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STATE OF WASHINGTON'S POST-TRIAL BRIEF -- NO. C70-9213

1 ATTORNEY GENERAL OF WASHINGTON Transportation & Public Construction Division

7141 Cleanwater Drive SW PO BOX 40113

Olympia, WA 98504-0113 (360) 753-6126 Facsimile: (360) 586-6847

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The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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

NO. C70-9213 Subproceeding 01-1 (Culverts) STATE OF WASHINGTON'S POST-TRIAL BRIEF

I. INTRODUCTION

[I]t would be a mistake to focus narrowly on only one factor affecting salmon, such as state-owned fish-blocking culverts. If juvenile salmon cannot find functional shelter in the estuary as they adapt to salt water, they die—as was determined for the Skagit River. If they cannot find cool, unpolluted freshwater for migration and spawning, they die—as was determined for the Fraser River. If adult salmon are caught in excessive rates, the stock will not recover—as was determined for the Nooksack spring Chinook. If hatchery-origin salmon spawn at excessive rates with wild fish, the stocks suffer genetic harm. Fixing state-owned culverts alone will do little to solve these other, very real, bottlenecks to recovery.1

Salmon recovery is a complex and monumental task.2 The State of Washington, along

with the Tribes, local government and the federal government, developed a scientifically-

1 Ex. W-085, Koenings Decl. ¶ 51. 2 Trial Tr. 112:12-15, 10/14/2009 (Rawson).

Case 2:70-cv-09213-RSM Document 19529 Filed 02/05/2010 Page 1 of 48





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based and comprehensive plan for salmon recovery.3 Over the past two decades, the State has

committed hundreds of millions of dollars to salmon recovery. The substantial financial

commitment by the State supporting the comprehensive plan for salmon recovery has begun to

show positive outcomes for salmon in the case area.

Decades before this lawsuit was filed, the State of Washington was working to protect

salmon and other fish. The Legislature’s passage of the Water Pollution Control Act in 1945

and the Forest Practices Act in 1974 has helped put an end to the destruction of fish habitat as

depicted in the photographs in Exhibit AT-011. Today, we do not see untreated waste spilling

from pulp mills into Puget Sound nor do we find square miles of forest mown down to the

water’s edge as we did in 1950.

Significant efforts have been made to correct many of the state-owned culverts that, at

the time this lawsuit was filed, were barriers to fish passage. In 1990, the Washington

Department of Fish and Wildlife (WDFW) and the Washington State Department of

Transportation (WSDOT) began taking specific, directed action to find and fix state highway

culverts that block fish passage. The State developed new, fish-friendly culvert designs to

replace the federal culvert standards that led to fish passage barriers throughout the State.4

The State completed a statewide inventory in 2007, and they have consistently been fixing

culverts in the state highway system every year for the past 20 years.5 The Washington

Department of Natural Resources (WDNR) completed a culvert inventory on its roads in

2000 and has eliminated more than half of its fish passage barriers over the past ten years.6

3 See 72 Fed. Reg. 2493 (Jan. 19, 2007) (National Marine Fisheries Service notice adopting Puget Sound

Chinook Salmon Recovery Plan); 72 Fed. Reg. 29121 (May 24, 2007) (National Marine Fisheries Service notice adopting Hood Canal and Eastern Strait of Juan de Fuca Summer Chum Salmon Recovery Plan).

4 Ex. W-092 ¶¶ 9-12; Ex. W-089. 5 Ex. W-088 ¶ 7; Ex. W-091-E; Ex. W-092 ¶¶ 15, 16, 21-23; Ex. W-092-O, pp. 000019-000022, 000027-

000031; Trial Tr. 15:19-21, 10/19/2009 (Wagner). 6 Ex. W-094 ¶¶ 16, 39; Ex. W-094-E.






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The State has made consistent progress in systematically fixing those culverts with the

greatest potential fish habitat.7

In 1998, the Legislature authorized the Governor’s Salmon Recovery Office to

oversee the development of state salmon recovery plans to address all aspects of human

activity that affect salmon,8 commonly called the four “Hs”—harvest, hatcheries,

hydroelectric power, and habitat.9 All of them are important for salmon recovery, but each

stream system is unique – there is no one size fits all approach to determining the best

balance for salmon recovery. The salmon recovery plans are predicated on a bottom to top

approach in order to identify the varying needs of particular watersheds.10 The role that each

of the four “Hs” plays in a single watershed depends upon that watershed’s unique

fingerprinting.11

In 1999, the State and its tribal partners began to learn about that fingerprinting

through limiting factors analyses they completed for all 23 Water Resource Inventory Areas

(WRIA)12 in the case area. For the 16 WRIA with sufficient data to reach a conclusion, the

reports described access to habitat as good in six, fair in two, poor in five and a combination

(e.g., poor-good) in three.13 As the combination description suggests, access can be less of

an issue at many individual watersheds within a WRIA – e.g., in WRIA 18 access conditions

were good or fair in the majority of watersheds and in WRIA 19 barrier culverts were not a

major limiting factor in many individual watersheds.14 In order to complete the

fingerprinting analysis and to determine how best to apply the limited funds in each

7 Ex. W-088 ¶ 12; Ex. W-092 ¶ 32. 8 Ex. W-085-I; Ex. W-087-G. 9 Ex. AT-007(B), p. 4; Ex. W-085 ¶ 20. 10 Trial Tr. 194:23-25, 10/26/2009 (Roni). 11 Trial Tr. 64: 11-16, 10/23/2009 (Koenings); Trial Tr. 117:1-4, 10/14/2009 (Rawson). 12 Each WRIA is composed of numerous watersheds. 13 Ex. W-087-H, pp. 106-7; Trial Tr. 87:13-18, 10/23/2009 (Koenings). 14 Trial Tr. 6:19-25, 8:10-14, 11:21-12:16, 10/14/2009 (McHenry); Trial Tr. 117:19-188:4, 10/14/2009

(Rawson).






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watershed, the relationship among the “Hs” for each watershed must be evaluated; this

evaluation has yet to be performed on a systemic basis.15

Within the Puget Sound region, the State and the Tribes were key players in the

development of fourteen local watershed recovery plans tailored to the unique needs of each

watershed.16 The State, local governments, and the Tribes cooperated to combine the fourteen

local plans into one Puget Sound Salmon Recovery Plan and presented it to the National

Marine Fisheries Service (NOAA Fisheries). In 2007, NOAA Fisheries adopted the plan as its

own, along with a separate locally-developed Hood Canal Chum Recovery Plan.17 Actions to

be implemented include restoration of estuaries, floodplains, and nearshore and riparian

habitat, measures to create better water flow conditions for fish and cleanup pollution, along

with fish passage barrier correction.18

The centerpiece of the Plaintiffs’ remedy is a reckless gamble – the acceleration of a

single aspect of the salmon recovery plan. The parties agree that barrier culvert remediation is

part of what must be done to achieve the best outcome for salmon restoration. But the State

already corrects its barrier culverts under comprehensive salmon recovery plans. Adopting the

Plaintiffs’ schedule would grant a primacy to barrier culvert remediation that is inconsistent

with these plans, which were developed and implemented in coordination with the Tribes.19

None of the parties dispute this. The proposed acceleration would force a reprioritization of

the legislatively adopted budget and would necessarily come at the expense of other programs,

including other salmon restoration priorities.20 That fact also remains undisputed. In return,

15 Trial Tr. 84:24-85:5, 85:23-86:2, 88:3-6, 10/23/2009 (Koenings). 16 Ex. W-085 ¶¶ 39, 40; Ex. W-085-I; Ex. AT-010 ¶ 15 & p. 32; Trial Tr. 117:13-118:1, 10/14/2009

(Rawson); Trial Tr. 75:17-76:4, 102:2-6, 10/23/2009 (Koenings). 17 Ex. W-085 ¶ 39; 72 Fed. Reg. 2493 (Jan. 19, 2007) (Puget Sound); 72 Fed. Reg. 29121 (May 24,

2007) (Hood Canal). 18 Ex. W-085 ¶ 40; Ex. W-085-N. 19 Tribal biologist Kit Rawson testified that it was “too simplistic to rank one type of restoration effort

over another.” Trial Tr. 115:4-9, 10/14/2009 (Rawson). 20 Ex. W-090 ¶39.






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Plaintiffs can only speculate that the more rapid repair of state-owned barriers will produce any

measurable benefit in the available harvest and it could have negative consequences for salmon

recovery.

From the agreed premise that culvert barrier remediation is good for salmon recovery,

the Tribes’ request for acceleration is akin to the adage that if one prescribed pill is good,

then taking two must be twice as good. Dr. Koenings explained why the Tribes’ request is

not good science and in fact may be detrimental to the shared goal of salmon restoration in

the case area.21 The remedy sought by the Tribes should not be adopted by the Court.

II. ISSUES 1. Have the Plaintiffs shown entitlement to an injunction reforming the State salmon

recovery program by accelerating the correction of state-owned fish passage barrier culverts in the case area?

2. Have the Plaintiffs shown entitlement to an injunction that restricts the State’s

ability to choose culvert designs that provide fish passage? 3. Have the Plaintiffs shown entitlement to an injunction that restricts the State’s

flexibility in conducting adaptive management? 4. Are future barrier culverts within the scope of this Subproceeding? 5. Should the Court order an expansion of tribal consultation processes currently in

place? 6. Should the Court revisit its Order on Cross-Motions for Summary Judgment?

III. DISCUSSION

A. Institutional Reform Injunctions are Drastic Remedies Reserved for Recalcitrant State Actors.

Institutional reform, or “structural reform,” is a remedy that restricts a state’s ability to

make decisions about “basic policy, appropriations and budget priorities.” Horne v. Flores,

129 S. Ct. 2579, 2593 n.3 (2009). The Plaintiffs requested relief would constitute institutional

reform because it would impose judicial reprioritization of the state budget. It is a drastic

21 Trial Tr. 82:5-83:9, 83:25-84:11, 10/23/2009 (Koenings).






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remedy that must be cautioned by several federalism concerns. See United States v.

Washington, 573 F.3d 701, 709-710 (9th Cir. 2009). First, a court-ordered reprioritization of

the state budget runs up against the will of the people. Horne, 129 S. Ct. at 2594; Paul J.

Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949, 976 (1978) (“the

way to achieve desirable goals—and the only way to do so lastingly—is through the

democratic political processes which must remain the core of our polity”).22 Second, as a

matter of comity, federal courts must “seek to minimize interference with legitimate state

activities.” Rizzo v. Goode, 423 U.S. 362, 379 (1976). And finally, federal courts must

consider institutional competence, giving deference to state agencies with expertise. Stone v.

City & County of San Francisco, 968 F.2d 850, 860 (9th Cir. 1992).

Unlike the recalcitrant defendants for whom institutional reform can be appropriate, the

Defendant in this case has been addressing the problem that is the basis for the alleged

violation of federal law—fish passage barrier culverts—since before this litigation was filed.

Federal court intervention typically follows a finding of continuing, repeated violations of

federal law. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (judges

should only intervene into state affairs after the state has had an opportunity, but still failed to

arrive at an acceptable remedy to the constitutional violation). The State is aware of no other

case in which a court has ordered institutional reform under similar circumstances.

Over a generation ago, in United States v. Washington the state courts held that state

officials lacked authority to adopt rules that conformed to the Boldt Decision. Subsequently,

this Court managed the fisheries by federal court order for more than two years. See Puget

Sound Gillnetters Ass’n v. U.S. Dist. Court, 573 F.2d 1123, 1126 (9th Cir. 1978) (“state’s

22 In issuing the 1974 injunction in United States v. Washington, Judge Boldt recognized this interest.

Most of that injunction was prohibitive, directing what the State “shall not” do. United States v. Washington, 384 F. Supp. 312, 414-419 (W.D. Wash. 1974) (“Boldt Decision”). The mandatory elements of the injunction either had no direct impact on state financial resources or accommodated budget limitations. E.g., “state defendants shall immediately and expeditiously, consistent with availability of funds, begin to gather data and otherwise increase their technical capability to make run size predictions . . . .” Id. at 417 (emphasis added).






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extraordinary machinations in resisting the 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”), vacated

sub. nom Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.

