United States v. Washington (20 F. Supp. 3d 986, 2013)

TABLE OF CONTENTS

ORDER PAGE

Order on Motion for Reconsideration (1/9/13) 993

Order on Motion for Referral to Settlement Judge (2/1/13) 994

Order on Suquamish Motion for Reconsideration (2/5/13) 994

Order on Lummi Motion for Reconsideration (2/15/13) ' 996

Memorandum and Decision (3/29/13) 1000

Permanent Injunction Regarding Culvert Correction (3/29/13) 1023

Joint Motion for Order Approving Consent Decree and Settlement Agreement (4/23/13) 1025

Order Approving Consent Decree and Settlement Agreement (4/23/13) 1030

Order on Lummi Motion for Stay Pending Appeal (4/26/13) 1030

Order on Motion for Partial Summary Judgment (7/8/13) 1033

Order on Motions for Summary Judgment and Motion for Declaratory Judgment (7/29/13) 1039

Order on Motion for Reconsideration or, in the Alternative, for Certification (9/3/13) 1054

Order on Motion to Strike (9/13/13) 1058

Consent Decree and Settlement Agreement — Squaxin Island Tribe and Gold Coast Oyster LLC (11/15/13) 1059

Order Approving Consent Decree and Settlement Agreement — Squaxin Island Tribe and Gold Coast Oyster LLC (11/18/13) 1063

Order Dismissing Grower’s Petition for Review and Granting Treaty Tribe’s Motion to Strike Reply Brief (11/21/13) 1063

Order Denying Motions for Stay Pending Appeal (12/5/13) 1066

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2013) ORDER ON MOTION FOR RECONSIDERATION

Subproceeding No. 05-4

(January 09, 2013)

RICARDO S. MARTINEZ, District Judge.

The Suquamish Tribe has filed a motion for reconsideration of the Court’s November 20, 2012 Order granting a motion to quash a deposition subpoena directed to Dr. Barbara Lane, and granting a protective order from further discovery. Dkt. ## 216, 223. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Court deems it unnecessary to direct opposing party Tulalip to respond to the motion, and shall deny it.

Suquamish argues that it “needs Dr. Lane’s expert opinions, the methods she used to derive them and the specific facts and data she used to support them to properly prepare its case.” Motion for Reconsideration, Dkt. # 223, p. 2. Further, Suquamish asserts that the Court committed manifest error in the statement that “it does not appear to the Court that Dr. Lane has been identified by the Tulalip as an expert.” Id., quoting Order on Motion to Quash, Dkt. # 218, p. 3. Suquamish has attached to the Motion for Reconsideration a copy of the Tulalip Tribe’s revised witness list, designating Dr. Lane as an expert witness in this matter. This designation was filed by Tulalip on October 17, 2012. Dkt. # 183. However, nowhere in the Suquamish response to the Tulalip motion to quash, or in the attached declaration, did Suquamish point to or cite to this designation. The parties’ witness lists were filed in accordance with the Court’s pre-trial schedule, which was proposed by the parties and adopted by the Court on March 20, 2012. Dkt. # 161. The witness lists were filed in anticipation of the trial, which at that time was set for February 4, 2013. The Court does not normally review these until the week prior to trial. In the absence of a citation to the specific document, the Court had no reason to review the entire record for evidence to support the Suquamish argument that Tulalip had designated Dr. Lane as an expert.

The Court did not commit “manifest error” because it did not make an actual finding that Dr. Lane had not been designated an expert by Tulalip. Instead, it simply made the observation that this did not appear to be the case. Moreover, the Court’s decision on the motion to quash was based on other reasons as set' forth in the Order.

Nor does the Tulalip designation constitute “new evidence” which could not have been produced earlier. In responding to the motion to quash, Suquamish could have cited or pointed to the expert witness designation filed at Dkt. # 183 to bring it to the Court’s attention, but failed to do so. Thus the designation cannot serve as a basis for reconsideration. Local Rule CR 7(h)(1). However, the Court now acknowledges that Tulalip did designate Dr. Lane as an expert witness on October 17, 2012. This acknowledgment does not constitute a finding that the designation was timely or proper under the rules and procedures applicable to this case, particularly those relating to latter-day testimony by Dr. Lane.

