State's Post-Trial Brief on Complex Salmon Recovery Efforts

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

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The Honorable Ricardo S. Martinez
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UNITED STATES DISTRICT COURT
9 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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UNITED STATES OF AMERICA, et al., NO. C70-9213
11 Subproceeding 01-1 (Culverts)
Plaintiffs,
12 STATE OF WASHINGTON'S
v. POST-TRIAL BRIEF
13
STATE OF WASHINGTON,
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Defendant.
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16 I. INTRODUCTION
17 [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
18 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
19 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
20 determined for the Nooksack spring Chinook. If hatchery-origin salmon spawn
at excessive rates with wild fish, the stocks suffer genetic harm. Fixing state-
21 owned culverts alone will do little to solve these other, very real, bottlenecks to
recovery.1
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Salmon recovery is a complex and monumental task.2 The State of Washington, along
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with the Tribes, local government and the federal government, developed a scientifically-
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Ex. W-085, Koenings Decl. ¶ 51.
26 2
Trial Tr. 112:12-15, 10/14/2009 (Rawson).

STATE OF WASHINGTON'S POST- 1 ATTORNEY GENERAL OF WASHINGTON
Transportation & Public Construction Division
TRIAL BRIEF -- NO. C70-9213 7141 Cleanwater Drive SW
PO BOX 40113
Olympia, WA 98504-0113
(360) 753-6126 Facsimile: (360) 586-6847


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based and comprehensive plan for salmon recovery.3 Over the past two decades, the State has
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committed hundreds of millions of dollars to salmon recovery. The substantial financial
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commitment by the State supporting the comprehensive plan for salmon recovery has begun to
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show positive outcomes for salmon in the case area.
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Decades before this lawsuit was filed, the State of Washington was working to protect
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salmon and other fish. The Legislature’s passage of the Water Pollution Control Act in 1945
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and the Forest Practices Act in 1974 has helped put an end to the destruction of fish habitat as
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depicted in the photographs in Exhibit AT-011. Today, we do not see untreated waste spilling
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from pulp mills into Puget Sound nor do we find square miles of forest mown down to the
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water’s edge as we did in 1950.
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Significant efforts have been made to correct many of the state-owned culverts that, at
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the time this lawsuit was filed, were barriers to fish passage. In 1990, the Washington
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Department of Fish and Wildlife (WDFW) and the Washington State Department of
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Transportation (WSDOT) began taking specific, directed action to find and fix state highway
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culverts that block fish passage. The State developed new, fish-friendly culvert designs to
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replace the federal culvert standards that led to fish passage barriers throughout the State.4
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The State completed a statewide inventory in 2007, and they have consistently been fixing
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culverts in the state highway system every year for the past 20 years.5 The Washington
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Department of Natural Resources (WDNR) completed a culvert inventory on its roads in
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2000 and has eliminated more than half of its fish passage barriers over the past ten years.6
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23 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
24 adopting Hood Canal and Eastern Strait of Juan de Fuca Summer Chum Salmon Recovery Plan).
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Ex. W-092 ¶¶ 9-12; Ex. W-089.
25 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).
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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
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greatest potential fish habitat.7
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In 1998, the Legislature authorized the Governor’s Salmon Recovery Office to
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oversee the development of state salmon recovery plans to address all aspects of human
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activity that affect salmon,8 commonly called the four “Hs”—harvest, hatcheries,
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hydroelectric power, and habitat.9 All of them are important for salmon recovery, but each
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stream system is unique – there is no one size fits all approach to determining the best
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balance for salmon recovery. The salmon recovery plans are predicated on a bottom to top
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approach in order to identify the varying needs of particular watersheds.10 The role that each
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of the four “Hs” plays in a single watershed depends upon that watershed’s unique
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fingerprinting.11
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In 1999, the State and its tribal partners began to learn about that fingerprinting
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through limiting factors analyses they completed for all 23 Water Resource Inventory Areas
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(WRIA)12 in the case area. For the 16 WRIA with sufficient data to reach a conclusion, the
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reports described access to habitat as good in six, fair in two, poor in five and a combination
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(e.g., poor-good) in three.13 As the combination description suggests, access can be less of
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an issue at many individual watersheds within a WRIA – e.g., in WRIA 18 access conditions
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were good or fair in the majority of watersheds and in WRIA 19 barrier culverts were not a
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major limiting factor in many individual watersheds.14 In order to complete the
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fingerprinting analysis and to determine how best to apply the limited funds in each
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22 7
Ex. W-088 ¶ 12; Ex. W-092 ¶ 32.
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23 Ex. W-085-I; Ex. W-087-G.
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Ex. AT-007(B), p. 4; Ex. W-085 ¶ 20.
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24 Trial Tr. 194:23-25, 10/26/2009 (Roni).
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Trial Tr. 64: 11-16, 10/23/2009 (Koenings); Trial Tr. 117:1-4, 10/14/2009 (Rawson).
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25 Each WRIA is composed of numerous watersheds.
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Ex. W-087-H, pp. 106-7; Trial Tr. 87:13-18, 10/23/2009 (Koenings).
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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
26 (Rawson).

