report For The Biennium 1991-1993 (DOF/WSDOT, Dec. 1992), at

T000005. Although the end date slipped, the twenty-year goal remained the agency‘s formal target

until well after this litigation was filed. In 1997, the State reiterated its belief that barriers on

WSDOT roads could be corrected ―within two to three decades.‖ Ex. AT-156, Fish Passage

Briefing Document, at 3. Again, in 1998, the State was holding to a 20-year plan. Ex. AT-055,

Progress Performance Report for Fish Passage Inventory, Corrections and Project Evaluation





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(WDFW/WSDOT, Mar. 1998), at 1. And in 1999, the State reported that WSDOT ―plans to

address all fish barriers on state-owned highways located in the inventory with their 20-Year Plan.‖

Ex. AT-184, Extinction is Not an Option- Strategy, at IV.184. Even in 2002 and 2004, WSDOT

still believed it could complete its barrier corrections within 20 years. Ex. W-093-F, 2002

WSDOT/WDFW MOA re Construction Projects In State Waters, at 39 (goal is for removal of all

identified WSDOT barriers to be done by 2021); Ex. AT-066, WSDOT Fish Passage Inventory

Progress Performance Report (WSDOT, May 2004), at 15. Yet contrary to its assertions that it

could make the 20-year target, WSDOT is woefully behind in meeting that schedule, see generally

Pltfs. Prop. Finding #12.10 (Dkt. No. 659), and the 20-year goal has vanished from the most recent

annual WSDOT/WDFW Progress Performance Report, Ex. AT-072, and from the current

WSDOT/WDFW Memorandum of Understanding regarding WSDOT culvert corrections. Ex. W-

088-H.

5. Because Streams Are Dynamic, Insuring Fish Passage Requires Ongoing

Monitoring, Maintenance, Assessment, And Correction.

Insuring fish passage at culverts requires more than a one-time inventory and building a new

structure. Inspection and monitoring are needed to verify that fish passage projects are built and

function as intended. Ex. AT-120, FWHA Synthesis Report, at 10-2, 10-3, 10-4; Sekulich

Testimony, 10/15/2009 at 129:23-130:2 (―To ensure a barrier stays passable in the future you need

a monitoring program‖). Monitoring data can also be used to improve practices, a process known

as ―adaptive management.‖ Ex. AT-120, FHWA Synthesis Report at 9-5, 12-2.

The parties also agree that, because streams are dynamic in nature, periodic re-assessment of

culverts is necessary. Adm. Fact 7.5. Culverts that are not fish passage barriers when installed may

become barriers due to erosion, hydrologic changes, and other natural processes. Adm. Fact 9.4.





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As discussed above, culverts that are too small or do not allow for natural stream processes, and

hydraulic retrofits, increase the odds of future barriers. The parties cannot predict how fast

currently passable culverts may become barriers, see Adm. Fact 9.3, but absent a suspension of

natural stream processes, the creation of additional barriers is likely. See Sekulich Testimony,

10/15/2009, at 129:19 – 130:2 (passable culverts can become barriers over time due to changes in

stream hydrology; therefore, a monitoring program is necessary to determine that corrected barriers

continue to be passable).

Finally, the parties agree that all culverts will require some level of maintenance during their

useful life to insure hydraulic function. Adm. Fact 9.2. Maintenance is also needed to insure fish

passage. The WDFW Design Manual, the 2008 NMFS Fish Passage Design and the FHWA

Synthesis Report, and numerous other state reports make this clear. See generally, Pltfs. Prop.

Finding #14.4(Dkt. No. 659). WDFW recognizes that adequate maintenance requires a

maintenance protocol and a budget. Ex. W-089-B, WDFW Design Manual, at 26. NMFS requires

that an operations and maintenance plan21

be approved by the agency. Ex. USA-198, 2008 NMFS

Anadromous Salmonid Passage Facility Design. at 105. As noted above, regular inspection and

maintenance is especially crucial for hydraulic retrofits. See Adm. Fact 9.8; Ex. AT-072, 2009

WDFW/WSDOT Fish Passage Progress Report.

As is discussed in Part V of this Brief, the State does not now have sufficient programs of

monitoring, maintenance, and re-assessment. The proposed injunction would impose minimal but

21

According to the 2008 guide, NMFS Anadromous Salmonid Passage Facility Design, Ex. USA-198 at 105,

―[t]his plan must include a brief summary of operating criteria posted at the passage facility or otherwise made available

to the facility operator. Staff gages must be installed and maintained at critical areas throughout the facility in order to

allow personnel to easily determine if the facility is being operated within the established design criteria.

Comprehensive operation and maintenance plans for a group of projects (e.g., road maintenance plans for culverts,

small screen facilities, etc.) will satisfy this criterion, so long as NMFS is in agreement with the operation and

maintenance of passage facilities.‖





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essential obligations upon the State in these areas.

IV. THE TRIBES MEET EACH FACTOR OF THE FOUR-PART STANDARD FOR

INJUNCTIVE RELIEF.

The standard to obtain permanent injunctive relief is well-known. The Tribes must show (1)

that they have suffered an irreparable injury; (2) that remedies available at law, such as monetary

damages, are inadequate to compensate for that injury; (3) that, considering the balance of

hardships between the Tribes and the State, a remedy in equity is warranted; and (4) that the public

interest would not be disserved by a permanent injunction. See, e.g., eBay Inc. v. MercExchange

L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837 (2006).22

The evidence presented at trial supports each

of these.

A. The Tribes Have Been Irreparably Harmed By Culverts, And In The Absence Of An Injunction Future Harm Is Inevitable.

This Court has already found that the State violated and continues to violate the Tribes‘

treaty fishing rights through its barrier culverts. Amended Order (Dkt. No. 392) at 8. Such a

violation of treaty fishing rights has consistently been equated with irreparable harm in this Circuit

and elsewhere. See, e.g., Confederated Tribes and Bands of Yakama Indian Nation v. Baldrige, 898

F.Supp. 1477, 1489-90 (W.D.Wash. 1995); Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Stop Treaty Abuse-Wisconsin, Inc., 759 F. Supp. 1339, 1353 (W.D. Wis. 1991);

Muckleshoot Indian Tribe v. Hall, 698 F.Supp. 1504, 1516 (W.D.Wash. 1988); United States v.

Michigan, 508 F.Supp. 480, 492 (W.D. Mich. 1980), aff‘d, 712 F.2d 242 (6th

Cir. 1983); United

States v. Washington, 459 F.Supp. 1020, 1125 (W.D. Wash. 1978). In fact, in U.S. v. Washington

22

Because a district court's decision to grant a permanent injunction involves factual, legal, and discretionary

components, the Ninth Circuit will evaluate that decision under three different standards of review. Scott v. Pasadena

Unified School Dist., 306 F.3d 646, 653 (9th

Cir. 2002) (citing Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998)).

The district court‘s legal conclusions will be reviewed de novo. Id. Factual findings supporting the decision to grant





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itself, the Tribes‘ inability to take their treaty share of fish for one year was found to constitute

irreparable harm. United States v. Washington, 459 F.Supp. at 1117-1118. Here, where the

diminishment of fish runs due to state culverts is longstanding and ongoing, the harm is even more

clearly irreparable. The effects of barrier culverts over the last half-century cannot be ―repaired‖ or

―undone,‖ with the fish returned to the waters or the Tribes‘ nets. Only going forward is a remedy

possible, by removing the specific physical cause of the treaty violation.

The long-term environmental harm caused by barrier culverts is also the type of harm the

courts have treated as irreparable in determining the propriety of injunctive relief. See, e.g.,

Humane Society of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th

Cir. 2008) (NEPA context) (lethal

taking of California sea lions is irreparable); Portland Audubon Soc'y v. Lujan, 795 F.Supp. 1489,

1509 (D.Or.1992) (destruction of owl habitat irreparable damage). ―[E]nvironmental injury, by its

nature, can seldom be adequately remedied by money damages and is often permanent or at least of

long duration, i.e., irreparable.‖ Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531,

545 (emphasis added). This is not to say that environmental harm is per se irreparable. See eBay

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393 (2006) (court should not adopt ―expansive

principles‖ or a ―categorical rule‖ that injunctive relief ―could not issue in a broad swath of cases‖);

Amoco, 480 U.S. at 542; Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313 (1982). But the

harm the Tribes have already suffered for years as a result of barrier culverts, like most

environmental harm, cannot be mended.

Both the treaty harm and the environmental harm are ongoing, and the State‘s past actions

and stated intentions indicate that the threat of repeated harm is ―real and immediate.‖ See City of

the injunction will be reviewed for clear error. Id. And the scope of the injunction will be reviewed for abuse of

discretion. Id.





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Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (equitable remedy unavailable absent showing of

―irreparable injury,‖ a requirement that cannot be met where there is no ―real and immediate threat‖

that plaintiff will be wronged again; cf. Marable v. Nichtman, 2007 WL 4561144 at *22 (9th

Cir.

2007) (denying injunction against WSDOT requested by whistleblower plaintiff, where two named

defendants were no longer his supervisors and plaintiff did not present evidence of ongoing or

future risk of retaliation). While past wrongs do not alone establish the threat of repeated injury,

the court may consider past wrongs in predicting whether repeated harm is likely. O'Shea v.

Littleton, 414 U.S. 488, 496 (1974); Lyons, 461 U.S. at 102.

As detailed elsewhere in this Brief, the State‘s past and current correction efforts are

woefully inadequate, characterized by a glacial pace, abandoned WSDOT deadlines, a barrier

correction standard that does not address the needs of juvenile fish, and persistent use of inferior

designs. The State‘s plans for the future show that further harm is certain. At trial WSDOT

employee Paul Wagner testified that he could not tell the court his agency‘s plans to correct the

roughly 800 WSDOT culverts in the Case Area that block more than 200 meters of habitat. Wagner

Testimony, 10/19/09, at 93:14-19 (―Q. Now, in terms of the future, based on your testimony today,

is it true that you can't -- you are not able to tell the Court by what year the Department of

Transportation plans or intends to have corrected the 800 fish passage barriers that exist in the Case

Area? A. That's correct.‖). WSDOT‘s budget plans, as referenced in the 2009-11 enacted state

Transportation budget, S.S.B. 5352, § 306, indicate no intention to significantly increase funding

for, and hence the rate of correction of, barrier culverts. Ex. AT-315, Legislative Education and

Accountability Program (―LEAP‖), at 1, 23 (total I-4 fish passage budget of about $15 million in

2009-11 biennium, including nine specified fish passage projects plus ―unprogrammed reserve,‖

and projected I-4 fish passage funding of $6 to 10 million for each of the next four biennia).





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The correction of DNR, WDFW, and Parks culverts by their current 2016 deadline is also

doubtful. DNR has deferred its more challenging and expensive corrections. Ex. AT-130, Barrier

Removal Implementation Plan (DNR, June 2007), at R0009532; Nagygyor Testimony, 10/20/2009,

at 40:10 – 41:4. It has also depended on timber sales to fund corrections – funding which may

prove insufficient to meet the need. Ex. AT-131, DRAFT ARRF Fee Increase Proposal, (12/15/08),

at 1-3; Nagygyor Testimony, 10/20/2009, at 29:18-22, 29:25 – 30:11, 30:18-19, 42:8-19, 43:7-14,

44:14-17. By the State‘s own account it does not have nearly enough resources to meet the 2016

deadline. See Ex. AT-131, DRAFT ARRF Fee Increase Proposal, (12/15/08) at 1,3 (ARRF Fund

has a $50 million shortage of funds necessary to complete its culvert repair obligations by the July

1, 2016 deadline imposed by the Forest Practices Act.); Nagygyor Testimony, 10/20/09, at 41:1-6;

20:20-25 (same). And the Parks Commission has yet even to complete an inventory of its barrier

culverts, and has corrected only one. Adm. Fact 6.23; Barber Dec., Ex. W-088 at ¶ 10.

Add to this lack of resolve the evidence of inadequate maintenance, Adm. Fact 9.6 (―large‖

culverts inspected after ―major‖ storms‖); Ex. AT-041, Washington‘s Resps. to Pls.‘ 4th Interrogs.

and Reqs. for Prod., Interrog 26 (1/23/09) at 46 (evaluated once and then reverts to ad-hoc); Ex.

AT-130, Barrier Removal Implementation Plan (DNR, June 2007), at 11 (culverts not required to

be inspected); Ex. AT-133, Highway Maintenance & Operations Budget Briefing, Senate

Transportation Committee (WSDOT, 2/02/2009), at 6-8, 10, 14 (maintenance backlog); Ex. AT-

156, Fish Passage Briefing Document, at 1, ¶3; Ex. AT-216, 2002 Annual Report, Habitat and

Passage Projects Section and Screening Projects Section, Technical Applications Division, Habitat

Program (WDFW, Sept. 2003), at 3 (no comprehensive monitoring system); Ex.. AT-314,

Performance Audit Report, Washington Department of Transportation Highway Maintenance and

Construction Management, Rpt. No. 1000009 (Washington State Auditor, 1/10/08), at 3 (WSDOT





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lacks resources to track maintenance needs); Barber Written Testimony, Ex. W-088, at 9:16-21,

10:4-5 (hereinafter Barber Dec.); Sekulich Testimony, 10/15/2009, at 121:12 – 122:21; and no plan

to identify and treat newly-failed culverts, Hanson Testimony, 10/23/2009, at 25:15 – 26:24; Adm.

Fact 6.17; Adm. Fact 6.22; Ex. AT-047, Washington‘s Resps. to Pls.‘ 4th Interrogs. and Reqs. for

Prod., Interrog. 50 (1/23/2009) at 91; Nagygyor Testimony, 10/20/2009, at 51:15-23; and the threat

of repeated harm is not ―conjectural‖ or ―hypothetical,‖ Marable, 2007 WL 456114, *4. It is real

and immediate.23

Faced with concrete evidence supporting the certainty of future harm, and with the array of

judicial precedent associating the violation of a treaty fishing right and long-term environmental

harm with irreparable injury, the State attempts to draw the Court‘s attention elsewhere,

emphasizing that its culverts are not the only ―raindrop‖ that caused the ―flood‖ of harm to the

salmon, State‘s Pre-Trial Br. at 38, and that Plaintiffs therefore ―cannot establish irreparable injury

necessary for a permanent injunction.‖ Id. at 39. But the State offers no support for the notion that

state-owned barrier culverts must be the only cause of harm to the salmon to establish that they

23

The State proposes a conclusion of law that the Court cannot provide relief for ―such an unknown, speculative,

future harm‖ as that caused by ―culverts that currently pass fish [but] may become barriers to fish passage in the future‖

because the Court cannot identify which culverts will become barriers, see State‘s Prop. Conclusion Law #36, and cites

Nelsen v. King Co., 895 F.2d 1248, 1250 (9th

Cir. 1990) in support. Comparing future culverts to the future harm in

Nelsen is more than a little incongruous. There plaintiffs suffered allegedly unconstitutional conditions as a result of a

trash dumpster‘s proximity to the alcohol treatment center in which they stayed in lieu of incarceration, and based their

request for an injunction on the possibility of their future return to the center. The court held that the plaintiffs did not

have standing to request an injunction because future harm depended upon an ―extended chain of highly speculative

contingencies,‖ spelled out by the court: that the parties remain in King County, remain indigent, resume drinking,

commit an alcohol-related offense, be prosecuted, convicted, given the choice to enter the center, enter the center, and

find conditions were the same. Here, even the State acknowledges the near certainty that additional culverts will

become barriers, see e.g., Adm. Fact 9.4; Ex. AT-202, Report to the Legislature (Environmental Affairs Office, Jan.

2001), at T1001270 (―Because culverts are fixed and often-undersized structures in dynamic waterways, the chances of

fish passage barriers eventually forming are high.‖), and not knowing specifically which culverts it will be does not

undermine the real and immediate nature of the future harm.





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have harmed the Tribes irreparably. Plaintiffs have never contended that barrier culverts were the

only ―raindrop‖ that caused the flood of harm to the salmon, nor must they do so now.

In a related argument, the State claims that Plaintiffs cannot meet their burden to show

irreparable harm because they cannot show that harvest will significantly increase if state-owned

barriers, and only state-owned barriers, are corrected. State‘s Pretrial Br. (Dkt. No. 663) at 37.

Aside from being logically tortured, this argument has been eviscerated by abundant record

evidence of the expected benefits of correcting state-owned barrier culverts, even should the other

causes of the salmon crisis remain untouched. Pltfs. Prop. Finding 14.1, 16.1, 16.3, 17.1, 17.6,

17.10 (Dkt. No. 659).24

Fixing culverts means more available habitat, which in turn means more

salmon, and this simple logic applies even should other reforms to habitat, harvest, hydropower,

and hatcheries stand still. Furthermore, given the complexity of salmon biology and the effects of

variability in their environment, quantifying the precise extent of benefit should state-owned

culverts be removed is extraordinarily difficult, if not impossible, Pltfs. Prop. Finding 16.3 (Dkt.

No. 659), even in the view of state witnesses. See Barber Dec., Ex. W-088, at 10:1-3. That

difficulty of proof does not, however, mean that state barrier culverts are harmless, or that their

removal would not result in a significant benefit. On that point state witness Mike Barber stated: it

is not necessary ―to know the actual number of fish increase to know what you are doing has a

benefit to fish.‖ Barber Testimony, 10/19/09, at 159:1-4.

24

The State‘s intimation at trial that this mountain of evidence demonstrating the benefits of culvert correction

can somehow be offset by State Exhibit W-200 was spurious. W-200 is a PowerPoint presentation that Dr. Roni put

together to help convince the scientific community that it could attempt to estimate the number of smolts that might be

produced as a result of various restoration activities. Roni Testimony, 10/26/09 at 195:18-23. Moreover, Dr. Roni

readily acknowledged that the study grossly underestimated the amount of habitat that would typically become

available following culvert correction. Id. at 196:6-13. In short, W-200 demonstrated a potential methodology; it was

not intended to be a rigorous application of that method to predict results of restoration efforts.





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Finally, the quantitative precision the State seeks is unnecessary as a matter of law. This

Court has already held that the ―conclusion is inescapable that . . . culverts are responsible for some

portion of the diminishment,‖ despite other ―contributing causes,‖ and that ―[i]t is not necessary for

the Tribes to exactly quantify the numbers of ‗missing‘ fish to proceed in this matter.‖ Amd. Sum

Jgmt. at 5. The State‘s arguments regarding partial causation and the need to illustrate

quantitatively the efficacy of an injunction are backdoor attempts to relitigate the summary

judgment ruling. Given the State‘s lack of plans, resolve, and resources to change the culvert status

quo in anything sooner than fifty years, the Tribes easily hurdle the ―irreparable harm‖ requirement.

B. There Is No Adequate Remedy At Law For The Injury To The Tribes’ Treaty

Fishing Right Because Of The Incommensurable Value Of Salmon In Tribal

History, Culture, Identity, And Worldview.

The State has conceded that there is no adequate remedy at law in this case because

―[m]onetary damages are not a permissible remedy here.‖ State‘s Prop. Conclusion Law #10 (Dkt.

No. 659-2), p. 89. The violation of a treaty is not susceptible to legal remedy. See, e.g., Mille Lacs

Band of Chippewa Indians v. State of Minn., 952 F.Supp. 1362, 1385 (D.Minn. 1997) (―As

conceded by the State. . ., injunctive relief is the appropriate remedy in treaty rights cases given the

unique nature of the rights and the inability to quantify damages‖). Many of the harms resulting

from a treaty violation – harms to tribal culture, for example – cannot be measured in dollars, a

point made in Final Decision I and elsewhere. Final Decision I, 384 F.Supp. at 404 (―[T]he treaty

rights that are asserted are unique and the damages which have been or will be sustained are not

susceptible of definite monetary determination‖); Muckleshoot Indian Tribe v. Hall, 698 F.Supp.

1504, 1516 (W.D.Wash. 1988) (―The treaty fishing right is a property right protected under the fifth

amendment, and the harm to this right cannot be measured solely in terms of the amount of lost

income the Tribes might suffer.‖).





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These unquantifiable harms were described at trial by four tribal witnesses whose testimony

is detailed below in the balance of harms discussion. One of those witnesses, Ed Johnstone of the

Quinault Nation, gave perhaps the most eloquent description of the unique value of salmon to the

Tribes. Salmon, he said, are

very much a part of us as [I]ndian people. The salmon were the buffalo of the Great Plains when there were 60 billion. Salmon are our buffalo. It is intertwined within our culture, our songs, our ceremonies, our subsistence coincide with the salmon. When salmon are not plentiful we suffer. When salmon are plentiful we basically are rejoicing, we are happier, but we are also mindful of what that means to us.

Johnstone Testimony, 10/15/09, 95:15-21. This testimony makes obvious what the State has thus

far not denied: that money damages are insufficient to remedy the intangible and unquantifiable

harms that flow from the treaty violation.

Declaratory relief, standing alone, is likewise insufficient. A declaratory judgment is simply

a statement of rights, not a binding order supplemented by continuing sanctions. Steffel v.

