Tribal Supplemental Brief - Turtle Talk

PLAINTIFF TRIBES’ POST-TRIAL SUPPLEMENTAL BRIEF No. C70-9213 , SUBPROCEEDING 01-1

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The Honorable Ricardo Martinez

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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

No. C70-9213 Subproceeding No. 01-1 (Culverts) TRIBAL SUPPLEMENTAL BRIEF REGARDING POST-TRIAL EVENTS AND THE NEED FOR INJUNCTIVE RELIEF

I. INTRODUCTION

The Plaintiff Tribes submit this brief in response to the Court’s January 14, 2013 order,

requesting supplemental memoranda and exhibits. Order on Supplemental Briefing, Dkt. No. 733.

Six years ago the Court declared that State culverts that hinder fish passage and thereby

reduce the number of salmon available for tribal harvest violate the State’s treaty obligations. In a

three-week remedy trial in 2009, the Tribes and the United States showed that, left to its own

devices, the State would likely not correct all its barriers for decades, if ever. The Plaintiffs

requested an injunction to compel timely and effective corrections. Three years later the

circumstances are fundamentally unchanged, and that injunction is needed more than ever.

Case 2:70-cv-09213-RSM Document 20339 Filed 02/01/13 of 22



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As detailed below, there are still more than 1,200 barrier culverts in the case area under

roads of the State Departments of Transportation (“WSDOT”), Fisheries and Wildlife (“WDFW”),

and Natural Resources (“DNR”), and in the State Parks (“Parks”). The State’s plans to open those

barriers, so promisingly described in the State’s post-trial briefing, have already come up short --

over the past three years, WSDOT has actually decreased the pace of its corrections, and the

number of identified barriers under State highways has gone up, not down. Despite continued

growth in transportation revenue and expenditures, the State has no apparent plan to accelerate

WSDOT’s correction efforts. While DNR and DFW appear to have made progress towards

meeting their 2016 correction deadline under State law and policy, Parks has corrected only two

culverts to date. The overall State effort remains hampered by the same inadequate barrier

identification standards, flawed design regulations, missed opportunities and lack of sustained fiscal

commitment as were on display at trial. Also fundamentally unchanged since trial are the depressed

condition of case area salmon stocks and tribal fisheries, and the ongoing harm caused by the loss

of hundreds of miles of habitat and the fish it would have produced.

In short, the State has had six years to change its conduct in response to this court’s ruling.

It has changed at the margins, at best, and the most problematic agency, WSDOT, appears to be

going backwards. If the trial left any doubt that an injunction imposing a correction schedule and

standards is needed, the past three years should erase it. The Tribes ask that the court issue the

proposed injunction.

II. WSDOT HAS SLOWED ITS PACE OF CORRECTION AND REPORTS MORE BARRIERS THAN IT DID THREE YEARS AGO.

The proposed injunction would require that WSDOT, within twenty years, open 90 percent

of the habitat above those case area barriers that block at least 200 meters of salmon habitat each.




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Proposed Permanent Injunction (“Proposed Injunction”), Dkt. No 660, at ¶ 8.1 To open ninety

percent of the habitat above the roughly 800 such barriers known at trial would have required

correcting 577 culverts. Plaintiffs’ Proposed Findings of Fact (“Pltfs. Prop. Findings”), Dkt. No.

669, at ¶ 15.1. The proposed injunction would permit the remaining culverts to be corrected when

they wear out, break, or are corrected as part of a highway project. Proposed Injunction at ¶ 7.

The State countered that no injunction was needed, because it could open 50 percent of that

habitat in just seventeen years by fixing 163 culverts blocking the greatest lengths of habitat, and it

insisted that “WSDOT has a plan in place to do it.” Washington’s Post-Trial Brief, Dkt. No. 663, at

13-14 (referring to Ex. AT-323, a list of WSDOT barriers ranked using length of habitat blocked).

If WSDOT had a plan like the one it described in its Post-Trial Brief, it has shown little sign

of implementing it. In 2009, 2010, and 2011, WSDOT fixed only twenty-four barrier culverts in its

Northwest and Olympic regions. Fish Passage Barrier Inventory Progress Performance Report

(WSDOT/WDFW 2012) (“2012 WSDOT Report”), attached as Exhibit 1 to Declaration of Alix

Foster (“Foster Dec.”) filed herewith, at 23-25, 36-40 (regional lists showing twenty-five fish

passage projects, including twenty-four culvert corrections, in 2009-2011). 2 The Northwest and

Olympic regions roughly approximate the Case Area. Compare Ex. AT-008-9 (map of case area)

with AF Ex.1, 2012 WSDOT Report at 7 (map of WSDOT regions). By correcting only twenty

four culverts, or eight per year, in the first three years of its “plan,” the State has already fallen short

1 The State identifies 200 meters as a “significant reach” of habitat. Ex. W-087-E, Fish Passage Barrier and Surface Water Diversion Screening Assessment and Prioritization Manual (“2000 Assessment Manual”) (WDFW 2000) at 36. The provision to open 90 percent of habitat would be available only if the State completed its ongoing habitat surveys, so it could reliably identify what constituted 90 percent. Proposed Injunction ¶ 8. Otherwise, the injunction would require that all “significant reach” barriers be corrected. Id., ¶ 6. 2 Ms. Foster’s declaration attaches pages from state documents as exhibits. The exhibits are cited in this brief as “AF Ex.” These documents are admissible under Fed. R. Evid. 402, 801, 803, and 902. See the Court’s November 24, 2009 Order, Dkt. No. 636 (admitting government documents over hearsay and authenticity objections), and the Plaintiff Tribes’ Bench Memorandum Re: Admissibility of Certain Exhibits, Dkt. No. 624.