Beyond this acknowledgment, the motion for reconsideration is DENIED.

ORDER ON MOTION FOR REFERRAL TO SETTLEMENT JUDGE

Subproceeding No. 91-1 (Halibut)

(February 1, 2013)

This matter is before the Court for consideration of a request by the Quileute Tribe for referral to a settlement judge. Dkt. # 411. The request is made pursuant to language in the Court’s March 14, 2012 Order on Motions to Modify the Status Quo, in which the Court stated, “Should the parties wish to return to settlement negotiations following this year’s halibut fishery, they may request a referral to Magistrate Judge Tsuchida.” Dkt. # 397, p. 6. The request is timely under the Court’s February 26, 2010, directive that requests for assistance in changing the status quo for the halibut fishery must be filed by September 30 for the following year’s fishery. Dkt. # 228. However, the Quileute Tribe does not specify what modifications to the status quo are sought; the request appears to simply contemplate a return to the 2012 settlement negotiations that concluded unsuccessfully.

No other Tribe has joined in the request. The Port Gamble S’Klallam and Jamestown S’Klallam Tribes (“S’Klallam”) have opposed it. Dkt. # 413. Pointing to the management measures which were put in place for 2012 to supplement the status quo plan, they state, “[t]he S’Klallam Tribes simply want the parties to honor the Court Order already in place, and not establish another free-for-all with everything on the table. They would like to see a harvest management structure within the Court Ordered Plan that prevents TAC overage.” Response to Request for Reference to Settlement Judge, Dkt. # 413, p. 5. The Court would like to see that as well.

The request for referral to a settlement judge (Dkt. #411) is accordingly DENIED.

ORDER ON SUQUAMISH MOTION ■ FOR RECONSIDERATION

Subproceeding 11-2

(February 5, 2013)

This matter is before the Court on a motion for reconsideration filed by the Su-quamish Tribe (“Suquamish”). Dkt. # 62. The Suquamish ask the Court to strike a footnote from the Order on Motion for Summary Judgment filed October 11, 2012. Dkt. # 59. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Court deems it unnecessary to direct other parties to respond to the motion, and shall deny it for the reasons set forth below.

The Suquamish have objected to footnote 5 to the Order, which, viewed in context, was a footnote to the following statement:

While Judge Boldt described the Lummi U & A in FF 46 as including marine areas from Fraser River south to the present environs of Seattle, “and particularly Bellingham Bay,” the Lummi have pointed to no facts before Judge Boldt which would support the conclusion that he intended to include all the marine waters in between. Indeed, this Court has found in a previous subpro-ceeding that Judge Boldt’s “from” and “to” language in describing a U & A does not include all the waters in between.

Order on Motion for Summary Judgment, Dkt. # 59, p. 15 (emphasis in original). The Court illustrated this statement with the challenged footnote, which reads as follows:

In a recent subproceeding addressing similar language by Judge Boldt in describing the Suquamish U & A (“the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal”), this Court found that Judge Boldt did not intend to include all of Puget Sound, and excluded •certain area to the east of Whidbey Island. Subproceeding 05-03, affirmed, U.S. v. Washington (Upper Skagit v. Suquamish), 590 F.3d 1020 (9th Cir.2010). This determination was made by examining the evidence that was before Judge Boldt, specifically Dr. Lane’s report on Suquamish fishing areas.

Id., p. 15 n. 5 (emphasis in original).

In asking the Court to strike this footnote, the Suquamish state the following objection:

In footnote 5, the court sua sponte opined that not only did Judge Boldt not intend to include all of Puget Sound in his 1975 determination of Suquamish’s usual and accustomed fishing ground (“U & A”) but that he excluded certain area to the east of Whidbey Island, indicating an affirmative action by Judge Boldt to exclude the area. This particular issue was not before the court in the above subproceeding and nothing in the record in subproceeding 11-02 supports this finding.