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watershed, the relationship among the “Hs” for each watershed must be evaluated; this
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evaluation has yet to be performed on a systemic basis.15
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Within the Puget Sound region, the State and the Tribes were key players in the
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development of fourteen local watershed recovery plans tailored to the unique needs of each
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watershed.16 The State, local governments, and the Tribes cooperated to combine the fourteen
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local plans into one Puget Sound Salmon Recovery Plan and presented it to the National
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Marine Fisheries Service (NOAA Fisheries). In 2007, NOAA Fisheries adopted the plan as its
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own, along with a separate locally-developed Hood Canal Chum Recovery Plan.17 Actions to
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be implemented include restoration of estuaries, floodplains, and nearshore and riparian
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habitat, measures to create better water flow conditions for fish and cleanup pollution, along
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with fish passage barrier correction.18
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The centerpiece of the Plaintiffs’ remedy is a reckless gamble – the acceleration of a
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single aspect of the salmon recovery plan. The parties agree that barrier culvert remediation is
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part of what must be done to achieve the best outcome for salmon restoration. But the State
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already corrects its barrier culverts under comprehensive salmon recovery plans. Adopting the
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Plaintiffs’ schedule would grant a primacy to barrier culvert remediation that is inconsistent
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with these plans, which were developed and implemented in coordination with the Tribes.19
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None of the parties dispute this. The proposed acceleration would force a reprioritization of
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the legislatively adopted budget and would necessarily come at the expense of other programs,
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including other salmon restoration priorities.20 That fact also remains undisputed. In return,
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22 15
Trial Tr. 84:24-85:5, 85:23-86:2, 88:3-6, 10/23/2009 (Koenings).
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23 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).
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24 Ex. W-085 ¶ 39; 72 Fed. Reg. 2493 (Jan. 19, 2007) (Puget Sound); 72 Fed. Reg. 29121 (May 24,
2007) (Hood Canal).
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25 Ex. W-085 ¶ 40; Ex. W-085-N.
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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).
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Ex. W-090 ¶39.

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Plaintiffs can only speculate that the more rapid repair of state-owned barriers will produce any
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measurable benefit in the available harvest and it could have negative consequences for salmon
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recovery.
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From the agreed premise that culvert barrier remediation is good for salmon recovery,
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the Tribes’ request for acceleration is akin to the adage that if one prescribed pill is good,
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then taking two must be twice as good. Dr. Koenings explained why the Tribes’ request is
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not good science and in fact may be detrimental to the shared goal of salmon restoration in
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the case area.21 The remedy sought by the Tribes should not be adopted by the Court.
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II. ISSUES
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1. Have the Plaintiffs shown entitlement to an injunction reforming the State salmon
11 recovery program by accelerating the correction of state-owned fish passage
barrier culverts in the case area?
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2. Have the Plaintiffs shown entitlement to an injunction that restricts the State’s
13 ability to choose culvert designs that provide fish passage?
14 3. Have the Plaintiffs shown entitlement to an injunction that restricts the State’s
flexibility in conducting adaptive management?
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4. Are future barrier culverts within the scope of this Subproceeding?
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5. Should the Court order an expansion of tribal consultation processes currently in
17 place?
18 6. Should the Court revisit its Order on Cross-Motions for Summary Judgment?
19 III. DISCUSSION
20 A. Institutional Reform Injunctions are Drastic Remedies Reserved for Recalcitrant
State Actors.
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Institutional reform, or “structural reform,” is a remedy that restricts a state’s ability to
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make decisions about “basic policy, appropriations and budget priorities.” Horne v. Flores,
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129 S. Ct. 2579, 2593 n.3 (2009). The Plaintiffs requested relief would constitute institutional
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reform because it would impose judicial reprioritization of the state budget. It is a drastic
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26 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.
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Washington, 573 F.3d 701, 709-710 (9th Cir. 2009). First, a court-ordered reprioritization of
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the state budget runs up against the will of the people. Horne, 129 S. Ct. at 2594; Paul J.
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Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949, 976 (1978) (“the
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way to achieve desirable goals—and the only way to do so lastingly—is through the
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democratic political processes which must remain the core of our polity”).22 Second, as a
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matter of comity, federal courts must “seek to minimize interference with legitimate state
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activities.” Rizzo v. Goode, 423 U.S. 362, 379 (1976). And finally, federal courts must
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consider institutional competence, giving deference to state agencies with expertise. Stone v.
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City & County of San Francisco, 968 F.2d 850, 860 (9th Cir. 1992).
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Unlike the recalcitrant defendants for whom institutional reform can be appropriate, the
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Defendant in this case has been addressing the problem that is the basis for the alleged
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violation of federal law—fish passage barrier culverts—since before this litigation was filed.
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Federal court intervention typically follows a finding of continuing, repeated violations of
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federal law. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (judges
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should only intervene into state affairs after the state has had an opportunity, but still failed to
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arrive at an acceptable remedy to the constitutional violation). The State is aware of no other
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case in which a court has ordered institutional reform under similar circumstances.
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Over a generation ago, in United States v. Washington the state courts held that state
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officials lacked authority to adopt rules that conformed to the Boldt Decision. Subsequently,
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this Court managed the fisheries by federal court order for more than two years. See Puget
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Sound Gillnetters Ass’n v. U.S. Dist. Court, 573 F.2d 1123, 1126 (9th Cir. 1978) (“state’s
23
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24 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
25 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
26 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
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large share of the management of the state’s fishery in order to enforce its decrees”), vacated
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sub. nom Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.
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658, 692-96 (1979); Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819 (Wash. 1979)
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(returning authority to state officials).
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The facts are much different now and much different as demonstrated in this
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Subproceeding. This case does not involve discriminatory state action, nor does the record
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support a finding that the State has been indifferent to its impact on salmon. Rather, the record
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demonstrates the State’s leadership in implementing comprehensive and scientific plans
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supporting salmon recovery.
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The Ninth Circuit has repeatedly noted that the discrimination that gave rise to the
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Boldt Decision has disappeared. U.S. v. Washington, 573 F.3d at 710 (“No one alleges that the
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State of Washington’s violations [related to the Boldt Decision] of the Indian tribes’ treaty
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rights continue”); United States v. Washington, 157 F.3d 630, 657 (1998) (“This case has come
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a long way since the 1970’s when a ‘total lack of meaningful communication’ led to ‘deep
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distrust’ between the parties”). Moreover, the State began working in good faith to correct its
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culverts without court intervention. It continues to do so in cooperation with the Tribes.
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Under these circumstances, the drastic remedy of institutional reform is unjustified and unjust.
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See Brown v. Bd. Of Educ., 349 U.S. 294, 299 (1955) (when assessing existing efforts to
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desegregate, districts should give substantial weight to the good faith efforts of the defendant).
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B. The Plaintiffs Have Failed to Establish the Elements for an Injunction Requiring
22 an Acceleration of the State’s Barrier Correction Program.
23 The Court should deny the Plaintiffs’ requested relief because they have failed to