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of the pre-trial average of 9.5 such corrections per year, on which that plan was founded. See

State’s Post-Trial Brief, at 14. 3 In addition to correcting only 24 barriers in 2009-2011, only four

of the WSDOT projects were among the 163 culverts at the top of Ex. AT-323 that the State

assured this Court it had a “plan” to fix. Compare Ex. AT-323 with AF Ex. 1, 2012 WSDOT

Report, at 23-25, 36-40. At its 2009-11 rate of one and one-third priority corrections per year,

WSDOT would need 120 years, not seventeen as it claimed in its Brief, to fix the last of the 163 and

to finally re-open the first half of the habitat.

WSDOT’s plan to fix 163 top priority barriers in twenty years was never realistic, because

WSDOT has never fixed barriers based on a rigorous list of which ones block the most habitat.

Culverts with less habitat get fixed as well. See Ex. AT-072, WSDOT Fish Passage Inventory

Progress performance Report (2009) at 9 (stand-alone projects correct “the highest priority

barriers;” others are corrected as part of highway projects or routine maintenance). From 2009

through 2011, roughly half of WSDOT’s corrections occurred for reasons having nothing to do with

the extent of affected habitat, such as being in the path of a highway project. Compare id. at 36-40

(twelve corrections in those regions in 2009-2011 through other funding sources), with Marsh Dec.,

Ex. 4, 2012 WSDOT Report, at 23-25 (thirteen stand-alone, “I-4” corrections in the Olympic and

Northwest regions in 2009-2011). Fixing culverts during highway projects makes sense. See pp.

11, infra. But the State’s “plan,” which assumed that every fix over twenty years would come off

the list of 163, was never realistic. Results over the past three years – fixing four of the 163 --

confirm that, to open substantial habitat in a reasonable time, WSDOT cannot simply do as it has

done – it must be made to increase the rate of corrections.

3 The Tribes rely on data from 2008 through 2011 because the most recent of the annual WSDOT Progress Reports in the trial record was the 2009 Report, AT-072, which reported through the 2008 construction season, and the 2013 progress report with results of the 2012 construction season is not yet available online. Foster Dec., ¶ 5.




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In addition to having an unrealistic plan, and failing to live up to it, WSDOT has failed to

make enough corrections to keep the problem of barrier culverts from growing. Just before trial, it

reported 1,158 barrier culverts under WSDOT roads in the Northwest and Olympic Regions. Ex.

AT- 072, Progress Performance Report (WSDOT, 2009) at 7. Today, it reports 1,236. AF Ex. 14,

2012 WSDOT Report,at 7. The number in these regions blocking more than 200 meters each of

salmonid habitat – anadromous and otherwise – was reported to be 883 on the eve of trial. Ex. AT-

072 at 7. Today, it is 930. 4 AF Ex. 1,2012 WSDOT Report,at 7. The reasons for the increased

numbers of barriers are not explained in WSDOT’s annual progress reports, but the consequences

are clear. At the post-trial correction rate of eight culverts per year, WSDOT will open the last of

the 930 barriers in these two regions that block “significant reaches” of habitat 116 years from now,

and a correction of all 1,236 barrier culverts must wait 155 years.

There is no reason to think the State will voluntarily accelerate WSDOT corrections.

Despite what it told the Court in its Post-Trial Brief, WSDOT’s actual ten year plan for its I-4 or

stand-alone culvert corrections proposes only fifty-two corrections in the Northwest and Olympic

regions, and only twenty of those are described as “funded.” AF Ex. 1, 2012 WSDOT Report, at

14-16. Assuming that all fifty-two are built, and that, as over the past three years, a similar number

of barriers are corrected through highway projects and other funding, there will be 104 corrections

over the next decade, or slightly more than ten culverts per year – the same rate that WSDOT has

managed since 1992. See Pltfs. Prop. Findings at ¶ 12.10, citing Ex. AT- 072 at 5, n.2, 25, Table 5.

Thus, whether WSDOT behaves as it has for the past twenty years or for the past three, or whether 4 These numbers, like the 2012 WSDOT Report which is their source, do not distinguish between anadromous barriers and others. In the time available to prepare this brief, the Tribes were unable to obtain any admissible state document that separately reported case area or anadromous barriers. See fn. 11, infra. For comparison, however, at the time of trial, two-thirds of the WSDOT barriers in the WDFW barrier database affected anadromous fish and more than 200 meters of habitat. See Pretrial Order, Dkt. No. 614 at 15 (Admitted Fact (“Adm. Fact”) 6.16) (807 anadromous, “significant reach” barriers out of 1215 total DOT barrier culverts in the case area).