658, 692-96 (1979); Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819 (Wash. 1979)

(returning authority to state officials).

The facts are much different now and much different as demonstrated in this

Subproceeding. This case does not involve discriminatory state action, nor does the record

support a finding that the State has been indifferent to its impact on salmon. Rather, the record

demonstrates the State’s leadership in implementing comprehensive and scientific plans

supporting salmon recovery.

The Ninth Circuit has repeatedly noted that the discrimination that gave rise to the

Boldt Decision has disappeared. U.S. v. Washington, 573 F.3d at 710 (“No one alleges that the

State of Washington’s violations [related to the Boldt Decision] of the Indian tribes’ treaty

rights continue”); United States v. Washington, 157 F.3d 630, 657 (1998) (“This case has come

a long way since the 1970’s when a ‘total lack of meaningful communication’ led to ‘deep

distrust’ between the parties”). Moreover, the State began working in good faith to correct its

culverts without court intervention. It continues to do so in cooperation with the Tribes.

Under these circumstances, the drastic remedy of institutional reform is unjustified and unjust.

See Brown v. Bd. Of Educ., 349 U.S. 294, 299 (1955) (when assessing existing efforts to

desegregate, districts should give substantial weight to the good faith efforts of the defendant).

B. The Plaintiffs Have Failed to Establish the Elements for an Injunction Requiring an Acceleration of the State’s Barrier Correction Program.

The Court should deny the Plaintiffs’ requested relief because they have failed to

establish the elements of a mandatory injunction. An injunction does not automatically follow

from the Court’s 2007 declaration of a treaty violation. Winter v. Natural Res. Def. Council,

Inc., 129 S. Ct. 365, 381 (2008) (“An injunction is a matter of equitable discretion; it does not






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follow from success on the merits as a matter of course”); Weinberger v. Romero-Barcelo, 456

U.S. 305, 312-313 (1982) (“a federal judge sitting as chancellor is not mechanically obligated

to grant an injunction for every violation of law”); see also N. Cheyenne Tribe v. Norton, 503

F.3d 836, 843 (9th Cir. 2007) (“no rule requiring automatic issuance of a blanket injunction

when a violation is found”).

To obtain injunctive relief, Plaintiffs must establish: (1) a likelihood of substantial and

immediate irreparable injury; (2) that the balance of the hardships favors an injunction; (3)

that the injunction is in the public interest; and (4) that no remedy at law exists. Los Angeles

Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980)

(preliminary injunction); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 (1987)

(preliminary injunction). The elements of a permanent injunction mirror those of a preliminary

injunction, except that the plaintiff must show actual success on the merits. Winter, 129 S. Ct.

at 381. The Plaintiffs failed to carry their burden of proof on elements (1) through (3).

1. The Plaintiffs failed to establish irreparable injury.

The Plaintiffs must establish that the Tribes will suffer substantial irreparable injury

unless the Court issues an injunction. Weinberger, 456 U.S. at 311-12; Younger v. Harris, 401

U.S. 37, 43-44 (1971). They have not done so. The Plaintiffs failed to show that the existing

comprehensive program to recover salmon is not working. They failed to show that the State’s

progress correcting its fish passage barrier culverts, when evaluated as part of that

comprehensive program, is inadequate.

The Tribes’ assertion that their harvests have been reduced is made in a legal and

factual vacuum. The Tribes present no authority for a legal entitlement to a “pre-barrier” level

of harvests or any other legal benchmark for determining an actionable reduction in available

harvest. Factually, the Tribes presented no evidence that would allow the Court to determine

how much impact state owned barrier culverts have on the harvest available to any particular






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Tribe. Similarly, the Tribes produced no evidence of how many additional salmon would

become available by accelerating the pace of correcting state owned barrier culverts.

a. The State has in place a comprehensive approach to salmon recovery that works.

Working together, the State, Tribes, local governments, and federal government have

put in place a comprehensive, effective, and well-funded salmon recovery program aimed at

increasing the available salmon populations for all citizens. Correction of state-owned fish

passage barrier culverts is only one component of this program. To decide whether any

injunction is necessary, the Court must consider the State’s culvert programs in the context of

the State’s overall salmon recovery efforts. See Horne, 129 S. Ct. at 2603-06.

In Horne, a group of students alleged that an Arizona school district was violating a

federal statute by failing to provide sufficient English language learning programs. The district

court agreed and entered a declaratory judgment, followed by an injunction requiring the state

to fund the programs in a particular way. Horne, 129 S. Ct. at 2590. Subsequently, the school

district instituted a number of reforms, Congress passed the No Child Left Behind Act, and the

state legislature directed the use of new, more effective teaching methods. Id. at 2590, 2600-

01. Some defendants then moved for relief from judgment under Fed. R. Civ. P. 60(b)(5)

based on changed circumstances. The district court denied the motion because the state had

not followed the terms of its injunction by increasing funding for English language learning.

Id. at 2591.

The Supreme Court reversed, holding that the district court should have considered

whether the changed circumstances, both funding and non-funding related, had corrected the

underlying violation of federal law. 129 S. Ct. at 2596-97. The Court held that, regardless of

whether the state had adhered to the terms of the injunction, if the state was no longer violating

federal law, federal court intervention must end. Id. at 2606.






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As was held to be in error in Horne, the Plaintiffs ask this Court to focus narrowly on

the correction of state-owned fish passage barrier culverts without considering the larger

context. But, like state funding for English language learning, fixing culverts is a means to an

end—restoring salmon populations to healthy, harvestable levels. If the State’s overall salmon

recovery program, which includes barrier culvert correction, is working to address threats to

salmon and thereby to increase fish available for tribal harvest, there is no likelihood of

substantial irreparable injury, and no basis for an injunction. The Court cannot evaluate the

adequacy of the State’s culvert programs without considering all the factors that contribute to

salmon health and the programs designed to address them. See Horne, 129 S. Ct. at 2600-06.

As the Court assesses the reasonableness of the State’s salmon recovery program, it

should generally defer to the collective expertise of the fisheries experts who developed the

plan. See Stone, 968 F.2d at 860 (courts should give “wide-ranging” deference to prison

officials with regard to how best to preserve internal order and discipline); Missouri v. Jenkins,

515 U.S. 70, 131-132 (1995) (courts should give deference to state and local officials in

making funding choices related to education) (Thomas, J., concurring). State and tribal experts

agree that a comprehensive, science-based approach is the best way to achieve salmon

recovery.23 The State, along with the Tribes and its other partners, has devised such a plan.

The State has committed hundreds of millions of dollars to its implementation, addressing all

categories of human activity that affect salmon.24 The National Marine Fisheries Service has

adopted portions of the plan.25 The Puget Sound Chinook harvest provisions have withstood a

23 Trial Tr. 127:18-24, 10/13/2009 (Wasserman); Trial Tr. 114:9-16, 10/14/2009 (Rawson); Trial Tr.

141:7-25, 10/15/2009 (Sekulich); Trial Tr. 66:24-68:25, 80:18-24, 84:12-85:22, 10/23/2009 (Koenings); Ex. W-085 ¶¶ 51-56; Ex. W-085-K.

24 Ex. W-085, pp. 41, 43, 46, 57; Ex. W-090, p. 37; .Ex. 092 § 1; W-090-G AMENDED. 25 72 Fed. Reg. 2493 (Jan. 19, 2007); 72 Fed. Reg. 29121 (May 24, 2007).






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third-party legal challenge.26 And, as former WDFW Director Dr. Jeff Koenings testified, the

plan is working.27 The Court should give it a chance to succeed.

To support their position that the Court should rework the existing salmon recovery

program, the Plaintiffs provided only the testimony of Dr. Philip Roni and some general

statements, cited without context, from outdated State documents. Dr. Roni’s own study

undermines the Plaintiffs’ position.28 Using computer modeling techniques, Dr. Roni

estimated smolt production in an “average” Puget Sound Watershed, for the types of

restoration projects funded by the Pacific Coastal Salmon Recovery Fund (PCSRF) from 2000

to 2009. His analysis showed that the modeled production from all restoration projects,

including barrier removal, had produced no detectable increase in coho and steelhead smolts.29

This was true even though the PCSRF-funded barrier removal projects composed a greater

percentage of the overall restoration effort when compared to the “typical” Puget Sound

Watershed.30 Dr. Roni’s study demonstrated that barrier removal projects are far from being

the “silver bullet” for creating detectable increases in salmon production.

Citing isolated statements in outdated documents, the Plaintiffs suggest the State has

admitted that fixing culverts should be the first priority in salmon recovery.31 The Tribes point

to a 1997 report to the Legislature that says removing fish passage barriers “is a critical

component in the effort to restore wild salmon and sea-run trout populations.”32 Viewed in

context, that statement supports the State’s position, not the Tribes’. The statement was part of

a report urging the Legislature to set up a program to identify, prioritize, and fund the

26 Salmon Spawning & Recovery Alliance v. Nat’l Oceanic & Atmospheric Admin., 342 Fed. App’x 336

(9th Cir. 2009). 27 Trial Tr. 81:11-22, 10/23/2009 (Koenings); Ex. W-085 ¶ 57; see Ex. W-085-E. 28 “Estimating Salmon and Steelhead Response to Watershed Restoration: How Much Restoration is

Enough?”, Ex. W-200. 29 See State of Washington’s Proposed Finding of Fact 218, Dkt. #19505/658. 30 Ex. W-200, p. F0015106. 31 Trial Tr. 10:13-11:10, 10/13/2009 (Tribes’ opening statement). 32 Ex. AT-083, p. T-1000984; see Trial Tr. 11:6-9, 10/13/2009 (Tribes’ opening statement).






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correction of fish passage barrier culverts owned by local governments and private entities. In

fact, the Legislature did set up such a program. It is still in place, now administered by the

Salmon Recovery Funding Board.33 The 1997 report that led to its creation is not evidence that

the State needs an injunction to fix its culverts; it is part of the success story of the State’s

comprehensive salmon recovery program.

b. The State has made and will continue to make strong progress correcting its barriers.

As part of its comprehensive approach to salmon recovery, the State is making strong

progress correcting its barrier culverts. The two largest road-owning state agencies, WSDOT

and WDNR, have had programs in place to correct their barriers since the 1990s.

WDNR began an inventory of its culverts in 1998.34 State forest practices regulations

adopted in 2001 require major forest landowners, including the WDNR, to bring their forest

roads up to certain fish protection standards by July 2016. Removal of fish passage barriers is

one element.35 Between 2001 and 2009, WDNR removed or replaced 744 fish passage barrier

culverts on its forest roads statewide, including 405 within the United States v. Washington

case area, at a cost of more than $11 million.36 As of April 2009, 228 of WDNR’s remaining

fish passage barrier culverts within the case area were identified as barriers to anadromous fish

passage.37 WDNR believes it will be able to correct those 228 by the July 2016 goal set by

state law.38 The Plaintiffs accept that goal for forest roads. Pl. Tribes’ Trial Br. at 4, Dkt.

#19406/610. There is no reason for this Court to federalize that State goal.

33 Ex. W-087 ¶ 46; Ex. W-087-I; see Ex. AT-202, pp. T-1001287-89; Ex. W-090-G AMENDED. 34 Ex. W-094 ¶ 14. 35 Ex. W-094 ¶ 10; Wash. Admin. Code §§ 222-24-010, 222-24-050, 222-24-051; Trial Tr. 65:2-8,

10/20/2009 (Nagygyor). 36 Ex. W-094 ¶ 39; Ex. AT-036, pp. 15-16; Trial Tr. 32:1-7, 36:4-7, 49:24-50:1, 10/20/2009 (Nagygyor). 37 Trial Tr. 31:19-23, 36:8-12, 10/20/2009 (Nagygyor); Pretrial Order, Admitted Fact 6.21, Dkt.

#19409/614. 38 Trial Tr. 32:15-23, 10/20/2009 (Nagygyor); Pretrial Order, Admitted Fact 8.18, Dkt. #19409/614.