Thompson, 415 U.S. 452, 471 (1974); Heartland By-Products, Inc. v. United States, 568 F.3d 1360,

1367-68 (Fed. Cir. 2009). State authorities may choose to be guided by the judgment of a lower

federal court, but they may also choose not to. Steffel, 415 U.S. at 482 (Rehnquist, J., concurring).

Here, the State appears to have chosen not to be guided by this Court‘s summary judgment

declaration. There was a marginal increase in the WSDOT budget dedicated to culvert fixes in the

current biennium, Wagner Testimony, 10/19/2009, at 16:1-3:7-10, Carpenter Testimony,

10/26/2009, at 114:19 – 116:13, 119:7 – 120:6, but WSDOT corrected only 3 culverts with that

dedicated funding in 2007, Ex. AT-101, Table 3: Fish Passage Projects Completed with Dedicated





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I-4 Funds at 2, all classed as ―fishway/retrofits,‖ id., and none in 2008. Ex. AT-72, 2009

WSDOT/WDFW Fish Passage Progress Report at 15. Clearly, no big changes are in the works.25

Nor has a simple declaration ―clarif[ied]‖ or ―settle[d]‖ the legal relations at issue. See

Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). The parties still vigorously disagree about

the State‘s obligations, and a declaration will not free them from the ―uncertainty‖ and

―controversy‖ surrounding the breadth of the State‘s duty to build and maintain culverts that pass

fish. See Northwest Ecosystem Alliance v. Rey, 2006 WL 44361, 5 (W.D.Wash. 2006) (stating that

declaratory relief would be insufficient to protect uncommon forest species, where Bureau of Land

Management auctioned timber even after summary judgment declared that the auction preparations

did not comply with NEPA).

C. The Serious Hardships To The Tribes In The Absence Of An Injunction Must

Be Weighed Against The Lesser Challenges To The State Should An Injunction Issue.

The evidence presented at trial illustrates the breadth and depth of the harm the Tribes have

suffered and will continue to suffer in the absence of an injunction to correct the culverts

expeditiously—namely, the inability to exercise their treaty-protected right to take fish, and the

economic, social, and cultural harms that go along with the loss of that right. Weighed against

these harms is the State‘s alleged financial hardship which, now that the evidence is in, is still ill-

defined, dwarfed by the harms to the Tribes, and not nearly as serious as the State promised in its

opening statement and pre-trial brief.

25

At trial, Mr. Wagner testified that there were 11 projects underway in 2009, but no list of them was offered

as an exhibit. Wagner Testimony, 10/19/09 at 15. On cross, he admitted that 4 were part of other highway

projects. Cougar Creek was a P-3 Major Drainage project, not an I-4. Ex. AT 333 at 66-67. Mosquito Creek was

outside the case area. Ex. AT-334, at 68. Thus only five I-4 projects within the case area were underway in 2009.





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1. The Nature And Extent Of State Barrier Culverts Have Caused The Tribes Direct Economic Harm, Contributing Significantly To The Dramatic Decline Of Tribal Harvest And The Inability Of Tribal Members To Earn A Livelihood By Fishing.

When Final Decision I was entered, salmon populations were already a faint ripple of the

multitudes that migrated to and through Washington waters at treaty time and shaped the

expectations of treaty negotiators on both sides. Ex. JX-2a, Joint Biological Statement, at 13, 15;

Ex. AT-011, The Salmon Crisis (Wash. Dep‘t of Fisheries, 1949), at 5; Ex. W-085-D, Endangered

Species Act Section 7(a)(2) Consultation Biological Opinion and Magnuson-Stevens Fishery

Conservation and Management Act Essential Fish Habitat Consultation (NMFS, December 2008),

at 5-82; Koenings Dec., Ex. W-085, at 4:14-15; Johnstone Testimony, 10/15/2009, at 96:15-19.

Since then, the further decline in salmon production has been stark, as illustrated by production

statistics. See Statement of Facts, supra, p. 11-12. On the water, those statistics translate into

empty nets, empty pocket books, and disappointment. Tribal witness Randy Kinley described how

the decline in salmon fisheries has afflicted him. Mr. Kinley is a Lummi Tribal fisherman and

fisheries policy representative, a descendent of treaty signers, and nephew of Forrest Kinley, who

testified in the original U.S. v. Washington proceeding before Judge Boldt. Kinley Testimony,

10/15/09, at 52-53. Learning from his parents, he began fishing when he was four years old, and

when fishing was sustainable he made his living by fishing year round. Id. at 53. At trial he

testified that decreased numbers and decreased opportunities to fish have left him unable to earn a

living from fishing. Id. at 54:14-25 (―Q. [D]o you earn your living by fishing today? A. No. Q.

And why don‘t you? A. Because of the diminished resources and the opportunity on the water is

not there like it used to be. . . . Q. So there are fewer fish than, say, the 1980s? A. Definitely. Q.

1990s? A. Definitely.‖).





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Tribal members have continued to fish for salmon despite long odds, however, Adm. Facts

2.8, and many members would engage in more commercial and subsistence salmon fisheries if

more fish were available. Adm. Facts 2.9. Charlene Krise of the Squaxin Island Tribe testified that

the decreased harvest ―wasn‘t because we lacked the effort. We were putting everything into it to

try to get our share, but it was not there.‖ Krise Testimony, 10/13/09, at 56:6-12. She testified

about the economic hardship her tribe has suffered as a result of ―depend[ing] on that salmon to

return.‖ Id. at 56:23 – 57:1 (―But one year was so bad that I watched as cars were being

repossessed and people would talk about their eviction notices, or losing electricity. And it was

because we all depended on that salmon to return.‖); see also Ex. AT-114, Extinction is Not an

Option-Summary, at I.1 (―The loss of salmon also means the loss of revenue for tribal economies

historically dependent on salmon.‖).

Lorraine Loomis of the Swinomish Tribe has suffered similar experiences. A fisherwoman

and the longtime Fisheries Manager for her tribe, Ms. Loomis described how Swinomish fisheries

have decreased over time so that ―we can no longer just fish‖ either in marine water or river

fisheries. Loomis Testimony, 10/13/09, at 82:22 – 83:6. ―[M]ost of the time,‖ she testified, ―the

fishers will have to get a winter job, for instance. . . . [f]ishing is no longer what we can sustain

ourselves with.‖ Id. If salmon were more plentiful she would fish salmon. Id. at 69:3-4.

The flip side of this lost livelihood is the potential for significant economic benefits from

increased production and harvest of salmon. In 1997, the State estimated 200,000 adult fish each

year could come from the habitat above just a fraction of the barriers now known to exist. Ex. AT-

054, Fish Passage Program Department of Transportation Inventory Final Report

(WDFW/WSDOT, June 1997), at 2. State fish passage scientists have estimated that every two

lineal meters of stream could produce one additional adult salmonid, Ex. AT-104, 120-Year





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Salmonid Benefit: Cost Analysis, WSDOT Fish Passage Program, Four Options, and

Spreadsheets, (Sekulich, WDFW, 5/29/01) at 1, and further estimated that there are more than

1,000 miles or nearly 1.7 million lineal meters of habitat above known state barriers. Ex. AT-323,

Spreadsheet, WSDOT CA Barriers Habitat 3-11-09 OHW update.xls, ‗Anadromous All PI‘

worksheet.

The aggregate economic value of the potential production from this blocked habitat is

phenomenal. At trial the Tribes offered testimony by natural resource economist Philip Meyer, who

has spent nearly four decades evaluating fishery values in Canada, the United States, and elsewhere,

and worked for the Canadian and United States governments. Ex. AT-005-1, Meyer CV, at 1-8.

Mr. Meyer testified that the net economic value of a single fish to Washington commercial fisheries

ranged as high as $53.30 per fish depending on the species. Meyer Written Testimony, Ex. AT-

005(B) at 4. The State offered no evidence to rebut this testimony. Indeed, a December 2008

Report released by WDFW attributes almost $9.5 million annually in ex-vessel payments to

Washington non-tribal commercial salmon fishers, and net economic values of $180.7 million

annually to recreational salmon and steelhead fishers in Washington waters. Ex. AT-189,

Economic Analysis of the Non-Treaty Commercial and Recreational Fisheries in Washington State.

A Report for Washington Department of Fish and Wildlife (TCW Economics, 2008) at 7. 18. Mr.

Meyer reported that the National Marine Fisheries Service estimated an average net economic value

of sports fishing in Puget Sound waters and tributaries at $65 per angler day. Meyer Dec., Ex. AT-

005(B) at 5.26

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While Mr. Meyer did not evaluate net economic values associated with further markup of salmon and

steelhead revenues to retail levels, it is acknowledged that such further value increments can be substantial. Meyer

Dec., Ex. AT-005-B at 4 (citation omitted).





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The economic value of additional salmon that could be produced by fixing broken state

culverts is the type of benefit courts have always considered in weighing the impact of an injunction

on the parties, see Native Village of Quinhagak v. United States, 35 F.3d 388, 394 (9th Cir. 1994)

(granting injunction upon consideration of economic value of fish); see Idaho Watersheds Project v.

Hahn, 307 F.3d 815, 834 (9th Cir. 2002) (affirming an injunction allowing some ranching to

maintain residents‘ livelihoods, notwithstanding environmental costs). Here, that value is

substantial.

The State has made much of the fact that it is difficult to quantify with any precision how

many fish have been lost as a result of state-owned culverts alone, as if this difficulty exonerates it

from responsibility. State‘s Pretrial Br. (Dkt. No. 663) at 5; State‘s Ope. Stmt. at 27:23 – 28:11. As

mentioned above, this Court has already ruled otherwise, see Amd. Sum. Jgmt. at 5 (―no need to

count fish‖), and treaty rights precedent supports that ruling. In Muckleshoot, this court described

the consistent principle in fishing rights cases that the Tribes need not establish some minimum

amount of harm to establish a treaty violation:

No case has been presented to this Court holding that it is permissible to take a small portion of a tribal usual and accustomed fishing ground, as opposed to a large portion, without an act of Congress, or to permit limitation of access to a tribal fishing place for a purpose other than conservation. In Umatilla, the court refused to permit an unauthorized taking of some, not all, of the fishing stations which would be flooded by the proposed dam's two and one-half mile reservoir on Catherine Creek. 440 F.Supp. at 555. In Oregon, the States' proposed restriction of treaty fishing would have eliminated two pools in the upper half of the Columbia River zone at issue, and left the tribes access to a 21.6-mile pool and one hatchery. 718 F.2d at 301-02. In Winans, one fishing station on the Columbia River was at issue. 198 U.S. at 371, 25 S.Ct. at 662. In each of these cases, the court did not allow the tribes' right of access to their usual and accustomed fishing places to be impaired, limited or eliminated and did not indicate that the extent or amount of damage to the property right was a factor to weigh in reaching its decision.

Id. at 1516 (emphasis added). However, it is clear that multiplying the per fish value determined by

Mr. Meyer times the fish produced from additional habitat made available would yield substantial


http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.01&referencepositiontype=S&serialnum=1977126791&fn=_top&sv=Split&referenceposition=555&findtype=Y&tc=-1&ordoc=1988143628&mt=Federal&db=345&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=459C690C







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economic benefits. Under Muckleshoot and the cases it cites, the difficulty in counting the fish that

would exist but for state-owned barrier culverts does not mean that the loss of fish should not weigh

heavily in the balance of hardships.

2. The Harm To The Tribes From The Loss Of Salmon Is Magnified Because Of The Enormous Importance Of Salmon And Fishing In Tribal Culture, Ceremony, And Identity.

For the Tribes of western Washington, salmon mean much more than just food or a full

wallet. To appreciate the depth of harm inflicted by the loss of their salmon fisheries, it is

necessary to understand, as well as non-Indians can, the connection between the salmon, tribal

members, and the land and waters they share.

At trial, four members of the Plaintiff Tribes testified to that connection. The first witness

was Charlene Krise, the director of the Museum Library and Research Center for the Squaxin Island

Tribe, and a ―Rememberer‖ of her Tribe, traditionally charged with the duty of maintaining its

traditions and history. Krise Testimony, 10/13/09, at 44:12-16, 47:17 – 48:8. She described the

Tribe‘s belief that ―whatever happens to that salmon, will happen to us as humans.‖ Id. at 51:11-12.

So fundamental are salmon to the lives of tribal members that Ms. Krise described them as the

―daily bread‖ of the Squaxin Island culture, id. at 48:20-21. The museum that Ms. Krise directs has

cultural outreach programs to ―share with [visitors] about who [the Squaxin Island Tribe‘s

members] are as people of the water.‖ Id. at 44:20-21. Among the Museum displays are tribal

salmon fishing gear and artistic depictions of salmon ranging from the modern to 2,500 years old.

Id. at 51:13 – 52:2, 53:10-16.

The activity of fishing salmon plays an important role in sustaining that long Squaxin Island

tradition. Ms. Krise testified that after Final Decision I, when fishing among her tribe increased,

tribal members tending their nets in the waters of deep South Puget Sound would hook their boats





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together and talk about what their grandmothers or grandfathers had taught them. Id. at 45. Fishing

was a ―good place to connect with your tribal people,‖ id. at 54, an experience that highlighted the

cultural cohesiveness and identity born of a tradition of fishing going back thousands of years. As

Ms. Krise testified, ―There‘s a great importance to us as tribal people to be able to be out there in

the areas where we know that our ancestors have been and to know that we‘re doing the same

things that our people have been doing for thousands of years, catching those salmon, and feeding

our people.‖ Id.

Lorraine Loomis, fisheries manager at the Swinomish Tribe, testified about the Tribes‘

historic desire to live ―in the mouths of the rivers, on the rivers, by bodies of water because salmon

was so important.‖ ―I can't express to you any other way, you know, to put into words, why or

how,‖ Ms. Loomis explained, ―[b]ut that's the way it was handed down from way back. That's what

we were taught.‖ Loomis Testimony, 10/13/09, at 74:20-25. Her testimony also showed that this

strong tradition continues despite changes in education or employment. Ms. Loomis told of many

tribal members who go away and get a college degree yet still come back home to fish. ―It is

definitely the way of the Indian people.‖ Loomis Testimony, 10/13/09, at 84:22-24. She described

the inevitability of fishing for tribal members: ―They will still come back and they will fish. They

may get second jobs, but they – fishing is in the Indians‘ blood. No matter what else they do, where

they go, they will always come back and they will always fish.‖ Id. at 84:23 – 85:2.

Randy Kinley, fishing policy representative for the Lummi Nation, described a similar,

unbreakable connection between tribal peoples and their fisheries, recounting how historical

attempts to convert northwest Indians into farmers had been to no avail because of their connection

to marine life: ―They tried to make us farmers,‖ he testified, ―but we‘re farmers of the sea.‖ Kinley

Testimony, 10/15/09, at 62:12-14.





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Ed Johnstone, fisheries policy representative for the Quinault Indian Nation, testified about

the primacy of salmon in Quinault culture, reflected in the Quinault language, in which ―the word

for ‗salmon‘ is the [same] word for ‗food‘.‖ Johnstone Testimony, 10/15/09, at 95:14-15. In Mr.

Johnstone‘s tribe on the Pacific coast, as for Mr. Kinley‘s and Ms Loomis‘s tribes in northern Puget

Sound and Ms. Krise‘s in the south Sound, salmon are an integral part of the peoples‘ identity,

culture, art, and subsistence. ―…[S]almon are used in all events as well as all of our foods. Salmon

is the center pin, for instance, of our culture.‖ Johnstone Testimony, 10/15/09, at 96:10-11. Mr.

Johnstone described the importance of salmon in taking care of elders and children, id. at 95:25 –

96:6, and in naming ceremonies, deaths, recognitions, and birthdays. Id. at 96:21-23. Referring to

a particular stock of salmon, the Quinault River sockeye or ―blueback,‖ Johnstone called the fish

―the foundation of who we are. We‘re talking about a run of fish that once numbered into a million.

In the last century, there were runs of a million fish. In the last seven years, we had the lowest run

ever recorded, at like 7,200 fish. So our connection is deep.‖ Id. at 96:15-19.

The declining abundance of salmon impacts the Tribes‘ culture perhaps most concretely in

the context of the ceremonial use of salmon. The reductions in harvest by Case Area tribes in

recent years have interfered with the ability of Tribes to perform their First Salmon Ceremony.

That Ceremony, common in varying forms to all Case Area Tribes, Final Decision I, 384 F.Supp. at

351, traditionally utilizes fish from local river systems. The Ceremony welcomes the first returning

adult salmon of the year, which is brought ceremonially into the community, cooked and shared

with all, and its remains returned again to the river to encourage its brethren to come in abundance.

See Kinley Testimony, 10/15/09, at 61:21 – 63:12 (describing first salmon ceremony as opportunity

to reach out to other communities; local fresh-caught spring Chinook always served in past, but





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now tribe does not have enough, and has to go outside local area to acquire enough salmon to

serve).

Reduced harvest has also interfered with the Tribes‘ ability to provide salmon for naming

ceremonies, weddings, and other tribal gatherings. See Loomis Testimony, 10/13/09, at 72:19 –

73:25. As Ms. Loomis testified, in the past her tribe could always serve fresh-caught fish, but now

it has to be saved in cold storage, and even then they cannot always provide enough. Loomis

Testimony, 10/13/2009, at 73:19–25 (―We never had to save fish. When we had a gathering, we

could go out, we could fish, we could bring it in, and we could serve it. That doesn't happen any

more. We now have to put our fish away in the cold storage to save for the various community

dinners, and sometimes we can't provide for all. It‘s sad when we have to say no, we don't have any

fish left.‖); see also id. at 74:2 – 75:8 (―I‘ve never known community dinners without salmon when

I was growing up, and so it‘s been handed down, you know, from generation to generation again.

And I guess when you look at, you know, how important it was for our ancestors who signed the

treaty, you know, how important it was for them to protect and save salmon. And that‘s how it

is.‖); Krise Testimony, 10/13/09, at 57:8-12 (forced to use smoked and canned salmon for certain

ceremonies which previously always featured fresh fish).

Courts must consider cultural harms such as these in weighing the hardships in the

injunction context. In Native Village of Quinhagak, 35 F.3d at 388, the Ninth Circuit reversed the

district court‘s denial of a preliminary injunction to stop the enforcement of state laws prohibiting

subsistence rainbow trout fishing, explaining that the district court erred when it ―focused on the

absence of a showing by the Villages that people are going hungry, and by doing so, accorded

insufficient weight to the Villages' evidence of harm to . . . [and] threatened. . .destruction of their

culture and way of life.‖ Id. at 394, n.5. Here this Court must take a serious look at the Tribes‘





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cultural connection with salmon, and at the culverts‘ current erosion of that connection. See United

States v. Washington, 459 F. Supp. 1020, 1125 (W.D. Wa. 1978) (―Denial of treaty fishing

opportunity will result in injury to economic, cultural and governmental interests of the plaintiff

tribes.‖); see also Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1158 (9th Cir. 1988) (noting

that cultural, social, and economic harms to a tribe can constitute irreparable harm in the context of

obtaining an injunction for a NEPA violation); Crow Creek Sioux Tribal Farms, Inc. v .U.S. .I.R.S.,

2010 WL 55318, at 4 (D.S.D. 2010) (concluding that tribe may suffer irreparable harm through loss

of lands of cultural importance); Colorado Indian Tribes v. Marsh, 605 F. Supp. 1425, 1440 (C.D.

Cal. 1985) (same).

3. Loss of Fishing Knowledge.

Ed Johnstone, Quinault fisherman and Fisheries Policy representative, offered testimony

that illustrates another way in which loss of fishing injures tribes – by depriving young tribal fishers

of skills customarily passed orally from elder to youth, and honed by experience and emulation on

the water. Mr. Johnstone grew up fishing the Hoh River from a dugout canoe in the 1950‘s, when

the tribal village at the mouth of the River had only three or four families. Johnstone Testimony,

10/15/09, at 91:12 – 92:6.

He described with obvious emotion his experience as a seven-year-old boy, learning to fish

from his older brother-in-law:

[H]e would tuck me in the bow of the canoe, and up the Hoh River we would [g]o. . .

. I can't even tell you how great it was. I‘d look back at my brother-in-law. The

water would spray from the motor, you know, and he just – in today's world you

would call him an icon, but he was a teacher to me. Now he was going to teach me

something. …He was teaching me about where salmon travel and where they go to

rest and where it‘s easier to swim, not in the current. That was a – I learned every

time. Eventually he gave me more and more responsibility, including how to hang a

net, how to mend a net, what knots – you know, how we tie things, how we use the

resources that are around us while we are fishing for salmon in the river.





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Q. So he essentially taught you how to fish?

A. Yes, he did.

Id. at p. 92:3 – 93:17.

Fewer fish, and fewer opportunities to fish, mean fewer opportunities for this kind of

education. As Randy Kinley testified, ―[O]ur knowledge is not written and scripted by books like

the Caucasians. Ours is traditionally oral. And because we‘re not on the water, the way I was

taught through my dad, sitting there watching and listening, I can‘t pass that on, my teachings, that I

have learned to my siblings, because I am not on the water as much as I used to be.‖ Kinley

Testimony, 10/15/09, at 56:8-13.