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it follows its published plan for the next ten years, the likely result would be the same: eight to ten

corrections per year in the case area, with fish blocked and treaty rights violated well into the next

century.

It cannot be acceptable to wait a century or more to remedy an established violation of

federal law. “The time for mere ‘deliberate speed’ has run out.” Griffin v. County Sch. Bd. of

Prince Edward County, 377 U.S. 218, 234 (1964). Immediate improvement is needed, and only an

injunction will bring it about.

III. STATE NATURAL RESOURCE AGENCIES HAVE MADE PROGRESS, BUT THEIR ABILITY TO ELIMINATE THEIR BARRIERS BY 2016 REMAINS IN DOUBT.

At the time of trial, DNR had identified 228 barrier culverts under its roads in the case area;

WDFW had identified seventy-one; Parks had identified eighty-nine, but had yet to complete a full

inventory. Adm. Facts 6.21 (WDNR), 6.24 (WDFW), 6.23 (Parks). State forest practice rules

required DNR to make its culverts fish passable by July 2016. WAC 222-24-010, 222-24-050

(2009).5 Parks and WDFW adopted the 2016 deadline as a goal, Adm. Fact 8.4, but Parks had fixed

only a single culvert, Adm. Fact 6.23. WDFW variously reported having corrected six, seven, or

eight barriers on its case area lands. Written Direct Testimony of Michael Barber, Ex. W-088, ¶ 25

(six); State’s Proposed Findings of Fact, Dkt. # 658, No. 156 (seven); State Trial Brief, Dkt. # 609

at 17 (eight). Absent newfound funding, the ability of any of these agencies to meet their 2016 goal

was tenuous. Pltfs. Prop. Finding 15.7, and evidence cited therein.

Circumstances today differ too little to assure the Tribes’ rights will be vindicated in the

absence of an injunction. After the trial, in 2009 and 2010, DNR removed 113 barriers from four

planning units roughly corresponding to the case area. AF Ex. 3, Trust Lands Habitat Conservation

5 The deadline has since been extended to October 31, 2016, with an option to extend it five additional years. WAC 222-24-050.




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Plan 2010 Annual Report (DNR 2010) at 16; AF Ex. 4, Trust Lands Habitat Conservation Plan

2011 Annual Report (DNR 2011) at 13 (“HCP Reports”).6 But, as a result of land transactions and

inventory activities, DNR identified an additional thirty-five barrier culverts under roads on its

lands in 2010. Id. at 12. The 2012 HCP report is not yet available, Foster Dec. ¶5, and these

reports do not state how many barriers remain, how many affect anadromous fish, or what design

options have been used. Id.7

One of the four documents provided to the Tribes by Parks in the past three weeks is an

August, 2012, report on its culverts in the case area. AF Ex. 5, Washington State Parks Fish

Passage Inventory Within Water Resource Inventory Areas (WRIA) 1-23 (“Parks Inventory”). The

report cautions that it is still not a complete inventory. Id. at 21. Parks recently produced a list of

twenty-five barrier culverts on anadromous streams on its lands in the case area, each of which

blocks at least 200 meters of habitat. AF Ex. 6, Washington State Parks Priority Fish Barriers

Table. That table indicates that Parks removed one barrier culvert in 2012. Id. The agency also

6 Together, DNR’s North Puget, Olympic Experimental State Forest, South Puget, and Straits HCP Planning Units roughly approximate the case area. Compare Ex. AT-008-9 (map of case area) with AF Ex. 2, State Trust Lands Habitat Conservation Plan Planning Units (map of HCP planning units). 7 The State, of course, possesses current information regarding its barriers. The Tribes proposed that the State and Plaintiffs update some of the Admitted Facts in response to the Court’s January 14 Order, but the State declined, citing lack of time. Foster Dec. at ¶ 4. In response to Public Records Act requests by the Swinomish Tribe after that Order was entered, the State provided updated versions of the WDFW and DNR barrier culvert databases. Id. at ¶ 3. Up until forty-eight hours before this brief was due, the State had provided fifteen additional documents. In the final forty-eight hours before this brief was due, the State produced more than 3,500 pages, and additional databases. Id. at fn. 1. Little of this information is self-explanatory, even if the Tribes had more than forty-eight hours to review it. Some, such as information from the databases, could only be presented through expert declarations. Without opportunity for rebuttal or cross-examination, introduction of much of this information would raise evidentiary and due process issues. See, e.g., Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir.1988) (absent agreement of the parties or undisputed facts, a permanent injunction should not issue without an evidentiary hearing). Consequently, the Tribes have not utilized this new information in their brief, and have limited their supplemental material to that found in state publications available online, plus four documents from Parks that were provided in response to the Swinomish records request in sufficient time for tribal review, but whose accuracy the Tribes cannot assess. For the same reasons, the Tribes are not offering declarations by tribal staff based on their personal experience related to State barrier culvert corrections since trial. If the State’s supplemental filings include materials that raise evidentiary or due process concerns, or that seek to relitigate matters canvassed at trial, the Tribes may move to strike such material, or may request additional procedures such as opportunity to submit additional pages from cited documents, to cross-examine declarants, or to offer rebuttal.