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

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

26 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
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U.S. 305, 312-313 (1982) (“a federal judge sitting as chancellor is not mechanically obligated
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to grant an injunction for every violation of law”); see also N. Cheyenne Tribe v. Norton, 503
4
F.3d 836, 843 (9th Cir. 2007) (“no rule requiring automatic issuance of a blanket injunction
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when a violation is found”).
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To obtain injunctive relief, Plaintiffs must establish: (1) a likelihood of substantial and
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immediate irreparable injury; (2) that the balance of the hardships favors an injunction; (3)
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that the injunction is in the public interest; and (4) that no remedy at law exists. Los Angeles
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Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980)
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(preliminary injunction); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 (1987)
11
(preliminary injunction). The elements of a permanent injunction mirror those of a preliminary
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injunction, except that the plaintiff must show actual success on the merits. Winter, 129 S. Ct.
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at 381. The Plaintiffs failed to carry their burden of proof on elements (1) through (3).
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1. The Plaintiffs failed to establish irreparable injury.
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The Plaintiffs must establish that the Tribes will suffer substantial irreparable injury
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unless the Court issues an injunction. Weinberger, 456 U.S. at 311-12; Younger v. Harris, 401
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U.S. 37, 43-44 (1971). They have not done so. The Plaintiffs failed to show that the existing
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comprehensive program to recover salmon is not working. They failed to show that the State’s
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progress correcting its fish passage barrier culverts, when evaluated as part of that
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comprehensive program, is inadequate.
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The Tribes’ assertion that their harvests have been reduced is made in a legal and
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factual vacuum. The Tribes present no authority for a legal entitlement to a “pre-barrier” level
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of harvests or any other legal benchmark for determining an actionable reduction in available
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harvest. Factually, the Tribes presented no evidence that would allow the Court to determine
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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
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become available by accelerating the pace of correcting state owned barrier culverts.
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a. The State has in place a comprehensive approach to salmon
4 recovery that works.
5 Working together, the State, Tribes, local governments, and federal government have

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20 Id. at 2591.

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

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

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

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

25 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
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the correction of state-owned fish passage barrier culverts without considering the larger
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context. But, like state funding for English language learning, fixing culverts is a means to an
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end—restoring salmon populations to healthy, harvestable levels. If the State’s overall salmon
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recovery program, which includes barrier culvert correction, is working to address threats to
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salmon and thereby to increase fish available for tribal harvest, there is no likelihood of
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substantial irreparable injury, and no basis for an injunction. The Court cannot evaluate the
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adequacy of the State’s culvert programs without considering all the factors that contribute to
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salmon health and the programs designed to address them. See Horne, 129 S. Ct. at 2600-06.
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As the Court assesses the reasonableness of the State’s salmon recovery program, it
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should generally defer to the collective expertise of the fisheries experts who developed the
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plan. See Stone, 968 F.2d at 860 (courts should give “wide-ranging” deference to prison
13
officials with regard to how best to preserve internal order and discipline); Missouri v. Jenkins,
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515 U.S. 70, 131-132 (1995) (courts should give deference to state and local officials in
15
making funding choices related to education) (Thomas, J., concurring). State and tribal experts
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agree that a comprehensive, science-based approach is the best way to achieve salmon
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recovery.23 The State, along with the Tribes and its other partners, has devised such a plan.
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The State has committed hundreds of millions of dollars to its implementation, addressing all
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categories of human activity that affect salmon.24 The National Marine Fisheries Service has
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adopted portions of the plan.25 The Puget Sound Chinook harvest provisions have withstood a
21

22

23

24 23
Trial Tr. 127:18-24, 10/13/2009 (Wasserman); Trial Tr. 114:9-16, 10/14/2009 (Rawson); Trial Tr.
25 141:7-25, 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.
26 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
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plan is working.27 The Court should give it a chance to succeed.
3
To support their position that the Court should rework the existing salmon recovery
4
program, the Plaintiffs provided only the testimony of Dr. Philip Roni and some general
5
statements, cited without context, from outdated State documents. Dr. Roni’s own study
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undermines the Plaintiffs’ position.28 Using computer modeling techniques, Dr. Roni
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estimated smolt production in an “average” Puget Sound Watershed, for the types of
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restoration projects funded by the Pacific Coastal Salmon Recovery Fund (PCSRF) from 2000
9
to 2009. His analysis showed that the modeled production from all restoration projects,
10
including barrier removal, had produced no detectable increase in coho and steelhead smolts.29
11
This was true even though the PCSRF-funded barrier removal projects composed a greater
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percentage of the overall restoration effort when compared to the “typical” Puget Sound
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Watershed.30 Dr. Roni’s study demonstrated that barrier removal projects are far from being
14
the “silver bullet” for creating detectable increases in salmon production.
15
Citing isolated statements in outdated documents, the Plaintiffs suggest the State has
16
admitted that fixing culverts should be the first priority in salmon recovery.31 The Tribes point
17
to a 1997 report to the Legislature that says removing fish passage barriers “is a critical
18
component in the effort to restore wild salmon and sea-run trout populations.”32 Viewed in
19
context, that statement supports the State’s position, not the Tribes’. The statement was part of
20
a report urging the Legislature to set up a program to identify, prioritize, and fund the
21

22 26
Salmon Spawning & Recovery Alliance v. Nat’l Oceanic & Atmospheric Admin., 342 Fed. App’x 336
23 (9th Cir. 2009).
27
Trial Tr. 81:11-22, 10/23/2009 (Koenings); Ex. W-085 ¶ 57; see Ex. W-085-E.
28
24 “Estimating Salmon and Steelhead Response to Watershed Restoration: How Much Restoration is
Enough?”, Ex. W-200.
29
25 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).
26 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
2
fact, the Legislature did set up such a program. It is still in place, now administered by the
3
Salmon Recovery Funding Board.33 The 1997 report that led to its creation is not evidence that
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the State needs an injunction to fix its culverts; it is part of the success story of the State’s
5
comprehensive salmon recovery program.
6
b. The State has made and will continue to make strong progress
7 correcting its barriers.
8 As part of its comprehensive approach to salmon recovery, the State is making strong

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

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

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

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

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

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

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

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

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

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

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

20 #19406/610. There is no reason for this Court to federalize that State goal.