4. Emotional Harm.

The Tribes also experience at least three distinct emotional harms in connection with

decreased fish harvest. First, Charlene Krise testified about the shame of no longer being able to

support her family through fishing. Krise Testimony, 10/13/09, at 56:5-10 (―[T]he biggest factor . .

. that totally changed my world was those bad years and not being able to make it through the year,

and the struggle, and almost like a shame of not being able to put the food on the table . . . not being

able to buy the school clothes, . . .because I depended on fishing.‖)

Second, Randy Kinley testified about his frustration at having treaty fishing rights ignored,

and having politicians treat his Tribe and its fishers as just one of many ―stakeholders,‖ whose

fishing rights are on a par with every other policy goal of every other constituency seeking the

State‘s attention. Kinley Testimony, 10/15/09, at 84:13 – 85:2. ―The problem with the

stakeholders,‖ Mr. Kinley testified, ―. . .[is that a] stakeholder might be a person from the county or

a municipality or Joe blow off the street. A treaty right is something that‘s guaranteed to us versus

a right that actually a state citizen holds. And that‘s what irritates us as tribal people. . .‖. Id.





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The third emotional harm caused by salmon scarcity is the animosity between the Tribes and

state agencies, and between the Tribes and various other user groups with an interest in the fish. As

Mr. Kinley testified, over the last thirty years the Tribes‘ relationship with state agencies has

changed ―dramatically,‖ reverting almost to what it was in the 1970s, because of the scarcity the

State has created. Id. at 64:17 – 65:1. ―Because of the situation of the resources,‖ Mr. Kinley

testified, ―we came to the point of fighting over the last fish instead of trying to create – support

each other to create more fish. That causes animosity between the user group, the non-tribal,

commercial and recreation versus us people, us Indian people.‖ Id. at 64:17 – 64:21. In building

and operating barrier culverts, the State has thus erected barriers between itself and the Tribes, and

between tribal and non-tribal groups.

5. The Financial Hardship The State Alleges Is Not Supported By The

Evidence.

Against this array of tangible and intangible harms to the Tribes, the State invokes the harm

of ―lack of funding in troubled times.‖ State‘s Pretrial Br. (Dkt. No. 663) at 40. In its opening

statement the State presented what it claimed were true costs that would flow from an injunction to

remedy the State‘s violation of treaty fishing rights—$2.3 million per culvert, $1.8 billion to fix

WSDOT‘s 807 significant barriers over the next 20 years, and $2 billion to fix all state-owned

barrier culverts over the next 20 years. State‘s Ope. Stmt. at 24:25 – 25:3; 34:3-5. The costs the

State threw out were big, but they were not the costs relevant to the proposed injunction.

The State seems to contend that the total cost of correcting barrier culverts can properly be

attributed to the Tribes‘ requested injunction. But this contention defies common sense and simple

economics. In the absence of an injunction, the State will still have to correct its culverts. First,

culverts eventually wear out—they ―have a hydraulic design life of 30 to 80 years, depending on





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their material and other factors,‖ Adm. Fact 9.1 – and if a road is to be kept in use, its culverts must

be replaced or repaired irrespective of whether they impair fish passage. See RCW 77.55 (new

culverts must pass fish as well as water); Ex. AT-155, Memorandum of Agreement Between

WSSDOT and WDFW (June 2002), at 38 App. C (WSDOT barrier culverts will be made fish

passable when work on the culvert requires an HPA Approval). Second, WSDOT routinely

corrects barrier culverts in the ordinary course of road improvements and intends to continue that

practice.27

Third, under the targeted I-4 program, WSDOT plans to correct an additional number of

barrier culverts, see Wagner Written Testimony, Ex. W-092, at 7:18 – 8:5 (hereinafter Wagner

Dec.); Carpenter Testimony, 10/26/09, 98:22 – 101:8, albeit at a pace that fails to adequately

protect the Treaty right.

Thus, while the proposed injunction may affect the timing of the replacement, and in some

instances the design standard, the eventual need to replace culverts in conformance with current fish

passage standards and the State‘s plans to correct additional culverts mean that the State would be

spending some amount on culverts regardless of this litigation. Only the marginal costs attributable

to Plaintiffs‘ requested injunction – the incremental difference between what the State would have

spent on culverts in the absence of the injunction, and what they would spend under the injunction –

should enter into the court‘s balancing of harms. And if the State were to build culverts consistent

with its stated preference for stream simulation, the same design Plaintiffs request, the marginal

design costs would evaporate, leaving only the costs attributable to a tighter time schedule. In the

grand scheme of the State‘s public works projects, these timing costs are minimal. See Barnard

27

Historically, for every barrier culvert addressed under the I-4 program, the State has addressed two culverts

incident to routine highway improvement projects. Compare Ex. AT-072, WSDOT Fish Passage inventory Progress

Performance Report (July 2009), at 15, 17-20 (72 I-4 corrections attempted since 1991), with id. at 24-29 (153

attempted corrections as part of highway project or other funding); Ex. W-091-E, Chart, WSDOT Barrier Corrections.





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Testimony, 10/20/09 at 115:19 - 116:1 (―A: In a public works project like you'd find on a public

road, the cost of the culvert is relatively small compared to the overall project costs. . . . Q: In

terms of Department of Transportation, which have public work highway kinds of projects? A:

That's exactly right. The guardrail probably costs more than the culvert does. I shouldn‘t have said

that.‖).

The State failed to present any evidence on these marginal costs. In fact, the State nowhere

acknowledges that marginal costs, not total costs, are to be weighed against the Tribes‘ harms,

instead offering up, with a cavalier click of the calculator, a projected total average cost of $2.3

million per culvert correction. This disingenuous approach vastly overstates the cost to the State of

the Plaintiff‘s requested remedy.

Even were total cost somehow relevant, the State‘s total cost estimates are rife with error.

Four types of evidence of correction cost were presented at trial: (1) actual costs from projects

completed prior to 2009, Ex. AT-101, Table 3: Fish Passage Projects Completed with Dedicated 1-

4 Funds (WSDOT), at T1002983-88 (average total cost for stream simulation culverts was less than

$700,000 each); (2) actual 2009 construction contract awards compared to WSDOT engineering

estimates, Exs. AT-333 – 337 (contract awards dramatically below engineer estimates); (3)

WSDOT‘s 2007 estimate of average costs for future corrections, Ex. AT-236, Summary Of Client

Agencies‘ Fish Passage Inventory And Correction Status (average cost estimated to be $850,000);

and (4) WSDOT ―pre-scoping‖ summary on 38 selected projects, Ex. W-113, Fish Passage

PreScope (WSDOT, July 2009) at 2 (average rough estimate cost of all projects, including bridges

but excluding Chico Creek project involving four bridges, $2.3 million).

The State relied only on (4), the ―pre-scoping‖ list of 38 selected projects, to derive its $2.3

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present or past costs. By the State‘s own description, a ―pre-scoping‖ list is a product of the early

planning stages of culvert repair, when WSDOT and WDFW collaborate to rough out a preferred

―design concept‖ (bridge, stream simulation culvert, etc.) and a ―rough estimate‖ of the potential

costs of the preferred option. Wagner Dec., Ex. W-092, at11:23-12:7; Wagner Testimony at

10/19/09, 53:8-18. The history of the I-4 program indicates that these pre-scoping estimates are

substantially higher than the actual costs that will be incurred when the projects are built. See Exs.

AT-333 – 337 (2009 contract awards); Ex. AT-101 (actual historic costs of completed projects).

More importantly, the projects listed on this particular pre-scoping report, Exhibit W-113,

do not appear to be representative of the 807 barrier culverts on WSDOT‘s correction list. Paul

Wagner, the manager of WSDOT‘s fish passage barrier correction program, through whom Exhibit

W-113 was introduced, testified that he had not compared, and did not know if any state witness

had compared, the array of projects on the pre-scoping list to the list of WSDOT barriers in the

Case Area to see if the list was representative. Wagner Testimony, 10/19/09 at 59:13 – 60:8. Had

he done so, he would have seen that of the 807 culvert sites on the WSDOT list, 687 or 85% could

be corrected with a stream simulation culvert spanning 16 feet or less. Ex. AT-323, Spreadsheet,

WSDOT CA Barriers Habitat 3-11-09 OHW update.xls, ‗Anadromous All PI‘ worksheet (prepared

by Brian Benson, WDFW).28

The most expensive 16-foot stream simulation culvert ever built by

WSDOT cost $700,915. See Ex. AT-101 at 3 (cost); Ex. AT-070, WSDOT Fish Passage Inventory

Progress Performance Report (WSDOT/WDFW May 2007) at 31-32 (size). By contrast, at least

28

687 of the listed sites show an OHW width of 3.55 meters or less, the maximum width that can be spanned

with a 16-foot stream simulation culvert using the stream simulation formula developed by WDFW expert Robert

Barnard. Ex. W-089-B, WDFW Design Manual at 31 (minimum width of any culvert bed is 1.2 times bank-full width

plus 2 feet). 3.55 meters x (1 foot/.3048 meter) = 11.65 feet. (1.2 x 11.65) + 2 = 15.98 feet.





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13 of the 38 projects on the State‘s prescoping list (34%) involve structures larger than 16 feet,

including 6 bridges, the longest of which is 200 feet.

When asked about the amounts of the actual construction contracts his program awarded

during the 2009 construction season, Mr. Wagner testified that he did not know, but that he knew

that those contract amounts did not represent the entire cost of the projects. Wagner Testimony,

10/19/09 at 65-72; 96-97. Though no documentary evidence was submitted showing WSDOT‘s

actual costs in 2009, ―[c]urrent bidding on WSDOT construction projects is typically running 15 to

20 per cent lower than the WSDOT engineers‘ pre-bid estimates of project costs.‖ Adm. Fact 8.29.

Because these bids have been so ―favorable with respect to current estimates of project costs,‖ and

because the national economic forecasts suggest that this trend will continue for the next several

years, the legislature reduced appropriations for WSDOT construction projects by $63.5 million and

$52.7 million in the 2009-11 and 2011-13 biennia, respectively. Engrossed Substitute Senate Bill

5352, Chapter 470, Laws of 2009, 61st Legislature, 2009 Regular Session, Transportation Budget,

Effective Date 5/13/09, § 306(2).29

Whatever the proper, marginal costs of the injunction,30

the magnitude of those costs is not

nearly as relevant to the balance of harms as the ability of the State to bear those costs. See, e.g.,

Geertson Seed Farms v. Johanns, 570 F.3d 1130, 1138 (9th

Cir. 2009), cert. granted, --- S.Ct. ----,

2010 WL 144075 (Jan. 15, 2010) (No. 09-475) (affirming injunction against Forage Genetics and

29

The State failed to produce its 2009 construction cost information at trial. At the time of trial WSDOT‘s

website included the ―bid sheets‖ for the 2009 contracts, and those documents were admitted into evidence over

WSDOT‘s objection. WSDOT witness Jeff Carpenter identified one such document, Exhibit AT-336, as a WSDOT

―bid sheet,‖ which reflects a construction contract award. Carpenter Testimony, 10/26/09, 103:7-13; 104:18-25. 30

If construction costs are presumed to go up in the future, WSDOT is actually better off constructing culverts

now. The only evidence at trial on this point tended to show that construction costs had risen faster than inflation in the

middle of the past decade. Carpenter Dec., Ex. W-091, 7:24 – 8:4. If that trend continues, then future dollars will be

worth less than present dollars when compared to the costs of construction. That is all the more reason to accelerate the

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Monsanto to stop planting genetically modified alfalfa pending environmental impact study where

crop ―accounted for only 15% of Forage Genetics‘ total revenue and much, much less of

Monsanto‘s‖) (internal quotation marks omitted); Apple Computer, Inc. v. Formula Int'l, Inc., 725

F.2d 521, 526 (9th Cir. 1984) (discounting hardship to defendant where injunction prohibited sale

of products that only accounted for a ―small percentage‖ of the company‘s total sales). Here the

State‘s total budget for the 09-11 biennium is $71,782,852,000. Ex. W-090-A, Washington State

Budget Process (Office of Financial Management, June 2008) at 5. The Transportation budget for

09-11 is $5.9 billion dollars. Ex. AT-163, Expenditure History—Operating and Capital,

Department of Transportation (405), Total Budgeted (TOT-B) at 2.31

The highway construction

budget by itself is $2.5 billion for the 09-11 biennium. Id. at 1. Whatever the marginal costs of the

injunction, it will pale in contrast to these figures. To put the culvert budget in perspective,

WSDOT Project Control and Reporting Director Jeff Carpenter, who is familiar with WSDOT‘s

budget, estimated on the stand that the percentage of the WSDOT budget allocated to culvert

correction for the upcoming biennium is approximately one third of one percent of the total

WSDOT budget for that period. Carpenter Testimony, 10/26/09 at 119:7 – 120:6 (culvert

correction is $20.2 million while total DOT budget is $5.8 billion). Even were that percent

multiplied several times over, it would have no meaningful impact on the transportation budget, let

alone, as the State has argued, a ―tremendous impact‖ on the entire state treasury. State‘s Pretrial

Br. (Dkt. No. 663) at 43.

The State urges this Court to consider ―the potential large impact on the State treasury of the

31

The most significant part of the budget for purposes of shaping a remedy is the separate Transportation

budget, because WSDOT has by far the most barriers (1215), Wagner Dec., Ex. W-092at 10, and their average cost is

higher. Ex. AT-101 (actual historic costs of completed projects). By contrast, DNR has only identified 228 culverts

within the case area and estimates that the average cost of a stream simulation correction is $54,000. Adm. Facts 6.21

(number), 8.22 (cost)..





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requested remedy,‖ and invokes Cobell v. Norton, 428 F.3d 1070 (D.C. Cir. 2005) for the notion

that the Court should ―take[ ] a closer look at costs.‖ State‘s Pretrial Br. (Dkt. No. 663) at 42. But

Cobell‘s emphasis on examining costs hurts the State more than it helps. In Cobell, the D.C.

Circuit held that the general language of the federal statute requiring an accounting for Individual

Indian Money accounts did not support the inference that the district court could order ―the best

imaginable accounting without regard to cost.‖ Id. at 1075. The court of appeals also faulted the

lower court for ―completely disregard[ing] relevant information about the costs of its injunction,‖

and issuing an injunction sua sponte without either briefing or hearing on costs, during which ―the

district court could have learned more about the sources and validity of these estimates and used the

results to guide it.‖ Id. at 1077. Here, Plaintiffs are not seeking an injunction ―without regard to

cost.‖ Nor has the Court proceeded without a hearing. To the contrary, Plaintiffs urge the Court to

take a ―closer look‖ at both the structure of the State budget and the State‘s cost estimates, and to

weigh them in the balance of hardships.

The State‘s story of ―lack of funding in troubled times‖ does not come close to outweighing

the Tribes‘ hardships in the absence of an injunction. The State does not provide the Court with

marginal cost estimates, the estimates it does provide are faulty, and the costs are well within the

State‘s ability to pay in any event. Against that, the Court must weigh the Tribes‘ empty nets,

stilled boats, loss of fishing knowledge, and damage to a cultural patrimony passed down through

untold generations. It must weigh the shame of a failed livelihood and the inability to mark life‘s

milestones in a manner that is central to their culture. It must also consider the tension between

tribes and other groups caused by a scarcity the State has created. And it must consider the

frustration of being treated as one constituency among many, jostling for advantage in the





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legislature, despite the existence of a piece of federal law that makes their claim to fish a right, not a

special interest.

D. The Public Interests In Upholding The Treaty Right And Creating More Salmon In Washington Waters Are Paramount.

The final consideration for granting injunctive relief is the public interest, which primarily

addresses impact on nonparties rather than parties. Sammartano v. First Judicial Dist. Ct. in & for

County of Carson City, 303 F.3d 959, 974 (9th

Cir. 2002). A district court must expressly consider

the public interest on the record when granting or denying an injunction, and the failure to do so is

an abuse of discretion. Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1157 (9th

Cir. 1988).

1. Upholding Treaty Rights Is A Public Interest Sufficient To Justify An

Injunction.

Treaty fishing rights are an ―overwhelming public interest‖ to be protected ―to the fullest

extent possible.‖ See United States v. Michigan, 534 F.Supp. 668, 669 (W.D. Mich. 1982); see

also Muckleshoot Indian Tribe v. Hall, 698 F.Supp. 1504, 1516 (W.D.Wash. 1988) (―[T]he

enforcement of rights that are reserved by treaty to the Tribes is an important public interest, and it

is vital that the courts honor those rights.‖); United States. v. Washington, 459 F.Supp. 1020,

1106 (W.D. Wash. 1978) (―The public interest will best be served here by permitting the United

States Government to honor its treaty obligations to the Indians . . . .‖). This Court has already

found that the intent behind the Stevens Treaties was that the Tribes would be able to meet their

own subsistence needs and fish as they had before, forever. Amd. Sum. Jgmt at 10-12; United

States v. Washington, 873 F.Supp. 1422, 1436 (W.D. Wash. 1993) (Shellfish I), aff‘d, 157 F.3d 630

(9th

Cir. 1998), cert. den. 526 U.S. 1060 (1999). The United States wanted the Indians to continue

their fishing so that they would not become dependent on the federal government for subsistence.

Id. Correcting state barrier culverts to increase available habitat, salmon populations, and tribal





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harvest opportunity will further these public interests. See United States v. Michigan, 508 F.Supp.

480, 492 (W.D. Mich. 1980) (―Both this court and the Michigan Supreme Court have held that the

Indians have retained and reserved special treaty rights to fish in the ceded waters. The public

interest clearly favors the protection of these treaty rights.‖).

2. The Injunction Plaintiffs Seek Would Also Advance The Strong Public

Interest In Salmon Recovery. Plaintiffs provided overwhelming evidence at trial, and it is scientifically well-accepted, that

correcting state culverts will provide substantial benefits to salmon populations and freshwater

ecosystems, and advance salmon recovery. Providing additional habitat by correcting barrier

culverts can increase spawning success of adult salmon, allow for development of new populations

above culverts, and improve the growth and survival of juveniles by decreasing population density

and competition for food and habitat. See Pltfs. Prop. Finding # 7.1 (Dkt. No. 659). According to

WSDOT‘s own documents, ―[o]nce . . . problem culverts are corrected, the benefits to fish habitat

are real and immediate – in many cases fish have been observed upstream of improved culverts

within weeks of restoring access.‖ Ex. AT-177, Fish Habitat Retrofit Program (WSDOT, Mar.

2006) at 1.

Culvert correction is necessary for salmon recovery to occur. See Ex. AT-202, Report to the

Legislature (Environmental Affairs Office, Jan. 2001) at T1001289 (―Scientists agree that restoring

access to productive spawning and rearing habitat is essential to salmon recovery.‖) (emphasis

added). There is widespread scientific and government consensus that barrier culverts are a major

factor limiting salmon populations in the Case Area, such that ―the creation of new barriers must be

prevented and the rate of barrier correction must be accelerated if Washington‘s wild salmon and

trout stocks are to recover.‖ Ex. AT-073, Second Substitute Senate Bill 5886, Fish Passage Task





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Force Report (Dec. 1997), at 2 (emphasis added); see also id. at 18 (―The current rate is obviously

too slow to avoid the decline of more salmonid stocks.‖); Ex. AT-178, Fish Passage Grant

Proposal (WSDOT and WDFW) at 2 (―Removing [human-made] barriers and then maintaining

unobstructed fish passage corridors for salmon . . . is crucial to [their] long range recovery.‖); Adm.

Fact 10.1 (―The WDFW has recognized that culverts must be corrected in order to accomplish the

State‘s salmon recovery efforts . . . .‖). Thus, the injunction Plaintiffs seek will effect actions

crucial to salmon recovery. The State agrees that there is a strong public interest in salmon

recovery in western Washington thanks to the importance of salmon in recreation, economic

development, and the larger project of environmental stewardship of state resources. See Ex. AT-

178, Fish Passage Grant Proposal, at 1 (―Economic advantages to communities from salmonids are

not abstract considerations. Significant dollars exchange hands as a result of human interests in

recreation and commercial fishing of these wild stocks.‖); see also Pltfs. Prop. Finding # 7.11 (Dkt.

No. 659) (discussing the economic and ecological benefits of salmon recovery). The evidence is

overwhelming that this public interest will directly be served by culvert correction.

Barrier correction is also ―one of the most cost effective ways‖ to restore salmon and habitat

and recover endangered fish stocks. See Pltfs. Prop. Finding # 7.8 (Dkt. No. 659); McHenry

Testimony, 10/14/09, at 33:12 – 34:6 (explaining that Tribe prioritized barrier correction in Salt

Creek watershed because it provided the ―biggest bang for [the] buck.‖). Compared to some habitat

restoration measures, correcting fish passage barriers is relatively easy, relies on well-established

science, provides both rapid and long-term benefits to fish production that can be readily evaluated,

and generally requires no change in private land use, especially where the barriers are state-owned.