Motion for Reconsideration, Dkt. # 62, p. 1-2. They argue that the footnote constitutes manifest error because “the court’s opinion in footnote 5 does not reflect the current state of the law in this case and if footnote 5 is not stricken, the result will be a manifest injustice against Suquamish and any other tribe who hereafter tries to expand its U & A pursuant to Paragraph 25(a)(6).” Id., p. 6.

The Suquamish have misconstrued both the meáning and the effect of the footnote. First of all, the footnote is not an opinion or finding of the Court. It is a summary of the Court’s ruling in a subproceeding in which the U & A of the Squamish Tribe was put at issue. Subproceeding 05-03. It is that ruling, not a footnote summarizing it, which is the law of the case. That ruling has been affirmed on appeal and the time for reconsideration is past. Second, the Suquamish have overlooked a comma and misread the plain language of the footnote. The footnote does not state that “he [Judge Boldt] excluded certain area to the east of Whidbey Island” as they argue in the motion. It was this Court that excluded certain areas to the east of Whid-bey Island, specifically Saratoga passage and Skagit Bay, from the Suquamish U & A. Order on Motions for Summary Judgment, Subproceeding 05-03, Dkt. # 198, p. 15. The Court found that “in describing the Suquamish U & A as the marine waters of Puget Sound from Vashon Island up to the Fraser River, Judge Boldt could not have intended to include Saratoga passage or Saratoga Bay.” Id. Thus the sentence to which the Suquamish object should be read as follows: “[T]his Court found that Judge Boldt did not intend to include all of Puget Sound, and [the Court] excluded certain area[s] to the east of Whidbey Island.”

The Court finds it unnecessary to strike and re-state the footnote, as it is sufficiently clear as written. The motion for reconsideration is accordingly DENIED.

ORDER ON LUMMI MOTION FOR RECONSIDERATION

Subproceeding 11-2

(February 15, 2018)

This matter is before the Court for consideration of a motion for reconsideration and clarification filed by the Lummi Nation (“Lummi”). Dkt. # 61. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Court deems it unnecessary to direct a response to the motion, and shall deny reconsideration.

DISCUSSION

On October 11, 2012, this Court granted a motion for summary judgment filed by the Requesting Tribes, namely the Jamestown S’Klallam, Lower Elwha Klallam, and Port Gamble S’Klallam (together, “the S’Klallam”), on their Request for Determination regarding the usual and accustomed fishing area (“U & A”) of the Lummi Nation, the Responding Tribe in this matter. Dkt. # 59. Specifically, the Court found that

(1) The Usual and Accustomed Fishing Area (U & A) of the Lummi Nation does not include the eastern portion of the Strait of Juan de Fuca or the waters west of Whidbey Island, an area more specifically described as the marine waters east of a line running from Trial Island near Victoria, British Columbia, to Point Wilson at the westerly opening of Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait; [and]

(2) The Lummi Nation is prohibited from issuing regulations or otherwise authorizing its fishers to exercise treaty fishing rights in the waters described above....

Id., p. 16. This determination was based on a finding that it is the law of the case that the Lummi U & A does not include the Strait of Juan de Fuca, together with a review of the evidence that was before Judge Boldt which supported that conclusion. Id., pp. 8, 11-15.

The Lummi request reconsideration and clarification

because the Court erred when it concluded that Salmon Fishing Areas 6A and 7 were included in the scope of the issues decided in Subproceeding 89-2. In the alternative, Lummi seeks clarification as to the northern and eastern boundaries of the area described in the Court’s Judgment.

Motion for Reconsideration, Dkt. # 61, p. 2. This assertion regarding what the Court concluded is surprising in light of the fact that the Court’s analysis and conclusions did not at any time consider or mention Salmon Fishing Area 6A or 7 (“Areas 6A or 7”) by name, nor did the parties argue the summary judgment motion using these terms.