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WSDOT has likewise made substantial progress correcting its fish passage barrier

culverts. WSDOT inventoried culverts on all state highways, developed and implemented a

prioritization scheme, corrected 236 fish passage barriers, and opened over 700 miles of

potential lineal habitat.39 WSDOT performed one-third of the projects as “stand-alone”

corrections under WSDOT’s I-4 fish passage barrier program, and it performed most of the

remaining corrections during highway improvement projects.40 Its program is award-winning

and considered to be a leader among transportation agencies.41

WSDOT has successfully obtained funding for its program. The legislative

appropriation per biennium for WSDOT’s I-4 fish passage correction program has increased

50-fold over ten biennia, from $400,000 in 1991-93 to approximately $20 million in 2009-11.42

Since 1996, WSDOT has spent $3.8 million for research on fish passage.43

No one disputes that more work needs to be done. WSDOT has a plan in place to do

it.44 Over time, the amount of habitat WSDOT recovers through each correction will decline.

The diminishing returns are illustrated in a graph that plots the “lineal gain” column from

Exhibit AT-323 against the number of corrections needed to achieve that gain (attached as

Attachment “A” for demonstrative purposes only). The graph shows that WSDOT may open

half—520 miles—of the remaining blocked potential lineal habitat by fixing an additional 163

culverts, about one-fifth of the 800 the Tribes want corrected in 20 years.45

At its current pace, WSDOT will correct 163 barriers in 17 years. Since 1995,

WSDOT’s average rate of correction has been 14.2 barriers per year statewide.46 Two-thirds

39 Ex. W-091-G (225 corrections, 699 miles); Trial Tr. 13:16-21, 10/19/2009 (Wagner) (11 corrections

during 2009 construction season). 40 Ex. W-092 ¶¶ 52, 54; Ex. W-189; Trial Tr. 13:19-21, 55:19-21, 10/19/2009 (Wagner). 41 Ex. W-092 ¶¶ 4, 46-49. 42 Ex. W-091-D AMENDED. 43 Ex. W-092-K. 44 Ex. W-092-O, pp. 000013-16. 45 Ex. AT-323 (row 164, Joe Cr.). 46 Ex. W-092-M.






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of those corrections, or about 9.5 per year, took place in the case area.47 Applied over 17

years, 9.5 corrections per year would result in 163 corrections.48 Without court intervention,

WSDOT is on target to continue making substantial gains in opening up potential fish habitat

over the next 20 years.49

As WSDOT continues making progress, the relative importance of fixing the remaining

barrier culverts in terms of habitat restoration will decrease. The Tribes have recognized the

same principle in their own projects. For example, tribal biologist Mike McHenry testified that

after fixing only a little more than half of the fish passage barriers on the Salt Creek watershed,

the priority shifted to other habitat restoration projects.50

c. The State is committed to salmon recovery.

The facts here show a defendant committed to fixing the problem without court

intervention. The WSDOT’s fish passage program began in 1991, ten years before this

litigation was filed and 16 years before this Court’s declaratory order.51 The WDNR’s

program began in 1998,52 and the State began implementing a statewide salmon recovery

program also in 1998, well before the filing of this lawsuit.53

Since its inception, WSDOT has continually adapted its program to changes in

understanding regarding the scope of the problem. As it learned more about the substantial

47 See Trial Tr. 30:5-7, 10/19/2009 (Wagner). 48 At an average cost of $2.3 million per correction (see Trial Tr. 26:22-24, 10/19/2009 (Wagner)) the

total cost of these 163 corrections will be approximately $375 million, not accounting for inflation. 49 Two-thirds of WSDOT’s fish passage barrier corrections to date have occurred within the case area.

See Trial Tr. 30:5-7, 10/19/2009 (Wagner). Applying that ratio to the approximately 700 miles of potential fish habitat opened state-wide suggests that about 460 miles have been opened in the case area. By comparison, the approximately 800 remaining barrier culverts Plaintiffs want corrected in 20 years block roughly 1,040 miles of potential lineal habitat. See Pl. Tribes’ Trial Br. at 4, Dkt. #19406/610; Ex. AT-323; Trial Tr. 138:9-139:2, 10/23/2009 (Benson). WSDOT has already reached one-third of the shared goal of opening up approximately 1,500 miles (460 + 1040) of potential lineal habitat in the case area.

50 Trial Tr. 12:24-13:6, 14:2-25, 33:12-34:6, 10/14/2009 (McHenry). 51 Ex. W-092 ¶ 16. 52 Ex. W-094 ¶ 14. 53 Ex. W-085 ¶ 20; Ex. W-087 ¶¶ 43-46; Ex. W-094 ¶ 10; Ex. W-085-E, p. 000008; Ex. W-085-I; Ex.

W-087-G; Ex. W-087-I; Ex. W-087-J.






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number of barrier culverts in addition to those owned by the State, WSDOT and WDFW

jointly went to the Legislature in 1997 and requested funding for a Fish Passage Grant Program

to “make funding available to cities, counties, state and private fish barrier owners.”54 As a

direct result of this effort, the Legislature created the Salmon Recovery Funding Board, which

to date has awarded approximately $255 million in state, federal and program-sponsor

matching funds for salmon habitat restoration projects, of which fish passage projects have

received $43 million.55 WSDOT paid for an expansion of the WDFW inventory of state

highways to ensure it identified all relevant barriers. And it adopted more costly stream

simulation culvert replacements as the limitations in retrofitting became more apparent.

d. Plaintiffs failed to prove that an injunction would cause any detectable change in tribal harvests.

Most of the Plaintiffs’ evidence linking salmon harvests with culverts was excluded as

unreliable. Order on Motions in Limine, Dkt. #19402/607. The evidence on which they now

seek to rely is anecdotal and speculative. See Pls.’ Proposed Findings of Fact at 42-43, Dkt.

#19507-659. A showing of speculative injury is not sufficient to support an injunction:

It is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief. Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.

Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426, 434 (1948) (emphasis added); see

also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (public consequences of

injunction that are too “remote, insubstantial, or speculative” or not supported by the evidence

cannot support injunction).

The Ninth Circuit applied this rule in Ranchers Cattlemen Action Legal Fund United

Stockgrowers of America v. United States Dep’t of Agriculture, 415 F.3d 1078 (9th Cir. 2005).

In Ranchers, an association of U.S. cattle farmers sought to enjoin a USDA rule that would

54 Ex. AT-073, p. T-000986. 55 Ex. W-087, ¶¶43-46; Ex. W-085, ¶41.






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relax restrictions on beef imports from Canada during a “mad cow disease” scare. The farmers

argued that the rule increased the risk that Americans who ate beef would be infected with mad

cow disease. The record showed a low incidence of the disease in the Canadian herd, with

safeguards to reduce the risk that an infected cow would enter the food supply. There was no

evidence of any mad cow infection from a Canadian cow. The Ninth Circuit found a

negligible risk of human fatality and little risk of economic harm to the U.S. beef industry.

The court concluded that plaintiffs had failed to establish irreparable injury and reversed the

preliminary injunction. Id. at 1104-05.

Here, no evidence specifically connects tribal fisheries and state-owned barrier culverts,

nor have the Plaintiffs presented any evidence to show how an injunction would affect tribal

fisheries. As discussed, Dr. Roni’s study suggests barrier culvert projects alone will not have a

significant impact. Further, there is no correlation between highway miles and the fluctuations

in tribal harvests experienced between 1974 and 2008.56

The Plaintiffs say the Court should infer injury from the State’s estimates of the amount

of habitat affected by state-owned culverts. Pls.’ Proposed Findings of Fact at 42, Dkt.

#19507/659. They base much of their case on this 1997 statement:

A total potential spawning and rearing area of 1,619,839 m2 (249 linear miles) is currently blocked by WSDOT culverts on the 177 surveyed streams requiring barrier resolution; this is enough wetted stream area to produce 200,000 adult salmonid annually.57

That statement is merely hypothetical. It is not evidence that any particular quantity of fish

will be produced.

The 200,000-fish statement is in a report that WDFW and WSDOT prepared in 1997

for the Legislature. Ex. AT-054, p. T-1000186. It does not purport to represent how many fish

56 Ex. W-188; Ex. JX-25, p. 000009. 57 Ex. AT-054, p. T-1000194; see Req. for Determination ¶ 3.8, Dkt. #17033; Pls.’ Proposed Findings of

Fact at 43, Dkt. #19507/659.






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would be produced if WSDOT culverts were fixed, nor was that the intent of the authors.58

Their objective was to help legislators understand why fixing culverts is a good idea, to

encourage them to fund the WSDOT I-4 fish passage barrier correction program.59 It worked.

The Legislature boosted I-4 fish passage funding by more than 50 percent in the 1999-2001

biennium.60 Since 1991, WSDOT has opened up about 700 linear miles of habitat, nearly three

times the amount said to be blocked in the 1997 report.61

We are no longer at the stage of trying to convince people that it is important to fix

barrier culverts. Everyone agrees on that.62 The question here is whether it is necessary for a

federal court to order a drastic acceleration of the State’s existing barrier correction program.

Like the Tribes’ “lost fish” evidence the Court excluded in its Order on Motions in Limine,

Dkt. #19402/607, the 200,000 number is not a reliable basis for estimating “lost fish” caused

by state barrier culverts nor the potential gain from correcting them.

Many factors affect tribal harvests.63 Accelerating the correction of state barrier

culverts without an understanding either of those factors or of the unique condition of every

watershed in the case area may prove counterproductive.

For example, fish passage barrier culverts are ubiquitous on the landscape.64 Most are

not state-owned.65 As of March 2009, WDFW had records for only 42 state-owned

anadromous fish passage barrier sites that block more than 200 meters of habitat in streams

with no other known anadromous barriers.66 Non-state-owned barriers lie upstream or

58 Trial Tr. 132:14-22, 10/15/2009 (Sekulich). 59 Trial Tr. 133:4-8, 10/15/2009 (Sekulich). 60 Ex. W-091-D AMENDED. 61 Ex. W-092 ¶ 52; Ex. W-092-O, p. 000006; Ex. AT-072, p. T1014092; Ex. W-189. 62 Trial Tr. 81:5-7, 10/23/2009 (Koenings). 63 Pretrial Order, Admitted Fact 2.3, Dkt. #19409/614. 64 Ex. AT-004, p. 8; Trial Tr. 173:22-174:21, 10/26/2009 (Roni); see Trial Tr. 101:11-16, 10/19/2009

(Wagner). 65 Ex. AT-158. 66 Ex. W-088 ¶ 11; Ex. W-088-C; Trial Tr. 118:13-120:6, 10/23/2009 (Benson).






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downstream of most state-owned barrier culverts.67 In some streams, the non-state-owned

barriers far outnumber the state-owned barriers.68 The potential benefit from fixing a state-

owned culvert will not be realized if fish are blocked by other non-state-owned fish passage

barriers in the same stream system.69

Many fish passage barrier culverts, both state-owned and non-state-owned, are partial

barriers.70 Partial barriers provide some passage to fish at some flows, which means that some

fish may be spawning upstream. It is impossible to predict the increase in fish production from

fixing a partial fish passage barrier.71 Furthermore, the habitat upstream from state fish

passage barriers varies in quality. In some parts of the case area, especially the more urbanized

ones, the habitat can be highly degraded.72 Some salmon may not be able to use highly

degraded habitat at all.73

The Plaintiffs failed to show that an acceleration of only one component of the

comprehensive salmon recovery program, by only one landowner, at the expense of other

aspects of the program, would result in any measurable difference in their harvests. The

Plaintiffs have failed to establish the likelihood of substantial irreparable injury, and the Court

should deny the injunction. Weinberger, 456 U.S. at 311-12.

2. The cost of the Tribes’ requested remedy, which could be as much as $2 billion over ten biennia, tips the balance of the hardships in favor of the State.