21

22
33
23 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
24 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
25 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.
26 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
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culverts. WSDOT inventoried culverts on all state highways, developed and implemented a
3
prioritization scheme, corrected 236 fish passage barriers, and opened over 700 miles of
4
potential lineal habitat.39 WSDOT performed one-third of the projects as “stand-alone”
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corrections under WSDOT’s I-4 fish passage barrier program, and it performed most of the
6
remaining corrections during highway improvement projects.40 Its program is award-winning
7
and considered to be a leader among transportation agencies.41
8
WSDOT has successfully obtained funding for its program. The legislative
9
appropriation per biennium for WSDOT’s I-4 fish passage correction program has increased
10
50-fold over ten biennia, from $400,000 in 1991-93 to approximately $20 million in 2009-11.42
11
Since 1996, WSDOT has spent $3.8 million for research on fish passage.43
12
No one disputes that more work needs to be done. WSDOT has a plan in place to do
13
it.44 Over time, the amount of habitat WSDOT recovers through each correction will decline.
14
The diminishing returns are illustrated in a graph that plots the “lineal gain” column from
15
Exhibit AT-323 against the number of corrections needed to achieve that gain (attached as
16
Attachment “A” for demonstrative purposes only). The graph shows that WSDOT may open
17
half—520 miles—of the remaining blocked potential lineal habitat by fixing an additional 163
18
culverts, about one-fifth of the 800 the Tribes want corrected in 20 years.45
19
At its current pace, WSDOT will correct 163 barriers in 17 years. Since 1995,
20
WSDOT’s average rate of correction has been 14.2 barriers per year statewide.46 Two-thirds
21

22 39
Ex. W-091-G (225 corrections, 699 miles); Trial Tr. 13:16-21, 10/19/2009 (Wagner) (11 corrections
23 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
24 Ex. W-092 ¶¶ 4, 46-49.
42
Ex. W-091-D AMENDED.
43
25 Ex. W-092-K.
44
Ex. W-092-O, pp. 000013-16.
45
Ex. AT-323 (row 164, Joe Cr.).
26 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
2
years, 9.5 corrections per year would result in 163 corrections.48 Without court intervention,
3
WSDOT is on target to continue making substantial gains in opening up potential fish habitat
4
over the next 20 years.49
5
As WSDOT continues making progress, the relative importance of fixing the remaining
6
barrier culverts in terms of habitat restoration will decrease. The Tribes have recognized the
7
same principle in their own projects. For example, tribal biologist Mike McHenry testified that
8
after fixing only a little more than half of the fish passage barriers on the Salt Creek watershed,
9
the priority shifted to other habitat restoration projects.50
10
c. The State is committed to salmon recovery.
11
The facts here show a defendant committed to fixing the problem without court
12
intervention. The WSDOT’s fish passage program began in 1991, ten years before this
13
litigation was filed and 16 years before this Court’s declaratory order.51 The WDNR’s
14
program began in 1998,52 and the State began implementing a statewide salmon recovery
15
program also in 1998, well before the filing of this lawsuit.53
16
Since its inception, WSDOT has continually adapted its program to changes in
17
understanding regarding the scope of the problem. As it learned more about the substantial
18

19
47
See Trial Tr. 30:5-7, 10/19/2009 (Wagner).
48
20 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
21 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
22 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
23 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
24 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
25 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.
26 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
2
jointly went to the Legislature in 1997 and requested funding for a Fish Passage Grant Program
3
to “make funding available to cities, counties, state and private fish barrier owners.”54 As a
4
direct result of this effort, the Legislature created the Salmon Recovery Funding Board, which
5
to date has awarded approximately $255 million in state, federal and program-sponsor
6
matching funds for salmon habitat restoration projects, of which fish passage projects have
7
received $43 million.55 WSDOT paid for an expansion of the WDFW inventory of state
8
highways to ensure it identified all relevant barriers. And it adopted more costly stream
9
simulation culvert replacements as the limitations in retrofitting became more apparent.
10
d. Plaintiffs failed to prove that an injunction would cause any
11 detectable change in tribal harvests.
12 Most of the Plaintiffs’ evidence linking salmon harvests with culverts was excluded as

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

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

15 #19507-659. A showing of speculative injury is not sufficient to support an injunction:

