PLAINTIFF TRIBES’ POST-TRIAL SUPPLEMENTAL BRIEF No. C70-9213 , SUBPROCEEDING 01-1 1 KANJI & KATZEN, PLLC 401 SECOND AVE. S., SUITE 700 SEATTLE, WA 98104 206.344.8100 FAX: 1.866.283.0178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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) TRIBAL SUPPLEMENTAL BRIEF REGARDING POST- TRIAL EVENTS AND THE NEED FOR INJUNCTIVE RELIEF I. INTRODUCTION The Plaintiff Tribes submit this brief in response to the Court’s January 14, 2013 order, requesting supplemental memoranda and exhibits. Order on Supplemental Briefing, Dkt. No. 733. Six years ago the Court declared that State culverts that hinder fish passage and thereby reduce the number of salmon available for tribal harvest violate the State’s treaty obligations. In a three-week remedy trial in 2009, the Tribes and the United States showed that, left to its own devices, the State would likely not correct all its barriers for decades, if ever. The Plaintiffs requested an injunction to compel timely and effective corrections. Three years later the circumstances are fundamentally unchanged, and that injunction is needed more than ever. Case 2:70-cv-09213-RSM Document 20339 Filed 02/01/13 Page 1 of 22
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669, at ¶ 15.1. The proposed injunction would permit the remaining culverts to be corrected when
they wear out, break, or are corrected as part of a highway project. Proposed Injunction at ¶ 7.
The State countered that no injunction was needed, because it could open 50 percent of that
habitat in just seventeen years by fixing 163 culverts blocking the greatest lengths of habitat, and it
insisted that “WSDOT has a plan in place to do it.” Washington’s Post-Trial Brief, Dkt. No. 663, at
13-14 (referring to Ex. AT-323, a list of WSDOT barriers ranked using length of habitat blocked).
If WSDOT had a plan like the one it described in its Post-Trial Brief, it has shown little sign
of implementing it. In 2009, 2010, and 2011, WSDOT fixed only twenty-four barrier culverts in its
Northwest and Olympic regions. Fish Passage Barrier Inventory Progress Performance Report
(WSDOT/WDFW 2012) (“2012 WSDOT Report”), attached as Exhibit 1 to Declaration of Alix
Foster (“Foster Dec.”) filed herewith, at 23-25, 36-40 (regional lists showing twenty-five fish
passage projects, including twenty-four culvert corrections, in 2009-2011). 2 The Northwest and
Olympic regions roughly approximate the Case Area. Compare Ex. AT-008-9 (map of case area)
with AF Ex.1, 2012 WSDOT Report at 7 (map of WSDOT regions). By correcting only twenty
four culverts, or eight per year, in the first three years of its “plan,” the State has already fallen short
1 The State identifies 200 meters as a “significant reach” of habitat. Ex. W-087-E, Fish Passage Barrier and Surface Water Diversion Screening Assessment and Prioritization Manual (“2000 Assessment Manual”) (WDFW 2000) at 36. The provision to open 90 percent of habitat would be available only if the State completed its ongoing habitat surveys, so it could reliably identify what constituted 90 percent. Proposed Injunction ¶ 8. Otherwise, the injunction would require that all “significant reach” barriers be corrected. Id., ¶ 6. 2 Ms. Foster’s declaration attaches pages from state documents as exhibits. The exhibits are cited in this brief as “AF Ex.” These documents are admissible under Fed. R. Evid. 402, 801, 803, and 902. See the Court’s November 24, 2009 Order, Dkt. No. 636 (admitting government documents over hearsay and authenticity objections), and the Plaintiff Tribes’ Bench Memorandum Re: Admissibility of Certain Exhibits, Dkt. No. 624.
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of the pre-trial average of 9.5 such corrections per year, on which that plan was founded. See
State’s Post-Trial Brief, at 14. 3 In addition to correcting only 24 barriers in 2009-2011, only four
of the WSDOT projects were among the 163 culverts at the top of Ex. AT-323 that the State
assured this Court it had a “plan” to fix. Compare Ex. AT-323 with AF Ex. 1, 2012 WSDOT
Report, at 23-25, 36-40. At its 2009-11 rate of one and one-third priority corrections per year,
WSDOT would need 120 years, not seventeen as it claimed in its Brief, to fix the last of the 163 and
to finally re-open the first half of the habitat.
WSDOT’s plan to fix 163 top priority barriers in twenty years was never realistic, because
WSDOT has never fixed barriers based on a rigorous list of which ones block the most habitat.