While the Tribes’ harm is speculative, the State’s budget harm is certain and

substantial. The Court should consider the impact the injunction would have on the state

67 Ex. W-133; Ex. AT-285 through Ex. AT-292; see Ex. AT-181. 68 Ex. W-119 through Ex. W-132. 69 Ex. W-087 ¶ 31; Trial Tr. 117:18-118:3, 10/15/2009 (Sekulich); Trial Tr. 100:17-101:10, 10/19/2009

(Wagner); see Trial Tr. 87:13-20, 10/14/2009 (Fox). 70 Ex. W-092 ¶ 25; Trial Tr. 102:6-9, 10/19/2009 (Wagner); Trial Tr. 114:3-24, 10/23/2009 (Benson). 71 Ex. W-087 ¶¶ 31, 32; Trial Tr. 102:3-5, 10/19/2009 (Wagner); Trial Tr. 145:12-15, 10/19/2009

(Barber); see Trial Tr. 165:12-16, 10/26/2009 (Roni). 72 Ex. W-087 ¶ 35; Trial Tr. 162:11-163:1, 10/14/2009 (Walter). 73 Ex. W-087 ¶ 35.






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budget. See Horne, 129 S. Ct. at 2594 (“When a federal court orders that money be

appropriated for one program, the effect is often to take funds away from other important

programs”); Gary H. v. Hegstrom, 831 F.2d 1430, 1433 (9th Cir. 1987) (court should consider

the cost of compliance when crafting a remedy for constitutional violations arising from poor

prison conditions); see also Cobell v. Norton, 428 F.3d 1070, 1077 (D.C. Cir. 2005) (reversing

court-imposed remedy that would have cost the federal government 35 times the cost of a

remedy that it proposed).

The Plaintiffs request an injunction that would cost $1.84 billion over 20 years, or 10

fiscal biennia. The average cost for each of the 37 upcoming culvert correction/replacement

projects for which WSDOT has estimates is approximately $2.3 million.74 That figure fairly

reflects the average cost of other projects currently being scoped.75 The project estimates that

provide the basis of this average are the same as those WSDOT uses to request funding from

the Legislature and are the most current cost evidence.76 Future projects may be more complex

and more expensive.77 Multiplying $2.3 million times 800, the number of culverts the

Plaintiffs want fixed, results in a price tag of $1.84 billion. Spread evenly over 10 biennia, the

Plaintiffs’ injunction would cost $184 million per biennium. The Legislature would need to

shift about $164 million per biennium from other programs.78

The Plaintiffs say the Court should look at average historic costs rather than cost

estimates for upcoming projects. Historic averages are not the basis of legislative requests for

upcoming budgets.79 They are not a reliable basis for predicting future costs because project

costs have increased dramatically over time, for several reasons. Projects have become more

74 Ex. W-113; Trial Tr. 26:12-24, 10/19/2009 (Wagner); see Trial Tr. 102:1-6, 10/26/2009 (Carpenter). 75 Trial Tr. 27:17-28:2, 10/19/2009 (Wagner). 76 Trial Tr. 21:7-14, 10/19/2009 (Wagner); Trial Tr. 101:11-102:6, 10/26/2009 (Carpenter). 77 Trial Tr. 27:23-28:2, 10/19/2009 (Wagner). 78 The Legislature appropriated $20 million for WSDOT’s I-4 program in 2009-11, as shown in Exhibit

W-091-D. Although WSDOT also corrects barriers during highway improvement projects, to ensure compliance with a court order WSDOT would need to request sufficient funding to fix them all through the I-4 program.

79 Trial Tr. 110:25-111:15, 10/19/2009 (Wagner); Trial Tr. 102:7-103:1, 10/26/2009 (Carpenter).






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complex.80 In the past, WSDOT frequently used much less costly retrofit corrections instead

of stream simulation or bridge culvert replacements.81 Other factors, such as general

inflation,82 material cost increases,83 and environmental permitting expenses have also caused

costs to rise.84

The impact on WSDOT’s central mission—to provide a safe and efficient highway

system—would be substantial if Plaintiffs’ injunction were granted. The Court must consider

the impact of the cost of the remedy on the agency’s ability to perform its central mission. See

Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) (court must consider the impact of the

requested remedy on the prison’s ability to ensure security). The mere fact that WSDOT’s

capital budget is relatively large is irrelevant. See Olmstead v. L.C. ex rel. Zimring, 527 U.S.

581, 603 (1999) (when assessing liability under the Americans with Disabilities Act, courts

may not compare the cost of relief against the state’s entire mental health budget as the latter

will almost always dwarf the former). The Legislature has dedicated most of the capital budget

to identified highway improvement projects.85 Only a small portion is uncommitted to

specifically mandated projects or bond debt.86 A significant portion of the non-committed

budget is used to address the State’s aging infrastructure through maintenance and preservation

projects.87 Should WSDOT be forced to find approximately $164 million more per biennium

to correct fish passage barrier culverts, these projects could be targeted. That would not be in

the public interest because “[d]eterioration of the infrastructure caused by deferred

80 Ex. W-092 ¶ 41; Trial Tr. 20:11-24, 10/19/2009 (Wagner); Ex. W-085 ¶53. 81 Ex. W-092 ¶¶ 35, 37, 41, 42; Ex. AT-101; Trial Tr. 18:15-19:15, 10/19/2009 (Wagner); Trial Tr.

136:18-137:8, 10/19/2009 (Barber); Trial Tr. 6:17-19, 10/20/2009 (Barber). 82 Ex. W-091 ¶ 20; see Ex. W-092 ¶ 41; Trial Tr. 79:7, 10/26/2009 (Carpenter). 83 Ex. W-091 ¶ 20; Ex. W-092 ¶ 41; Trial Tr. 20:5-6, 10/19/2009 (Wagner); Trial Tr. 89:23-90:25,

10/26/2009 (Carpenter). 84 Trial Tr. 20:6-9, 10/19/2009 (Wagner). 85 Ex. W-090 ¶ 22. 86 Ex. W-090 ¶ 26; Ex. W-091 ¶ 14. 87 Ex. W-090 ¶¶ 29-33.






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maintenance creates dangerous conditions for the safety of motorists, increased congestion and

adverse impact on the environment.”88

The Plaintiffs correctly point out that the question is when, not whether, the money will

be spent, as WSDOT intends to fix all 800 barrier eventually. But even the “marginal cost” of

the acceleration (i.e., difference between the current $20 million biennial appropriation and

that necessary to pay for an accelerated program) is $164 million per biennium. The Plaintiffs

fail to justify the associated reprioritization of an already stretched state budget. This failure is

particularly stark in light of the failure of the Tribes to demonstrate what gains in harvest

would be achieved by reprioritizing the State’s Plan.

Instead of paying for the correction of barrier culverts of a single ownership, the

“marginal costs” could fund the first 10 years of the Puget Sound and Hood Canal Salmon

Recovery Plans, which is estimated at approximately $1.5 billion. That figure covers habitat,

harvest, hydroelectric power, and hatchery measures in most of the case area.89

The current budget crisis highlights the importance of allowing the State the flexibility

to decide how best to implement the existing barrier correction program. See Rizzo, 423 U.S.

at 378-79 (“Government has traditionally been granted the widest latitude in the ‘dispatch of its

own internal affairs’”). The Governor must present the Legislature with a balanced proposed

budget.90 Faced with a multi-billion dollar budget shortfall for the 2009-11 biennium, the

Legislature cut funding for subsidized health insurance for low income workers, K-12 schools,

higher education, and basic aid for people who are unable to work.91 At the time of trial, state

budget experts were forecasting a 2010 operating budget shortfall of $1.7 billion and predicting

additional cuts.92 “These cuts represent real people with families depending on a paycheck. . . .

88 Ex. W-090 ¶ 33. 89 Ex. W-085-N, pp. 000002, 00008. 90 Ex. W-090 ¶ 7. 91 Trial Tr. 13:24-15:15, 10/26/2009 (Moore); Ex. W-090 ¶ 19; Ex. W-090-D. 92 Trial Tr. 24:4-17, 10/26/2009 (Moore).






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With limited revenues, program additions in one area must be offset by program reductions or

eliminations somewhere else.”93

Similar to the general fund, the transportation budget is also under duress.

Transportation revenues have dropped dramatically while transportation demand has

increased.94 Maintenance and safety projects needed by motorists throughout the state are

underfunded.95

Contrary to the Tribes’ argument, courts do not as a matter of law consider compliance

with federal law to be “paramount” to the impact on state budgets.96 In the cases they cite, the

courts found the impacts on state budgets to be minimal. Cal. Pharmacists Ass’n v. Maxwell-

Jolly, 563 F.3d 847, 852 (9th Cir. 2009) (“record reflects that the impact of a stay on the

budget crisis will be minimal at most”); Clayworth v. Bonta, 295 F. Supp. 2d 1110 (E.D. Cal.

2003) (holding that California could reduce Medicaid costs without violating the statute). That

is not the case here. The impact of a 20-year injunction that would cost $184 million per

biennium would be substantial. The Court should take that into account. See Horne, 129

S. Ct. at 2594 (noting that the reprioritization of state budgets caused by institutional reform

remedies raises heightened federalism concerns).

The State’s budgetary hardship is tangible and substantial. The benefit to tribal

harvests is speculative and potentially undetectable. The balance of the hardships favors the

State, and the Court should deny the Plaintiffs’ requested injunction.

3. Plaintiffs have failed to show an injunction that requires a reprioritization of the State budget would be in the public interest.

The Plaintiffs have failed to show that an injunction would be in the public interest. As

they exercise “their sound discretion, courts of equity should pay particular regard for the

93 Ex. W-090 ¶ 38. 94 Ex. W-090 ¶¶ 18. 29-33; Ex. W-091 ¶ 20. 95 Ex. W-091 ¶¶ 19, 22. 96 Pl. Tribes’ Trial Br. at 22, Dkt. #19406/610.






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public consequences in employing the extraordinary remedy of injunction.” Winter, 129 S. Ct.

at 376. The parties have concluded that it is in the public interest to have a comprehensive

approach that addresses all four “Hs” that affect salmon.97 This comprehensive approach

would be threatened by an injunction shifting a disproportionate amount of resources into state

barrier culverts. Dr. Koenings warned that focusing on barrier culverts alone could result in

delays to salmon recovery.98

Moreover, if the cost of the injunction came only from WSDOT programs, it would

push aside other projects designed to promote public safety and mobility as well as the

environment.99 It could delay highway maintenance and preservation projects. Shifting

resources into barrier corrections could delay stormwater and sediment remediation programs

that benefit salmon.100

The State recognizes a public interest in ensuring that treaty rights are protected. But

salmon restoration is best served through implementation of the existing comprehensive

salmon recovery program, not a narrow focus on one factor that affects salmon.

In sum, the Plaintiffs have failed to show that the equitable factors support their

requested remedy. Without an injunction, the Tribes will benefit from the comprehensive

salmon restoration efforts already in place, including the substantial progress the State is

making on its own barrier culverts. The Plaintiffs can only speculate that their requested

acceleration of the state program would result in a significant increase in their harvest, whereas

its $1.84 billion price tag would require a reprioritization of the State’s budget during an

economic crisis. Finally, the public interest would be disserved by the potential delays in

salmon recovery and to other transportation-related projects.

97 Ex. W-085 ¶¶ 51-56; Trial Tr. 127:18-24, 10/13/2009 (Wasserman); Trial Tr. 114:9-16, 10/14/2009

(Rawson); Trial Tr. 141:7-25, 10/15/2009 (Sekulich); Trial Tr. 66:24-68:25, 80:18-24, 84:12-85:22, 10/23/2009 (Koenings); Ex. W-085-K.

98 Ex. W-085 ¶ 53; Trial Tr. 80:9-81:22, 10/23/2009 (Koenings). 99 Ex. W-090 ¶ 39. 100 See Ex. W-091 ¶ 24; Trial Tr. 10:13-11:2, 10/19/2009 (Wagner).






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C. In Failing to Define the Scope of the Alleged Treaty Violation, Plaintiffs Provide the Court with No Basis to Define a Remedy.

The nature and scope of an injunction to enforce a federal law must be determined by

the nature and scope of the violation. Jenkins, 515 U.S. at 88; see Clement v. Cal. Dep’t of

Corr., 364 F.3d 1148, 1153 (9th Cir. 2004). Thus, to determine the scope of any injunction,

the Court must have enough evidence to determine the scope of the violation. Jenkins, 515

U.S. at 88. Plaintiffs have failed to provide the Court with sufficient evidence to craft a

remedy in two ways. First, they did not establish the scope of the injury, if any, caused by

state-owned barrier culverts. Second, they did not establish harm to the fisheries of the

individual Plaintiff Tribes.