See Pltfs. Prop. Finding # 7.8 (Dkt. No. 659).





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3. The State’s Argument That Barrier Correction Will Impede Salmon Recovery Is Unsupported.

The State came to trial with the argument that fixing barrier culverts would hinder rather

than help salmon recovery—in the State‘s words, that culvert repair would ―upset the applecart‖ of

the State‘s salmon recovery program by putting undue ―primacy‖ on one part of salmon recovery.

State‘s Pretrial Br. (Dkt. No. 663) at 37, 44. The problem with that argument is threefold.

First, there is not, as the State insists, a comprehensive, ―holistic‖ salmon recovery plan in

place in the Case Area, and thus no ―applecart‖ to upset. See State‘s Pretrial Br. (Dkt. No. 663) at

4, 10, 37-39 (stating 5 times salmon recovery plan is ―holistic‖); 1, 2, 9, 37, 48 (stating 5 times

salmon recovery plan is ―comprehensive‖). Such a comprehensive and integrated plan would

require preparation of a detailed analysis for each watershed. See McHenry Testimony,

10/13/2009, at 142:19-23. These watershed analyses, or true limiting factor analyses, require

scientists to precisely identify the population status of each species, changes from historic

conditions, and what factors are responsible, in what degree, for those changes in population. See

Roni Testimony, 10/26/2009, at 154:23 – 156:1 (describing true limiting factor analyses and noting

that the term is commonly misused); McHenry Testimony at 142:19-23 (describing watershed

analyses); id. at142:24 – 143:22 (explaining that the State‘s ―limiting factors analyses‖ lack the

precision of watershed analyses). Ultimately, the information gleaned from these analyses allows

scientists to identify necessary habitat protection and restoration activities. McHenry Dec., Ex. AT-

004 at 3.

True watershed analyses have not been prepared for most salmon species and most

watersheds in the Case Area, and there is no evidence that such analyses are planned for most

stocks and watersheds. See Roni Testimony, 10/26/09, at 155:23 – 156:8 (―limiting factor





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analyses‖ which discern ―which habitats are limiting that life stage for a particular salmon species‖

have been done in Skagit for coho and Chinook, and on Stillaguamish for coho, but not in ―[most]

of the other watersheds.‖); Wasserman Testimony, 10/13/09, at 128:22 -129:8.

What the State has is not a comprehensive plan, but two recovery plans for specific ESA-

listed salmon. Even the State‘s own witness, Dr. Jeffrey Koenings testified that the only recovery

plans in Puget Sound are for Chinook and Hood Canal summer chum. Koenings Testimony,

10/23/09, at 88:25- 89:22, 94:3-14.32

Moreover, Dr. Koenings admitted on the stand that ―there‘s

no requirement that any of these recovery plans be implemented,‖ id. at 89:20-22, and that the two

―main ingredients‖ of the State‘s salmon recovery ―vision‖ are the Salmon Recovery Funding

Board (SRF Board), an organization in which the State has no voting rights or approval function in

terms of funding decisions, id. at 91:12-23, 93:7-22; and Regional Fishery Enhancement Groups

(RFEGs), non-profit entities whose success depends on ―individual donations and in-kind

contributions from local community members . . . and businesses,‖ and whose recovery decisions

do not incorporate ―science [a]s the controlling factor.‖ Id. at 96:1-21. In short, the State‘s salmon

recovery plan is an optimistic vision, but a toothless reality.

Second, even if there were an ―apple cart‖ to upset, the State presented no scientific

evidence that focusing on culvert correction would upset it- that is, no evidence that correcting state

barrier culverts would result in any biological harm to Case Area salmon stocks. Dr. Koenings

testified that moving ahead rapidly with culvert correction would create ―choke points‖ in other

areas of the salmon recovery process. Koenings Dec., Ex. W-085at 25:14-17. Federal witness Dr.

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Dr. Koenings was a limnologist for thirteen years, until about twenty years ago. Ex. W-085-A, Resume of

Dr. Jeffrey P. Koenings. At that point he ―joined the dark side and became a policy maker . . .‖ Koenings Testimony,

10/23/09, at 57:20.





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Philip Roni disagreed. Roni Testimony, 10/26/09, at 167:5-22.33

Because Dr. Koenings failed to

substantiate his ―choke points‖ theory with any scientific analysis, his conclusion is meaningless.

See Winters v. Fru-Con, Inc., 498 F.3d 734, 743 (7th Cir. 2007); see also Domingo ex rel. Domingo

v. T.K., 289 F.3d 600, 607 (9th Cir. 2002) (―The reasoning between steps in a theory must be based

on objective, verifiable evidence and scientific methodology of the kind traditionally used by

experts in the field.‖).

Dr. Koenings presented a new theory at trial, that fixing state culverts will harm wild

salmon by allowing stray hatchery fish to spawn in additional habitat. Koenings Testimony,

10/23/09, 82:5-17, 83:25 – 84:5. But that theory is not credible either. It is not based on any

identified data or research, disregards ongoing hatchery reforms, ignores the fact that such strays

already spawn with wild fish in existing habitat, and disregards the benefits of additional habitat for

wild fish. As Dr. Philip Roni testified in rebuttal:

Q. Dr. Koenings in his testimony talked about the interrelationship between hatchery fish and wild fish. Do you recall that testimony? A. Yeah. Q. Does the presence of hatchery fish in a particular watershed play a role in the decision as to whether to open that – open up barriers in that watershed? A. It hasn't historically. . . . In the areas where we've -- historically when we put passage on larger barriers, such as Sunset Falls in Skykomish River, we relied on hatchery fish by outplanting them in those areas to try to jump start it. And …on the Elwha River, where we're going to remove the two Elwha River dams, one of the plans is to outplant hatchery fish into the upper watershed. One of the plans is to outplant fish in the upper watershed once those dams are removed to sort of jump start the recovery. But … -- even if there is an outplanting of fish, it's largely hatchery production of chinook and coho and a little bit of steelhead, so we're going to be relying on hatchery fish to recolonize those areas. So I think in many of the watersheds where we have mixed production, …I don't see the hatchery fish as a problem. We're already relying on them for some of the recolonization and recovery.

Roni Testimony, 10/26/09, at 163:24–165:5. Dr. Roni‘s testimony indicates that Dr. Koenings‘

claim about hatchery fish is not supported in science, and thus, that there is no reason to credit this,

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the State‘s only specific testimony on why culvert correction will undermine the State‘s salmon

recovery ―plan.‖ There is no evidence that entering an injunction concerning barrier culverts – the

type of specific habitat problem the Ninth Circuit proclaimed as the only proper subject of litigation

regarding the State‘s treaty-based habitat duties – would unravel the tapestry of state salmon

recovery.

To the contrary, absent true watershed assessments, reconnection of habitat through removal

of fish passage barriers is likely to benefit salmon populations more than recovery projects to

restore damaged habitat. See Pltfs. Prop. Finding # 7.5 (Dkt. No. 659); McHenry Dec., Ex. AT-004 at

7; Wasserman Dec., Ex. AT-010 at 29; McHenry Testimony, 10/13/2009, at 141:15 – 142:9; Roni

Testimony, 10/26/2009, at 157:11 – 159:8. Dr. Roni recommended that salmon recovery should

focus on habitat before anything else. See Roni Testimony, 10/26/2009, at 159:9 – 160:11

(―Starting with the four Hs, I think we need to start by focusing on habitat because that's where it all

started and that‘s what it really depends on.‖) Good science is therefore on the side of attacking

barrier culverts sooner rather than later, and there is no reason to believe that the correction of

barrier culverts will disrupt some perfectly-calibrated state salmon recovery plan.

Third, the State has no evidence that money would be moved from the salmon recovery

―apple cart‖ to culverts. In fact, WSDOT funding is entirely separate from, and would not affect,

salmon recovery programs. Carpenter Testimony, 10/26/2009, at 125:4 – 126:4; Moore Testimony,

10/26/2009, at 42:8-19. The former is in the transportation budget, while the latter would be in the

general budget. Adm. Fact 8.19 (―The budget requests for WDFW, DNR and State Parks are made

as part of the general budget and WSDOT‘s budget requests are included in a separate

transportation budget.‖). Moore Testimony, 10/26/09, at 32:19-22 (general fund is distinct from

fund into which the gas tax is paid, which is restricted by the state constitution to use exclusively





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for highway purposes); 32:23-25 (state operating fund separate from transportation fund). As Dr.

Moore testified on cross-examination :

Q. If you're talking about funding for the Department of Transportation highway construction spending, it's the transportation budget that you're talking about, right, not the general fund budget? A. Correct. Q. The state general fund budget actually isn't that relevant to the DOT highway construction budget? A. No. Q. Because they're two separate budgets, two separate appropriation bills, and they have separate revenue sources? A Correct.

Id. at 40:15-25. With paltry exceptions, General Fund money has never been taken to pay

for highway projects. Ex. AT-165, Table – Expenditure History – Operating & Capital –

Department of Transportation (405) – General Fund – State (001-S) (fiscal.wa.gov); Moore

Testimony, 10/26/2009, at 32:19-22, 40:15-41:16; see also Carpenter Testimony,

10/26/2009, 125:24 – 126:4. Similarly, most of DNR‘s corrections are funded by the

ARRF, which is a non-appropriated fund outside the general budget. Adm. Fact 8.13. The

notion that barrier correction will, contrary to all evidence and common sense, hurt salmon

recovery rather than help it is completely unsupported.

4. The State’s Argument That Barrier Correction Will Negatively Impact

Programs Other Than Salmon Recovery Is Also Unsupported.

The State has emphasized the precariousness of the state budget and insisted that

comprehensive culvert repair would come at the expense of many unrelated goals clearly in the

―public interest,‖ such as higher education, health care, and support of the elderly. State‘s Pretrial

Br. (Dkt. No. 663) at 29-33. The State has gone so far as to claim that ―the only certainty‖ is that

the injunction Plaintiffs seek ―will result in reductions for other public programs.‖ State‘s Pretrial

Br. (Dkt. No. 663) at 37-38.





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The precarious state budget, however, is temporary. While the recession was unusually

severe and recovery is slow, no one expects this situation to last. Moore Testimony, 10/26/2009, at

35:3-7; 36:16 – 37:2. Moreover, state evidence regarding recent cuts in state social programs is of

little if any relevance to the correction of barrier culverts for the same reasons that WSDOT culvert

corrections are not relevant to salmon recovery spending: social and transportation funding are not

fungible. The social programs that suffered so badly in the last legislative session are funded

through the state Operating Budget, using General Fund revenue. Moore Testimony, 10/26/2009, at

32:19-25, 40:15-41:9; Carpenter Testimony, 10/26/09, at 124:21-125:3, 125:24-126:4, 117:10-13.

DNR, as explained above, funds its culvert fixes from the Access Road Revolving Fund and

WSDOT funds its highway projects, including culvert corrections, through the state transportation

budget, with revenue largely from the gas tax. Adm. Fact 8.34; Fish Passage Facilities for

Highway Culverts, Wash. Atty Gen. Op. 1949-51 No. 304 (1950); Carpenter Written Testimony,

Ex. W-091, at 3:25-26; Moore Testimony, 10/26/2009, at 40:15-25. Percentage-wise,

transportation revenue declined far less in the wake of the Great Recession of 2008 and 2009 than

did General Fund revenue. Moore Testimony, 10/26/2009, at 15:20-22, 34:22 – 35:7, 38:21-24,

40:4-12. In addition, the limit placed on general fund expenditures by Initiative 601 does not apply

to WSDOT, which does not rely on the general fund. Moore Testimony, 10/26/2009, at 50:20 –

51:8. Neither does the constitutional debt limit of 9% apply to bonds secured by gas tax. Id. at

52:4 – 53:6.

In addition to projecting cuts in social programs, the State claims that Court-mandated

culvert correction would lead to neglect of other transportation projects, State‘s Pretrial Br. (Dkt.

No. 663) at 31-33 (bridge-painting and rehabilitation, rumble strips, ―safety projects‖), and could

compromise the safety of ―millions‖ of people. Moore Written Testimony, Ex. W-090 at 13





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(hereinafter Moore Dec.). To conclude that increased funding to correct WSDOT culverts would

result in a decrease in funding for safety or mobility programs and put millions of people at risk is

speculative and unwarranted in view of the Legislature‘s budgetary discretion and revenue-raising

authority, and the small relative magnitude of funding needed to correct WSDOT culverts. Moore

Testimony, 10/26/09, at 44:2-17; see Harris v. Board of Supervisors, Los Angeles County, 366 F.3d

754, 766 (9th

Cir. 2004) (―Public interest considerations weigh on both sides of the scale. The

County suggests that the injunction forces it to cut other important programs…. But whether any or

all of those programs will actually be impacted by the court's injunction is much more speculative

than the probable injury the chronically ill plaintiffs face absent preliminary injunctive relief.‖)

In summary, the State‘s claim that spending more to correct broken culverts will damage

critical transportation and non-transportation programs has no support in the evidence or in state

budget law. The State‘s arguments are a sad attempt to hide behind transient budget woes and the

hardship they inflict on vulnerable Washingtonians in an effort to thwart a remedy for an unrelated

problem in its transportation system, which it has known of for decades, but failed to correct.

5. The State May Not Use Alleged Conflicts Between Upholding The Treaty

Right and Funding Other State Programs to Negate Treaty Rights.

Granting an injunction to correct barrier culverts will not undermine salmon recovery, sap

social and educational programs, or compromise highway safety. But even if there were evidence

of the economic desirability of trading off state programs against treaty rights, the Supremacy

Clause would not allow it. Federally guaranteed Treaty fishing rights are not just one of many valid

policy goals, and the treaty Tribes are not just ―stakeholders‖ entitled to an ―equal opportunity‖ in

the legislative process to seek funding to remedy the violation of their treaty rights. See Fishing

Vessel, 443 U.S. 658, 676-66 and n.22 (rejecting state argument that treaties secured to Tribes only





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an equal opportunity to compete with non-Indians in fishery). The Supremacy Clause prohibits a

state from treating federally guaranteed rights on the same terms as other state interests. Am.

Trucking Ass'n v. City of Los Angeles, 559 F.3d 1046, 1053 (9th Cir. 2009). Therefore, a state

cannot pick and choose which ones it wants to implement. This Circuit has recently and explicitly

confirmed that state budget constraints cannot be allowed to compromise compliance with federal

law. In Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644

(9th Cir. 2009), the court affirmed a preliminary injunction that enjoined the Director of the

California Department of Health Care Services from implementing state legislation reducing

payments to Medi-Cal service providers. In response to the Director‘s argument that a budget crisis

tipped the balance of hardships in the State‘s favor, the court concluded: ―A budget crisis does not

excuse ongoing violations of federal law, particularly when there are no adequate remedies

available other than an injunction.‖ Id. at 659; see also Clayworth v. Bonta, 295 F.Supp.2d 1110

(E.D. Cal. 2003), rev‘d on unrelated grounds, 140 Fed. Appx. 677, 2005 WL 1805930 (9th Cir.

2005) (enjoining California from cutting Medicaid reimbursement rates on the grounds that

compliance with federal law was paramount, notwithstanding the State‘s budget woes).

Washington‘s past attempts to subjugate the Treaty right to state priorities have been

enjoined. See, e.g., Dep‘t of Game of Wash. v. Puyallup Tribe, 414 U.S. 44, 48-49 (1973)

(Puyallup II) (prioritizing sports harvest of steelhead to near exclusion of treaty harvest);

Washington v. Washington Commercial Passenger Fishing Vessel Ass‘n., 443 U.S. 658, 681-82

(1979) (Fishing Vessel). A strong injunction is also needed here, to ensure that the State does not

give its other priorities precedence over opening the habitat above its culverts, restoring lost salmon

production, and assuring full implementation of the Treaties.





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In summary, the evidence at trial proved each of the four elements needed to sustain

issuance of an injunction to remedy the treaty violation previously declared by this Court. Given

the magnitude of the harm, that injunction should be a rigorous one.

V. THE TRIBES’ PROPOSED INJUNCTION IS CAREFULLY TAILORED TO

REMEDY THE TREATY VIOLATION AND PROVIDE SIGNIFICANT BENEFITS,

WHILE LIMITING THE BURDEN ON THE STATE AND RETAINING STATE

DISCRETION.

Having shown Plaintiffs‘ entitlement to injunctive relief, the remaining question is how to

shape the remedy. This inquiry is driven by ―the power of the Chancellor to do equity and to mould

each decree to the necessities of the particular case.‖ Hecht Co. v. Bowles, 321 U.S. 321, 329

(1944). ―Once a right and a violation have been shown, the scope of a district court‘s equitable

powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable

remedies.‖ Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971). Prior proceedings

in this case, of course, demonstrated the extraordinary reach of the Court‘s powers when necessary

to remedy the State‘s disregard of treaty fishing rights. United States v. Washington, 573 F.2d

1123, 1126 (9th

Cir. 1978) (―The state‘s extraordinary machinations in resisting the [1974] decree

have forced the district court to take over a large share of the management of the state‘s fishery in

order to enforce its decrees‖).

The proposed injunction in the present sub-proceeding poses no comparable test of the

Court‘s powers. To be sure, strong measures are needed in light of the pervasiveness of the culvert

problem and the State‘s clear intention to perpetuate its existing, inadequate correction efforts. But

the proposed remedy here falls well within the outer limits of this Court‘s power and it reflects all

the deference to which the State is due.

In enforcing federal requirements against a resistant state, the Supreme Court has set forth





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three factors to guide the exercise of a district court‘s equitable powers:

In the first place, … [the] remedy is to be determined by the nature and scope of the constitutional violation. The remedy must therefore be related to ‗the condition alleged to offend the Constitution . . ..‘ Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible ‗to restore the victims … to the position they would have occupied in the absence of such conduct.‘ Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.

Milliken v. Bradley, 433 U.S. 267, 280-281, 97 S.Ct. 2749, 2757 (1977); Armstrong v. Davis, 275

F.3d 849, 870 (9th

Cir. 2001) (relying on Milliken).

A. By Correcting The State’s Broken Culverts The Plaintiffs’ Proposed Remedy Would Directly Address The Violation of Their Federal Treaty Rights and Restore Them to the Position They Would Have Had But For the Violation.

The remedy proposed here satisfies the first Milliken factor – it is ―related to ‗the condition

alleged to offend‖ the federal Treaties. The condition that offends the Treaties is the ―building or

operating [of] culverts under state-maintained roads that hinder fish passage and thereby diminish

the number of fish that would otherwise be available for Tribal harvest.‖ Amd. Sum. Jdgt. Order

(Dkt. No. 392) p. 12. As this Court recognized in granting summary judgment to the Tribes,

operation of the State‘s barrier culverts is inconsistent with ―the promises made to the Tribes

regarding the extent of‖ their fishing rights. Id. at 12. Removal of the culverts that violate the

Treaties is, by definition, related to removing the condition that violates federal law.

The State, in its pretrial briefing, argued that the Plaintiffs‘ proposed remedy is ―untethered

to any right secured by the Treaty.‖ St. Pretrial Br. (Dkt. No. 663) at 6. The State‘s arguments

repeat, almost verbatim, those which it made and lost at summary judgment. At summary

judgment, as here, the State argued that the Tribes have only a right to ―a fair share of harvestable

fish,‖ not to any actual harvest. Compare. id. at 34, with State Motion for Sum. Jdgt. (Dkt. #287) p.

4. There, as here, the State argued that the Treaties cannot protect against diminution of harvest





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because the assumption at treaty time was that the resource was inexhaustible. Compare

Washington‘s Proposed Findings of Fact and Conclusions of Law (Dkt . # 658), Conclusion of Law

14; p. 91 with St. Motion for Sum. Jdgt. (Dkt. No. 287) at 14. There as here, the State chastised the

Tribes for failure to say precisely how many fish they claim. Compare St. Pretrial Br. at (Dkt. No.

663) 6-7 (―‖it will never be possible to know when or if the ‗pre-barrier‘ level has been achieved‖)

with St. Motion for Sum Jdgt. (Dkt. No. 287) at 17 (moderate living standard does not ―offer[] the

Court any way to tell whether the State has fulfilled its duty‖). Each of those arguments was fully

briefed and rejected at the summary judgment stage of this subproceeding. They bear no

relitigation. 34

The State‘s pre-trial briefing also misreads the Tribes‘ claims. The Tribes have never

asserted an unbounded claim to ―more production of salmon.‖ See St. Pretrial Br. (Dkt. No. 663) at

6. Rather, the Tribes have claimed the amount that Fishing Vessel said the Treaties had secured:

―so much as, but no more than, is necessary to provide the Indians with a livelihood – that is to say,

a moderate living.‖ Fishing Vessel, 443 U.S. at 686. In the past, the State has unsuccessfully

sought a ruling that the Tribes are exceeding this standard and have no right to more fish. Shellfish,

873 F.Supp. at 1445-1446, aff‘d in pertinent part, 157 F.3d 630, 651-652 (9th Cir. 1998). In this

subproceeding the State did not seek such a determination. Amd. Sum Jdgt. (Dkt. No. 392) at 12.