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issued a progress report in January 2013, which projects that ten more barriers may be removed or

replaced with a passable structure in 2013. AF Ex. 7, Fish Passage Barrier Removal Projects

Status Report (Parks 2013) at 3. Those ten projects, however, are not yet bid, and the report does

not indicate whether they can be fixed with current appropriations or must await funding in the

2013-15 biennium. Id. at 1-3. The status report identifies thirteen additional anadromous barriers

blocking a “significant reach” of habitat for correction in the future, “[i]f funding allows.” Id., at 3.

The Tribes also can present only limited information regarding WDFW. The agency

recently reported to the Legislature that it corrected thirty-eight fish passage barriers in 2011 and

2012, but did not indicate whether those were culverts, dams, or other structures, nor what species

they affected or where they were located. AF Ex. 8, Improving Our Products, Services, and

Relationships (WDFW January 16, 2013) at 31. The same report claimed that the agency was “[o]n

target to complete culvert lawsuit obligations (2014) and RMAP obligations (2015),” but offered no

details. Id. at 33.

DNR and WDFW thus report having made progress to removing the barriers from their

streams. That progress, if verified, would demonstrate the critical importance of having a fixed

deadline for making culverts passable to fish – the kind of deadline the proposed injunction would

reinstate for WSDOT, which abandoned its previous voluntary, twenty-year deadline. Compare

Memorandum of Agreement (WDFW/WSDOT 2002), Ex. W-093-F at 39 (goal for removal of all

identified WSDOT barriers by 2021) with Memorandum of Agreement (WDFW/WSDOT 2008),

Ex. W-093-G (omitting removal goal).

DNR, DFW and Parks have also had the benefit of recent State economic stimulus funding.

Historically, DNR has not received appropriations to correct its culverts on State trust lands, but has

relied on timber sale fees collected in the Access Road Revolving Fund. Adm. Fact 8.13. In 2012,




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however, the legislature appropriated $5.75 million for DNR trust land fish passage projects, as part

of the economic stimulus package contained in the 2011-13 capital budget (the “Jobs Now Act”).

2012 Wash. Sess. Laws 2012-13 (Engrossed Senate Bill 5127 § 519). The Jobs Now Act also

included $1.5 million for correction of seven WDFW barriers, and $1.0 million to correct barriers in

DNR-owned natural areas. Id. at 2111-13 (§§ 514, 519). The Tribes have not been able to

determine which barriers these funds are intended to correct.

The natural resource agencies’ efforts to re-open salmon streams are obviously important,

and welcome, but the Court should view them in their broader context. Prior to 2012, for example,

there was scant evidence that Parks was doing anything to correct its barriers. Adm. Facts 6.12,

6.23; Testimony of Michael Barber, 10/19/2009, at 159:5-6. One year of progress is encouraging,

but hardly dispositive. Likewise, stimulus funding in a single supplemental appropriations bill does

not assure future funding or the ability to fix all barriers by 2016. Recent amendments to the

State’s Forest and Fish law give DNR the option of extending the 2016 deadline – although, to its

credit, the agency has not yet done so. WAC 222-24-050. And, as explained in Part IV of this

Brief, there is little evidence of improvement in the flawed State barrier diagnosis, correction, and

monitoring practices discussed at trial.

The changes made by the natural resource agencies thus far have come after years of

litigation, and in the face of a pending injunction decision. Like jailhouse conversions, such

courtroom conversions are properly greeted with caution, especially where the convert

simultaneously bemoans the cost of his reformed ways. Cf., e.g., County of Los Angeles v. Davis,

440 U.S. 625, 631 (1979) (“voluntary cessation of allegedly illegal conduct does not deprive the

tribunal of power to hear and determine the case,” unless “’there is no reasonable expectation that




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the alleged violation will recur, and interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation”) (internal citations omitted).

IV. THE STATE RETAINS THE SAME INADEQUATE ADMINISTRATIVE ARCHITECTURE FOR BARRIER IDENTIFICATION AND CORRECTION AS IN 2009.

Even if the State were correcting its known barrier culverts more quickly, the violation of

tribal treaty rights will not be cured unless State agencies also conduct full inventories and keep

them current, use viable procedures to identify barriers, adopt suitable standards for their correction,

and monitor and maintain their repairs. At trial the Plaintiffs showed that the regulatory and policy

architecture adopted by State agencies fails to ensure these critical aspects of an effective fish

passage regime. That remains the case.

To begin with, no State law or regulation requires any agency but DNR to inventory its

barrier culverts and, as noted above, the Parks Commission has yet to complete a comprehensive

inventory. Despite knowing that some currently passable culverts will become barriers in the

future, Adm. Fact 9.4, none of the agencies had a comprehensive program in place in 2009 to

periodically reassess barrier status. Ex. AT-047 at 91, Interrogatory 50 (1/23/09) (WDFW and

DNR); Trial Tr., 10/20/09 (Nagygyor), at 51:15-23 (DNR would “visually inspect large culverts for

damage” after a “major” rain); Adm. Fact 9.6. The Tribes know of no such comprehensive State

programs today. As it did at the time of trial, WSDOT today relies on a contract with WDFW that

provides only for unspecified “spot checks” of WSDOT culverts. Ex. W-093-G (2008 MOA); 2012

WSDOT Report, at 42-43 (referencing continued use of the 2008 MOA), attached as Exhibit 4 to

Declaration of Yvonne Marsh (Dkt. No. 20326).8

8 Ms. Marsh’s declaration was submitted by the United States in support of its Supplemental Post-Trial Memorandum and attaches pages from Federal or State documents as exhibits. The exhibits are cited in this brief as “Marsh Ex.”