Culverts with less habitat get fixed as well. See Ex. AT-072, WSDOT Fish Passage Inventory
Progress performance Report (2009) at 9 (stand-alone projects correct “the highest priority
barriers;” others are corrected as part of highway projects or routine maintenance). From 2009
through 2011, roughly half of WSDOT’s corrections occurred for reasons having nothing to do with
the extent of affected habitat, such as being in the path of a highway project. Compare id. at 36-40
(twelve corrections in those regions in 2009-2011 through other funding sources), with Marsh Dec.,
Ex. 4, 2012 WSDOT Report, at 23-25 (thirteen stand-alone, “I-4” corrections in the Olympic and
Northwest regions in 2009-2011). Fixing culverts during highway projects makes sense. See pp.
11, infra. But the State’s “plan,” which assumed that every fix over twenty years would come off
the list of 163, was never realistic. Results over the past three years – fixing four of the 163 --
confirm that, to open substantial habitat in a reasonable time, WSDOT cannot simply do as it has
done – it must be made to increase the rate of corrections.
3 The Tribes rely on data from 2008 through 2011 because the most recent of the annual WSDOT Progress Reports in the trial record was the 2009 Report, AT-072, which reported through the 2008 construction season, and the 2013 progress report with results of the 2012 construction season is not yet available online. Foster Dec., ¶ 5.
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In addition to having an unrealistic plan, and failing to live up to it, WSDOT has failed to
make enough corrections to keep the problem of barrier culverts from growing. Just before trial, it
reported 1,158 barrier culverts under WSDOT roads in the Northwest and Olympic Regions. Ex.
AT- 072, Progress Performance Report (WSDOT, 2009) at 7. Today, it reports 1,236. AF Ex. 14,
2012 WSDOT Report,at 7. The number in these regions blocking more than 200 meters each of
salmonid habitat – anadromous and otherwise – was reported to be 883 on the eve of trial. Ex. AT-
072 at 7. Today, it is 930. 4 AF Ex. 1,2012 WSDOT Report,at 7. The reasons for the increased
numbers of barriers are not explained in WSDOT’s annual progress reports, but the consequences
are clear. At the post-trial correction rate of eight culverts per year, WSDOT will open the last of
the 930 barriers in these two regions that block “significant reaches” of habitat 116 years from now,
and a correction of all 1,236 barrier culverts must wait 155 years.
There is no reason to think the State will voluntarily accelerate WSDOT corrections.
Despite what it told the Court in its Post-Trial Brief, WSDOT’s actual ten year plan for its I-4 or
stand-alone culvert corrections proposes only fifty-two corrections in the Northwest and Olympic
regions, and only twenty of those are described as “funded.” AF Ex. 1, 2012 WSDOT Report, at
14-16. Assuming that all fifty-two are built, and that, as over the past three years, a similar number
of barriers are corrected through highway projects and other funding, there will be 104 corrections
over the next decade, or slightly more than ten culverts per year – the same rate that WSDOT has
managed since 1992. See Pltfs. Prop. Findings at ¶ 12.10, citing Ex. AT- 072 at 5, n.2, 25, Table 5.
Thus, whether WSDOT behaves as it has for the past twenty years or for the past three, or whether 4 These numbers, like the 2012 WSDOT Report which is their source, do not distinguish between anadromous barriers and others. In the time available to prepare this brief, the Tribes were unable to obtain any admissible state document that separately reported case area or anadromous barriers. See fn. 11, infra. For comparison, however, at the time of trial, two-thirds of the WSDOT barriers in the WDFW barrier database affected anadromous fish and more than 200 meters of habitat. See Pretrial Order, Dkt. No. 614 at 15 (Admitted Fact (“Adm. Fact”) 6.16) (807 anadromous, “significant reach” barriers out of 1215 total DOT barrier culverts in the case area).