Until the State does so, the operative assumption must be that which underlies Fishing

Vessel and the continuing allocation of the maximum 50% of harvest to the Tribes – ―a resource

34

The State also appears ready to relitigate other rulings in this subproceeding. Its Proposed Conclusion of

Law 14 (Dkt. No. 658) states that the Tribes‘ remedy for modern diminishment of the salmon resource ―is found in the

Endangered Species Act and other State and Federal laws designed to ensure the survival … of salmon.‖ Judge

Rothstein‘s previous order in this sub-proceeding held to the contrary: ―Washington compliance with the ESA in

particular actions or projects does not necessarily satisfy its treaty obligations…. The duties imposed by each originate

with different legal sources and are measured by different legal standards.‖ Order Granting United States‘ and Denying





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that had always been thought inexhaustible … has now become scarce,‖ Fishing Vessel at 669, and

today‘s fisheries are insufficient to provide a livelihood. Thus, the Tribes‘ initial proof that state

culverts cause a ―significant part‖ of this scarcity, Amd. Sum. Jdgt. (Dkt. No. 392) at 8, and ample

additional evidence of that fact at trial, see Pltfs.‘ Prop. Findings §§ 5-7 (Dkt. No. 659), are

sufficient to establish irreparable harm and warrant an injunction. In short, state barrier culverts

violate the Treaties and fixing them will undo the violation. Thus, an injunction requiring such

removal satisfies the first Milliken factor.

The State also appears ready to challenge the proposed, case-area wide injunction on the

grounds that ―no Tribe‘s treaty fishing rights extend to the whole case area,‖ and that each tribe was

obligated to show its harms separately. Washington‘s Proposed Conclusion of Law 19 (Dkt. No.

658). This argument is unpersuasive. Major decisions in United States v. Washington, such as

Final Decision I and Shellfish II, have always enjoined state conduct throughout the Case Area, not

merely in the fishing areas of specific tribes. Final Decision I, 384 F.Supp. at 413-14; United

States v. Washington, 898 F.Supp. 1453, 1476 (W.D. Wa. 1995) (Shellfish II). In addition, the

United States is Plaintiff here, and its interest in defending the treaty promise extends to all the

waterways in the case area. Finally, each Tribe‘s harvest is diminished not only by barrier culverts

in its own fishing areas, but by those on streams anywhere that would otherwise produce fish that

would swim through and be subject to harvest in that Tribe‘s U&A. As the maps prepared by

Tribal witness Tyson Waldo show, the State‘s barrier culverts exist in every watershed in the Case

Area. There is no watershed in the case area whose fish would not be subject to harvest by at least

Washington‘s Motions for Judgment, Dkt. No. 17220/85 (Sept. 6, 2001), at 8. The court thus struck Washington‘s

affirmative defense of ESA compliance. This proposed conclusion of law should be rejected.





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one Plaintiff Tribe. Thus, every Tribe has its already insufficient harvest diminished by state

barrier culverts, and an injunction covering the entire case area is proper.

B. The Existence of Other Harms to Treaty Fisheries Does Not Negate The Remedy Of Barrier Culvert Correction.

The State argues that the injunction would not remedy the treaty violation, because factors

besides the State‘s barrier culverts diminish tribal fisheries, including harvest and hatchery

management decisions, other habitat degradation, and barrier culverts owned by other entities.

State Pretrial Br. at (Dkt. No. 663) 38-39. The State‘s arguments are based on a misapprehension

regarding the scope of this subproceeding, run contrary to the evidence regarding the importance

and effectiveness of correcting state barrier culverts, and rely on the legally mistaken and

inequitable notion that, if state culverts are not solely responsible for the loss of treaty fisheries, the

State need not correct them.

1. This Case Is Limited To State Barrier Culverts, And The Proposed Injunction Would Effectively Remedy The Harm Caused By Those Culverts.

As an initial matter, the State misconceives the purpose of the proposed injunction. This is

the Culverts Subproceeding of U.S. v. Washington, not the Salmon Recovery Subproceeding. The

Salmon Recovery case was, in a sense, Phase II of U.S. v. Washington, and the Ninth Circuit made

clear that such an all-encompassing approach to restoring the runs and fulfilling the Treaty promise

was not well-suited to adjudication. United States v. Washington, 759 F.2d 1353, 1357 (9th Cir.

1985) (en banc); see p. 5, supra. The question here is not whether fixing broken state culverts will

lead to salmon recovery; the question is whether fixing culverts will undo the harm those culverts

do to tribal fisheries. The answer to the latter question, obviously, is yes – passable culverts will no





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longer block fish, diminish tribal harvest, or violate treaty rights.35

Even if restoration of salmon runs were the relevant inquiry, rather than removal of state

barrier culverts, the State‘s argument that Plaintiffs‘ proposed remedy will not increase tribal

salmon harvest falls flat. That argument hinges on a caricature of the proposed relief. The State

refers repeatedly to the ―primacy‖ that the Plaintiffs would allegedly give to culvert correction,

exclusive of all other recovery efforts. State Pretrial Br. at (Dkt. No. 663) 2, 37; State‘s Opening

Statement, October 13, 2009, at 22:19, 23:3, 28:20, 31:10, 31:24, 37:19. Nowhere in the long

record of this case have Plaintiffs sought correction of state culverts at the expense of all other

ongoing recovery efforts. On the contrary, Plaintiffs‘ biologists admit the need to continue to work

on other efforts. McHenry Dec., Ex. AT-004 at 6-8 (describing the Lower Elwha Klallam Tribe‘s

comprehensive approach to fisheries management); Testimony of Lawrence Jay Wasserman,

10/13/2009, at 127:18-24 (admitting that ―a scientifically based comprehensive approach to salmon

recovery is the best way to achieve good results on salmon recovery,‖ provided that the approach is

―well documented and well implemented‖). But those other efforts will be frustrated so long as

needed habitat remains off limits behind state culverts for many decades to come. See Pltfs. Prop.

Findings § 7.3, 7.5 (Dkt. No. 659). Plaintiffs seek not an exclusive culvert correction program, but

an effective one.

Moreover, the evidence shows that efforts to deal with other components of the ―Four H‘s‖

– habitat, harvest, hatcheries, and hydro -- are well underway. Alaskan and Canadian harvest

regimes that once limited local harvest of Washington-origin salmon have been substantially

35

The State addresses these other threats to the salmon as part of its argument that the Plaintiffs have not

shown irreparable harm. State‘s Pretrial Br. (Dkt. No. 663) at 39. The Court, however, has already found that state

barrier culverts cause a significant diminishment in tribal harvest and that such diminishment violates the Tribes‘ treaty

fishing rights. Amd. Sum. Jdgt. (Dkt. No. 392) 8. Thus, irreparable harm is established. Other impediments to

restoring tribal harvest, if relevant, are relevant only to evaluating the effectiveness of the proposed remedy.





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addressed, as the State‘s own witnesses and reports explained. Testimony of Dr. Jeffrey Koenings,

10/23/2009, at 74:1-18 (explaining that the United States and Canada entered a ten-year agreement

in December 2009 in which Alaskan and Canadian catches of Chinook will be reduced in order to

increase salmon returns to Puget Sound); Ex. AT-114, Extinction is Not an Option – Summary, at

IV.70 (describing improvements to Washington‘s salmon fishery following the Locke/Anderson

Agreement between the United States and Canada). The same is true of hatchery management

issues – more than 800 of the roughly 1,000 recommendations of the federally-chartered Hatchery

Scientific Review Group have already been implemented. Koenings Dec., Ex. W-085 ¶¶ 31, 32.36

And, as the State points out, other state, federal, and tribal efforts are addressing habitat

degradation. State‘s Pretrial Br. (Dkt. No. 663) at 12-13.

As mentioned above in the discussion of ―irreparable harm,‖ supra at 40, even if nothing

were being done to address the other problems facing Case Area salmon stocks, fixing broken state

culverts would be an effective recovery mechanism and an effective vindication of the Treaty

promise. And as mentioned in the Statement of Facts, supra at pp. 19-21, barrier removal is not

merely effective, it is one of the most effective salmon recovery methods. Indeed, absent detailed

watershed assessments that do not now exist in the Case Area, it is the recommended first step in

restoring habitat. See Pltfs. Prop. Findings § 7.4- 7.5 (Dkt. No. 659); see also pp. 61-63, supra,

(summarizing benefits of culvert correction to salmon recovery and the public interest). At bottom,

this is common sense, although bolstered here by expert evidence: even if all other problems

36

Dr. Koenings‘ suggestion that habitat improvement await hatchery reforms, Testimony of Dr. Jeffrey

Koenings, 10/23/2009, at 82:5 – 83:9, also ignores the fact that those hatcheries exist largely to compensate for

degraded habitat. United States v. Washington, 759 F.2d 1353, 1360 (9th Cir. 1985). The need for hatcheries and the

risks they pose would be less if habitat were improved to strengthen wild stocks.





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remain, the fish will do better with more habitat than with less. Testimony of Dr. Philip Roni,

10/26/2009, at 162:23 – 163:23.

2. An Injunction Requiring Correction Of State Barrier Culverts Is Not Rendered Inappropriate Or Ineffective By The Presence Of Other Entities’ Barrier Culverts.

Although the State makes noises about harvest, hatchery, and other habitat issues that might

water down the benefits of fixing state culverts, it trains its heaviest fire on barrier culverts owned

by other entities and on same streams as the State‘s own. See State‘s Pretrial Br. at (Dkt. No. 663)

5, 7, 13-15; State‘s Ope. Stmt., 10/13/09, at 37:24 – 38:25. The State argues that, because some

streams blocked by its barrier culverts are also blocked by culverts owned by others, correcting the

state culverts might yield no benefit to salmon or treaty salmon fisheries. Id. This is not true. The

State‘s data shows that many barriers are partial, so that, even if there is a non-state barrier below or

above, some fish will reach the state culvert and would benefit from its correction and access to

habitat above. Ex. AT-285, 315 Base Culverts with Partial, Total, and Unknown Barriers

Upstream (Tyson Waldo); Ex. AT-286, 54 Base Culverts with a Total Barrier Downstream (Tyson

Waldo); Ex. W-133, Case Area Summary of Up and Down Stream Barriers Associated With the

State Owned Barrier Culverts Used by Tyson Waldo to Generate Table I (Brian Benson, WDFW),

at 2 (nearly 70% of barriers downstream of state barriers evaluated by Waldo are partial barriers).

And, in many cases state highways are the lowest barrier in a basin, as the major roads follow major

drainages and cross each tributary at its base. See McHenry Dec., Ex. AT-004 at. 5; Exs. W-119

through W-132 (maps of multiple case area basins showing state barriers below non-state barriers);

Ex. W-133, Case Area Summary of Up and Down Stream Barriers (Brian Benson, WDFW), at 1

(1,370 – more than 85% of 1,590 non-state barriers – are upstream of state culverts for which

Plaintiffs‘ witness Waldo calculated length and area of blocked habitat). Even if there are non-state





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barriers below, correction of state barriers upstream may help restore fluvial processes that benefit

habitat downstream of both state and non-state culverts. Ex. W-089-B, WDFW Design Manual

(WDFW, 2003), at 7, 11; Wasserman Dec., Ex. AT-010 at 14; McHenry Dec., Ex. AT-004 at 4-5;

Fox Dec., Ex. AT-001 at 14.

Moreover, non-state barriers are being corrected, in large numbers. Ex. At-160, State of

Salmon in the Watersheds, 2008, at 5 (graph showing correction of 592 barrier culverts of multiple

ownerships in past 8 years). Failure of the State to take prompt action to correct its own barriers

will set a negative precedent for owners of non-state barriers and will diminish or eliminate the

benefits of their corrections, making it less likely that other owners will take timely action. Ex. AT-

156, Fish Passage Briefing Document, at 4; Roni Testimony, 10/26/2009, at 165:17–166:5; Benson

Testimony, 10/23/2009, at 123:6-10.

It should be no defense to an injunction that other parties are also engaging in conduct that

frustrates treaty fishing rights. The weakness of such a defense has been keenly expressed in the

analogous situation of multiple polluters on a single stream:

It is no answer to a complaint of nuisance that a great many others are committing similar

acts of nuisance upon a stream….One drop of poison in a person‘s cup may have no

injurious effect. But when a dozen, or twenty, or fifty each put in a drop, fatal results may

follow. It would not do to say that neither was to be held responsible.

Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419 (1881); see Restatement, 2d of Torts §840E

(―the fact that other persons contribute to a nuisance is not a bar to the defendant‘s liability for his

own contribution‖).

Finally, and most significantly, the non-state barrier culverts could have been prevented and

could now be remedied if the State exercised its existing authorities, including its authority to

correct fish passage blockages and assert a lien against the culvert owner for the cost of correction.





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RCW 77.57.030; see also RCW 77.15.320 (misdemeanor to fail to provide fishway for dam or

other obstruction). The State has chosen not to do so. See Testimony of Dr. Paul Sekulich,

10/15/2009, at 127:4 -128:10 (admission that witness, former supervisor of WDFW fish passage

programs, never ―considered using an enforcement mechanism to compel those private parties to

correct their barriers‖); Testimony of Michael Barber, 10/19/2009, at 157:23 - 160:3; Testimony of

Dr. Jeffrey Koenings, 10/23/2009, at 97:16-21 (does not recall ever taking an enforcement action

against WSDOT with regard to a Hydraulic Project Approval). To permit the State to rely on the

misdeeds of others and its own inaction against them in order to avoid an equitable remedy against

itself would be inequitable indeed.

C. The Proposed Injunction Represents The Minimum Intrusion On State

Conduct That Is Compatible With An Effective Remedy For The Violation Of Tribal Treaty Fishing Rights.

The third factor to be considered in evaluating the propriety of the proposed injunction is

whether it ―take[s] into account the interests of state and local authorities in managing their own

affairs.‖ Milliken v. Bradley, supra, 433 U.S. at 281.

Plaintiffs‘ proposed injunction would provide substantial flexibility to the State in

prioritizing and scheduling corrections. It would take the State‘s interests into account by retaining

key elements of current state culvert correction programs, and changing only what must be changed

to insure that the State practices what its own experts preach. Thus, Plaintiffs would use the State‘s

inventory data, the State‘s barrier assessment methodology, the State‘s preferred stream simulation

design option, and the State‘s deadlines for correcting DNR, DFW, and Parks culverts. The State

could continue to use its present Prioritization Index. It could continue to defer correction of

hundreds of WSDOT barriers that individually lack ―significant habitat,‖ but collectively block





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large stream lengths, until the end of the culverts‘ useful lives, when state law would already

require their correction, and could similarly defer opening up 10% of the habitat affected by the

remaining 800 WSDOT culverts – nearly one third of them. It could make emergency repairs

without having to provide passage under the decree, and could use designs other than stream

simulation when stream simulation was not feasible. The details of these provisions are discussed

below.

1. Granting The Injunction Would Not Challenge The Court’s Competence Or Put “Federalism” At Risk.

The State, with little regard to the actual provisions of the proposed injunction, has attacked

it as threatening ―federalism,‖ inconsistent with the comity due the State, and exceeding the

competence of the Court. In support of its arguments the State cites several cases in which private

litigants seek to restructure complex, sensitive, and uniquely local programs. The State‘s arguments

are inapposite in a case where the United States and tribes seek vindication of tribal treaty fishing

rights. Moreover, the cases relied upon by the State involve injunctions that were vastly more

intrusive than anything Plaintiffs propose here.

As an initial matter, the State‘s repeated references to ―institutional reform‖ cases, State‘s

Pretrial Br. at (Dkt. No. 663) 2-3, 40, paint litigation to enforce federally-secured rights with a

broad and sinister brush. Federal courts routinely entertain suits that challenge state conduct as

violative of federal law, and routinely issue injunctions to protect federal rights. Were that not so,

the present case would never have come to pass and tribal fisheries might still be laboring under the

yoke of discriminatory state laws. Such an injunction is not invalid merely because it requires a

state to spend money to comply. See Milliken v. Bradley, 433 U.S. 267, 277 (1977); see also

Papasan v. Allain, 478 U.S. 265, 278 (1986) (even where Eleventh Amendment is applicable,





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―relief that serves directly to bring an end to a present violation of federal law is not barred . . . even

though accompanied by a substantial ancillary effect on the state treasury.‖); Navajo Nation v. State

of New Mexico, 975 F. 2d 741, 745 (10th

Cir. 1992), cert. den. 507 U.S. 986 (1993) (ordering the

State to fund the Navajo Nation‘s Title XX contract services).

Nor is a lawsuit one for ―institutional reform‖ merely because it requires state expenditures,

even large ones. The ―institutional reform‖ label, if it is to be more than a slogan, should be

reserved for cases that restructure state government, rather than directing that existing state

structures be used in compliance with federal law. The desegregation decree upheld in Milliken v.

Bradley is illustrative. In that case, the district court ordered the Detroit School Board to institute

reading, teacher training, testing, and counseling programs, and set general guidelines for the

programs, with the cost to be shared by the District and the State. Milliken, 433 U.S. at 275-77.

The Supreme Court affirmed, noting that ―[t]he District Court has neither attempted to restructure

local government entities nor to mandate a particular method or structure of state of [sic] local

financing. The District Court has, rather, properly enforced the guarantees of the Fourteenth

Amendment . . . .‖ Id. at 291. Here, similarly, the state programs to correct culverts are in place.

What is needed is to make use of them to quickly and effectively remedy the treaty violation.

The federalism interests in this case are also far different from those in which individuals

sue to remake state government. The Sixth Circuit Court of Appeals addressed the issue of

federalism and injunctive relief in a treaty fishing case very similar to this one, United States v.

Michigan, 653 F.2d 277 (6th

Cir. 1981), cert denied, 454 US 1124 (1981), and firmly rejected

federalism as a limit on relief:

The protection of those rights is the solemn obligation of the federal government,

and no principle of federalism requires the federal government to defer to the states

in connection with the protection of those rights.





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Id. at 278-79; see also U.S. v. Washington, 459 F.Supp. 1020, 1031 n.3 (W.D. Wash. 1976)

(―Because Indian tribes possess the essential aspects of sovereignty, normal consideration[s]

of comity applicable to private litigants do not apply to such tribes‖).

The cases relied upon by the State in its pretrial briefing also involved litigation and

injunctions far more intrusive and complex than what is involved here. Out of the box, on the

eighth line of its pretrial brief, the State cites Horne v. Flores, 129 S.Ct. 2579 (2009). It is difficult

to imagine a case more rife with federalism concerns, or more dissimilar to our own. Flores deals

with education funding, where local autonomy ―is a vital national tradition,‖ id. at 2593. There the

District Court did not merely order program changes to comply with the federal law – it ordered

statewide relief, including a study of how much money must be appropriated to fund the programs,

and it held the legislature in contempt for failing to appropriate such funding, ultimately assessing

$20 million in contempt fines. Id. at 2590, 2606-07. To add to this spicy mix, the Governor,

Attorney General, legislative leadership and State School Board took opposing positions in the

District Court over the merits of the funding legislation that the Legislature had eventually enacted

and over the propriety of the contempt citations. Id. at 2590-91.

Unlike the federal statute at issue in Flores, the Stevens treaties were not intended to give

the State flexibility – in fact they predate the State‘s existence and secured rights that were intended

to be continuing against the State. United States v. Winans, 198 U.S. 371, 381-382, 25 S.Ct. 662

(1905). Unlike the injunction in Flores, the injunction proposed here would not specify sums to be

spent and demand their appropriation – it would simply order cessation of the operation of barrier

culverts, and would leave the State substantial flexibility in determining how to do so and at what

cost. Nor would issuance of the injunction here require the Court to take sides in a dispute between





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branches of state government. In fact, all agencies of state government and their opposing parties

are in essential agreement about how to fix the culverts. See, e.g., Pre-Trial Order at 20 (Admitted

Fact 8.3 – salmon stocks will not recover unless barrier culverts are corrected); at 13 (Admitted

Fact 5.7 – stream simulation is the best available science); at 25 (Admitted Facts 9.2 and 9.4 –

culverts must be maintained). The real question is whether to command the State to act consistently

with that technical consensus and do so in a timely fashion.

At bottom, then, Flores stands for the unremarkable proposition that a federal District Court

should not commandeer the state appropriations process to remedy a violation of federal law that

may already have ended. See Flores, 129 S.Ct. at 2594. That is a fine lesson, which may come into

play after an injunction has issued in this subproceeding and the State has fixed its broken culverts.

Until then, the proper lesson to be drawn from Flores is this: ―federal courts must vigilantly

enforce federal law and must not hesitate in awarding necessary relief.‖ Flores, supra, 129 S.Ct. at

2594.

The other cases relied upon by the State to support its federalism lament are similarly

distinguishable. Like Flores, those cases involved areas of intensely local interest. Missouri v.