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In addition to the lack of requirements to inventory and re-assess barrier status, three more

critical shortcomings in the State’s correction programs remain unchanged since trial and are

identified in the United States’ Supplemental Post-Trial Memorandum (“U.S. Post-Trial Mem.”),

Dkt. # 20325. First is the State’s continued failure to amend its fish passage regulations and design

guidance to require use of best design practices, including bridges and stream simulation culverts.

U.S. Post-Trial Mem. at 5-6; Marsh Exs. 2, 3; see also, Ex. W-089-B, Design of Road Culverts for

Fish Passage, (WDFW 2003) at 17-28 (no-slope and hydraulic design). Draft guidelines to replace

the 2003 WDFW Design Manual would finally recognize that “Hydraulic design option culverts

have limited application in exceptional circumstances,” but the guidelines have not been adopted

and would not be enforceable rules. AF Ex. 9, Water Crossing Design Guidelines, 5th Draft at 105

(WDFW 1/2/2013).

Second, although WDFW’s barrier assessment manual was amended and reissued after trial,

in 2009, WDFW failed to change a key provision, which determines whether juvenile salmon can

pass a culvert by referring to the WDFW regulations (WAC 220-110-070) setting maximum

velocity standards for passage of an adult trout. Compare (Marsh Dec. Ex. 2), Fish Passage

Barrier and Surface Water Diversion Screening Assessment and Prioritization Manual (WDFW

2009) (“2009 Assessment Manual”) at 3:8; with Ex. W-087-E at 18-19 (“2000 Assessment

Manual”). The trial record proved that a six-inch trout is an inadequate surrogate for juvenile

salmon. Id. at 18-19; 2009 Assessment Manual at 1:3; Pltfs. Prop. Findings ¶ 10.9 and evidence

cited therein.

Third, WDFW and WSDOT have made no change to the “no touch rule” in their 2008

Memorandum of Agreement, Ex. W-093-G. That rule permits WSDOT to avoid correcting an

identified barrier in the midst of a highway project, no matter how much equipment is on site, how




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much cost might be saved, or how long it may be before WSDOT might tear up its new highway to

correct the dysfunctional culverts. U.S. Post-Trial Mem. at 6-7; Marsh Exs. 4, 5.

In summary, from the inventory and barrier assessment phase to post-construction

monitoring, the administrative framework for state culvert correction is unchanged in its key

respects since trial. Given this absence of voluntary improvement, the design, periodic

reassessment, and other programmatic requirements contained in the proposed injunction remain

necessary to correct the violation of treaty rights and prevent its repetition.

V. THE BALANCE OF HARMS AND PROMOTION OF THE PUBLIC INTERST CONTINUE TO FAVOR ISSUANCE OF THE REQUESTED INJUNCTION.

The four part test for the propriety of injunctive relief has not changed over the past three

years, nor has its application to this case. See, e.g., Brown v. Plata, 131 S. Ct. 1910 (2011). The

violation of treaty rights is no less irreparable a harm than when this Court first acknowledged that

violation in 2007. Nothing has made the award of damages or other remedies at law any more

adequate a response. Nor have circumstances changed so that the balance of harms and public

interest no longer favor an injunction. The salmon’s need for habitat and the Tribes’ need for fish

remain. The once great salmon runs, and the fisheries for whose security the Tribes were willing to

trade most of their domain, have not been restored, and many remain threatened or endangered,

with degraded and disconnected habitat a common cause for their plight. U.S. Post-Trial Mem. at

2-3; Marsh Ex. 1. The loss of wild production cannot safely or effectively be replaced by reliance

on hatchery fish, particularly as the State cuts back hatchery production. Ex. AT-7-B (Written

Direct Testimony of Kit Rawson) at 21-22.

Since trial, four additional years of tribal harvest data have become available (2008-2011).

Declaration of Keith Lutz, filed herewith, (“Lutz Dec.”), ¶ 2. This data, while covering a limited




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period, shows essentially no change in tribal harvest of coho and steelhead, compared to the most

recent harvest data available at trial, which was through 2007. Tribal coho harvests remain near

their levels from 1974, when Judge Boldt issued Final Decision I. Compare id., with Adm. Fact 2.7

(Tribal harvest levels, 1974-2007). Coho and steelhead spawn in smaller streams and rear there for

long periods as juveniles. See Joint Biological Report, Ex. JX-2a at 4-5, 8, 12. For this reason their

habitat tends to be more affected by barrier culverts. Trial Tr. 10/14/0, 126:21 – 127:14 (Rawson).