Both of these areas lie, in whole or in part, within the area which has been described as the Strait of Juan de Fuca in this subproceeding and its predecessor, 89-2. The various Requests for Determination and Court Orders in this subpro-ceeding and in 89-2 framed the issues in terms of the geographical description, Strait of Juan de Fuca, not the catch areas designated by the State of Washington. See, Request for Determination, March 3, 1989, C70-9213, Dkt. #11209; Judge Coyle’s Order dated February 13, 1990, Dkt. # 11596; Lummi Cross-Request for Determination, April 12, 1990, Dkt. # 11690; Judge Rothstein’s Order dated September 1, 1998, Dkt. # 16550; the Ninth Circuit Court of Appeals ruling in U.S. v. Washington (Lummi), 235 F.3d 438, 449 (9th Cir.2000).

Nevertheless, the Lummi contend that “Judge Coyle could not have ruled on Lummi’s rights to fish” in Areas 6A and 7. Motion for Reconsideration, Dkt. # 61, P. 4 (emphasis in original). According to the Lummi, this is because, in moving for summary judgment on their Request for Determination, the Skokomish and Klallam Tribes asked for an order declaring that the U & A of the Lummi does not include “any part of the areas of the Puget Sound and Strait of Juan de Fuca currently designated by the Washington Department of Fisheries as Commercial Salmon Management and Catch Reporting Areas 6C, 6, 6D, 6B and 9,” and for an injunction prohibiting Lummi fishing in these areas. Skokomish and Klallam Tribes’ Motion for Summary Judgment, August 18,1989, Dkt. # 11347. According to Lummi,

[t]he Klallams chose to characterize the general geographic designations as Areas 6C, 6, 6D, 6B, and 9, and Judge Coyle gave them what they sought. What they asked for, and what Judge Coyle granted, did not include Areas 6A and 7.

Motion for Reconsideration, p. 4. This argument is refuted by the footnote on the following page of the motion for reconsideration, noting that the S’Klallam also described the disputed area by the Marine Fish-Shellfish Management and Catch Reporting Areas for halibut, naming Areas 23A, 23B, 23C, 23D, 25A, 25B, 25C, 25D, 25E, and 26A. Motion for Reconsideration, Dkt. # 61, p. 5 n. 2, quoting Skokomish and [S’Klallam] Tribes’ Response to Lum-mi Cross-Motion for Summary Judgment, Dkt. # 13986, p. 8. Areas 23A and 23B overlap the Salmon Catch Reporting Areas 6A and 7 which the Lummi assert were not addressed in Judge Coyle’s decision.

Judge Coyle’s Order on cross-motions for summary judgment was not limited to the narrow issue of catch areas 6C, 6, 6D, 6B, and 9. The Lummi cross-motion, filed August 21, 1989, argued that “the Strait of Juan de Fuca is within Puget Sound.” Lummi Memorandum in support of Summary Judgment, August 21, 1989, Dkt. # 11352, p. 7. Lummi also argued that Judge Boldt “necessarily awarded a portion of the Strait of Juan de Fuca to the Lummi Indian Tribe. At a minimum, this award included the easternmost part of Catch Reporting Areas 6 and 6B.... ” Id. Thus, “[u]nder the presumption against subdividing catch reporting areas, the Lummi right to fish extends throughout Areas 6 and 6B.” Id. Judge Coyle flatly rejected these arguments, stating that “there is no such ‘presumption’ against subdividing Catch Reporting Areas in this litigation.” Decision and Order on Cross-Motions for Summary Judgment, February 13, 1990, Dkt. # 11596, p. 15. Judge Coyle also rejected the idea of defining tribal U & A’s by lines drawn by the State of Washington to manage various fisheries. Noting that the management area boundaries are under State control and subject to change, Judge Coyle agreed with the Requesting Tribes and the United States that “resort to subdivision of Catch Reporting Areas could well result in the alteration or dilution of treaty rights whenever the State chose to alter the boundaries of the Catch Reporting Areas.” Id., pp. 15-16. He then framed his decision in terms of the broader geographic terms of the S’Klallam and Skokomish Request for Determination, stating that “there is no question in the court’s mind from the evidence presented to Judge Boldt that the Lummis’ usual and accustomed fishing places were not intended to include the Strait of Juan de Fuca.” Id., p. 13. No subparts of the Strait of Juan de Fuca were excepted from this ruling.