Jenkins, 495 U.S. 33 (1990), State‘s Pretrial Br. (Dkt. No. 663) at p. 40, was another school funding

case. Stone v. City & County of S.F., 968 F.2d 850 (9th Cir. 1992), State‘s Pretrial Br. (Dkt. No.

663) at p. 40, involved local jails. See Stone, 968 F.2d at 860 (―It is difficult to imagine an activity

in which a state has a stronger interest, or one that is more intricately bound up with state laws,

regulations, and procedures, than the administration of its prisons‖). Rizzo v. Goode, 423 U.S. 362

(1976), State‘s Pretrial Br. at (Dkt. No. 663) 40, 47, involved state criminal prosecution. Id., 423

U.S. at 380 (―[T]he principles of federalism . . . [are] perhaps entitled to their greatest weight in

cases where it was sought to enjoin a criminal prosecution in progress . . . .‖).





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These cases clearly invoke the ―comity‖ component of federalism, which is ―the belief that

the National Government will fare best if the States and their institutions are left free to perform

their separate functions in their separate ways,‖ Younger v. Harris, 401 U.S. 37, 44 (1971). Unlike

Washington‘s control over its schools, courts, and prisons, regulating conduct on salmon streams in

the Case Area has never been a ―separate function‖ because it has always involved both the United

States and a third sovereign – the Tribes – and the State‘s control has been encumbered by the

Tribes‘ right of taking fish from its inception.

The cases cited by the State are also distinguishable because they involved injunctions that

compelled the state or local government to take steps affirmatively at odds with state law. Jenkins,

495 U.S. at 38-42, 51; Stone, 968 F.2d at 853. No such complicating circumstance is present here,

where the State has authority under state law to correct its broken culverts, but is remiss in its

exercise.

In addition to comity, the other component of federalism relevant to crafting a federal

injunction against a state is the question of ―institutional competence.‖ Stone v. City & County of

S.F., supra, 968 F.2d at 860. The State cites the same cases mentioned above, and others, as

exemplars of matters that challenged the competence of the federal judiciary. State‘s Pretrial Br.

(Dkt. No. 663) at 40-41, citing Missouri v. Jenkins (Jenkins III), 515 U.S. 70, 131-32

(1995)(Thomas, J., concurring) ( ―budgeting, staffing, and educational decisions, … judgments

about the location and esthetic quality of schools, and … administrative oversight‖); Norton v.

Southern Utah Wilderness Alliance (SUWA) , 542 U.S. 55, 66 (2004) (―day to day agency

management,‖ and ―abstract policy disagreements‖ over how much off-road vehicle use was

incompatible with future wilderness designation). Unlike Flores, Jenkins, and SUWA, none of the

remedial issues in the culverts sub-proceeding are so complicated as to exceed the Court‘s





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―competence.‖ The only significant technical issue raised by the proposed injunction is what

design standard to specify to insure passability. The Plaintiffs‘ proposal calls for use of stream

simulation culverts when feasible. Since the State itself prefers stream simulation and has agreed

that it represents the best science, determining that the State should actually use this method when

feasible challenges no one‘s competence.

Nor would the injunction proposed by Plaintiffs involve the Court in ―day-to-day‖ agency

decision-making establishing salary or curriculum, Jenkins, supra, or determining how many

ORV‘s to allow on particular parcels of federal land. SUWA, 542 U.S. at 65-67. On the contrary,

the injunction here would ratify some existing state technical decisions such as inventory and

barrier assessment methods, give general direction, and then leave the State to devise details over

other elements, such as the culvert re-assessment, monitoring, and maintenance, with no provisions

regarding technical issues such as prioritization within the correction schedule.

The State‘s final ―federalism‖ argument is a variant on the financial hardship arguments

discussed and dissected in Part IV, above, at pp. 53-60. The State argues that the federal court

should give deference to the State on how to spend limited resources. Ironically, the two cases

cited by the State both involved injunctions sought against the United States, rather than any state.

Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 (1985) (cited in State‘s Pretrial Br. (Dkt. No. 663)

at 41-42), sought to compel the Food and Drug Administration to take enforcement action against a

prison system‘s alleged misuse of federally-regulated drugs to execute inmates. The Court noted

that agencies must assess their available resources in deciding whether to institute enforcement

proceedings, 470 U.S. at 831-832, but the case is best seen as representing the traditional judicial

reluctance to direct the exercise of prosecutorial discretion. See id. (―An agency generally cannot

act against each technical violation of the statute it is charged with enforcing. The agency is far





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better equipped than the courts to deal with the many variables involved‖).

The other case cited by the State in this funding discretion argument, Cobell v. Norton, 428

F.3d 1070 (D.C. Cir. 2005) (cited in State‘s Pretrial Br. (Dkt. No. 663) at 42-43), involved a highly

detailed injunction mandating methods to be used by the Interior Department in order to comply

with a statutory directive to provide an ―accounting‖ of Indian trust funds held by the United States.

The district court issued the injunction sua sponte without holding a hearing or soliciting briefing

from the parties, and the terms of the injunction were so severe that even the plaintiffs recognized

that it would be impossible to comply with them. Id. at 1072-74 (noting that the injunction would

have resulted in an accounting costing more than $10 billion, rather than one costing $335 million

as proposed by the agency). In contrast to Cobell, the injunction proposed here requires results

sufficient to remedy the treaty violation (e.g., ―pass all species and life stages‖), but leaves most

details to the defendant agencies. Even in the crucial area of culvert design, where the State begs

for the continued discretion to use cheap hydraulic retrofits, State‘s Pretrial Br. (Dkt. No. 663) at

46-48, which are inadequate for juvenile passage, costly to maintain, and prone to failure, Plaintiffs‘

proposed injunction incorporates the State‘s own ―preferred‖ standard of a bridge or stream

simulation, and provides exceptions for the rare circumstances where those standards are not

feasible..

Heckler and Cobell are inapposite for another reason. In neither case did the agency seek

the type of discretion the State seeks here, to continue conduct that violates federal law. In Heckler,

the FDA wanted discretion to determine what enforcement actions to take, not discretion whether it

should enforce the Federal Food, Drug, and Cosmetic Act. 470 U.S. at 823. The Interior

Department in Cobell wanted discretion to decide how to account to Indian tribes and their

members, not whether to comply with the statute that required an accounting. 428 F.3d at 1072.





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Here, in contrast, the State seeks discretion, not merely over how to correct broken culverts that

violate the treaties, but whether to correct that treaty violation or instead to spend state money on

unrelated highway projects or fisheries activities. See State‘s Pretrial Br. (Dkt. No. 663) at 42

(―[S]almon recovery is a complex field best left to [State] officials…. The Court is not well-

positioned to make the determination that barrier culverts deserve a greater proportion of the State‘s

limited resources.‖).

2. The Court Need Not Find Bad Faith In Order To Issue An Injunction,

Nor Need It Defer To A State Proposed “Remedy” That Would Perpetuate The Treaty Violation.

In the final section of its Pretrial Brief the State proposes that, in lieu of the Plaintiffs‘

proposed injunction the Court ―should merely order that the State be allowed to continue with its

current program,‖ possibly subject to some unspecified Court monitoring. State‘s Pretrial Br. (Dkt.

No. 663) at 45-46, 49. The State asserts that the Court must accept the State‘s proposal absent

―‘bad faith or abdication of responsibility by the State‘.‖ Id. at 46 (citing Tuttle v. Arlington County

School Board, 195 F.3d 698, 708 (4th

Cir. 1999)). It cites Association of Community Organizations

for Reform Now (ACORN) v. Edgar, 56 F.3d 791 (7th

Cir. 1995) for the similar proposition that

complex injunctions against state and local government ―are to be reserved for extreme cases of

demonstrated noncompliance with milder measures.‖ State‘s Pretrial Br. (Dkt. No. 663) at 46.

However, bad faith is not part of the test for availability of injunctive relief and the Tuttle

case does not say otherwise. There the district court had ordered a particular admissions policy to

be implemented without allowing the school district an evidentiary hearing to consider its

alternative proposals. 195 F.3d at 708. The circuit court held that such a hearing was required

unless the District was acting in bad faith. Id. In the present case the Court has conducted a three





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week remedy trial at which the State was free to propose whatever remedy for its broken culverts

that it chose. Tuttle requires no more.

ACORN challenged the State of Illinois‘ refusal to comply with the federal ―Motor Voter‖

law. 56 F.3d at 793. The District Court was reversed because, rather than enjoining the State to

follow the detailed provisions of the federal law, the Court imposed numerous additional

requirements including delegation of powers to a new state voter registration ―czar‖ to ensure that

the federal law was followed. Id. at 797-98. In ACORN, the federal law was detailed enough that

an injunction to follow the law would have provided relief. Id. at 797, 798. In the culverts case, in

contrast, an unadorned command to abide by the treaties, with no scheduling, design, or other

parameters, is not likely to achieve compliance. See Part IV.B., supra (declaratory relief alone not

likely sufficient).

Although federal courts sometimes do solicit remedial proposals from state defendants and

may show those proposals deference, state proposals that perpetuate a treaty violation, e.g., United

States v. Oregon, 769 F.2d 1410, 1417 (9th Cir. 1985), or unduly delay full implementation of a

tribal treaty right, United States v. Washington, 626 F. Supp. at 1459-61, must be rejected. There is

no reason to defer to the State‘s ―monitoring only‖ proposal here. No principle of federalism

requires a federal court to defer to a state proposal that would perpetuate the programs and policies

that resulted in the violation of federal law. See ACORN, 56 F.3d at 798 (citations omitted); cf.

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992) (modification of an injunction

―must not create or perpetuate a constitutional violation‖). Moreover, Plaintiffs‘ proposal is





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actually less intrusive than the State‘s, because it would require no ongoing Court monitoring.37

Finally, there is no need to request a management plan or similar proposal from the State – the trial

and associated briefing have offered ample opportunity for the State to offer more constructive

remedial proposals, had it been so inclined.

3. Each Of The Five Elements Required For An Effective Culvert Remedy

Provides Flexibility And Deference To The State. The elements of a sound barrier correction program are not in dispute. As shown below,

they include five components: (1) a clear idea of what culverts are to be corrected, (2) time periods

for correction, (3) standards for the design of corrections, (4) maintenance, and (5) monitoring.

These elements must be continued into the future to prevent development of another barrier

backlog. Plaintiffs‘ proposed injunction addresses each of these elements, and it does so using

much of the State‘s existing machinery.

a. Compliance With The Treaties Requires That The State Correct All Its Fish-Blocking Culverts, As Determined By The State’s Barrier Assessment Method.

The most fundamental question in shaping an injunction to correct state barrier culverts is,

―which culverts must be fixed?‖ Plaintiffs‘ answer is simple: all the State‘s barrier culverts

37

The State proposes that this Court conclude as a matter of law that ―there is no need for continuing

jurisdiction in this Subproceeding.‖ State‘s Proposed Conclusion of Law 39. In support, the State cites the recent

Ninth Circuit opinion in U.S. v. Washington, in which Judge Kleinfeld questioned the wisdom of continuing jurisdiction

in U.S. v. Washington in general, in part on the erroneous grounds that ―[n]o one alleges that the State of Washington‘s

violations of the Indian tribes‘ treaty rights continue.‖ United States v. Washington, 573 F.3d 701, 709 (9th Cir. 2009).

There is no question that this court has continuing jurisdiction over U.S. v. Washington, and thus this Subproceeding,

pursuant to Final Decision I, 384 F. Supp. 312, 419 (as modified on August 23, 1993, Docket # 13599), which makes

clear that jurisdiction extends to ―[d]isputes covering the subject mater of the case which the parties have been unable to

resolve among themselves,‖ Final Decision I at 419, with ―subject matter‖ being defined as ―the application of [the

tribes' treaty] rights to the anadromous fish in [Washington] waters.‖ Id. at 400. The State‘s proposed conclusion of

law therefore would require this Court to affirmatively end jurisdiction, an action that should be taken only when the

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contribute to the inability of tribal fishers to earn a livelihood; all violate their treaty rights; all must

be corrected at some point.

It is well-established that Indian reserved rights are not defined by loose notions of

―fairness‖ or non-Indian conceptions of what constitutes a de minimus deprivation of the tribes‘

rights. Rather, treaty reserved rights are defined by the intentions and expectations of the parties,

particularly the tribes, United States v. Winans, 198 U.S. 371, 380-81 (1905); see also Menominee

Tribe of Indians v. United States, 91 U.S. 404, 406 n.2 (1968), and those rights can be abrogated

only by Congress. See Menominee, 91 U.S. at 412-13; Lone Wolf v. Hitchcock, 187 U.S. 553, 566

(1903); United States v. Adair, 723 F.2d 1394, 1413 (9th

Cir. 1983). Thus, in the seminal Indian

water law case of Winters v United States, 207 U.S. 564, 576-78 (1908), the water rights implicitly

reserved with a parcel of land for tribal use were measured by the amount needed to develop that

land, notwithstanding that such a reservation might deprive non-Indians of water for their lands and

mean that ―civilized communities could not be established thereon.‖ See also Cappaert v. United

States, 426 U.S. 128, 138-39 (1976) (holding that the scope of federal reserved water rights is not

determined by a balancing of equitable interests). And in Washington, where the Tribes by Treaty

reserved the right to take fish at ―all usual and accustomed grounds and stations,‖ the fact that a

proposed, non-Indian structure in the water would occupy only a small area, or result in only a

small reduction in harvest, did not render it permissible. Muckleshoot v. Hall, 698 F. Supp. at 1515,

1522; see also Northwest Sea Farms, 931 F. Supp. at 1522 and n. 6 (Corps' permit decision need

not be based upon a finding that the project will substantially affect the amount of fish available to

the Lummi Nation, but need only affect the Lummi Nation's right to access). Similarly, in this case,

every culvert that blocks adults from reaching spawning grounds or juveniles from accessing

rearing habitat reduces the production potential and ultimately the Tribes‘ harvests and ability to





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sustain themselves through fishing as intended by the Treaty negotiators. Thus, all such barrier

culverts must be made passable.38

If barriers are to be corrected, there must be an inventory to find them and an assessment to

determine if they are passable. Plaintiffs propose to utilize existing state inventory and assessment

results to define the set of barriers to be fixed by a date certain even though, as described in the

Facts section of this Brief, pp.23-25, supra, the State‘s existing barrier inventories are not perfect.

Plaintiffs nevertheless propose to use the existing state inventories because that will permit the

State‘s obligation to be concretely defined in a timely manner, so it may proceed expeditiously to

correct the known problem.

Any injunction issued by the Court must be sufficiently clear that the State can apprehend

and comply with its obligations. Fed. R. Civ. P. 65(b). Thus, it is important that there be a clear

and definite list39

of those culverts that are currently barriers and would be subject to correction by

a date certain under the proposed decree, as well as those WSDOT barriers that have fewer than 200

meters of upstream habitat to the next natural barrier and ordinarily would not need to be corrected

prior to the end of their useful lives. Plaintiffs propose that this list be filed with the Court within

six months after issuance of the injunction. The delay in filing would give DNR additional time for

verifying fish habitat at crossings in its database. Nagygyor Dec., Ex. W-094 Dec. at 8:11-18

(discussing DNR‘s inventory correction process). It would also give WDFW time to identify the

estimated twenty to thirty WSDOT barriers for which anadromous fish presence is recorded in the

38

The separate United States‘ Joinder In Plaintiffs‘ Post-Trial Brief (Dkt. No. 662) makes clear that there is

no difference between the parties in which culverts they seek to have corrected. Thus, the 11th

Amendment defense the

State appears poised to raise, see State Prop. Conclusions of Law 8 and 30 is unfounded. 39

See Admitted Fact 6.15 (FPDSI is a ―live database‖); 6.19 (DNR‘s database subject to change on ground

that culvert may not be on fish-bearing stream); 6.20 (DNR‘s database subject to change due to purchase and sale or

exchange of lands); see also, Benson Testimony, 10/23/09, at 108:22-24 (active database that WSDOT inventory crews

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WDFW fish passage database, but which have only Bull Trout, Sea-Run cutthroat, or kokanee

(non-anadromous sockeye), Adm. Facts 6.15(admitting that FPDSI identifies barriers to resident

and non-anadromous species); 6.16 (included within WSDOT‘s 807 barrier culverts that block

more than 200 meters of habitat are some 20-30 sites that are barriers only to bull trout, sea run

cutthroat trout, or kokanee).

Once the List is filed, Plaintiffs propose that no additional culverts could be added to it.

Culverts could be removed by agreement of the parties, or by a motion to modify the injunction

under Fed. Rule Civ. Pro. 60(b). Plaintiffs are confident that such motions would be few because

the Tribes and the State have a long and successful history of cooperation on such technical

fisheries issues. Rawson Dec., Ex. AT-007-B at 14-20 (discussing harvest co-management);

Koenings Dec., Ex. W-085 at p. 14, lines14-17; p. 16, lines 26 – 17:2 (discussing state, tribal, and

federal hatchery managers‘ cooperation); see also McHenry Testimony, 10/13/09, p. 13, line 25 – 14,

line 14 (tribal collaboration in correction of DNR culverts and small forest landowner culverts); Ex.

AT-118, Results of 2006 Electrofishing Surveys at Select Culverts on Washington Department of

Natural Resources Land Near Hoodsport, WA (Skokomish Tribe 2007) (assisting DNR in double

checking for fish presence).

For later assessments of culverts not on the list, Plaintiffs propose that the State be permitted

to continue use of the 2000 WDFW Assessment Manual, Ex. W-087-E.40

Plaintiffs make this

proposal for pragmatic reasons. Specifying an acceptable assessment methodology is important to

provide clarity in the State‘s obligations, which will benefit all parties. In addition, the State has an

incentive to adopt assessment standards that minimize the number of barriers subject to the

40

The proposed injunction‘s provisions for future inventory to prevent a recurrence of the treaty violation are

discussed at pages 107-11, infra.





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injunction. Thus, it is important that the injunction put a floor under the methods that may be used.

Using the existing methodology as the standard shows appropriate deference to the State, and also

assures that all parties are familiar with the process. The Plaintiffs‘ proposal does not, however,

shackle the State to its current methods. The State could adopt any new assessment method it

chooses provided that method accurately assesses passability by all salmon species at all their life

history stages and at all flows where they would, but for the culvert, be able to pass. This is the

functional, biological definition supported by the evidence at trial and reflected in current state

policy. See Statement of Facts, p. 23-24, supra. Thus, if the State chose not to use the 2000

WDFW method, any new method of assessing whether or not a culvert is a barrier could not rely on

the WDFW hydraulic standards in WAC 220-110-070(3) Table 1, which do not accurately assess

juvenile passage.

b. The Injunction Should Establish A Schedule For Correction, Which Reflects The Equities Of Correcting Different Culverts.

The lack of a schedule for fixing all of its broken culverts is one of the most egregious

weaknesses in the State‘s culvert programs. It is imperative that the injunction establish schedules

for correction of all the barriers. In so doing ―the court must start with the presumption that the

tribes are entitled to enforcement of their treaty rights without further delay.‖ United States v.

Washington, 626 F. Supp. 1405, 1460 (W.D. Wash. 1985). To say that schedules should be set,

however, is not to say that the State must fix every culvert on the same schedule, regardless of

specific circumstances. While notions of equity in shaping injunctive relief must not go so far as to

deny the Treaty right itself, they may be used to shape relief. United States v. Washington, 157

F.3d 630, 651 (9th

Cir. 1998) (Shellfish) (holding that equity may not be used to redefine treaty

terms but it can be used to implement treaty terms). The schedules proposed by Plaintiffs will





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shape that relief to the circumstances of each agency and culvert in order to vindicate the treaty

right without undue burden on the State.

i. DNR, WDFW, And State Parks Culverts Should Be Fixed By July 2016. This Is The Date By Which State Law And Policy Now Call For Their Correction.

Plaintiffs propose different correction schedules for three state culvert-owning agencies –

the Department of Natural Resources, the Department of Fisheries and Wildlife, and the State Parks

Commission – as compared to the State Department of Transportation. Even in combination, the

former three agencies own far fewer barrier culverts than does the DOT. Compare Admitted Fact

6.16 (1215 WSDOT barrier culverts within Case Area) with Admitted Facts 6.21 (228 DNR barrier

culverts within Case Area), 6.23 (89 State Parks barrier culverts within Case Area) and 6.24 (71

WDFW barrier culverts within Case Area). Their culverts are, overall, on smaller roads and

therefore more economical to correct than are the DOT barriers. Admitted Fact 8.33 (culverts

owned by DNR, WDFW and State Parks are generally found underneath narrow unpaved roads

with smaller amount of traffic compared to the average state highway leading to lower correction

costs). Thus, Plaintiffs propose a more rapid correction of these agencies‘ culverts. Plaintiffs‘

propose that the State be enjoined to make these agencies‘ culverts passable to salmon by July

2016. That is the date currently set by state Forest Practices law for correction of DNR culverts on

forest lands. WAC 222-24-050 (July 1, 2016). It is the date adopted by WDFW and Parks as the

goal for correction of their own barrier culverts. Admitted Fact 8.14 (goal of July 2016). Requiring

correction of these agencies‘ broken culverts by 2016 would result in prompt restoration of fish

access and a prompt remedy of these agencies‘ violation of treaty fishing rights. Use of a deadline

derived from the State‘s current law would minimize any intrusion on state interests.