The minority of tribes who can access Fraser River fish – unaffected by Washington culverts – did

enjoy two strong pink salmon fisheries and one good sockeye harvest since trial – as well as the

second worst sockeye harvest on record. Compare Adm. Fact 2.7, with Lutz Dec., ¶2. But such

transient, localized events do not equate to long-term recovery, see, Ex. AT-7-B (Written

Testimony of Kit Rawson) at 10 (describing “fluctuating decline” of fisheries), and they do not

undo the hardship or replace the long-term loss of fish caused by widespread state barrier culverts.

To deny issuance of an injunction will perpetuate and exacerbate harms to the Tribes for decades to

come.

Balanced against the irreparable harm threatening the Tribes is, principally, one issue: cost.

The State will likely present cost information in its supplemental brief – information it alone

controls. But whatever the State may offer, the facts most relevant to the grant of injunctive relief

are already in the record. To begin with, because culverts wear out and are replaced, and state law

requires they then be made passable, the costs relevant here are not the total cost of every culvert

correction, but the incremental cost of correcting them in a timely and effective manner. See

Tribes’ Corrected Post Trial Brief, Dkt. # 666, (“Tribes’ Post-Trial Brf.”), pages 54-55. Second,

evidence from actual corrections completed since trial confirms that the State’s claim that the

average WSDOT culvert correction would cost $2.3 million was severely overstated. That estimate




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was based on the estimated costs of thirty-eight projects for which WSDOT had conducted

“scoping” and prepared rough cost estimates at the time of trial. Ex. W-113, Fish Passage

PreScope (WSDOT, July 2009) at 2; Trial Tr. 10/19/2009, at 21:4-14, 25:18 – 26:24) (Wagner).

Since trial, WSDOT has built thirteen of those thirty-eight projects at a cost of $17.2 million. AF

Ex. 1, 2012 WSDOT Report at 23-25. The average cost of those projects has been $1.3 million, or

approximately $1 million less than what the State told this Court at trial. Compare Ex. W-113 and

Washington Post-Trial Brief at 19 with AF Ex. 1, 2012 WSDOT Report at 23-25.

The Tribes acknowledge that, even using realistic cost estimates, the total needed to correct

thirty barriers per year and thus open 90 percent of habitat in twenty years will be substantial. But

the resources available to WSDOT annually are sufficient to do so without significant budget

disruption. Since the time of trial, the WSDOT budget has grown from $5.9 to $7.8 billion per

biennium. Compare, Ex. AT-163, Department of Transportation, Total Budgeted (fiscal.wa.gov,

July 2009), at 2 (WSDOT 2009-11 budget of $5.9 billion) with AF Ex. 10, A Citizen’s Guide to the

Washington State 2012 Transportation Budget (Senate Transportation Comm.) at 18. The WSDOT

capital budget has expanded to $6.4 billion in 2012 from $4.4 billion in 2009. Compare, id.,

(WSDOT 2012 budget is 82% capital) with Ex. AT-164, Capital, Department of Transportation,

Total Budgeted (fiscal.wa.gov, July 2009), at 1 (WSDOT 2009-11 capital budget of $4.4 billion).

WSDOT’s most recent revenue forecast is for continued slow growth, after a slight downward dip

around the time of trial. AF Ex. 11, November 2012 Transportation Economic and Revenue

Forecasts, Wash. Transportation and Revenue Forecast Council at 4. WSDOT continues to benefit

from a constitutionally-dedicated source of funding in the State’s motor vehicle fuel excise taxes.

Wash. Const., Amdt. 18.




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In addition, a large portion of WSDOT’s funding comes from the United States. At trial,

state witnesses described uncertain prospects for future federal funding of WSDOT, due to the

insolvency of the Federal Highway Trust Fund. Ex. W-091, Declaration of Jeff Carpenter in Lieu

of Direct testimony, ¶ 12. In 2012, this uncertainty was addressed by reauthorization of WSDOT’s

principal federal funding law, and the replenishment of the Trust Fund. P.L. 112-141 (“MAP-21”);

H.R. Rept. 112-557, Conference Report on H.R. 4348, 2012 WL 2469746, 158 Cong. Rec. H4432-

01 (MAP-21 “resolves the projected deficit in the Highway Trust Fund, assures a cushion of $2.8

billion in each account of the Highway Trust Fund, and creates a solvency account”). State budget

documents now show that, over the next twenty years, federal funds will constitute the majority --

$24 million – of the “Fish Passage Barrier (TPA)” category in WSDOT’s I-4, stand-alone

corrections program. AF Ex. 12, LEAP Transportation Document 2012-2C, 2003 Nickel Account

and 2005 Transportation Partnership Account Projects (3/14/12, version 12LEGFN2) at 22. There

is no budget hardship to the State where the Plaintiff United States pays for the culvert corrections.