1. The Plaintiffs have failed to show the scope of the injury caused by state-owned fish passage barrier culverts on tribal harvests.

The scope of an injunction must not exceed the injury caused by the state action it is

intended to remedy. Missouri v. Jenkins, supra (defendant school district could not be made

responsible for desegregating schools across a broad region that included other districts); see

Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982) (“only the specific conditions that

violate the Constitution may be remedied, and the remedy may be only so much as is required

to correct the specific violation”). In this case, the Plaintiffs have failed to show the scope of

the injury, if any, caused by state-owned fish passage barrier culverts.

The Ninth Circuit has previously recognized in United States v. Washington that the

State cannot be required to compensate the Tribes for harm it has not caused. See United

States v. Washington, 520 F.2d 676, 689 (9th Cir. 1975). When U.S. v. Washington was filed

in 1970, state fisheries managers were allowing non-Indians to catch most of the salmon before

they reached tribal fishing grounds. Judge Boldt declared that the Tribes were entitled to an

opportunity to take a fair share of the harvestable fish at their treaty fishing places, and that the

State’s fisheries management had been preventing the Tribes from taking a fair share. United

States v. Washington, 384 F. Supp. 312, 401, 403-04 (W.D. Wash. 1974). Judge Boldt






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enjoined the State to manage its fisheries so that a fair share would be available at tribal fishing

places. Id. at 416.

When Judge Boldt entered his injunction in 1974, unregulated fishing was occurring in

the ocean, beyond the State’s jurisdiction.101 The injunction directed that some of those

catches would “count” against the non-Indian fair share. U.S. v. Washington, 384 F. Supp. at

416. On appeal, the Ninth Circuit clarified that “the court’s equitable discretion does not

extend so far as to permit it to compensate the tribes for the unanticipated heavy fishing by

foreign ships off the coast.” United States v. Washington, 520 F.2d 676, 689 (9th Cir. 1975);

see United States v. Washington, 459 F. Supp. 1020, 1070 (W.D. Wash. 1976) (fish caught

offshore by foreign fishermen do not count in treaty/non-treaty sharing).

The same principle applies in this Subproceeding. The State cannot be required to

compensate for harms that its culverts have not caused. The scope of the alleged treaty

violation is the degree to which state-owned fish passage barrier culverts “diminish the number

of fish that would otherwise be available for Tribal harvest.” Order on Cross-Mots. Summ. J.

at 12, Dkt. #18879/392. It is not enough for the Plaintiffs merely to show that the State has

some fish passage barriers—that is undisputed. Nor is it enough to show that fixing them is

good public policy—that also is undisputed, as the State is fixing its culverts. To invoke the

Court’s injunctive powers, the Plaintiffs must show that the State’s culverts in fact cause the

Tribes to take fewer fish than they would otherwise. See Lewis v. Casey, 518 U.S. 343, 351

(1996) (inmate must go “one step further” and show that inadequate prison legal resources

hindered his efforts to pursue a legal claim). Finally, each Tribe must demonstrate for itself

that the fish purportedly lost due to state owned culverts interfered with that Tribe’s ability to

exercise its treaty fishing right. They have failed to make that showing.

101 The problem of unregulated offshore fishing was solved by the enactment of the Magnuson Fishery

Conservation and Management Act in 1976. See 16 U.S.C. §§ 1801-1833.






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Many factors affect tribal harvest levels. Pretrial Order, Admitted Facts 2.3, 2.5, Dkt.

#19409/614. Most are unrelated to state-owned barrier culverts. If this Court were to impose

an injunction on the State without requiring a showing that state barrier culverts caused a

specific harm to tribal fisheries, it would effectively be holding the State’s culverts responsible

for all factors pressuring the salmon life cycle.102 Such an order would be overbroad.

The Plaintiffs have failed to provide any evidence that would allow the Court to

determine the degree, if any, that state-owned barrier culverts have caused tribal harvests to be

less than they would be otherwise. The Tribes argue that they should not have to “identify

which individual culverts are responsible for which number of lost fish” because that would be

a “fool’s errand.” Pl. Tribes’ Trial Br. at 26, Dkt. #19406/610. The difficulty of making such

a showing does not relieve the Tribes of their burden.

The Tribes say no such showing is necessary because they have an absolute right to an

injunction requiring the State to fix all its culverts. Accordingly, every state barrier culvert is a

treaty violation and must be corrected. Pl. Tribes’ Trial Br. at 25, Dkt. #19406/610. That is

not what this Court said in its summary judgment order, however.

The State has about 1,450 anadromous fish passage barrier culverts in the case area.103

Between 1974 and 2007, the Tribes’ harvest was the biggest in 1985 and the smallest in

1999.104 In its 2007 summary judgment order, the court inferred from those facts that state-

owned barrier culverts were responsible for a “significant portion” of the reduction in tribal

harvests. Order on Cross-Mots. Summ. J. at 8, Dkt. #18879/392. Emphasizing the overall

“number of blocked culverts,” the Court held that the Tribes had presented sufficient facts to

102 Tribal biologist Kit Rawson testified that he had no idea what type of habitat pressure has contributed

most to the decline of salmon in the case area. Trial Tr. 119:25-120:7, 10/14/2009 (Rawson). Trial Tr. 120:8-122:16, 10/14/2009 (Rawson). Mr. Rawson could not say whether the current natural production of Puget sound chum, sockeye, or pinks is below historic levels, but acknowledged that Puget Sound fall chum are higher this decade than earlier in the 1970s and early 1980s. Trial Tr. 120:17-121:14, 10/14/2009 (Rawson).

103 Ex. W-088 ¶¶ 7, 10, 34; Pretrial Order, Admitted Fact 6.21, Dkt #19409/614. 104 Pretrial Order, Admitted Fact 2.7, Dkt. #19409/614; Ex. JX-25, pp. 6, 9, Dkt. #19363/577.






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support a declaratory judgment. Id. at 5, 8, 12. It did not say that every barrier culvert violates

the treaties. Instead, the Court held that further proceedings were necessary before it could

determine whether any additional remedy would be appropriate. Id. at 12.

The Tribes cite Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash.

1988), in support of their “every barrier” argument. According to the Tribes, Muckleshoot v.

Hall held that a single structure that “result[s] in only a small reduction in harvest” violates the

treaties. Pl. Tribes’ Trial Br. at 25, Dkt. #19406/610. That is a misreading of the decision. In

Muckleshoot v. Hall, Judge Zilly distinguished between two aspects of the treaty right: (1) the

geographical right of access to usual and accustomed grounds and stations, and (2) the right to

some share of the harvest. 698 F. Supp. at 1513; see United States v. Oregon, 718 F.2d 299,

303 (9th Cir. 1983) (“tribes’ fishing right encompasses access to traditional sites as well as a

right to a fair share of the catch”). Muckleshoot v. Hall was about the right of access. The

Muckleshoot and Suquamish Tribes claimed that a proposed marina would deprive them of

access to a portion of their usual and accustomed fishing grounds in Elliott Bay. 698 F. Supp.

at 1504-05. The court held that, without an act of Congress, the access right did not allow the

taking of even a small portion of the usual and accustomed fishing places. Id. at 1515-16.105

No Tribe has alleged in this Subproceeding that any state-owned culvert has deprived it

of access to its usual and accustomed fishing places. Muckleshoot v. Hall does not apply.

The Tribes’ argument that every state-owned fish passage barrier violates the treaties

should also be rejected because the evidence shows that all barriers are different. As WDFW

witness Dr. Paul Sekulich testified, each barrier correction provides a different degree of

benefit to fish, which is why he created the Priority Index.106 The Tribes themselves advocate

105 The 1994 shellfish decision in United States v. Washington casts doubt on the continuing validity of

Muckleshoot v. Hall. See United States v. Washington, 873 F. Supp. 1422, 1438 (W.D. Wash. 1994) (“Tribes appear to have conceded that the some of the development along the tidelands, but not all, has extinguished their right to take fish from those particular areas”).

106 Ex. W-087 ¶¶ 21-27; Trial Tr. 114:5-115:19, 10/15/2009 (Sekulich).






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different treatment for some culverts. They would permit WSDOT to defer correction until the

end of their useful life those culverts that block 10 percent of the total habitat. Pl. Tribes’ Trial

Br. at 4, Dkt. #19406/610. There is no evidence to support that 10 percent number—or any

other number. The Plaintiffs have failed to show any connection between their requested

injunction and any alleged injury to the Tribes.

The Tribes’ argument that every barrier is a breach of the treaty highlights the infirmity

of their legal theory. Nothing in the treaty supports such an entitlement. Under the Tribes’

theory, every time a culvert fails in the future a new breach of the treaty has occurred

regardless of its impact on tribal harvest. The remedy sought by the Tribes is untethered to

tribal treaty rights due to the absence of evidence on how accelerating barrier remediation

affects the Tribes’ ability to exercise their treaty fishing rights.

2. Case area relief is inappropriate because the Tribes did not establish case area injury in fact.

A prospective remedy cannot extend systemwide without a showing that the relevant

injury in fact applies systemwide. Lewis, 518 U.S. at 359; see also Stormans, 586 F.3d at

1140-41 (statewide injunction was overbroad when only three plaintiffs alleged violation of

their right of religious free exercise). In Lewis, after finding inadequacies in many Arizona

prison law libraries, the district court instituted a systemwide injunction related to their

improvement. The Supreme Court said the relevant injury was not deficient law libraries, but

inadequate access to courts. It found that only two plaintiffs in two facilities had made this

showing, and held that was a “patently inadequate basis for . . . [the] imposition of systemwide

relief.” 518 U.S. at 361. It added that “[c]ourts have no power to presume and remediate harm

that has not been established.” Id. at 360 n.7.

The Plaintiffs’ request for systemwide (case area) relief is similarly based upon a

misapprehension of the relevant injury in fact. The mere presence of barriers is not the injury.






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The Tribes must go “one step further” and show that the presence of barriers significantly

diminished their Tribal harvests. See Lewis, 518 U.S. at 351.

It is this injury that each Tribe needed to show individually. This case was not filed as

a class action. Each of the 21 Plaintiff Treaty Tribes has a separate treaty right. See, e.g., Hoh

Indian Tribe v. Baldrige, 522 F. Supp. 683, 685 (W.D. Wash. 1981) (plaintiffs “are separate

and distinct federally recognized Indian tribes each of which separately holds fishing rights

secured by the Treaty”). Each Tribe has its own usual and accustomed fishing places (U&As)

in different watersheds within the case area.107 See Conference of Western Attorneys General,

American Indian Law Deskbook 400 (Clay R. Smith, et al., eds., 4th ed. 2008) (tribe-by-tribe

table of U&A findings in U.S. v. Washington). Each Tribe was required to establish injury to

its fisheries from state-owned culverts linked to its usual and accustomed fishing places. None

did so.

Evidence about overall tribal harvests proves nothing about the effects of state-owned

culverts in watersheds that affect individual Tribes. The health of salmon stocks varies widely

throughout the case area.108 Elders from the Squaxin Island, Swinomish, Lummi, and Quinault

Tribes provided anecdotal testimony about poor fisheries in some unspecified years. But

salmon from the Humptulips River, where the Quinault Nation fishes,109 never pass through

the usual and accustomed places of the Muckleshoot Tribe.110 There are no ESA-listed salmon

on the Washington coast except for Lake Ozette sockeye, which are limited to one small

watershed that lies partially within the federally owned and managed Olympic National Park

107 When they litigated Phase II of United States v. Washington 30 years ago, the Tribes “point[ed] out

that the tribal rights are based not on the case area but on individual streams.” United States v. Washington, 694 F.2d 1374, 1386 (9th Cir. 1982), vacated, 759 F.2d 1353 (9th Cir. 1985) (en banc).

108 Ex. W-085 ¶¶ 10-12. 109 See Trial Tr. 90:1-9, 10/15/2009 (Johnstone). The Humptulips River flows into Grays Harbor west of

Hoquiam, in Grays Harbor County. 110 The Muckleshoot Tribe’s usual and accustomed grounds and stations lie within certain river systems

in King and Pierce Counties, in Lake Washington, and in Elliott Bay. United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000); United States v. Washington, 384 F. Supp. 312, 367 (W.D. Wash. 1974).