The fact that there is an existing state law deadline for correction of DNR culverts and that





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WDFW and State Parks have set a deadline by administrative policy does not undercut the need for

an injunction. The Tribes may or may not have a right of action to enforce the state law and policy.

See, Bennett v. Hardy, 784 P.2d 1258, 1261-62 (Wash. 1990) (applying four-part former federal test

under Cort v. Ash, 422 U.S. 66 (1975) for determining availability of implied right of action).

Absent an injunction, the State would be free to change its laws and policies and prolong the

violation of the treaties.41

If the State did not change the 2016 deadline, there is a strong possibility

that these three agencies will not meet it without an injunction, as was explained in part IVA. of this

brief, p. 38, supra. Federally-assured treaty rights should not be dependent on the fickle mercies of

the State for their protection. See U.S. v. Michigan, supra 508 F.Supp. at 492 (federal government

has ―special duty‖ to protect treaty rights).

ii. Subject To Two Exceptions, WSDOT Barrier Culverts In The Case Area Should Be Made Passable To Salmon Within Twenty Years Of Judgment.

The complete absence of any deadline for correction of WSDOT‘s culverts is the elephant in

the living room of this case. The existence of WSDOT barrier culverts, and the ready source of

funds for their correction, have been known to the State since at least 1950, when the Attorney

General issued an opinion holding that gas tax revenue, constitutionally dedicated to highway

purposes, could properly be used to provide fish passage required by state law at culverts under

41

The State has a history of amending habitat protection laws when tribes or others threaten successful

enforcement. Koenings Testimony, 10/23/09, p. 98, lines 9-21 (discussing RCW 77.57.030(3) where legislature

reduced WDFW‘s authority over blocking tidegates) Legislation now pending in the State Legislature H.B. 2597, 61st

Leg., 2010 Reg. Sess. (Wash. 2010) would repeal/severely restrict the applicability of the State‘s Hydraulic Project

Approval statute, RCW 77 Chapter 55... That is the only state permitting law aimed exclusively at fish protection.

H.B. 2597, Sec. 1 (―the hydraulic project approval process was not only an essential and critical tool necessary for the

protection of fish life in Washington‘s waterways, but in many cases it was the only such tool available for the

protection of the resource.‖). It is a linchpin of the current WDFW-WSDOT Memorandum of Agreement for culvert

correction and other WSDOT projects, W-093-G; W-093, at. 5:15 – 7, line 17, and is a key method by which tribes

become aware of and have input to state culvert correction projects. See Wasserman Dec., Ex. AT-010, ¶ 28, at. 12:6-

17; (routinely receives and relies on HPAs in performing professional duties as fisheries biologist); Walter Testimony,

10/14/09, at 186:5-21 (similar).





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state highways. Fish Passage Facilities for Highway Culverts, Wash. Att‘y Gen. Op. 1949-51 No.

304 (1950). Yet for those sixty-odd years the problem has persisted.

WSDOT‘s average culvert correction rate since 1992 has been 10.1 culverts per year,

statewide. See Pltfs. Prop. Finding 12.10 (Dkt. No. 659). At that rate, even if it worked exclusively

in the Case Area, WSDOT would need eighty years to correct all its Case Area culverts that are

barriers to at least two hundred meters of salmon habitat. While the State claims a correction rate of

fifteen WSDOT culverts per year over the past fourteen years, that figure includes culvert

―corrections‖ that fail to pass fish, Wagner Testimony, 10/19/2009 at 44:22 – 46:19; Ex. AT-072,

WSDOT Fish Passage Inventory Progress Performance Report (July 2009) at 15, 17-20, and the

rate of successful corrections is the product of correcting two culverts as part of a highway project

for every one done under the I-4 dedicated barrier removal program. Wagner Testimony,

10/19/2009 at 41:3-20; compare Ex. AT-072, WSDOT Fish Passage Inventory Progress

Performance Report at 15, 17-20 (I-4 corrections) with id. at 24, 26-29 (other corrections).

WSDOT‘s witnesses at trial, however, testified there is no guarantee that rate of highway project

corrections will continue. Even at the rate of 13 successful corrections per year, which WSDOT

has maintained since the Nickel gas tax was enacted in 2003, it will still take 45 years to fix 577

culverts and open 90% of the habitat and more than sixty years to fix all 800 WSDOT culverts that

block 200 meters or more. Wagner Testimony, 10/19/2009 at 44:16-21. In fact, the nature of the

gas tax funding – particularly the fact that the Nickel Tax ―sunsets‖ when the bonds that it

guarantees are paid and the projects built, Moore Testimony, 10/26/2009 at 45:14-21 – means that

highway construction will decrease in the future, absent new revenue measures. Ex. AT-170,

Washington‘s 09-11 Transportation Budget – Graph (WSDOT, July 2009) at 1. Thus, the rate of





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culvert corrections is also likely to fall.42

In the words of the State‘s 1997 Fish Passage Task Force – a Task Force chaired by the

State‘s own witnesses, Paul Sekulich and Paul Wagner, ―Clearly, the creation of new barriers must

be prevented and the rate of barrier correction must be accelerated if Washington‘s wild salmon and

trout stocks are to recover.‖ Ex. AT-073, Second Substitute Senate Bill 5886, Fish Passage Task

Force Report (Dec. 1997) at 2. The evidence at trial made plain that the State has not and will not

significantly increase the pace of correction of WSDOT culverts on its own. True, the rate of

WSDOT corrections since the Nickel gas tax passed in 2003 has risen to 13 per year, see Pltfs.

Prop. Finding § 12.10 (Dkt. No. 659), thereby decreasing the time needed to correct all 800

significant WSDOT barriers in the Case Area to 65 years, but that is hardly an achievement to crow

about. Moreover, WSDOT‘s performance in the two years since summary judgment, and the

shrinking highway and fish passage funding in its future budget plans, strongly suggest that the

State has not and will not significantly increase the pace of correction of WSDOT culverts on its

own.43

See pages 37, 42-43, supra.

Despite its lackluster performance, the State has argued that it is doing an exemplary job,

and that the Court should take no action to compel a change in the State‘s performance. State‘s

Open. Stmt., 10/13/09 at 23:18 – 24:1; 26:19-23. Plaintiffs disagree. The State has known of its

barrier culverts for sixty years. They were declared a violation of the Treaties in 2007. To allow

the State to persist in violating the treaties for five or more decades more would be unconscionable.

Wherever the line may lie, beyond which denial of an injunction would in fact deny the treaty right

42

If the State‘s estimated cost of $2.3 million per WSDOT correction were credible, and were coupled with

the I-4 funding shown in WSDOT‘s sixteen year plan, Ex. AT-243, Proposed 2009 Budget for the 14 Program

(Environmental Retrofit Improvements) and for Fish Barrier Improvements at 1, the pace of I-4 corrections would

plummet to barely four per biennium after 2017.





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itself, failure to impose a fixed and early deadline for correction of WSDOT‘s culverts in these

circumstances would surely cross that line. See United States v. Washington, 157 F.3d 630, 651 (9th

Cir. 1998) (Shellfish) (equity may not be used to redefine treaty terms).

As noted above, however, the need to accelerate WSDOT‘s culvert corrections, does not

require that WSDOT be subjected to the same 2016 deadline as the other state agencies. WSDOT‘s

circumstances are substantially different, and Plaintiffs propose that WSDOT have significantly

more time to correct its barriers. The basic schedule proposed by Plaintiffs would require

correction of most WSDOT culverts within twenty years of final judgment.

The twenty year basic schedule for WSDOT is not drawn from thin air. Long before this

subproceeding of United States v. Washington was filed, the State had adopted a goal of correcting

all of WSDOT‘s fish barrier culverts within twenty years – a goal it retained until at least 2004. Ex.

AT-066, WSDOT Fish Passage Inventory Progress Performance Report (WSDOT, May 2004) at

15; see pages 32-33, supra (Statement of Facts). There is no evidence that the scope of the problem

has expanded so greatly that the twenty year schedule had become inappropriate. In 2004 when the

twenty year schedule last appeared in a WDFW/WSDOT Progress Report, the number of identified

WSDOT barriers statewide was 1,115 and the predicted number was 2,286. id., at 6 (Table 1). The

known number today is 1,893. Ex. AT-072, 2009 WDFW/WSDOT Fish Passage Progress Report

at 5 (Table I).

The fact that the State repeatedly embraced the twenty year deadline prior to and earlier in

this litigation is not the most important reason for its adoption. Indeed, Plaintiffs would be reluctant

to permit the denial of their treaty rights to continue for two decades more simply because the State

43

The State‘s excuses for the failure to correct any barriers in 2008, other than as part of road projects, are not

compelling.





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concluded that was an appropriate timeframe. Rather, Plaintiffs believe such a delay is permissible

in order to allow time for other salmon habitat restoration activities to come to fruition which, when

combined with barrier culvert removal, will maximize salmon production. See Ex. AT-154,

Science Based Salmonid Stewardship (With Effective Inventories for Project Identification &

Prioritization), (Sekulich et al., Nov. 1999), at 5 (repair period of 20 to 30 years is reasonable

because such a time span would coordinate well with the time needed for habitat restoration to take

place).

As important as barrier removal is to salmon recovery, the universal testimony of the

biologists in this case was that other habitat improvements are also needed. Conversely, other

habitat improvement efforts will be of diminished effect if the habitat remains in pieces due to state

barrier culverts. As was noted in the Joint Biological Statement at the original trial of United States

v. Washington, ―[t]o protect the spawning and rearing environment while not providing free access

for the adults or unhindered outmigration for the juveniles would, of course, be pointless.‖ Ex. JX-

2, Joint Biological Statement, at 17-18.

The evidence at trial showed that extensive habitat restoration efforts are ongoing, including

correction of barrier culverts owned by others than the State. Tribal habitat biologist Mike

McHenry testified that recent changes in state forest practice law have already resulted in

significant habitat protection and restoration on DNR and other forest lands. McHenry Dec., Ex.

AT-004 at 6. Those efforts should be bearing fruit when the last of that habitat is reopened to

salmon in 2016. The Plaintiffs‘ proposed twenty-year schedule for WSDOT‘s culverts is also

complimentary of the deadlines governing two major ongoing salmon habitat efforts in the Case

Area – salmon recovery under the Endangered Species Act, and restoring the health of Puget Sound

under the Puget Sound Partnership. The State, of course, has made much of ongoing habitat





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improvement using the joint federal-state restoration funding that is administered by the State‘s

Salmon Recovery Funding Board. Koenings Dec., Ex. W-085 at 20:3-22. Endangered species

recovery plans approved by the United States for threatened or endangered salmon stocks, both in

the Case Area and elsewhere in Washington, have timeframes from ten to twelve years –

comparable to Plaintiff‘s proposed twenty-year schedule. See Ex. AT-160, 2008 State of Salmon in

the Watersheds (Governor‘s Salmon Recovery Office) at 32. The exception is the fifty year Puget

Sound Chinook plan, but many watersheds addressed in that plan have ten year action plans.

Rawson testimony, 10/14/09 at 116: 5-10. Plaintiffs‘ proposed twenty year schedule also meshes

with – although it is longer than – the schedule of the Puget Sound Partnership, created under state

law, which has a mission of restoring ―the environmental health of Puget Sound by 2020.‖ RCW

90.71.210.

Plaintiffs propose two significant exceptions to the twenty year DOT deadline, intended to

reflect the different benefits of correcting different culverts and further decease the burden on the

State. The first exception would permit DOT to defer beyond twenty years, until the end of their

useful lives, the correction of all those WSDOT barrier culverts that WDFW currently considers not

to be blocking ―significant‖ habitat. At that time, the culverts will require replacement or major

work in any event, and state law will require them to be made fish passable. Adm. Fact 9.1; RCW

77.57.030. Thus, the cost of remedying the Treaty violation at these sites will be minimal.

Plaintiffs also propose that WSDOT could defer correction, until the ends of their useful

lives, of culverts blocking up to 10% of the habitat upstream of the roughly 800 current WSDOT

salmon barrier culverts. The best current estimate of the number of culverts that would need to be

corrected to remove barriers to 90% of affected salmon habitat is 577. Ex. AT-323, Spreadsheet,

WSDOT CA Barriers Habitat 3-11-09 OHW update.xls, ‗Anadromous All PI‘ worksheet. The State





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could choose which culverts to defer, whether that be culverts it deems least beneficial, or most

expensive or difficult to fix.

Plaintiffs propose that, for the State to take advantage of this 10% deferral, it would first

have to measure the habitat. There are several methods that WDFW uses to assess the amount of

habitat above WSDOT barrier culverts. See Ex. W-087-E, WDFW Assessment Manual, § 3 at 29-

54. The Tribes propose that the State utilize the ―full physical survey‖ method that it has long used

in its habitat assessments, unless the Tribes and WDFW agree otherwise in specific cases. Id. § 3.4

at 36-47.

So long as the Plaintiffs‘ proposed twenty-year correction schedule for WSDOT is followed,

Plaintiffs believe the State should be free to prioritize WSDOT corrections as it chooses. If the

schedule were longer, and the State continued to use a statewide prioritization system, see Ex. W-

087-E, WDFW Assessment Manual, § 4 at 55-57, the nature of each tribe‘s usual and accustomed

places and the uneven distribution of higher-priority barriers could result in some tribes benefiting

greatly and early, and others little and late. See Ex. AT-008-12, State Barrier Culverts in the Case

Area (map); Ex. AT-072, WSDOT Fish Passage Inventory Progress Performance Report (July

2009), Appendices 1 and 2 (Table of WSDOT barriers by region). At that point a change in

prioritization to take tribal U&A into account would be essential in order to avoid denying some

tribes a meaningful remedy for violation of their treaty rights.

c. The State Should Be Enjoined To Use Bridges And Stream Simulations Culverts – The Current Best Available Fish Passage Design Science – Except In Emergencies Or In Those Rare Instances Where Use Of Such Structures Is Not Feasible.

Plaintiffs seek an injunction requiring that the State make all its barrier culverts passable to

all salmon species and all their life stages, at all flows where the fish would, but for the culvert, be





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able to pass. New stream crossing structures should also maintain or restore fluvial processes to

avoid degrading habitat and producing more passage barriers.44

To achieve these ends, Plaintiffs

propose that the injunction mandate use of the design hierarchy laid out in the State‘s culvert

regulations and the WDFW Design Manual. Thus, the State should be required, in all future

installations and corrections, to first consider avoiding or removing the crossing. Ex. W-089-B,

WDFW Design Manual at 9. If the State does install or retain the crossing, it should utilize an

open-span bridge or stream simulation culvert as the default design options wherever feasible.

WAC 220-110-070 (preference for bridges in fish-bearing waters); Ex. AT-301, WSDOT‘s Fish

Passage Barrier Removal Program (WSDOT webpage, 7/24/09) (―Where feasible, WSDOT and

WDFW prefer to use … ‗stream simulation‘.‖). At present, stream simulation represents the best

design science for fish passage and stream processes. Admitted Facts 5.7. Use of ―best science‖ is

the standard that the State itself aspires to in fish passage. RCW 76.09.370(7)(―adaptive

management‖ process for revision of DNR forest practice rules ―shall incorporate the best available

science.‖); WAC 220-110-010 (―These regulations reflect the best available science and practices

related to protection of fish life.‖).

The need for such an injunction is clear. The State has persisted in the use of inadequate,

impermanent hydraulically designed structures even in its most-recent fixes. Ex. AT-101, Table 3:

Fish Passage Projects Completed with Dedicated 1-4 Funds (WSDOT) (from 2002 through 2007,

twelve of twenty-eight projects were fishway retrofits or rebuilds) . The State proposes that it

continue to be able to do so. St. Pretrial Br. (Dkt. No. 663) at 23. The State uses, and seeks to

44

The parties‘ Stipulation Regarding Scope of the Case provides that Plaintiffs will not seek an order

requiring the State to inventory or correct culverts that impair ―ecological functions‖ but are not fish passage barriers.

Stipulation of Plaintiffs and State of Washington Regarding Scope of Subproceeding and Order at ¶ 4 (Docket #

18739/341). For culverts that are fish passage barriers, however, Plaintiffs may seek relief that addresses both fish

passage and ecological functions. Id.





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continue to use no-slope structures, id. at 22-23, which offer at best marginal fish and debris

passage see Fox Dec., Ex. AT-001 at 26 (fish passage problems), and which may offer only

marginal cost savings. Barnard testimony, 10/20/09 at 115:12-116:1 (if open –cut installation used,

costs of no-slope and stream simulation are similar). Even when the State claims that it is using the

stream simulation design option, the structures actually have often not met the crucial width

requirements of that design. See Fox Dec., Ex. AT-001at 31 (WDFW Design Manual requires

width of a stream simulation culvert to be at least 1.2 times the bank-full width of the channel plus

2 feet); id. at37 (of 8 culverts identified by the State as stream simulation corrections, only 1

actually met this requirement). Given the overwhelming evidence that bridges and stream

simulation culverts are superior for fish, and that other designs do not provide adequate or long-

term fish passage and do not provide for stream processes, see generally Pltfs. Prop. Findings § 10

(Dkt. No. 659), it is important to establish a mandate for the use of the more effective designs.

The evidence showed that stream simulation structures can be built in a wide range of site

conditions. See Pltfs. Prop. Findings § 10.8 (Dkt. No. 659). In rare instances, however, use of the

default designs may not be feasible. Plaintiffs have proposed that, where use of the default

bridge/stream simulation standard is not feasible due to an emergency or extraordinary site

conditions, the State be permitted to use the best feasible design, but required to provide mitigation

to achieve the same net benefit as would have been attained with the default designs.

Because culverts may last for decades, and there are cost incentives to use less effective

designs, the feasibility standard must be strict. Plaintiffs propose that ―infeasible‖ should mean

extreme and unreasonable difficulty, akin to some definitions of the contract defense of

―impracticability.‖ See Black‘s Law Dictionary 772 (8th ed. 2004). However, technical

impossibility should not be required. Plaintiffs propose to borrow the definition of emergency from





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the State‘s current Hydraulic Project Approval statute. See RCW 77.55.011 (―an immediate threat

to life, the public, property, or of environmental degradation.‖).

The record contains examples of both emergencies and extraordinary site conditions that

would make use of the default designs infeasible. Muckleshoot Tribal habitat biologist Karen

Walter described an incident in December, 2007, when Interstate Highway 405 faced imminent

collapse due to a hydraulically failed barrier culvert . Walter Written Testimony, Ex. AT-009

(hereinafter Walter Dec., Ex. AT-009), at 6-8. WSDOT, WDFW, the Muckleshoot Tribe and the

Army Corps of Engineers agreed that repairs could proceed, with mitigation for the continuation of

the fish passage blockage. Id.45

State witness Bob Barnard testified that use of stream simulation

was not feasible where the excavation would have interrupted the crucial rail link to the Bangor

nuclear submarine base. Barnard Testimony, 10/20/09, at 111:17-112:2; see also Ex. AT-140, 2005

Culvert Design PowerPoint, Part 2 at 37 (describing use of baffled retrofit for ―exceptionally

difficult replacement conditions: very high road fills; long culverts (>300 feet); uninterruptible

traffic‖).

Of course, the State should be free to use any design that would provide better fish passage

and equivalent or more habitat benefits than a bridge or stream simulation structure, and the

proposed injunction would permit this.

The State claims it needs design flexibility, but offers no argument why the Plaintiffs‘

feasibility exception does not provide enough flexibility. Indeed, the State‘s pre-trial brief does not

even discuss the exception. The State‘s approach would perpetuate the presence of fish barrier

45

Ms. Walter also testified concerning what constitutes effective mitigation. Walter Dec., Ex. AT-009 at 6-8;

Walter Testimony, 10/14/09 at 150:11 – 152:13. Based on that testimony, Plaintiffs propose that the injunction require

that mitigation either be in place and functioning prior to the State approving a structure that does not comply with the

default standards of the decree, or that the mitigation techniques be ones that have been proven to function successfully

in other locations.





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culverts and the violation of the Tribes‘ treaty rights. The State should therefore be enjoined to

correct its barrier culverts to pass all salmon species at all life stages, and to build new stream

crossings and fix existing culverts using avoidance, bridges, and stream simulation culverts

wherever feasible.

d. The State Should Be Enjoined To Monitor And Maintain Its

Culverts And To Correct Any Newly-Discovered Fish Passage

Barriers Within A Reasonable Time.