In reaching its decision in this subpro-ceeding, the Court independently reviewed and discussed the evidence that was before Judge Boldt regarding Lummi fishing locations, together with his specific language. Order on Motion for Summary Judgment, Dkt. # 59, pp. 11-14. The Court noted the evidence that the Lummi were highly dependent upon reef net fishing, which was conducted nearshore off promontories and headlands, and that no reef net sites were reported south of Lopez Island. Id., p. 13. There was no evidence before Judge Boldt to demonstrate Lummi fishing in the open area of the Strait of Juan de Fuca lying south and offshore of the San Juan Islands and west of Whidbey Island. This area comprises the southernmost part of Area 7 and all of Area 6A. While the Court does not agree with the Lummi position that Judge Coyle “could not have” ruled on Lummi’s rights in Areas 6A and 7 (because it was not specifically mentioned in the moving papers or the Order), even if the Lummi are correct on that point, this Court’s independent review has found no evidence which would support Lummi treaty-time fishing in these areas.

There is further reason to deny the motion with respect to Area 6A, which lies immediately west of the northern shores of Whidbey Island. The parties agree that this area was described as not in dispute in the proceedings in 89-2. See, Response to the Lummi Cross-Motion for Summary Judgment, January 3, 1994, Dkt. # 13986, p. 8 (“The court should note that WDF Salmon Catch Reporting Area 6A, which is the eastern most portion of the Strait of Juan de Fuca just off the shores of Whid-bey Island is not included in the disputed areas.”) A Stipulation filed April 10, 1998, by the Lummi and Swinomish states, in its entirety, “Come now the Lummi Nation and the Swinomish Indian Tribal Community and stipulate that the Cross Request for Determination filed by the Lummi Nation in this Subproceeding does not include any request for relief regarding Western Washington State Salmon Catch Reporting Area 6A (1987) is not at issue in this subproceeding [sic].” Dkt. # 16448. Thus, Area 6A was, in the words of S’Klal-lam counsel, “stipulated out” of the Lummi Cross-Request for Determination. Plaintiffs Motion for Summary Judgment, Dkt. # 40, p. 11.

That Area 6A was not in dispute in 89-2 was confirmed at the oral argument on this motion. The Court asked for clarification regarding Area 6A, as to whether it was in dispute or not. Counsel for the S’Klallam responded,

Area 6A was the subject of a stipulation by Lummi, that it was not going to claim area 6A in this subproceeding, even though the plain language of the description — You don’t stipulate unless you need to. The plain language of the description plainly included 6A. So they stipulated it out of the case. We did not sue them for 6A, because they were not opening 6A. Since you have to file actions that are not in conformity with Final Decision No. 1, it represented our recognition that they weren’t exactly opening that.

Transcript of Proceedings, September 27, 2012, p. 43. Where the Lummi stipulated that they did not claim Area 6A in the prior proceedings, that stipulation relinquishing the claim becomes part of the law of the case. They may not now establish a right to fish there by asserting that Judge Coyle failed to specifically address it.

The Lummi have asked that, in the event the motion for reconsideration is denied, the Court clarify the northern and eastern boundaries of the case area, which is the area from which Lummi fishing is excluded. These boundaries were set forth in the Order on Motion for Summary Judgment as Haro and Rosario Straits, the San Juan Islands, and Whidbey Island. Dkt. # 59, p. 16. However, the Lummi assert that

[t]here is undisputed evidence that Lum-mi conducted reef net fishing in the waters below low tide offshore of Lopez, San Juan, Fidalgo islands and trolled for salmon “in the contiguous waters of Haro and Rosario Strait and in the islands,” and fished on halibut banks. Given the evidence, the northern and eastern boundaries of the [sic] must be some distance south and seaward of the San Juan Islands, and west and seaward of the mainland, respectively.