16 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.
17 Especially where governmental action is involved, courts should not intervene
unless the need for equitable relief is clear, not remote or speculative.
18 Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426, 434 (1948) (emphasis added); see
19 also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (public consequences of
20 injunction that are too “remote, insubstantial, or speculative” or not supported by the evidence
21 cannot support injunction).
22 The Ninth Circuit applied this rule in Ranchers Cattlemen Action Legal Fund United
23 Stockgrowers of America v. United States Dep’t of Agriculture, 415 F.3d 1078 (9th Cir. 2005).
24 In Ranchers, an association of U.S. cattle farmers sought to enjoin a USDA rule that would
25
54
Ex. AT-073, p. T-000986.
26 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
2
argued that the rule increased the risk that Americans who ate beef would be infected with mad
3
cow disease. The record showed a low incidence of the disease in the Canadian herd, with
4
safeguards to reduce the risk that an infected cow would enter the food supply. There was no
5
evidence of any mad cow infection from a Canadian cow. The Ninth Circuit found a
6
negligible risk of human fatality and little risk of economic harm to the U.S. beef industry.
7
The court concluded that plaintiffs had failed to establish irreparable injury and reversed the
8
preliminary injunction. Id. at 1104-05.
9
Here, no evidence specifically connects tribal fisheries and state-owned barrier culverts,
10
nor have the Plaintiffs presented any evidence to show how an injunction would affect tribal
11
fisheries. As discussed, Dr. Roni’s study suggests barrier culvert projects alone will not have a
12
significant impact. Further, there is no correlation between highway miles and the fluctuations
13
in tribal harvests experienced between 1974 and 2008.56
14
The Plaintiffs say the Court should infer injury from the State’s estimates of the amount
15
of habitat affected by state-owned culverts. Pls.’ Proposed Findings of Fact at 42, Dkt.
16
#19507/659. They base much of their case on this 1997 statement:
17
A total potential spawning and rearing area of 1,619,839 m2 (249 linear miles)
18 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
19 salmonid annually.57
That statement is merely hypothetical. It is not evidence that any particular quantity of fish
20
will be produced.
21
The 200,000-fish statement is in a report that WDFW and WSDOT prepared in 1997
22
for the Legislature. Ex. AT-054, p. T-1000186. It does not purport to represent how many fish
23

24

25 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
26 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
2
Their objective was to help legislators understand why fixing culverts is a good idea, to
3
encourage them to fund the WSDOT I-4 fish passage barrier correction program.59 It worked.
4
The Legislature boosted I-4 fish passage funding by more than 50 percent in the 1999-2001
5
biennium.60 Since 1991, WSDOT has opened up about 700 linear miles of habitat, nearly three
6
times the amount said to be blocked in the 1997 report.61
7
We are no longer at the stage of trying to convince people that it is important to fix
8
barrier culverts. Everyone agrees on that.62 The question here is whether it is necessary for a
9
federal court to order a drastic acceleration of the State’s existing barrier correction program.
10
Like the Tribes’ “lost fish” evidence the Court excluded in its Order on Motions in Limine,
11
Dkt. #19402/607, the 200,000 number is not a reliable basis for estimating “lost fish” caused
12
by state barrier culverts nor the potential gain from correcting them.
13
Many factors affect tribal harvests.63 Accelerating the correction of state barrier
14
culverts without an understanding either of those factors or of the unique condition of every
15
watershed in the case area may prove counterproductive.
16
For example, fish passage barrier culverts are ubiquitous on the landscape.64 Most are
17
not state-owned.65 As of March 2009, WDFW had records for only 42 state-owned
18
anadromous fish passage barrier sites that block more than 200 meters of habitat in streams
19
with no other known anadromous barriers.66 Non-state-owned barriers lie upstream or
20

21
58
22 Trial Tr. 132:14-22, 10/15/2009 (Sekulich).
59
Trial Tr. 133:4-8, 10/15/2009 (Sekulich).
60
23 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
24 Trial Tr. 81:5-7, 10/23/2009 (Koenings).
63
Pretrial Order, Admitted Fact 2.3, Dkt. #19409/614.
64
25 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.
26 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
2
barriers far outnumber the state-owned barriers.68 The potential benefit from fixing a state-
3
owned culvert will not be realized if fish are blocked by other non-state-owned fish passage
4
barriers in the same stream system.69
5
Many fish passage barrier culverts, both state-owned and non-state-owned, are partial
6
barriers.70 Partial barriers provide some passage to fish at some flows, which means that some
7
fish may be spawning upstream. It is impossible to predict the increase in fish production from
8
fixing a partial fish passage barrier.71 Furthermore, the habitat upstream from state fish
9
passage barriers varies in quality. In some parts of the case area, especially the more urbanized
10
ones, the habitat can be highly degraded.72 Some salmon may not be able to use highly
11
degraded habitat at all.73
12
The Plaintiffs failed to show that an acceleration of only one component of the
13
comprehensive salmon recovery program, by only one landowner, at the expense of other
14
aspects of the program, would result in any measurable difference in their harvests. The
15
Plaintiffs have failed to establish the likelihood of substantial irreparable injury, and the Court
16
should deny the injunction. Weinberger, 456 U.S. at 311-12.
17
2. The cost of the Tribes’ requested remedy, which could be as much as $2
18 billion over ten biennia, tips the balance of the hardships in favor of the
State.
19
While the Tribes’ harm is speculative, the State’s budget harm is certain and
20
substantial. The Court should consider the impact the injunction would have on the state
21