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and has few, if any, state-owned barrier culverts.111 Most salmon stocks from the north coastal

and Grays Harbor watersheds whose status is known are rated as healthy.112

The record provides this Court with no way to determine which Tribes actually suffered

harvest reductions after 1985, much less the extent to which any diminishment was due to the

State’s barrier culverts. The absence of any Tribe-by-Tribe, river-by-river showing provides

this Court with no evidence that would justify an injunction for the entire case area. See

Horne, 129 S. Ct. at 2606-07 (reversing statewide remedy as overbroad when the district court

found only a single school district in violation of the Equal Education Opportunities Act); see

also Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999) (requiring each named

plaintiff in a class-action to establish likelihood of irreparable injury to obtain relief for entire

class). Such an injunction would be overbroad and should be denied.

D. The State Should Have the Opportunity to Revise its Program Before Judicial Intervention.

If, despite the substantial progress the State has made, the Court finds that the State’s

existing program to correct barrier culverts is inadequate, it should allow the State time to

modify its approach before intervening. See Stone, 968 F.2d at 860 (“[w]hen the least intrusive

measures fail to rectify the problems, more intrusive measures are justifiable”); Tuttle v.

Arlington County Sch. Bd., 195 F.3d 698, 708 (4th Cir. 1999) (reversing permanent injunction

that went beyond remedy proposed by the school board); see also Ass’n of Cmty. Org. for

Reform Now (ACORN) v. Edgar, 56 F.3d 791 (7th Cir. 1995) (“federal judicial decrees that

bristle with interpretive difficulties and invite protracted federal judicial supervision of

functions that the constitution assigns to state and local governments are to be reserved for

demonstrated noncompliance with milder measures”).

111 Ex. W-085 ¶10; Ex. AT-008-5; Ex. AT-008-10. 112 Ex. W-085 ¶11.






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Before the Court intervenes and reprioritizes the State budget, it should allow the State

and the Legislature the opportunity to revise their program. To be effective for salmon

recovery, the State needs to retain the ability to develop, coordinate, and adopt conservation

strategies. Judicial restraint is further appropriate in light of the current economic climate.

E. The State Should Retain Discretion in the Selection of Fish Passage Designs

The Plaintiffs ask the Court to order the State to apply “the best available fish passage

science in its [culvert] corrections—currently in most instances, the ‘stream simulation’

correction design” or a bridge, “except in an emergency or when use of those standards is

infeasible.” Pl. Tribes’ Trial Br. at 3-4, Dkt. #19406/610; see Pls.’ Proposed Permanent Inj.

¶¶ 9, 10, Dkt. #19508/660. The Plaintiffs also ask the Court to order mitigation if a design

method other than stream simulation or a bridge is chosen. Pls.’ Proposed Permanent Inj.

¶ 10, Dkt. #19508/660.

Injunctive relief is an extraordinary remedy that may be awarded only upon a clear

showing that the plaintiff is entitled to such relief. Winter, 129 S. Ct. at 376. The Plaintiffs

must show that the State’s culvert design practices are likely to cause the Tribes substantial

irreparable harm unless the Court issues an injunction, that the balance of hardships favors

the Tribes, and that the public interest would not be disserved by an injunction. N. Cheyenne

Tribe, 503 F.3d at 843. Plaintiffs have not made such a showing. The evidence shows that

the State already uses the best available science and that the Tribes have opportunities to

provide input on the design of particular projects.113 There is no evidence that there is

anything to “mitigate” when the State uses the no-slope or hydraulic design methods for its

fish passage projects.

113 See State of Washington’s Proposed Findings of Fact 76, 84, 86, 88, Dkt. #19505/658.






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1. The Plaintiffs have not shown irreparable harm from the State’s culvert design practices.

The State has been developing and using the best available fish passage science in its

culvert corrections since before this Subproceeding was filed. For decades, the State has

conducted and sponsored research on fish passage.114 Washington is a leader in culvert

design nationally.115 During the past 25 years, WDFW has developed and currently accepts

three culvert design methods for providing fish passage: the hydraulic, no-slope, and stream

simulation methods.116 There is no evidence that culverts designed according to those

methods harm salmon or diminish the number of fish that would otherwise be available for

tribal harvest.

Culverts designed under all three WDFW methods effectively pass all species and life

stages of salmon.117 All three methods are accepted by the National Marine Fisheries Service

under the federal Endangered Species Act.118 Over the past twenty years, state agencies’

culvert designs have evolved, incorporating new science and lessons learned. In 1990, the

hydraulic method was the only method available for designing fish-passable culverts.119 At

that time, most state fish passage projects were hydraulic retrofits of existing culverts.120 In

1994, WDFW approved the no-slope method.121 In 1999, WDFW formally developed and

began recommending the stream simulation method.122 Since then, state agencies have

114 Ex. W-087 ¶¶ 47-50; Ex. W-089 ¶¶ 8-10; Ex. W-094 ¶ 45; Trial Tr. 34:2-9, 55:1-14, 10/20/2009

(Nagygyor), 71:24-73:16, 116:17-18 (Barnard); Ex. W-087-L; Ex. W-089-G; Ex. AT-192; Ex. AT-319; Pretrial Order, Admitted Facts 5.2, 5.4, Dkt. #19409/614.

115 Ex. W-092 ¶¶ 48, 49; see Ex. W-089 ¶ 3. 116 Ex. W-089 ¶¶ 6-11; Ex. W-089-H, p. 000007; Pretrial Order, Admitted Facts 5.6, 5.10-5.13, Dkt.

#19409/614; see Ex. W-087 ¶ 48. 117 Ex. W-088 ¶ 20; Ex. W-089 ¶¶ 41, 47, 50, 60, 80; Ex. W-092 ¶ 38; Ex. W-094 ¶ 23; Ex. W-089-B,

pp. 000018, 000021-000023, 000030; Trial Tr. 70:4-23, 10/14/2009 (Fox); Trial Tr. 26:15-18, 10/20/2009 (Nagygyor), 99:17-100:17 (Barnard); see Trial Tr. 137:15-20, 10/15/2009 (Sekulich); Trial Tr. 108:14-109:14, 10/20/2009 (Barnard).

118 Ex. USA-197, pp. USNMFS-SUPP028397 – USNMFS-SUPP028400; Pretrial Order, Admitted Fact 5.13 (No-Slope), Dkt. #19409/614.

119 See Ex. W-087-B, pp. 000015-18. 120 Ex. W-092 ¶ 35; Ex. AT-101; Trial Tr. 6:17-19, 10/20/2009 (Barber). 121 Ex. W-089 ¶ 7; see Ex. W-087 ¶ 48; Ex. W-087-K. 122 Ex. W-089 ¶¶ 9, 11.






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moved away from hydraulic retrofits in favor of replacement culverts designed using the no-

slope or stream simulation culvert design methods.123 There is no evidence that any no-slope

or stream simulation culvert has become a fish passage barrier after installation.124 WDFW

currently recommends stream simulation as the preferred culvert design method.125

Relying on old and outdated information, the Tribes attempt to make the State look as

though it is stuck in old and outdated culvert design methods. For his testimony, tribal

witness Dr. Martin Fox relied on a 2005 WSDOT report and his own unpublished 2006 data

about some older WSDOT fish passage projects, including nine from the 1990s.126 Though

the Tribes received in discovery a list of completed and planned WDNR culvert projects

before Dr. Fox did his field work,127 Dr. Fox did not evaluate a single WDNR culvert.128

Furthermore, the WSDOT projects Dr. Fox did visit are not representative of what any state

agency is doing today.129

The record contains no evidence that the State is not using the best available fish

passage science in its culvert corrections.

2. The balance of hardships favors the State.

Stream simulation culverts tend to be more expensive than culverts designed under

the hydraulic and no-slope methods.130 In some situations, a stream simulation culvert may

be much more expensive than an alternative that can still provide fish passage.131 The money

saved can be spent on other fish passage projects.132 An order restricting the State to the use

123 Ex. W-092 ¶¶ 37, 39, 42; Ex. W-094 ¶ 23; Ex. W-113; Ex. AT-042; Ex. AT-101; Ex. AT-304; Trial

Tr. 18:23-19:15, 10/19/2009 (Wagner), 136:18-137:2 (Barber); Trial Tr. 25:16-23, 10/20/2009 (Nagygyor). 124 Trial Tr. 68:17-21, 10/14/2009 (Fox); Trial Tr. 105:11-24, 10/19/2009 (Wagner). 125 See Trial Tr. 97:4-12, 10/20/2009 (Barnard); Pretrial Order, Admitted Fact 5.6, Dkt. #19409/614. 126 Ex. AT-001, pp. 37, 51-52; Trial Tr. 80:15-23, 10/14/2009 (Fox). 127 Ex. AT-306. 128 Trial Tr. 78:15-79:11, 10/14/2009 (Fox). 129 Trial Tr. 137:3-8, 10/19/2009 (Barber). 130 Ex. W-092 ¶¶ 35, 38; Ex. W-094 ¶ 24; Trial Tr. 19:9-20:2, 10/19/2009 (Wagner); Trial Tr. 33:18,

10/20/2009 (Nagygyor). 131 Trial Tr. 112:21-113:6, 10/19/2009 (Wagner); Trial Tr. 152:23-153:13, 10/20/2009 (Hanson). 132 See Trial Tr. 13:5-10, 10/19/2009 (Wagner).






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of the stream simulation design method would impose heavy financial burdens on the State.

The Plaintiffs’ proposed strait jacket approach does not promote the best use of resources.

There is no evidence that the Tribes would suffer irreparable harm without such an order.

The balance of hardships does not favor the Plaintiffs.

3. The public interest would not be served by the requested injunction.

The Plaintiffs’ proposed injunction would require the State to install stream

simulation culverts or bridges except in “rare circumstances” where that would be

“infeasible,” or in an emergency. Pl. Tribes’ Trial Br. at 42-43, Dkt. #19406/610. Such an

onerous requirement would insert the Court into technical decisions that should be made by

qualified engineers, and it could potentially delay projects.

Culvert design is complex and site specific. There is no one-size-fits-all solution.133

As recognized in the Plaintiffs’ own documents, some design alternatives may perform better

than others at a particular site.134 Culvert design engineers need the flexibility of multiple

design options to address complex situations.135 For example, where a utility line is within

the project area, the roughened channel form of the hydraulic method may be more

appropriate than the stream simulation method.136

The Plaintiffs claim the State should be required to “show that use of the best fish

passage science simply is not feasible” in order to use a method other than stream simulation

or a bridge. Pl. Tribes’ Trial Br. at 43, Dkt. #19406/610. To whom would such a showing be

made? Would the Court have to conduct a hearing on feasibility? Culvert engineering is not

the province of the Court. See U.S. v. Washington, 573 F.3d at 709 (“The Constitution does

not establish the district courts as permanent administrative agencies”); United States v.

133 Ex. W-089 ¶¶ 19, 66-68; Ex. W-093 ¶ 47; Ex. W-089-H, pp. 000054-000056; Trial Tr. 112:18-

114:22, 10/19/2009 (Wagner); Trial Tr. 33:4-9, 10/20/2009 (Nagygyor). 134 Ex. AT-120 §§ 1.1, 6.2; Ex. USA-198, p. F0006816. 135 Ex. W-089 ¶ 68; Trial Tr. 92:25-95:17, 10/20/2009 (Barnard). 136 Ex. AT-120 § 6.2.3; see Trial Tr. 148:2-7, 10/14/2009 (Walter).






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Washington, 774 F.2d 1470, 1481 (9th Cir. 1985) (fishery management is not the province of

the court). Technical solutions to site-specific problems should start with the culvert

designer, not the Court.137

Denying the requested injunction will not deny the Tribes a voice in decisions

regarding culvert projects. The Tribes have opportunities for input in agency decision

making and access to internal agency review.138 All interested parties, including the Tribes,

have the right to appeal state permitting decisions if they believe that a culvert project will

harm fish. See Nw. Steelhead & Salmon Council of Trout Unlimited v. Washington State

Dep’t of Fisheries, 896 P.2d 1292 (Wash. Ct. App. 1995) (appeal of WDFW Hydraulic

Project Approval for a bridge); Wash. Rev. Code ch. 34.05 (Washington Administrative

Procedure Act); Wash. Rev. Code § 76.09.220(8) (Forest practices permit appeals); Wash.