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Plan 2010 Annual Report (DNR 2010) at 16; AF Ex. 4, Trust Lands Habitat Conservation Plan
2011 Annual Report (DNR 2011) at 13 (“HCP Reports”).6 But, as a result of land transactions and
inventory activities, DNR identified an additional thirty-five barrier culverts under roads on its
lands in 2010. Id. at 12. The 2012 HCP report is not yet available, Foster Dec. ¶5, and these
reports do not state how many barriers remain, how many affect anadromous fish, or what design
options have been used. Id.7
One of the four documents provided to the Tribes by Parks in the past three weeks is an
August, 2012, report on its culverts in the case area. AF Ex. 5, Washington State Parks Fish
Passage Inventory Within Water Resource Inventory Areas (WRIA) 1-23 (“Parks Inventory”). The
report cautions that it is still not a complete inventory. Id. at 21. Parks recently produced a list of
twenty-five barrier culverts on anadromous streams on its lands in the case area, each of which
blocks at least 200 meters of habitat. AF Ex. 6, Washington State Parks Priority Fish Barriers
Table. That table indicates that Parks removed one barrier culvert in 2012. Id. The agency also
6 Together, DNR’s North Puget, Olympic Experimental State Forest, South Puget, and Straits HCP Planning Units roughly approximate the case area. Compare Ex. AT-008-9 (map of case area) with AF Ex. 2, State Trust Lands Habitat Conservation Plan Planning Units (map of HCP planning units). 7 The State, of course, possesses current information regarding its barriers. The Tribes proposed that the State and Plaintiffs update some of the Admitted Facts in response to the Court’s January 14 Order, but the State declined, citing lack of time. Foster Dec. at ¶ 4. In response to Public Records Act requests by the Swinomish Tribe after that Order was entered, the State provided updated versions of the WDFW and DNR barrier culvert databases. Id. at ¶ 3. Up until forty-eight hours before this brief was due, the State had provided fifteen additional documents. In the final forty-eight hours before this brief was due, the State produced more than 3,500 pages, and additional databases. Id. at fn. 1. Little of this information is self-explanatory, even if the Tribes had more than forty-eight hours to review it. Some, such as information from the databases, could only be presented through expert declarations. Without opportunity for rebuttal or cross-examination, introduction of much of this information would raise evidentiary and due process issues. See, e.g., Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir.1988) (absent agreement of the parties or undisputed facts, a permanent injunction should not issue without an evidentiary hearing). Consequently, the Tribes have not utilized this new information in their brief, and have limited their supplemental material to that found in state publications available online, plus four documents from Parks that were provided in response to the Swinomish records request in sufficient time for tribal review, but whose accuracy the Tribes cannot assess. For the same reasons, the Tribes are not offering declarations by tribal staff based on their personal experience related to State barrier culvert corrections since trial. If the State’s supplemental filings include materials that raise evidentiary or due process concerns, or that seek to relitigate matters canvassed at trial, the Tribes may move to strike such material, or may request additional procedures such as opportunity to submit additional pages from cited documents, to cross-examine declarants, or to offer rebuttal.
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the alleged violation will recur, and interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation”) (internal citations omitted).
IV. THE STATE RETAINS THE SAME INADEQUATE ADMINISTRATIVE ARCHITECTURE FOR BARRIER IDENTIFICATION AND CORRECTION AS IN 2009.
Even if the State were correcting its known barrier culverts more quickly, the violation of
tribal treaty rights will not be cured unless State agencies also conduct full inventories and keep
them current, use viable procedures to identify barriers, adopt suitable standards for their correction,
and monitor and maintain their repairs. At trial the Plaintiffs showed that the regulatory and policy
architecture adopted by State agencies fails to ensure these critical aspects of an effective fish
passage regime. That remains the case.
To begin with, no State law or regulation requires any agency but DNR to inventory its
barrier culverts and, as noted above, the Parks Commission has yet to complete a comprehensive
inventory. Despite knowing that some currently passable culverts will become barriers in the
future, Adm. Fact 9.4, none of the agencies had a comprehensive program in place in 2009 to
periodically reassess barrier status. Ex. AT-047 at 91, Interrogatory 50 (1/23/09) (WDFW and
DNR); Trial Tr., 10/20/09 (Nagygyor), at 51:15-23 (DNR would “visually inspect large culverts for
damage” after a “major” rain); Adm. Fact 9.6. The Tribes know of no such comprehensive State
programs today. As it did at the time of trial, WSDOT today relies on a contract with WDFW that
provides only for unspecified “spot checks” of WSDOT culverts. Ex. W-093-G (2008 MOA); 2012
WSDOT Report, at 42-43 (referencing continued use of the 2008 MOA), attached as Exhibit 4 to
Declaration of Yvonne Marsh (Dkt. No. 20326).8
8 Ms. Marsh’s declaration was submitted by the United States in support of its Supplemental Post-Trial Memorandum and attaches pages from Federal or State documents as exhibits. The exhibits are cited in this brief as “Marsh Ex.”
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regarding the likely effects of court orders. Although these judgments are normally made by state
officials, they necessarily must be made by courts when those courts fashion injunctive relief….”