22 67
Ex. W-133; Ex. AT-285 through Ex. AT-292; see Ex. AT-181.
68
23 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
24 (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
25 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).
26 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
2
appropriated for one program, the effect is often to take funds away from other important
3
programs”); Gary H. v. Hegstrom, 831 F.2d 1430, 1433 (9th Cir. 1987) (court should consider
4
the cost of compliance when crafting a remedy for constitutional violations arising from poor
5
prison conditions); see also Cobell v. Norton, 428 F.3d 1070, 1077 (D.C. Cir. 2005) (reversing
6
court-imposed remedy that would have cost the federal government 35 times the cost of a
7
remedy that it proposed).
8
The Plaintiffs request an injunction that would cost $1.84 billion over 20 years, or 10
9
fiscal biennia. The average cost for each of the 37 upcoming culvert correction/replacement
10
projects for which WSDOT has estimates is approximately $2.3 million.74 That figure fairly
11
reflects the average cost of other projects currently being scoped.75 The project estimates that
12
provide the basis of this average are the same as those WSDOT uses to request funding from
13
the Legislature and are the most current cost evidence.76 Future projects may be more complex
14
and more expensive.77 Multiplying $2.3 million times 800, the number of culverts the
15
Plaintiffs want fixed, results in a price tag of $1.84 billion. Spread evenly over 10 biennia, the
16
Plaintiffs’ injunction would cost $184 million per biennium. The Legislature would need to
17
shift about $164 million per biennium from other programs.78
18
The Plaintiffs say the Court should look at average historic costs rather than cost
19
estimates for upcoming projects. Historic averages are not the basis of legislative requests for
20
upcoming budgets.79 They are not a reliable basis for predicting future costs because project
21
costs have increased dramatically over time, for several reasons. Projects have become more
22
74
23 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
24 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
25 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.
26 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
2
of stream simulation or bridge culvert replacements.81 Other factors, such as general
3
inflation,82 material cost increases,83 and environmental permitting expenses have also caused
4
costs to rise.84
5
The impact on WSDOT’s central mission—to provide a safe and efficient highway
6
system—would be substantial if Plaintiffs’ injunction were granted. The Court must consider
7
the impact of the cost of the remedy on the agency’s ability to perform its central mission. See
8
Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) (court must consider the impact of the
9
requested remedy on the prison’s ability to ensure security). The mere fact that WSDOT’s
10
capital budget is relatively large is irrelevant. See Olmstead v. L.C. ex rel. Zimring, 527 U.S.
11
581, 603 (1999) (when assessing liability under the Americans with Disabilities Act, courts
12
may not compare the cost of relief against the state’s entire mental health budget as the latter
13
will almost always dwarf the former). The Legislature has dedicated most of the capital budget
14
to identified highway improvement projects.85 Only a small portion is uncommitted to
15
specifically mandated projects or bond debt.86 A significant portion of the non-committed
16
budget is used to address the State’s aging infrastructure through maintenance and preservation
17
projects.87 Should WSDOT be forced to find approximately $164 million more per biennium
18
to correct fish passage barrier culverts, these projects could be targeted. That would not be in
19
the public interest because “[d]eterioration of the infrastructure caused by deferred
20

21
80
22 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.
23 136:18-137:8, 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
24 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
25 Trial Tr. 20:6-9, 10/19/2009 (Wagner).
85
Ex. W-090 ¶ 22.
86
Ex. W-090 ¶ 26; Ex. W-091 ¶ 14.
26 87
Ex. W-090 ¶¶ 29-33.

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maintenance creates dangerous conditions for the safety of motorists, increased congestion and
2
adverse impact on the environment.”88
3
The Plaintiffs correctly point out that the question is when, not whether, the money will
4
be spent, as WSDOT intends to fix all 800 barrier eventually. But even the “marginal cost” of
5
the acceleration (i.e., difference between the current $20 million biennial appropriation and
6
that necessary to pay for an accelerated program) is $164 million per biennium. The Plaintiffs
7
fail to justify the associated reprioritization of an already stretched state budget. This failure is
8
particularly stark in light of the failure of the Tribes to demonstrate what gains in harvest
9
would be achieved by reprioritizing the State’s Plan.
10
Instead of paying for the correction of barrier culverts of a single ownership, the
11
“marginal costs” could fund the first 10 years of the Puget Sound and Hood Canal Salmon
12
Recovery Plans, which is estimated at approximately $1.5 billion. That figure covers habitat,
13
harvest, hydroelectric power, and hatchery measures in most of the case area.89
14
The current budget crisis highlights the importance of allowing the State the flexibility
15
to decide how best to implement the existing barrier correction program. See Rizzo, 423 U.S.
16
at 378-79 (“Government has traditionally been granted the widest latitude in the ‘dispatch of its
17
own internal affairs’”). The Governor must present the Legislature with a balanced proposed
18
budget.90 Faced with a multi-billion dollar budget shortfall for the 2009-11 biennium, the
19
Legislature cut funding for subsidized health insurance for low income workers, K-12 schools,
20
higher education, and basic aid for people who are unable to work.91 At the time of trial, state
21
budget experts were forecasting a 2010 operating budget shortfall of $1.7 billion and predicting
22
additional cuts.92 “These cuts represent real people with families depending on a paycheck. . . .
23

24 88
Ex. W-090 ¶ 33.
89
25 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.
26 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
2
eliminations somewhere else.”93
3
Similar to the general fund, the transportation budget is also under duress.
4
Transportation revenues have dropped dramatically while transportation demand has
5
increased.94 Maintenance and safety projects needed by motorists throughout the state are
6
underfunded.95
7
Contrary to the Tribes’ argument, courts do not as a matter of law consider compliance
8
with federal law to be “paramount” to the impact on state budgets.96 In the cases they cite, the
9
courts found the impacts on state budgets to be minimal. Cal. Pharmacists Ass’n v. Maxwell-
10
Jolly, 563 F.3d 847, 852 (9th Cir. 2009) (“record reflects that the impact of a stay on the
11
budget crisis will be minimal at most”); Clayworth v. Bonta, 295 F. Supp. 2d 1110 (E.D. Cal.
12
2003) (holding that California could reduce Medicaid costs without violating the statute). That
13
is not the case here. The impact of a 20-year injunction that would cost $184 million per
14
biennium would be substantial. The Court should take that into account. See Horne, 129
15
S. Ct. at 2594 (noting that the reprioritization of state budgets caused by institutional reform
16
remedies raises heightened federalism concerns).
17
The State’s budgetary hardship is tangible and substantial. The benefit to tribal
18
harvests is speculative and potentially undetectable. The balance of the hardships favors the
19
State, and the Court should deny the Plaintiffs’ requested injunction.
20
3. Plaintiffs have failed to show an injunction that requires a reprioritization
21 of the State budget would be in the public interest.
22 The Plaintiffs have failed to show that an injunction would be in the public interest. As