Admin. Code § 220-110-350 (appeals of Hydraulic Project Approvals). These state

procedural mechanisms are adequate to protect the Tribes’ interests. See U.S. v. Washington,

384 F. Supp. at 402 (state regulation of treaty Indian fishing must be done “in accordance

with the requirements of the Washington Administrative Procedure Act”).

The equitable factors do not support an injunction related to the selection of culvert

designs.

4. There is no evidence that any of the State’s culvert design methods cause “impacts” that need to be mitigated.

The Plaintiffs propose that the State must mitigate for future habitat impacts caused by

fish passage structures designed according to the no-slope or hydraulic methods. Pls.’

Proposed Permanent Inj. ¶ 10, Dkt. #19508/660. There is no evidence of anything to

“mitigate.”139 The Plaintiffs have not established a likelihood of substantial injury.

137 Ex. USA-197, p. USNMFS_SUPP028397; see Ex. AT-120 § 1.1. 138 Ex. W-093 ¶¶ 14-18; Ex. W-094 ¶ 20; Ex. W-092-G; Trial Tr. 29:3-25, 10/19/2009 (Wagner); Trial

Tr. 52:1-4, 10/20/2009 (Nagygyor); Trial Tr. 42:14-45:22, 10/23/2009 (Hanson). 139 See Ex. AT-009, pp. 17-19 (no citations to studies or publications); Trial Tr. 158:3-6, 10/14/2009

(Walter); Trial Tr. 180: 7-16, 10/20/2009 (Hanson).






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Under existing law, WSDOT already performs extensive mitigation for the impacts of

its construction projects on wetlands and streams.140 WSDOT works with interested parties,

including Tribes, to ensure that the mitigation plan effectively addresses all perceived

impacts.141 There is no need for the Court to insert itself into that process. See Rizzo, 423 U.S.

at 379 (federal courts “should always seek to minimize interference with legitimate state

activities in tailoring remedies”).

F. The Plaintiffs are not entitled to an injunction mandating an adaptive management program.

The Plaintiffs ask the Court to order the State to “monitor its implementation of the

injunction, evaluate whether its efforts to provide fish passage under the injunction are

effective, and make appropriate changes in its practices in response to such monitoring and

evaluation,” which the Tribes call “adaptive management.” Pl. Tribes’ Trial Br. at 4, 47,

Dkt. #19406/610; see Pls.’ Proposed Permanent Inj. ¶¶ 11, 12, Dkt. #19508/660. To get such

relief, the Plaintiffs must show that the Tribes are likely to suffer irreparable harm unless the

Court orders the State to develop a monitoring and adaptive management program. N.

Cheyenne Tribe, 503 F.3d at 843; see United States v. Washington, 459 F. Supp. 1020, 1089

(W.D. Wash. 1976) (substantially denying preliminary injunction because facts showed no

significant harm to tribal programs). They have not made such a showing.

The State already monitors its fish passage installations. WDFW inspects completed

WSDOT and WDFW fish passage projects to verify that they were installed as planned and

that they are passable to fish.142 WDNR inspects its fish passage projects to see that they are

being properly constructed.143 WDFW inspects all WSDOT fishways annually.144 WSDOT

140 Trial Tr. 174:8-175:7, 176:17-178:1, 10/20/2009 (Hanson). 141 Trial Tr. 177:12-178:1, 10/20/2009 (Hanson); Trial Tr. 42:14-46:12, 10/23/2009 (Hanson). 142 Ex. W-088 ¶¶ 18, 19; Trial Tr. 135:18-136:9, 10/19/2009 (Barber); Pretrial Order, Admitted Fact 9.5,

Dkt. #19409/614. 143 Ex. W-094 ¶ 27; Trial Tr. 24:11-13, 10/20/2009 (Nagygyor). 144 Trial Tr. 136:10-14, 10/19/2009 (Barber).






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conducts ongoing general maintenance of its culverts.145 WDNR inspects its culverts after

flood events and at other times.146 WDFW has four culvert test sites where it conducts

ongoing monitoring through annual spawner surveys.147

The State has been practicing “adaptive management” for decades. The State

developed much of the science on which all parties have relied in this litigation.148 It has

incorporated new science and lessons learned into its fish passage programs.149

The Tribes apparently want the Court to order something like the monitoring

described in Chapter 10 of Exhibit AT-120, the Federal Highway Administration’s 2007

Synthesis Report on fish passage. Pl. Tribes’ Trial Br. at 48, Dkt. #19406/610. In fact, the

report in question recommends what Washington is already doing. It cites the work of

Robert Barnard, one of the State’s trial witnesses, as an example of “effectiveness

monitoring” that has led to better culvert design practices.150

There is no evidence that the State’s current monitoring and adaptive management

practices have caused any harm to the Tribes or that the State will discontinue those

practices. The Plaintiffs have made no showing of irreparable injury or that the balance of

hardships tips in their favor.

G. “Future barrier culverts” are beyond the scope of this Subproceeding.

The Plaintiffs ask the Court to order the State to repair culverts that become barriers to

fish passage at some future time. Pls.’ Proposed Permanent Inj. ¶ 11, Dkt. #19508/660. The

Tribes’ Trial Brief calls these culverts “future barriers.” Dkt. # 19406/610 at 43.

145 Trial Tr. 85:19-86:12, 10/26/2009 (Carpenter); Ex. AT-162. 146 Trial Tr. 48:11-49:23, 62:8-64:2, 10/20/2009 (Nagygyor); Pretrial Order, Admitted Fact 9.6, Dkt.

#19409/614. 147 Ex. W-088 ¶ 20. 148 Ex. W-087 ¶¶ 47-50; Ex. W-089 ¶¶ 8-10; Ex. W-094 ¶ 45; Trial Tr. 5:9-12, 10/15/2009 (Sekulich);

Trial Tr. 34:2-9, 55:1-14, 10/20/2009 (Nagygyor), Trial Tr. 71:24-73:16, 87:8-9, 116:7-117:4, 10/20/2009 (Barnard); Pretrial Order, Admitted Facts 5.2, 5.4, Dkt. #19409/614.

149 Ex. W-087 ¶¶ 11, 15, 19, 22, 47-50; Ex. W-088 ¶ 28; Ex.W-089 ¶¶ 6-11; Ex. W-092 ¶¶ 11, 12, 34, 42; Ex. W-094 ¶ 23; Trial Tr. 110:25-111:15, 118:4-14, 10/15/2009 (Sekulich).

150 Ex. AT-120, p. 10-1; Ex. W-089-E, p. 000067.






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“Future barrier culverts” are beyond the scope of a court-ordered remedy in this

Subproceeding for several reasons. First, the Court entered a Stipulation and Order between

the parties limiting this Subproceeding’s scope to culverts identified as barriers to fish passage

at the time the Court issues its final order. Stipulation Regarding Scope of Subproceeding, and

Order, Dkt. #18739/341. Second, claims regarding future culverts are unripe for consideration

in this Subproceeding, as any remedy for future culverts would be based on speculative injury.

Finally, because all culverts have some possibility of becoming barriers in the future, any court

order to remedy future barrier culverts would last in perpetuity—a form of court intervention

that is not favored in the law.

1. The scope of Subproceeding stipulation clarifies that future barrier culverts are not addressed in this case.

The stipulation entered into by the State and Plaintiffs on January 29, 2007 limits the

universe of culverts under consideration, and excludes future barrier culverts from this

Subproceeding. In paragraph one, the stipulation explicitly provides, “The scope of this sub-

proceeding only includes those culverts that block fish passage under State-owned roads.

Culverts that do not block fish lie beyond the scope of this case . . . .” Dkt. #18739/341 at 1-2.

Paragraph three of the stipulation discusses the State’s barrier culvert inventories and preserves

the Tribes’ ability to argue about their sufficiency. It then goes on to say, “[C]ulverts 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.” Dkt. #18739/341 at 2 (emphasis added).

The last paragraph of the stipulation then preserves the ability of the Plaintiffs to seek relief for

those culverts not addressed as part of this Subproceeding in a future case. Dkt. #18739/341 at

2-3.

This Court previously reviewed the stipulation and concluded in its summary judgment

order that “[s]hortly before the February 1, 2007 hearing, the parties stipulated to define the






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scope of this subproceeding to include ‘only those culverts that block fish passage under State-

owned roads.’” Order on Cross-Mots. for Summ. J. at 3-4, Dkt. #18879/392. “Therefore,

culverts that do not actually block fish passage, as well as tidegates, are not within the scope of

this subproceeding.” Id. at 4.

As evidenced in paragraphs 1, 3, and 4 of the stipulation, the parties intended that only

culverts that block fish passage and are included in an inventory of barriers prepared prior to or

pursuant to entry of a final order in this Subproceeding would be considered part of the current

case. This is made clear by the explicit language of paragraph 1, the scope of the remedy

agreed to in paragraph 3, and the explicit recognition in paragraph 4 that the Plaintiffs may

pursue future actions to remedy future barrier culverts. Read as a whole, the scope of the

Subproceeding stipulation limits the universe of state-owned culverts the Court may consider

now, and explicitly excludes “future barriers.”

2. Claims regarding “future barrier culverts” are unripe and speculative.

In their Trial Brief, the Tribes urge the court to order an injunction that includes

maintenance, monitoring, and correction plans to address anticipated future barrier culverts.

The Tribes assert that, “the creation of additional barriers is likely,” Pl. Tribes’ Trial Br. at 44,

Dkt. #19406/610, and that, “another severe backlog of uncorrected culverts is likely to

develop.” Id. at 47. But they failed to identify or provide evidence that any specific culverts

which presently pass fish will become “future barriers.” The Plaintiffs also failed to present

evidence or propose a means of sorting from the thousands of state-owned culverts in the case

area that presently pass fish which ones will likely become barriers in the foreseeable future.

Nor have they linked their “future barriers” claim with any particular fish runs in the case area.

Courts have long recognized that injunctive relief “will not be granted against

something merely feared as liable to occur at some indefinite time in the future.” Connecticut

v. Massachusetts, 282 U.S. 660, 674 (1931). Instead, a plaintiff must make “an individualized






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showing that there is ‘a very significant possibility’ that the future harm will ensue.” Nelsen v.

King Cy., 895 F.2d 1248, 1250 (9th Cir. 1990) (citing Sample v. Johnson, 771 F.2d 1335, 1343

(9th Cir. 1985)). It is not enough to show “a probabilistic estimate that the general

circumstances may produce future harm.” Id. Here, the Plaintiffs have failed to demonstrate

that future barriers pose “an immediate threat of substantial injury.” Midgett v. Tri-County

Metro. Transp. Dist., 254 F.3d 846, 850 (9th Cir. 2001).

Because the injury from future culverts claimed by the Plaintiffs is not an immediate

threat, it depends on the uncertain occurrence of future events. Where a claim “rests upon

contingent future events that may not occur as anticipated, or indeed may not occur at all,” the

claim is unripe for adjudication. Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009)

(quoting Texas v. United States, 523 U.S. 296, 300 (1998)). The Plaintiffs’ claim of injury

from future barriers, therefore, is not ripe for the Court’s consideration at this time. Plaintiffs

have preserved their right to raise such a claim later, if needed. Dkt. #18739/341 at 2-3.

3. The Court should not order a never-ending injunction.

If the Court ordered the correction of future barriers, the injunction would be a

permanent intervention into the operation of State institutions rather than a narrowly tailored

remedy. The Ninth Circuit disfavors such never-ending injunctions. “[I]nstitutional reform

injunctions were meant to be temporary solutions, not permanent interventions.” U.S. v.

Washington, 573 F.3d at 710. The Ninth Circuit has also emphasized that “[t]he Constitution

does not establish the district courts as permanent administrative agencies.” Id. at 709.

Federal injunctions imposed on state agencies are meant to be narrowly tailored, and do no

more than to enforce federal law. See Clark v. Coye, 60 F.3d 600, 603-04 (9th Cir. 1995).