Motion for Reconsideration, Dkt. # 61, p. 8. This argument is correct with respect to the San Juan Islands, but not Whidbey Island. As noted above, there were no Lummi reef net sites identified south of the southernmost point of Lopez island. Therefore the Lummi U & A should include nearshore waters immediately to the south of San Juan Island and Lopez Island, but not the waters immediately west of Whidbey Island.

While the Court wholly agrees with Judge Coyle’s disapproval of defining boundaries of tribal U & A’s by lines drawn by the State of Washington as fishery management zones, the Court notes that these nearshore waters south of San Juan and Lopez Islands are congruent with the southernmost part of Area 22A of the Washington Marine Fish-Shellfish Management and Catch Reporting Areas, as set forth in WAC 220-22-400(5). Lum-mi fishing in this area would be within their U & A as defined by Judge Boldt and would not violate this Court’s Order on summary judgment. With that clarification, the balance of the Lummi motion for reconsideration is DENIED.

MEMORANDUM AND DECISION

Subproceeding 01-1

(March 29, 2013)

This matter was initiated by a Request for Determination (“Request”) filed in 2001 by plaintiffs Suquamish Indian Tribe, Jamestown S’Klallam, Lower Elwha Band of Klallam, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribe, Lummi Indian Nation, Quinault Indian Nation, Pu-yallup Tribe, Hoh Tribe, Confederated Bands and Tribes of the Yakama Indian Nation, Quileute Indian Tribe, Makah Nation, and Swinomish Tribal Community, and Muckleshoot Indian Tribe (hereafter, “the Tribes”). Plaintiff United States of America joined in the request. The Request for Determination, filed pursuant to the Permanent Injunction in this case, asked the Court to find that the State of Washington has a treaty-based duty to preserve fish runs, and sought to compel the State to repair or replace culverts that impede salmon migration to or from spawning grounds.

On August 23, 2007, the Court ruled on cross-motions for summary judgment, finding in favor of the Tribes and declaring that

the right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest. The Court further declares that the State of Washington currently owns and operates culverts that violate this duty.

Order on Cross-Motions for Summary Judgment. Dkt. # 392, p. 12. The matter was then set for a bench trial on remedies.

The trial was held over seven days in October 2009, and final argument was heard on June 7, 2010. The Court has delayed its ruling in the hope that the parties would resume their settlement negotiations, but it does not appear that has occurred. The Court directed the parties to file supplemental memoranda on the current status of the matter by February 1, 2013. Dkt. # 733. Having considered the testimony and exhibits submitted at trial, together with the final arguments and supplemental memoranda, the Court now issues its Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. This is a designated subproceeding of United States v. Washington, C70-9213, based on language in the 1855 Treaty of Point Elliot in which the Tribes were promised that “[t]he right of taking fish at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory.” During the negotiations leading up to the' signing of the treaties, Governor Issac Stevens and other negotiators assured the Tribes of their continued access to their usual fisheries. Declaration of Richard White, Dkt. # 296, ¶¶ 8, 9, 11. Governor Stevens assured the Tribes that even after they ceded huge quantities of land, they would still be able to feed themselves and their families forever. As Governor Stevens stated, “I want that you shall not have simply food and drink now but that you may have them forever.” Id., ¶ 14. Both the negotiators and the Tribes believed that the fisheries were inexhaustible. Id. Thus, during the negotiations, the “Indians, like whites, assumed that their cherished fisheries would remain robust forever.” Declaration of Joseph Taylor III, Dkt. # 297, ¶ 7.