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

24
93
25 Ex. W-090 ¶ 38.
94
Ex. W-090 ¶¶ 18. 29-33; Ex. W-091 ¶ 20.
95
Ex. W-091 ¶¶ 19, 22.
26 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.
2
at 376. The parties have concluded that it is in the public interest to have a comprehensive
3
approach that addresses all four “Hs” that affect salmon.97 This comprehensive approach
4
would be threatened by an injunction shifting a disproportionate amount of resources into state
5
barrier culverts. Dr. Koenings warned that focusing on barrier culverts alone could result in
6
delays to salmon recovery.98
7
Moreover, if the cost of the injunction came only from WSDOT programs, it would
8
push aside other projects designed to promote public safety and mobility as well as the
9
environment.99 It could delay highway maintenance and preservation projects. Shifting
10
resources into barrier corrections could delay stormwater and sediment remediation programs
11
that benefit salmon.100
12
The State recognizes a public interest in ensuring that treaty rights are protected. But
13
salmon restoration is best served through implementation of the existing comprehensive
14
salmon recovery program, not a narrow focus on one factor that affects salmon.
15
In sum, the Plaintiffs have failed to show that the equitable factors support their
16
requested remedy. Without an injunction, the Tribes will benefit from the comprehensive
17
salmon restoration efforts already in place, including the substantial progress the State is
18
making on its own barrier culverts. The Plaintiffs can only speculate that their requested
19
acceleration of the state program would result in a significant increase in their harvest, whereas
20
its $1.84 billion price tag would require a reprioritization of the State’s budget during an
21
economic crisis. Finally, the public interest would be disserved by the potential delays in
22
salmon recovery and to other transportation-related projects.
23
97
24 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
25 (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.
26 100
See Ex. W-091 ¶ 24; Trial Tr. 10:13-11:2, 10/19/2009 (Wagner).

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1 C. In Failing to Define the Scope of the Alleged Treaty Violation, Plaintiffs Provide
the Court with No Basis to Define a Remedy.
2
The nature and scope of an injunction to enforce a federal law must be determined by
3
the nature and scope of the violation. Jenkins, 515 U.S. at 88; see Clement v. Cal. Dep’t of
4
Corr., 364 F.3d 1148, 1153 (9th Cir. 2004). Thus, to determine the scope of any injunction,
5
the Court must have enough evidence to determine the scope of the violation. Jenkins, 515
6
U.S. at 88. Plaintiffs have failed to provide the Court with sufficient evidence to craft a
7
remedy in two ways. First, they did not establish the scope of the injury, if any, caused by
8
state-owned barrier culverts. Second, they did not establish harm to the fisheries of the
9
individual Plaintiff Tribes.
10
1. The Plaintiffs have failed to show the scope of the injury caused by state-
11 owned fish passage barrier culverts on tribal harvests.
12 The scope of an injunction must not exceed the injury caused by the state action it is

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

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

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

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

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

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

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

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

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

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

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

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

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

26 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
2
places. Id. at 416.
3
When Judge Boldt entered his injunction in 1974, unregulated fishing was occurring in
4
the ocean, beyond the State’s jurisdiction.101 The injunction directed that some of those
5
catches would “count” against the non-Indian fair share. U.S. v. Washington, 384 F. Supp. at
6
416. On appeal, the Ninth Circuit clarified that “the court’s equitable discretion does not
7
extend so far as to permit it to compensate the tribes for the unanticipated heavy fishing by
8
foreign ships off the coast.” United States v. Washington, 520 F.2d 676, 689 (9th Cir. 1975);
9
see United States v. Washington, 459 F. Supp. 1020, 1070 (W.D. Wash. 1976) (fish caught
10
offshore by foreign fishermen do not count in treaty/non-treaty sharing).
11
The same principle applies in this Subproceeding. The State cannot be required to
12
compensate for harms that its culverts have not caused. The scope of the alleged treaty
13
violation is the degree to which state-owned fish passage barrier culverts “diminish the number
14
of fish that would otherwise be available for Tribal harvest.” Order on Cross-Mots. Summ. J.
15
at 12, Dkt. #18879/392. It is not enough for the Plaintiffs merely to show that the State has
16
some fish passage barriers—that is undisputed. Nor is it enough to show that fixing them is
17
good public policy—that also is undisputed, as the State is fixing its culverts. To invoke the
18
Court’s injunctive powers, the Plaintiffs must show that the State’s culverts in fact cause the
19
Tribes to take fewer fish than they would otherwise. See Lewis v. Casey, 518 U.S. 343, 351
20
(1996) (inmate must go “one step further” and show that inadequate prison legal resources
21
hindered his efforts to pursue a legal claim). Finally, each Tribe must demonstrate for itself
22
that the fish purportedly lost due to state owned culverts interfered with that Tribe’s ability to
23
exercise its treaty fishing right. They have failed to make that showing.
24

25
101
The problem of unregulated offshore fishing was solved by the enactment of the Magnuson Fishery
26 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.
2
#19409/614. Most are unrelated to state-owned barrier culverts. If this Court were to impose
3
an injunction on the State without requiring a showing that state barrier culverts caused a
4
specific harm to tribal fisheries, it would effectively be holding the State’s culverts responsible
5
for all factors pressuring the salmon life cycle.102 Such an order would be overbroad.
6
The Plaintiffs have failed to provide any evidence that would allow the Court to
7
determine the degree, if any, that state-owned barrier culverts have caused tribal harvests to be
8
less than they would be otherwise. The Tribes argue that they should not have to “identify
9
which individual culverts are responsible for which number of lost fish” because that would be
10
a “fool’s errand.” Pl. Tribes’ Trial Br. at 26, Dkt. #19406/610. The difficulty of making such
11
a showing does not relieve the Tribes of their burden.
12
The Tribes say no such showing is necessary because they have an absolute right to an
13
injunction requiring the State to fix all its culverts. Accordingly, every state barrier culvert is a
14
treaty violation and must be corrected. Pl. Tribes’ Trial Br. at 25, Dkt. #19406/610. That is
15
not what this Court said in its summary judgment order, however.
16
The State has about 1,450 anadromous fish passage barrier culverts in the case area.103
17
Between 1974 and 2007, the Tribes’ harvest was the biggest in 1985 and the smallest in
18
1999.104 In its 2007 summary judgment order, the court inferred from those facts that state-
19
owned barrier culverts were responsible for a “significant portion” of the reduction in tribal
20
harvests. Order on Cross-Mots. Summ. J. at 8, Dkt. #18879/392. Emphasizing the overall
21
“number of blocked culverts,” the Court held that the Tribes had presented sufficient facts to
22