The State also expressed concern at trial that increased WSDOT culvert corrections would

harm the State by disrupting social or education funding or violating spending limitations in the

State Constitution and Initiative 601. See State Trial Brief, Dkt. #609 at 29, 32-33. Recent state

documents confirm that such results remain wholly improbable, if not impossible. WSDOT’s

Citizen’s Guide to the 2012 Washington Transportation Budget, supra, at 4, AF Ex. 10, confirms

that, as was true at trial, WSDOT’s budget is separate from the state operating and capital budgets,

which depend on general fund revenue and pay for such things as school buildings and day-to-day

government operations. Accord Trial Tr. 10/26/12 32:23-25, 40:13-25 (Moore). And the State’s

fiscal website, fiscal.wa.gov, confirms that in 2012, as at trial, WSDOT’s Highway Improvement

program spends no general fund money. Compare, AF Ex. 13, Expenditure History – Operating &




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Capital – Department of Transportation (405) – General Fund – State (001-S) – Improvements

(I0C)(Dec. 2012), with Ex. AT-165 Expenditure History – Operating & Capital – Department of

Transportation (405) – General Fund – State (001-S) (2009) (Total WSDOT General Fund

expenditures). Finally, that website also confirms that in 2012 as in 2009, WSDOT’s Highway

Improvement program spent no money that was subject to Initiative 601 or the Constitutional debt

limit. Compare, AF Ex. 14, Expenditure History – Operating & Capital – Department of

Transportation (405) – Subject to the Expenditure Limit (LMT-S) – Improvements (I0C), with Ex.

AT-166, Expenditure History – Operating & Capital – Department of Transportation (405) –

Subject to the Expenditure Limit (LMT-S) (2009); Trial Tr. 10/26/12 53:1-9 (Moore) (constitutional

limit applicable only to general fund).

The costs to WDFW, DNR and Parks also raise no hardship sufficient to defeat the grant of

the injunction. These agencies have far fewer culverts and far smaller average costs than

WSDSOT. See Adm. Facts 8.22, 8.23 (DNR’s average culvert correction costs $81,000; WDFW’s

average passage barrier correction costs $230,000). The average predicted cost of ten currently

proposed Parks corrections is approximately $130,000. AF Ex 7, Fish Passage Barrier Removal

Projects Status Report at 1-3. DNR also has independent revenue through timber sales. And the

cost of the injunction would be only the cost of respecting and not extending the agencies’ current

statutory and policy deadline of 2016, plus the incidental costs of using effective design, and

monitoring and maintaining the culverts to protect the fish, the Tribes, and the agencies’

investment.

In short, what was true at trial remains true today: fixing culverts does not require the State

or this Court to choose between educating children, caring for the disadvantaged, and protecting

treaty rights. Three more years of data from actual WSDOT projects confirm that the average




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WSDOT culvert fix costs less than sixty percent of what the State predicted at trial. The State plans

to book much of that cost to the Plaintiff United States. Greatly accelerated culvert corrections can

be achieved through proportionally minor re-allocations of state funds, without violating state

spending laws. Weighing this manageable financial burden against the likelihood of another

century of loss of tribal treaty fishing rights, the balance of hardships is clear. The injunction

should be granted.

VI. THIS COURT RETAINS THE POWER TO ENJOIN THE STATE TO FOLLOW FEDERAL LAW; THE TRIAL RECORD PROVES THE NEED TO DO SO HERE.

The State has argued that an injunction compelling it to remedy its ongoing violation of

federally-protected tribal treaty fishing rights would be an inappropriate exercise of the Court’s

equitable powers. Those arguments were not persuasive at trial, and are no more so after three

additional years of neglect of the Tribes’ rights. The Tribes do not intend to re-canvass the

extensive authority in their post-trial brief demonstrating that the State’s arguments are wrong.

Tribes’ Post-Trial Brf. at 71-91. Suffice it to say that the Supremacy Clause is still the law, and that

when a recalcitrant state fails to voluntarily end its violation of federal law, a federal court has both

the power and the obligation to act.

The Supreme Court has recently reaffirmed that, even where the state interests affected are

far more sensitive than mere highway construction, a court may compel a reluctant state to do what

is necessary to insure that federal rights are respected. Plata, supra, 131 S. Ct. 1910 (upholding

injunction requiring release of thousands of state prisoners to cure 8th Amendment violations).

After years of inadequate remedial actions by state prison officials, the District Court in Plata was

not required to “wait to see whether their more recent efforts would yield equal disappointment.”

Id. at 1931. Nor was the District Court required to hold back because of the complexity inherent in




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determining the necessary relief: “[t]his inquiry necessarily involves difficult predictive judgments

regarding the likely effects of court orders. Although these judgments are normally made by state

officials, they necessarily must be made by courts when those courts fashion injunctive relief….”

Id. at 1942. The Court reiterated the great extent of federal equity powers:

Courts have substantial flexibility when making these judgments. “‘Once invoked, “the scope of a district court's equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” Hutto, 437 U.S., at 687, n. 9, 98 S.Ct. 2565 (quoting Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), in turn quoting Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)).

Plata, 131 S. Ct. at 1944.

Milliken and the other cases cited in Plata lay out well-established principles for enjoining a

state to vindicate federal rights. See Tribes’ Post-Trial Brief at 71-113 (reviewing proposed

injunction under standards of Milliken. Consistent with those principles, the proposed injunction

was crafted to do what is necessary to remedy the violation of the Tribes’ rights, while intruding no

more than necessary on the State’s prerogatives. Id.; see Armstrong v. Schwarzenegger, 622 F.3d

1058, 1071-72 (9th Cir. 2010) (“the question is not whether the relief the court ordered to vindicate

those rights is expensive, or difficult to achieve, but whether the same vindication of federal rights

could have been achieved with less involvement by the court in directing the details of defendants'

operations”).