In its Order on Summary Judgment, this Court found that the Stevens Treaties ―impose a

duty upon the State to refrain from building or maintaining culverts in such a manner as to block

the passage of fish.‖ Amd. Sum. Jdgt. (Dkt. No. 392) at 12 (emphasis added). Absent ongoing

state efforts, inadequately designed culverts that may now be passable will become fish passage

barriers in the future, the current barrier backlog will be resurrected, and the State will be

―maintaining culverts in such a manner as to block the passage of fish‖ indefinitely. Plaintiffs

proposed injunction would therefore require the State to implement ongoing maintenance,

monitoring, and correction programs, as described below.

i. Because Development Of Additional Fish Passage Barriers Is Likely, Periodic Re-Assessment Of Culverts Is Necessary. The State Currently Lacks Sufficient Programs For Such Re-Assessment.

The statement of Facts in part III of this Brief explained that, because streams are dynamic

environments, constantly moving and rearranging wood and sediment, ongoing monitoring and re-

assessment of barrier status is needed to insure that the streams are kept barrier-free. Supra, pp. 33-

34. The State, however, has not put programs in place to meet this need. Although WSDOT and

WDFW have amended their Memorandum of Agreement to authorize WDFW to ―[p]rovide spot

check and update as needed to the statewide inventory,‖ Ex. W-088-H at 9, there is no evidence of

any plan for the exercise of this authority. In fact, when asked in discovery to identify all its plans





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for re-assessment of currently passable culverts, no state agency could identify a plan. Ex. AT-047,

Washington‘s Resps. to Pls.‘ 4th Interrogs. and Reqs. for Prod., Interrog. 50 (1/23/2009) at 91.

Because of this, even if the State fixes all its current barriers, its violation of the Tribes‘ fishing

rights is likely to continue. To ensure this does not happen, the State should be enjoined to

periodically re-assess its culverts to determine if they are barriers.

ii. The State Should Be Enjoined To Correct Within A

Reasonable Time All Its Barrier Culverts Discovered In The Future.

Plaintiffs propose that the State be enjoined to correct within a reasonable time any fish

passage barriers discovered in the future. This provision would apply to any state barrier culverts

not contained on the List of current barriers to be filed with the Court, whether those barriers

existed but were unknown at the time the List was filed, or they arise in the future due to

inadequacies in new structures, failed correction efforts, or the degradation of formerly passable

structures. The proposed injunction regarding future-discovered barriers is essential to fulfill the

duty of the State ―to refrain from building or operating culverts under state-maintained roads that

hinder fish passage and diminish the number of fish that would otherwise be available for Tribal

harvest.‖ Amended Order (Dkt. No. 392) at 12 (emphasis added).

By allowing the State a reasonable time for correction of future-discovered barriers, the

proposed injunction strikes an equitable balance between the certainty that further barriers will

occur and need corrective action, and the uncertainty regarding when and how often new barriers

will arise. See Adm. Fact 7.5, 9.4. To provide further certainty to the State, Plaintiffs propose that

the obligation to correct future-discovered barriers apply only to culverts that are barriers under the

standards set forth in the current WDFW Assessment Manual, Exhibits W-087-E and AT-051. See

Proposed Injunction (Dkt. No. 660),¶ 3. If the State adopts new barrier assessment standards and





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protocols in response to new science, existing structures that would be barriers under the new

standard would not require correction under the decree, so long as they continued to meet the

passability tests of the 2000 WDFW Assessment Manual. Any party would be free, of course, to

seek a modification of the injunction to adopt a new standard by agreement or under Fed. R. Civ. P.

60.

The State‘s assertion that this subproceeding does not encompass culverts that ―become

barriers at some future time,‖ State‘s Prop. Conclusions 7, 37 (Dkt. No. 658), is based on an

incorrect interpretation of the parties‘ stipulation regarding the scope of the subproceeding, Dkt.

No. 18739/341. That stipulation distinguished between barrier culverts and culverts that merely

have adverse effects on river or stream ecological functions, and excluded only the latter (as well as

tidegates) from the subproceeding. Id. at 2 (¶¶ 1, 3). In particular, the State cites to paragraph 3,

which provides in part: ―Culverts that exist on the date that the Court enters a final order in this

sub-proceeding and that affect ecological functions but are not fish passage barriers need not be

inventoried, repaired, or replaced as part of any relief ordered in this sub-proceeding.‖ The

temporal limitation – ―on the date that the Court enters a final order‖ – modifies only the noun

phrase ―culverts that exist,‖ not the phrase ―are not fish passage barriers.‖ In other words, the

sentence distinguishes between culverts built in the future, and those already in the ground, and it

distinguishes between culverts that are, at any time, passage barriers, and those that are not. This

reading is consistent with the intent of the stipulation to separate out culverts which only impact

stream function into a separate subproceeding. It is also consistent with the Request for

Determination, which repeatedly made clear that the Tribes were seeking to establish an ongoing

correction duty and remedy. See, e.g., RFD at 7 (seeking mandatory injunction ―to fix and





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thereafter maintain all culverts built or maintained by any State agency or department‖) (emphasis

added).

Culverts that become actual fish barriers in the future are firmly within the scope of the case

because they would harm salmon and tribal fisheries in the same way that the hundreds of existing

state barrier culverts have caused irreparable harm to the Plaintiffs. Indeed, the Court has already

recognized the importance of preventing future barriers to fish passage by holding in its summary

judgment order that the State‘s duty is ongoing: ―[T]he Treaties do impose a duty upon the State to

refrain from building or maintaining culverts in such a manner as to block the passage of fish.‖

Order on Cross-Motions for Summary Judgment (Dkt. No. 392), at 12 (emphasis added); see also

id. (―refrain from . . . operating [barrier culverts]‖). Harm from future culverts is far from

speculative, and it would be an unusual outcome for an injunction to permit the State to violate its

ongoing obligations under the Treaties. It serves no purpose to require the State to repair its

existing culverts but at the same time allow a new backlog of barriers to develop. Finally, the State

has waived its ―scope of the case‖ defense to the inclusion of future culverts in the Court‘s remedy

order because it never listed the Stipulation as a defense in either its Pretrial Statement or the

Pretrial Order (Dkt. No. 19409/614). See CR16(i)(2) (requiring defendant to list affirmative

defenses it will pursue at trial in pretrial statement); CR 16.1 (same re pretrial order).

In the absence of an injunction requiring that the State correct barrier culverts identified in

the future, another severe backlog of uncorrected culverts is likely. Plaintiffs would have no

recourse then but to sue a second time, having suffered in the interim a further deprivation of their

rights. No purpose would be served by requiring such recurrent deprivation and repetitive

litigation. The State‘s treaty-based duty not to operate or maintain fish barrier culverts has been

established by this Court. An injunction should issue with provisions sufficient to insure that right





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is respected and barrier culverts are corrected, now and in the future.

iii. The State Should Be Enjoined To Undertake Reasonable Maintenance To Prevent Development Of Fish Passage Barriers, And To Conduct Maintenance In A Manner That Does Not Interfere With Fish Passage.

The parties agree that all culverts will require some level of maintenance during their useful

life to insure hydraulic function. Adm. Fact 9.2. Maintenance is also needed to insure fish passage

– the WDFW Design Manual, Ex. W-089-B, at 6; National Marine Fisheries design report, Ex. AT-

114, Extinction is Not an Option - Summary at III.33; Federal Highway Administration design

report, Ex. AT-120, FWHA Synthesis Report at 10-1; and numerous other state reports, e.g., Ex. W-

085-S, 2008 PSC Technical Report at 21; make this clear. Regular inspection and maintenance is

especially crucial for hydraulic retrofits. See Adm. Fact 9.8; Ex. AT-072, WSDOT Fish Passage

Inventory Progress Performance Report (July 2009) at 17-20.

The State does not have sufficient programs of regular inspection and maintenance for fish

passage. Culvert inspections by WSDOT‘s Maintenance and Operations Program are intended to

assess the general condition and proper function of the culvert as a structure and are not directed

specifically at assessing fish passage. Ex. AT-041, Washington‘s Resps. to Pls. 4th Interrogs. and

Reqs. for Prod., Interrog. 26 (1/23/2009) at 46. Moreover, WSDOT‘s Maintenance Accountability

Program, or MAP, graded its culvert maintenance a D- in 2008 – the worst among the 32 categories

of maintenance. Ex. AT-133, Highway Maintenance & Operations Budget Briefing, Senate

Transportation Committee (WSDOT, 2/02/2009) at 6-8, 14. DNR visually inspects its large

culverts for damage after major storm events, Adm. Fact 9.6, and WDFW inspects WSDOT

fishways. Adm. Fact 9.5; Ex. AT-041, Washington‘s Resps. to Pls‘ 4th Interrogs. and Reqs. for

Prod., Interrog. 26 (1/23/2009) at 46, but there was no evidence at trial of a systematic, ongoing

program to inspect the State‘s culverts and maintain them for fish passage. The cost of such a

program would be modest. State witness Dr. Paul Sekulich, who formerly managed WDFW‘s fish

passage program, estimated monitoring and maintenance costs at about 1 % of construction cost in





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2001, when the construction costs were lower than today. Ex. AT-104, 120-Year Salmonid Benefit:

Cost Analysis, WSDOT Fish Passage Program, Four Options, and Spreadsheets, (Sekulich,

WDFW, 5/29/01) at 3. The State should be enjoined to conduct reasonable, regular inspection and

maintenance of its culverts on salmon-bearing streams in the Case Area. In addition to performing

maintenance to preserve fish passage, the injunction should require that culvert maintenance be

done in a way that does not create or exacerbate fish passage problems.46

e. The State Should Be Enjoined To Monitor Its Implementation Of The Injunction, Evaluate Whether Its Efforts To Provide Fish Passage Are Effective, And Make Appropriate Corrections In Response To Such Monitoring And Evaluation.

The State should be enjoined to verify that barrier culvert corrections and new stream

crossings are built according to the terms of the injunction and that they function as intended on an

ongoing basis. Prop. Injunction (Dkt. No. 660), ¶ 12. If not properly built or not properly

functioning, the injunction should require the State to evaluate why and to make appropriate

corrections in a reasonable time. The requested level of monitoring is essential to the success of the

State‘s corrections. It is also the most basic monitoring that would be needed to permit adaptive

management, that is, application of experience and changing science to improve the State‘s barrier

correction programs.‖ Ex. AT-120, FWHA Synthesis Report at, 10-2 to 10-4; Sekulich Written

Testimony, Ex. W-087 at 19:8-19.

46

This is needed to address situations such as at Red Cabin Creek, a tributary to the Skagit River. See

generally Wasserman Testimony, 10/13/2009, at 120:2-23 WSDOT has engaged in repeated dredging to remove

sediment at the culvert inlet, resulting in stranding and mortality of salmon. Wasserman Testimony at 120:2-23; Ex.

AT-010-11, Photograph of Culvert at Red Cabin Creek after Dredging, with Ex. AT-010-12, Photograph of Culvert at

Red Cabin Creek Showing Dead Adult Salmon.. The State has been aware of this problem for years, Wasserman Dec.,

Ex. AT-010 at 10-11, yet plans to replace the culvert with a larger structure remain unimplemented. Ex. AT-315, LEAP

Capital Projects System --LEAP Transportation Document ALL PROJECTS 2009-2 as developed April 24, 2009 at 24;

Wasserman Testimony, at 132:24 – 133:4. The proposed injunction would remedy this problem by placing Red Cabin

Creek on the barrier correction List, and by requiring that any maintenance be done in a manner that avoids such fish

passage impacts.





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Currently the State conducts some monitoring of its fish passage projects. WDFW inspects

its own projects and those of WSDOT at completion, and it inspects WSDOT‘s ―dedicated funding‖

projects after one winter high-flow. Ex. AT-041, Washington‘s Resps. to Pls‘ 4th Interrogs. and

Reqs. for Prod., Interrog. 26 (1/23/2009) at 45-46; Adm. Fact 9.5. WDFW also conducts ―ad hoc‖

inspections after construction of fish passage projects at roads on its own lands. Ex. AT-041, at 45.

There is no evidence that any state agency currently has a long-term monitoring program to

determine whether corrections were properly implemented and are effective. As the final element

of the proposed injunction, the State should be enjoined to develop such a monitoring program and

to make the results available to Plaintiffs. Failure to perform such monitoring invites wasted effort

and a needless perpetuation of widespread salmon blockages.

f. The State Should Be Required To Provide Interested Tribes With

Sufficient Notice Of Its Barrier Culvert Inventory, Assessment,

And Correction Activities To Permit The Tribes To Monitor And

Provide Effective Recommendations For Compliance With the

Decree.

The Tribes and the State have made great progress in co-operative management of case area

fisheries in the years since Judge Boldt issued his original decision in 1974. In the recent trial the

court has seen the high levels of expertise and experience possessed by tribal biologists, and the

contributions to culvert remediation planning that they could make. See, generally, Testimony of

Lawrence Wasserman, Dr. Martin Fox, Karen Walter, Mike McHenry. A key to the progress in co-

operative fisheries management has been the parties' recognition that the considerable expertise of

tribal fisheries biologists and other professional staff can best be utilized for the benefit of the

resource if there is open communication and early involvement by the Tribes. Similar early notice

and involvement by the Tribes when specific culvert solutions are being considered will bring

similar benefits.





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It is unnecessary at this stage to lay out a detailed program of notice and involvement that

the State must follow. However, in order to evaluate a culvert project tribes need certain important

information. This information includes project identification, the streams that might be impacted,

associated buffers and riparian areas, water typing, and current fish use as well as information on

the potential for the stream to support fish. Walter Testimony, 10/14/09, at 150:12-21. It is

important the Tribes receive this information in sufficient time to make a meaningful contribution

to agency decisions. Walter Declaration, Ex. AT-009 at 12-15. Receipt of the needed information

should be as early as possible. Thus tribes should receive notice and available information at the

same time that other agencies who will have input to the project receive that information. Walter

Testimony, 10/14/09 at 151:7-12)

The State should be directed to provide the Tribes with timely and effective notice of

proposed actions and projects affecting or concerning its compliance with the repair obligations

under this injunction. Notice is timely if it is immediate and without delay so as actually to enable

meaningful comment and responsive action by affected tribes prior to finalization of plans, design,

project scope and funding decisions (including proposed change orders), and other proposed

modifications. Notice is effective if it consists of documents that are accurate and complete in

informing affected tribes of these matters, and where necessary, supplemented in a timely way with

additional information that is comprehensive in detail.

VI. CONCLUSION.

To redress the violation of federal treaty rights this Court declared two years ago, Plaintiffs

propose an injunction that corrects state-owned barrier culverts effectively and expeditiously, but

also gives a wide berth to the State‘s interest in managing its own affairs. Plaintiffs‘ proposed

barrier correction plan incorporates many of the State‘s existing definitions, programs, and





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standards. In light of the magnitude of harm and the State‘s sixty-year record of delayed and

inadequate corrections, it is surprisingly deferential. The State‘s proposed remedy, in contrast,

seeks to insulate its culvert construction and correction activities from this Court‘s injunctive

powers entirely, but for the possible monitoring of the State‘s execution of the status quo. It seeks

to maintain its unilateral prerogative to determine which culverts are fixed, and when, and how

well, and to use its highway funding for its own preferred ends. For tribal fishers, the State offers

no more than an opportunity, equal to that of other citizens, to climb the capital steps and lobby for

changes in state priorities that might correct the State‘s culverts in their lifetimes.

The State‘s proposed solution shows that old ideas die hard. More than thirty years ago, the

Supreme Court in the Fishing Vessel decision looked back to the Winans decision, nearly seventy-

five years before that, as one of several Supreme Court cases rejecting the ―equal opportunity‖

argument:

The Court has interpreted the fishing clause. . .on six prior occasions. In all of these cases

the Court placed a relatively broad gloss on the Indians‘ fishing rights and—more or less

explicitly—rejected the State‘s ―equal opportunity‖ approach. . . . In United States v.

Winans, 198 U.S. 371, the respondent, having acquired title to property on the Columbia

River and having obtained a license to use a ―fish wheel‖—a device capable of catching

salmon by the ton and totally destroying a run of fish—asserted the right to exclude the

Yakimas from one of the ‗usual and accustomed‘ places. The Circuit Court for the District

of Washington sustained respondent, but this Court reversed. . . .reject[ing] an argument that

is analogous to the ―equal opportunity‖ claim now made by the State.

Fishing Vessel, 443 U.S. at 679-680. Though the State has modified the argument slightly in this

subproceeding the underlying premise is the same: when it comes to their right to take fish, the

Tribes are entitled to nothing more than any other Washington citizen.

The State‘s equal opportunity premise was rejected in Winans, and Fishing Vessel, and was

effectively rejected in this court‘s summary judgment decision declaring a treaty-based duty not to





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block salmon streams with barrier culverts. That declaration was a crucial step in assuring the

treaty promise, but alone is not enough. It is important that the remedy back up the declaration. In

Fishing Vessel, the Supreme Court emphasized that Winans had not only rejected the equal

opportunity argument through ―language‖ declaring the right, but through its ―actual disposition.‖

Id., 443 U.S. at 681. ―The [Winans] Court not only upheld the Indians‘ right of access to

respondent‘s private property,‖ the Fishing Vessel Court recounted, ―but also ordered the circuit

court on remand to devise ‗some adjustment and accommodation‘ that would protect them from

total exclusion from the fishery.‖ Id. Unfortunately, the lower court in Winans did not listen well.

On remand it demonstrated what happens when a right declared on paper is not tethered to an

effective remedy:

Though Winans was a great victory for Indian reserved rights, the final decree was a

disservice. [The lower court] resolved the ―in common with‖ issue by allowing the

fishwheelers to keep the places they had wrested from the Indians. . . . The Indians were

ordered not to interfere ―with the operation of the three wheels now maintained and operated

on the river‖ by the property owners. . . .No additional fish wheels were to be constructed

within the disputed Tumwater fishery—a small concession since testimony in the case

established that the lay of the land did not permit it.

William H. Rodgers, Jr., Environmental Law in Indian Country at p. 32.

The Winans remand is a cautionary tale. In this case, it is time for the Court to devise

―some adjustment and accommodation‖ that will breathe life into the right, declared more than two

years ago, to be free from state-owned barrier culverts that block fish passage and reduce the

number of fish available for tribal harvest. The State‘s do-nothing remedy is short on ―adjustment

and accommodation,‖ and should be rejected. Plaintiffs request that their proposed remedy,

solicitous of both the Tribes‘ and the States‘ rights, should be implemented.

DATED this 12

th day of February, 2010.





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PLAINTIFF-INTERVENOR TRIBES By: s/ JOHN C. SLEDD, WSBA # 19270

Attorney for the Hoh, Jamestown S‘Klallam,

Lower Elwha Klallam, Nisqually, Port Gamble

S‘Klallam, Sauk-Suiattle, Skokomish, Squaxin

Island, Stillaguamish and Suquamish Tribes

By: s/ LAURA SAGOLLA, Admitted Pro Hac Vice

Attorney for the Hoh, Jamestown S‘Klallam,

Lower Elwha Klallam, Nisqually, Port Gamble

S‘Klallam, Sauk-Suiattle, Skokomish, Squaxin

Island, Stillaguamish and Suquamish Tribes

By: s/ ALAN C. STAY, WSBA # 4569

Attorney for the Muckleshoot Indian Tribe

By: s/ MASON D. MORISSET, WSBA # 273

Attorney for the Tulalip Tribes

By: s/ DANIEL A. RAAS, WSBA # 4970

Attorney for the Lummi Nation

By: s/ HARRY L. JOHNSEN, WSBA # 4955

Attorney for the Lummi Nation

By: s/ THOMAS ZEILMAN, WSBA # 28470

Attorney for the Yakama Nation

By: s/ LAUREN P. RASMUSSEN, WSBA #33256

Attorney for the Jamestown S‘Klallam and Port Gamble S‘Klallam Tribes

By: s/ ALIX FOSTER, WSBA # 4943

Attorney for the Swinomish Indian Tribal Community

By: s/ EDWARD WURTZ, WSBA # 24741

Attorney for the Nooksack Tribe

By: s/ BRIAN GRUBER, WSBA # 32210

Attorney for the Makah Tribe

By: s/ SAMUEL J. STILTNER, WSBA # 7765

Attorney for the Puyallup Tribe





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By: s/ HAROLD CHESNIN, WSBA # 398

Attorney for the Upper Skagit Tribe

By: s/ O. YALE LEWIS III, WSBA # 33768

Attorney for the Quileute Tribe

By: s/ ERIC J.NIELSEN, WSBA # 12773

Attorney for the Quinault Indian Nation





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CERTIFICATE OF SERVICE

I hereby certify that on February 12, 2010, I electronically filed this PLAINTIFF-

INTERVENOR TRIBES‘ CORRECTED POST-TRIAL BRIEF with the Clerk of the Court using

the CM/ECF system, which will send notice of the filing to all parties registered in the CM/ECF

system for this matter.

Law Office

PUYALLUP TRIBE OF INDIANS

s/ Samuel J. Stiltner, WSBA # 7765 3009 Portland Avenue Tacoma, WA 98404 (253) 573-7875 Co-Counsel for Plaintiff-Intervenor Puyallup Tribe of Indians