2. In construing the treaty, the Supreme Court found that

Governor Stevens and his associates were well aware of the “sense” in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the governor’s promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians’ assent. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter “should be excluded from their ancient fisheries”, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish.

State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 677, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (citations omitted).

3. The following facts are admitted by the parties:

SALMON BIOLOGY AND FISH PASSAGE

3.1In 1973, biologists from some of the parties to this case prepared a Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsular Drainage Areas of Western Washington. The parties submitted it to this Court as Joint Exhibit 2a. In Section 3-400 of the August 24, 1973 Final Pretrial Order in Phase I (Docket # 353), the parties adopted its contents as admitted facts in this case, and the Court adopted them as findings of fact in Finding of Fact 164 of Final Decision # 1 (Docket # 414). The contents of Part I and Part II through 2.2.5.3 of Joint Exhibit 2a are hereby incorporated by reference as admitted facts in this Subproceeding.

3.2 For purposes of this case, the terms “anadromous salmonids” or “salmon” refer to the following species: Onco-rhynchus kisutch (Coho); Oncorhynchus tshawytscha (Chinook); Oncorhynchus gorbuscha (Pink); Oncorhynchus nerka (sockeye); Oncorhynchus keta (Chum); and Oncorhynchus mykiss (formerly Salmo gairdnerii) (steelhead).

3.3 Salmon spawn in freshwater, migrate to the sea, and return to spawn again in fresh water. When juvenile salmon move from freshwater to salt, they are known as smolts.

3.4 Transport and storage of wood, large woody debris, and sediment in fish bearing streams are important components of healthy productive salmon habitat.

3.5 Juvenile salmon move both upstream and downstream in response to habitat changes, predation, and population pressures.

MODERN TRIBAL HARVESTS

3.6 In 1974 this Court found: “Subsequent to the execution of the treaties and in reliance thereon, the members of the Plaintiff tribes have continued to fish for subsistence, sport and commercial purposes at their usual and accustomed places. Such fishing provided and still provides an important part of their livelihood, subsistence and cultural identity.” United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), Finding of Fact 31.

3.7 In 1974 this Court found: “Fish continue to provide a vital component of many Indians’ diet. For others it may remain an important food in a symbolic sense — analogous to Thanksgiving turkey. New habits are stronger than dietary habits and their persistence is usually a matter of emotional preference rather than a nutritional need. For some Indians, fishing is also economically important. Fishing is also important for some non-Indians.” United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), Finding of Fact 29.

3.8 The magnitude of modern tribal salmon harvest has fluctuated as a result of many factors, some of which are human-caused and some of which are naturally occurring.

3.9 As a result of widespread alterations of waterways and sharply diminished salmon populations, the areas available for tribal harvest of salmon have decreased significantly since 1855.

3.10 Since Treaty time, overharvest, habitat alteration, poor hatchery practices, and hydropower development are some of the human-caused factors that have greatly reduced the abundance of salmon available for tribal harvest in the Case Area.

3.11 As described in Findings of Fact 33, 56, 70, and 193 in Final Decision, # 1, the number of tribal members engaged in the harvest of fish declined for several decades before 1974 due to employment acculturation, the crowding out of Indians from their traditional fishing places by non-Indians, and many years of state enforcement actions against Indians exercising their claimed treaty rights, among other reasons.

3.12 As stipulated by the parties in Stipulation Re: Treaty and Non-Treaty Harvest Data (Docket # 19363/577), Tribal harvest of salmon in the Case Area from 1974 through 2007, as recorded in the treaty ticket fish database maintained by the Northwest Indian Fisheries Commission, is shown below and in Exhibit AT-003-16 (chart attached as Attachment A to Or■der).

3.13 Tribal members in modern times and to the present have continued to harvest salmon despite increased production costs, restricted fishing areas, fewer and shorter open seasons, fluctuating market prices, competition from farm raised salmon, other human and nonhuman stresses on harvest, and the availability of other economic opportunities.

3.14 Many members of the Tribes would engage in more commercial and subsistence salmon fisheries if more fish were available.