Id. at 1942. The Court reiterated the great extent of federal equity powers:
Courts have substantial flexibility when making these judgments. “‘Once invoked, “the scope of a district court's equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” Hutto, 437 U.S., at 687, n. 9, 98 S.Ct. 2565 (quoting Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), in turn quoting Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)).
Plata, 131 S. Ct. at 1944.
Milliken and the other cases cited in Plata lay out well-established principles for enjoining a
state to vindicate federal rights. See Tribes’ Post-Trial Brief at 71-113 (reviewing proposed
injunction under standards of Milliken. Consistent with those principles, the proposed injunction
was crafted to do what is necessary to remedy the violation of the Tribes’ rights, while intruding no
more than necessary on the State’s prerogatives. Id.; see Armstrong v. Schwarzenegger, 622 F.3d
1058, 1071-72 (9th Cir. 2010) (“the question is not whether the relief the court ordered to vindicate
those rights is expensive, or difficult to achieve, but whether the same vindication of federal rights
could have been achieved with less involvement by the court in directing the details of defendants'
operations”).
Thus, the question before the Court here is whether, considering the full record, the State
has proven such lasting and substantial changes in its conduct over the past three years that some
details of the injunction may no longer be needed. With regard to WSDOT, the answer is clearly,
“No.” Its behavior may as well have been cast in concrete for all it has changed since trial. Parks
has taken the first steps and expresses good intentions, but has actually removed only one additional
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barrier. The question may be a closer one for DNR and WDFW, but given continuing uncertainties
in their funding, and continued shortcomings in the regulatory and policy architecture underlying
their correction efforts, an injunction remains appropriate. That is especially so given the difficulty
of fully or fairly assessing changes in those agencies’ situation based on no more than these
supplemental briefs.
VII. CONCLUSION
The trial record, carefully developed over years, remains the best guide for THE Court’s
decision. That record demonstrates a long history of halting, underfunded, and incomplete
correction efforts by all the state agencies. It provides ample factual support for the imposition of
correction schedules and minimum correction standards on the State and all its agencies. Marginal
factual changes since trial do not make it otherwise. United Transp. Union v. State Bar of Mich.,
401 U.S. 576 (1971) (upholding injunction issued in 1968 based on evidence taken in 1961); Jones
v. Diamond, 636 F.2d 1364, 1375 (5th Cir. 1981) (upholding injunction granted based on five year
old evidence).
Plaintiffs’ Proposed Injunction contains the essential requirements to remedy the wrong
done to the Tribes, and to vindicate the treaty provisions that are the cornerstone on which both the
Tribes, and the State of Washington, now rest. The Tribes request that the injunction be granted.
Respectfully submitted this 1st day of February, 2013.
PLAINTIFF-INTERVENOR TRIBES By: s/ JOHN C. SLEDD, WSBA # 19270
Attorney for theHoh, JamestownS’Klallam,LowerElwhaKlallam, Nisqually, Port Gamble S’Klallam, Sauk‐Suiattle,SquaxinIsland,StillaguamishandSuquamishTribes
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By: s/ STEPHEN H. SUAGEE, WSBA # 26776 Attorney for the Lower Elwha Klallam Tribe By: s/DANIELA.RAAS,WSBA#4970
AttorneyfortheLummiNationBy: s/HARRYL.JOHNSEN,WSBA#4955 Attorney for the Lummi Nation By: s/ MARY M. NEIL, WSBA # 34348 Attorney for the Lummi Nation By: s/BRIANGRUBER,WSBA#32210
AttorneyfortheMuckleshootIndianTribeBy: s/ BILL TOBIN, WSBA # 4397 Attorney for the Nisqually Tribe By: s/ CHRISTINA CUSHMAN, WSBA # 23132 Attorney for the Nisqually Tribe By: s/ CONNIE SUE MARTIN, WSBA # 26525 Attorney for the Nooksack Tribe By: s/SAMUELJ.STILTNER,WSBA#7765
AttorneyforthePuyallupTribeBy: s/ ERIC J.NIELSEN, WSBA # 12773 Attorney for the Quinault Indian Nation By: s/ LORI E. (NIES) BRUNER, WSBA # 26652 Attorney for the Quinault Indian Nation
Case 2:70-cv-09213-RSM Document 20339 Filed 02/01/13 Page 20 of 22
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By: s/ EARLE D. LEES, III, WSBA # 30017 Attorney for the Skokomish Indian Tribe By: s/SHARONHAENSLY,WSBA#18158 AttorneyfortheSquaxinIslandTribeBy: s/ MICHELLE H. HANSEN, WSBA # 14051
Attorney for the Suquamish Tribe By: s/MASOND.MORISSET,WSBA#273