23 102
Tribal biologist Kit Rawson testified that he had no idea what type of habitat pressure has contributed
24 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
25 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.
26 104
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
2
the treaties. Instead, the Court held that further proceedings were necessary before it could
3
determine whether any additional remedy would be appropriate. Id. at 12.
4
The Tribes cite Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash.
5
1988), in support of their “every barrier” argument. According to the Tribes, Muckleshoot v.
6
Hall held that a single structure that “result[s] in only a small reduction in harvest” violates the
7
treaties. Pl. Tribes’ Trial Br. at 25, Dkt. #19406/610. That is a misreading of the decision. In
8
Muckleshoot v. Hall, Judge Zilly distinguished between two aspects of the treaty right: (1) the
9
geographical right of access to usual and accustomed grounds and stations, and (2) the right to
10
some share of the harvest. 698 F. Supp. at 1513; see United States v. Oregon, 718 F.2d 299,
11
303 (9th Cir. 1983) (“tribes’ fishing right encompasses access to traditional sites as well as a
12
right to a fair share of the catch”). Muckleshoot v. Hall was about the right of access. The
13
Muckleshoot and Suquamish Tribes claimed that a proposed marina would deprive them of
14
access to a portion of their usual and accustomed fishing grounds in Elliott Bay. 698 F. Supp.
15
at 1504-05. The court held that, without an act of Congress, the access right did not allow the
16
taking of even a small portion of the usual and accustomed fishing places. Id. at 1515-16.105
17
No Tribe has alleged in this Subproceeding that any state-owned culvert has deprived it
18
of access to its usual and accustomed fishing places. Muckleshoot v. Hall does not apply.
19
The Tribes’ argument that every state-owned fish passage barrier violates the treaties
20
should also be rejected because the evidence shows that all barriers are different. As WDFW
21
witness Dr. Paul Sekulich testified, each barrier correction provides a different degree of
22
benefit to fish, which is why he created the Priority Index.106 The Tribes themselves advocate
23

24 105
The 1994 shellfish decision in United States v. Washington casts doubt on the continuing validity of
25 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”).
26 106
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
2
end of their useful life those culverts that block 10 percent of the total habitat. Pl. Tribes’ Trial
3
Br. at 4, Dkt. #19406/610. There is no evidence to support that 10 percent number—or any
4
other number. The Plaintiffs have failed to show any connection between their requested
5
injunction and any alleged injury to the Tribes.
6
The Tribes’ argument that every barrier is a breach of the treaty highlights the infirmity
7
of their legal theory. Nothing in the treaty supports such an entitlement. Under the Tribes’
8
theory, every time a culvert fails in the future a new breach of the treaty has occurred
9
regardless of its impact on tribal harvest. The remedy sought by the Tribes is untethered to
10
tribal treaty rights due to the absence of evidence on how accelerating barrier remediation
11
affects the Tribes’ ability to exercise their treaty fishing rights.
12
2. Case area relief is inappropriate because the Tribes did not establish case
13 area injury in fact.
14 A prospective remedy cannot extend systemwide without a showing that the relevant

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

16 1140-41 (statewide injunction was overbroad when only three plaintiffs alleged violation of

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

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

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

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

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

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

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

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

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

26

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The Tribes must go “one step further” and show that the presence of barriers significantly
2
diminished their Tribal harvests. See Lewis, 518 U.S. at 351.
3
It is this injury that each Tribe needed to show individually. This case was not filed as
4
a class action. Each of the 21 Plaintiff Treaty Tribes has a separate treaty right. See, e.g., Hoh
5
Indian Tribe v. Baldrige, 522 F. Supp. 683, 685 (W.D. Wash. 1981) (plaintiffs “are separate
6
and distinct federally recognized Indian tribes each of which separately holds fishing rights
7
secured by the Treaty”). Each Tribe has its own usual and accustomed fishing places (U&As)
8
in different watersheds within the case area.107 See Conference of Western Attorneys General,
9
American Indian Law Deskbook 400 (Clay R. Smith, et al., eds., 4th ed. 2008) (tribe-by-tribe
10
table of U&A findings in U.S. v. Washington). Each Tribe was required to establish injury to
11
its fisheries from state-owned culverts linked to its usual and accustomed fishing places. None
12
did so.
13
Evidence about overall tribal harvests proves nothing about the effects of state-owned
14
culverts in watersheds that affect individual Tribes. The health of salmon stocks varies widely
15
throughout the case area.108 Elders from the Squaxin Island, Swinomish, Lummi, and Quinault
16
Tribes provided anecdotal testimony about poor fisheries in some unspecified years. But
17
salmon from the Humptulips River, where the Quinault Nation fishes,109 never pass through
18
the usual and accustomed places of the Muckleshoot Tribe.110 There are no ESA-listed salmon
19
on the Washington coast except for Lake Ozette sockeye, which are limited to one small
20
watershed that lies partially within the federally owned and managed Olympic National Park
21

22 107
When they litigated Phase II of United States v. Washington 30 years ago, the Tribes “point[ed] out
23 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
24 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
25 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,
26 235 F.3d 429 (9th Cir. 2000); United States v. Washington, 384 F. Supp. 312, 367 (W.D. Wash. 1974).

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State's Post-Trial Brief on Complex Salmon Recovery Efforts

State's Post-Trial Brief on Complex Salmon Recovery Efforts

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