The Plaintiffs’ request for an injunction encompassing “future barriers” would require

the injunction to last in perpetuity—or for at least as long as Washingtonians use roads for

transportation. Such an injunction would be contrary to principles of federalism, which






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support narrowly tailored injunctions that do not permanently intervene in the workings of

state institutions, and would ultimately work against the public interest.

H. The Plaintiffs Have Shown No Basis for an Order Directing Expanded Tribal Consultation.

In their proposed injunction, the Plaintiffs ask the Court to order the State to “provide

the interested Tribes with sufficient notice of State barrier culvert inventory, identification of

previously unidentified State barrier culverts, assessment, and potential or actual State barrier

culvert correction activities.” Dkt. #19508/660 at 5.

The evidence shows that WSDOT already has well-functioning tribal consultation

procedures.151 The Plaintiffs failed to establish a “likelihood of substantial and immediate

irreparable injury” from those procedures. See Hodgers-Durgin, 149 F.3d at 1043. There is no

need for an injunction to provide opportunities for tribal involvement in WSDOT improvement

projects or to ensure that WSDOT makes informed decisions about barrier correction and

design.

The evidence also shows that WDNR has procedures that provide for tribal input, and

that WDNR has a good relationship with Tribes.152 There is no need for the Court to intervene

in that relationship.

IV. REQUEST FOR RECONSIDERATION

The foregoing arguments should not be read to concede that state-owned culverts

violate treaty fishing rights. The State respectfully disagrees with the Court’s declaration in its

Order on Cross-Motions for Summary Judgment. As discussed above, the Court should deny

injunctive relief at this stage of the case. In addition, the State urges the Court to reconsider its

declaratory relief. This Court is not bound by its interlocutory partial summary judgment

order. It has the power to modify or rescind that order before a final judgment is entered. City

151 See State of Washington’s Proposed Findings of Fact 133-137, Dkt. #19505/658. 152 See State of Washington’s Proposed Findings of Fact 84, 141, Dkt. #19505/658.






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of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 887 (9th Cir. 2001); see Fed. R. Civ.

P. 54(b) (non-final order “may be revised at any time before the entry of a judgment”).

First, the evidence at trial has confirmed that the declaration sought by the Plaintiffs

does not satisfy the concerns expressed by the Ninth Circuit in United States v. Washington,

759 F.2d 1353, 1357 (9th Cir. 1985) (en banc). “Precise resolution, not general admonition, is

the function of declaratory relief.” Id; See Pub. Serv. Comm’n v. Wycoff Co., 344 U.S. 237,

244 (1952) (“disagreement must not be nebulous” because court must be able to “see what

legal issues it is deciding” in a declaratory judgment). The Plaintiffs’ evidence at trial, like

their proposed findings of fact, consists of vague, broad statements about culverts and fish

habitat. All it shows is that state owned fish passage barriers have some general effect on fish,

which no one disputes. Plaintiffs have not precisely identified any state action or inaction

having any definite effect on any Tribe’s fisheries. Their evidence does not connect any

particular culvert or culverts with any specific salmon run. They have failed to provide the

Court with facts that would enable it to craft a “precise resolution,” as the Ninth Circuit

instructed. 759 F.2d at 1357. The generalized showing the Plaintiffs made at trial is not an

appropriate basis for a broad declaration or a never-ending injunction.

Second, the record confirms that the partial summary judgment would not be a

“narrowly-crafted declaratory judgment” and that it, in fact, creates the specter of a broad

“environmental servitude” that the Court intended to avoid. Order on Cross-Mots. for Summ.

J. at 7, Dkt. #18879/392. The expanded trial record provides context to this Court’s general

inference that barrier culverts are a factor affecting tribal harvests. Id. at 8. If the generalized

effects from culverts provide a relevant legal standard for declaring a treaty violation, then this

Court has found a broad environmental servitude that has no limits.

There is no logical distinction between the impact of culvert barriers on salmon and any

other human caused impact. The Tribes do not offer a rule of law that has anything but an






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illusory line, because every action that affects salmon, by anyone who might be a “successor”

to the treaty negotiators, can equally be declared a violation. Thus, rather than providing a

narrow declaration about an identified violation that can be corrected, the ruling simply

becomes a vehicle for control over off-reservation land use decisions otherwise beyond tribal

jurisdiction.153

This broad servitude envisioned by the Plaintiffs’ proposed findings contravenes the

primary purpose of the Treaties, which was to promote settlement of a new State.154 The

United States’ negotiators anticipated industrial and urban development in the case area, along

with diking, dredging, and channelization of watercourses.155 Road-building facilitated settlement

and development, and, unlike the servitude sought by the Tribes, road-building was specifically

mentioned in the Treaties.156 The treaty right of taking fish does not create a “right to the

preservation of the fish runs in their original 1855 condition, free from all environmental

damage caused by the migration of increasing numbers of settlers and the resulting

development of the land.”157

The Supreme Court has provided a better standard—absent state action that has a

discriminatory effect on tribal fisheries, the treaties contemplate that state and federal laws

153 See Mason D. Morisset and Carly A. Summers, Clear Passage: The Culvert Case Decision as a

Foundation for Habitat Protection and Preservation, 1 Bellwether: The Seattle J. Envtl. L. & Pol'y 29 (2009), available at http://www.law.seattleu.edu/Documents/bellwether/2009spring/MorissetSummers.pdf; William Fisher, Note, The Culverts Opinion and the Need for a Broader Property-Based Construct, 23 J. Envtl. L. & Litig. 491 (2008); O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281, 284-86 (2003). Mr. Morisset represents the Tulalip Tribes in this Subproceeding, and Mr. Lewis represents the Quileute Tribe.

154 Tulee v. Washington, 315 U.S. 681, 682-83 (1942) (treaties “furthered the national program of transforming wilderness into populous, productive territory”); Seufert Bros. Co. v. United States, 249 U.S. 194, 197 (1919) (“treaties were negotiated in a group for the purpose of freeing a great territory from Indian claims, preparatory to opening it to settlers”); United States v. Washington, 873 F. Supp. 1422, 1436 (W.D. Wash. 1994) (“United States’ primary purpose was to extinguish the Indians’ title to the lands in Western Washington, thereby clearing the way for settlement by Europeans”), aff’d, 157 F.3d 630 (9th Cir. 1998).

155 United States v. Washington, 873 F. Supp. 1422, 1438 (W.D. Wash. 1994). 156 E.g., Treaty With Nisquallys (Medicine Creek Treaty), Art. II, 10 Stat. 1132, 1133 (Dec. 26, 1854)

(“If necessary for the public convenience, roads may be run through their reserves, and, on the other hand, the right of way with free access from the same to the nearest public highway is secured to them”).

157 Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 808 (D. Idaho 1994).






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regulate settlement, growth, development and the impact on fisheries. See Dep’t of Game v.

Puyallup Tribe, 414 U.S. 44, 48 (1973). If a Tribe disagrees with a decision on a specific

culvert project, the remedy lies with the state and federal processes already available to the

Tribes, such as participation in the WSDOT scoping process,158 or in state and federal

permitting processes.159

The Plaintiffs provided no evidence, at any stage of this Subproceeding, that the State

implements its barrier culvert correction programs in a discriminatory manner. The Court

should deny the injunction and reconsider its declaration in light of the expanded record.

V. CONCLUSION

Institutional reform is inappropriate when the state defendant is making a good faith

effort to address an alleged violation of federal law. Years before the Tribes brought this suit,

the State began working diligently, within the confines of limited resources, to address salmon

recovery. Together with its tribal partners, a program was devised a plan that addresses all

four factors related to salmon recovery—harvest, hatcheries, hydroelectric power and habitat.

The State has spent hundreds of millions of dollars correcting state and non-state barriers. As a

result, the largest road-owning state agencies are making substantial progress toward opening

blocked habitat. The State will spend hundreds of millions of additional dollars in the future

executing the comprehensive salmon recovery program.

The Plaintiffs’ proposed injunction focuses on a single subfactor—state-owned barrier

culverts—and gives it priority over all other salmon restoration efforts. Such a reprioritization

is unsupported by science and could result in delays to salmon recovery. Experts agree that

each watershed is unique and, in many watersheds, barrier culverts are not a major factor

limiting salmon recovery.

158 Ex. W-092 ¶ 30; Ex. W-092-G; Trial Tr. 28:3-7, 29:3-25, 10/19/2009 (Wagner). 159 Ex. W-093-J; Ex. W-094 ¶ 20; Trial Tr. 155:22-157:3, 10/20/2009 (Hanson); Trial Tr. 45:12-46:7,

10/23/2009 (Hanson); RCW 34.05.510 – 34.05.598.






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The Plaintiffs ask for a costly, 20-year reprioritization of state programs to pay for a

speculative benefit to tribal harvests. When the State Legislature is cutting basic services to

balance the budget, Plaintiffs would require the State to find an additional $164 million every

biennium from now until 2030. The Plaintiffs have not established a likelihood that

accelerating state barrier culvert corrections would have a measurable effect on tribal harvests.

Equally problematic is the overly broad scope of the proposed injunction. The Court

must narrowly tailor the remedy to the violation of federal law, but the Plaintiffs withheld the

tools necessary to measure the scope of the violation. They provided no evidence of the extent

to which state-owned fish passage barrier culverts affect the Tribes’ ability to exercise their

treaty fishing rights. As a result, the Court has no way to ensure that the State is being held

accountable only for its contribution, and not for the myriad other factors that affect tribal

fisheries.

The Plaintiffs also fail to justify a need for case area-wide relief. Each Tribe needed to

establish injury to its fisheries from state-owned culverts linked to its usual and accustomed

fishing places. None did so. In the absence of this evidence, case area-wide relief would

require the State to focus on watersheds where its culverts have no effect on tribal fisheries.

The Plaintiffs’ other requests for equitable relief either fail on a review of the equitable

factors or are outside the scope of this case.

The State respectfully requests that the Court adopt its proposed findings of fact and

conclusions of law and deny the Plaintiffs’ proposed injunction.

DATED this 5th day of February 2010.

ROBERT M. McKENNA Attorney General of Washington By /s RENE D. TOMISSER

RENE D. TOMISSER, WSBA #17509 Assistant Attorney General






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Washington Attorney General’s Office P.O. Box 40126 Olympia, WA 98504-0126 Telephone: (360) 586-6314 Fax: (360) 586-6655 E-mail: [email protected]

By /s FRONDA WOODS

FRONDA WOODS, WSBA#18728 Assistant Attorney General Washington Attorney General’s Office P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 586-2872 Fax: (360) 586-3454 E-mail: [email protected]

By /s PHILIP M. FERESTER

PHILIP M. FERESTER, WSBA #21699 Assistant Attorney General Washington Attorney General’s Office P.O. Box 40100 Olympia, WA 98504-0100 Telephone: (360) 586-3202 Fax: (360) 586-2756 E-mail: [email protected]

By /s DOUGLAS D. SHAFTEL

DOUGLAS D. SHAFTEL, WSBA #32906 Assistant Attorney General Washington Attorney General’s Office P.O. Box 40113 Olympia, WA 98504-0113 Telephone: (360) 753-1614 Fax: (360) 586-6847 E-mail: [email protected]






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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused to be the State of Washington’s Post Trial Brief

with the Clerk of the Court using the CM/ECF system, which will send notification of such

filing to the persons required to be served whose names appear on the following service lists:

1. Master Service List, dated November 24, 2009

2. Subproceeding 01-1 Service List, dated November 24, 2009

DATED this 5th day of February, 2010, at Olympia, WA.

/s RENE D. TOMISSER WSBA #17509 Assistant Attorney General Washington Attorney General’s Office P.O. Box 40126 Olympia, WA 98504-0126 Telephone: (360) 586-6314 Fax: (360) 586-6655 E-mail: [email protected]


10 15 20 25 30

PLG in Miles

Potential Lineal Gain (PLG

) -Primary B

arrier / Secondary Barrier

60% PLG

-218

50% PLG

-163

70% PLG

-288

80% PLG

-407

0 5

151

101151

201251

301351

401451

501551

601651

701751

801Project


48 APPENDIX A