Thus, the question before the Court here is whether, considering the full record, the State

has proven such lasting and substantial changes in its conduct over the past three years that some

details of the injunction may no longer be needed. With regard to WSDOT, the answer is clearly,

“No.” Its behavior may as well have been cast in concrete for all it has changed since trial. Parks

has taken the first steps and expresses good intentions, but has actually removed only one additional




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barrier. The question may be a closer one for DNR and WDFW, but given continuing uncertainties

in their funding, and continued shortcomings in the regulatory and policy architecture underlying

their correction efforts, an injunction remains appropriate. That is especially so given the difficulty

of fully or fairly assessing changes in those agencies’ situation based on no more than these

supplemental briefs.

VII. CONCLUSION

The trial record, carefully developed over years, remains the best guide for THE Court’s

decision. That record demonstrates a long history of halting, underfunded, and incomplete

correction efforts by all the state agencies. It provides ample factual support for the imposition of

correction schedules and minimum correction standards on the State and all its agencies. Marginal

factual changes since trial do not make it otherwise. United Transp. Union v. State Bar of Mich.,

401 U.S. 576 (1971) (upholding injunction issued in 1968 based on evidence taken in 1961); Jones

v. Diamond, 636 F.2d 1364, 1375 (5th Cir. 1981) (upholding injunction granted based on five year

old evidence).

Plaintiffs’ Proposed Injunction contains the essential requirements to remedy the wrong

done to the Tribes, and to vindicate the treaty provisions that are the cornerstone on which both the

Tribes, and the State of Washington, now rest. The Tribes request that the injunction be granted.

Respectfully submitted this 1st day of February, 2013.

PLAINTIFF-INTERVENOR TRIBES By: s/ JOHN C. SLEDD, WSBA # 19270

Attorney for theHoh, JamestownS’Klallam,LowerElwhaKlallam, Nisqually, Port Gamble S’Klallam, Sauk‐Suiattle,SquaxinIsland,StillaguamishandSuquamishTribes




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By: s/ALIXFOSTER,WSBA#4943AttorneyfortheSwinomishIndianTribalCommunity

By: s/EMILYR.HUTCHINSON,WSBA#38284 AttorneyfortheSwinomishIndianTribalCommunityBy: s/LAURENP.RASMUSSEN,WSBA#33256

AttorneyfortheJamestownS’KlallamandPortGambleS’KlallamTribes

By: s/ STEPHEN H. SUAGEE, WSBA # 26776 Attorney for the Lower Elwha Klallam Tribe By: s/DANIELA.RAAS,WSBA#4970

AttorneyfortheLummiNationBy: s/HARRYL.JOHNSEN,WSBA#4955 Attorney for the Lummi Nation By: s/ MARY M. NEIL, WSBA # 34348 Attorney for the Lummi Nation By: s/BRIANGRUBER,WSBA#32210

AttorneyfortheMakahTribeBy: s/ALANC.STAY,WSBA#4569

AttorneyfortheMuckleshootIndianTribeBy: s/ BILL TOBIN, WSBA # 4397 Attorney for the Nisqually Tribe By: s/ CHRISTINA CUSHMAN, WSBA # 23132 Attorney for the Nisqually Tribe By: s/ CONNIE SUE MARTIN, WSBA # 26525 Attorney for the Nooksack Tribe By: s/SAMUELJ.STILTNER,WSBA#7765

AttorneyforthePuyallupTribeBy: s/ ERIC J.NIELSEN, WSBA # 12773 Attorney for the Quinault Indian Nation By: s/ LORI E. (NIES) BRUNER, WSBA # 26652 Attorney for the Quinault Indian Nation




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By: s/ EARLE D. LEES, III, WSBA # 30017 Attorney for the Skokomish Indian Tribe By: s/SHARONHAENSLY,WSBA#18158 AttorneyfortheSquaxinIslandTribeBy: s/ MICHELLE H. HANSEN, WSBA # 14051

Attorney for the Suquamish Tribe By: s/MASOND.MORISSET,WSBA#273

AttorneyforTheTulalipTribesBy: s/THOMASZEILMAN,WSBA#28470

AttorneyfortheYakamaNation




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CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2013, I electronically filed this TRIBAL

SUPPLEMENTAL BRIEF REGARDING POST-TRIAL EVENTS AND THE NEED FOR

INJUNCTIVE RELIEF and the accompanying DECLARATION OF KEITH LUTZ AND

DECLARATION OF ALIX FOSTER with the Clerk of the Court using the CM/ECF system,

which will send notice of the filing to all parties registered in the CM/ECF system for this matter.

KANJI & KATZEN, PLLC

s/ JOHN C. SLEDD, WSBA # 19270 401 Second Ave. S., Suite 700 Seattle, WA 98104 Co-coordinating Counsel for Plaintiff-Intervenor Tribes


Tribal Supplemental Brief - Turtle Talk

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