3.15 Some Tribes are engaged in fisheries enhancement for the purpose of providing additional fishing opportunities for tribal members, but those efforts are inadequate to meet tribal needs for salmon.

3.16 No plaintiff Tribe has abandoned its fisheries.

3.17 “Escapement” refers to adult salmon that escape harvest and other mortality and return to the spawning grounds.

3.18 Salmon of the same species, originating in the same area and returning to spawn at the same time of year, are referred to as a “stock.”

3.19 The State and the Tribes regulate their respective fisheries to restrict the amount of harvest that might otherwise occur by limiting the number of vessels, the type of harvest gear, and the times and places during which fishing may occur.

3.20 State and tribal fisheries co-managers plan salmon fisheries each year based, among other things, on the predicted abundance of harvestable salmon within the Case Area, the need for adequate escapement to replenish the population, and the predicted effects of harvest on particular stocks. Because some salmon stocks that spawn in the Case Area are intercepted in fisheries up and down the west coast of North America, and because some fisheries in the Case Area intercept stocks that spawn in Canada or the Columbia River Basin, the process of planning state and tribal fisheries occurs as part of a broader planning context that involves the governments of Canada, the United States, Alaska, Oregon, California, Idaho, and Indian Tribes that are not parties to United States v. Washington.

3.21 Some State and tribal fisheries within the Case Area harvest stocks that originate both within and outside the Case Area, and are planned to provide adequate escapement of stocks originating both within and outside the Case Area. Some salmon fisheries in northern Puget Sound and the Strait of Juan de Fuca target stocks from the Fraser River in Canada. Harvest levels of Canadian stocks are set through negotiations with Canada under the Pacific Salmon Treaty.

3.22 Mixed stock fisheries are those in which salmon of more than one stock are present.

3.23 Mixed stock fisheries that target one stock may incidentally harvest other stocks.

3.24 Salmon stocks of more and less abundance often are found together throughout the Case Area. To protect stocks that are weak or low in abundance, State and Tribal fisheries co-managers often limit the harvest of stronger stocks in mixed stock fisheries to levels below those which the stronger stocks could sustain. The impact of this management strategy on harvest can be two-fold: first, additional harvest of stronger stocks can be limited in a mixed stock fishery; and second, a fishery can be moved to “terminal areas” where weaker stocks are not mixed with stronger stocks. Because Tribal treaty fishers can harvest only in their usual and accustomed grounds and stations (“U & A”), the mixed stock management strategy of limiting harvest of abundant stocks to protect less abundant stocks can affect the harvest by a treaty tribe with U & A in the mixed stock fishing area but without U & A in the terminal area where the harvest has been moved.

3.25 As stipulated by the parties in the Stipulation Re: Treaty and Non-Treaty Harvest Data (Docket # 19363/577), for purposes of this Subproceeding only, the following table (attached to this Order as Attachment A) depicts treaty tribal catch of sockeye presumed to be of Canadian origin. Treaty catch of U.S; origin versus Canadian origin sockeye stocks in Puget Sound was determined by applying an assumed percentage to total catch for each year. For Canadian origin stocks, the assumed percentage was determined by totaling the treaty sockeye landings in pre-terminal areas (Salmon Catch Reporting Areas 4B, 5, 6, 6C, 7, 7A and 9) and dividing by the total. The Salmon Catch Reporting Areas are depicted in Exhibits AT-008-2 and AT-008-3.

STOCK STATUS

3.26 Salmon populations in the Case Area at Treaty time were robust and had not suffered any appreciable human-caused decline.

3.27 There have been declines in the populations of salmon originating within the Case Area since Treaty time.

3.28 Today, while some salmon stocks in the Case Area are healthy, others are depressed, in danger of extinction, or already extinct.

CULVERT OPERATION AND EFFECTS

3.29 Culverts are structures used to pass roads over streams and streams under roads.

3.30 Whether a culvert poses a velocity barrier to fish depends, in part, on the swimming strength of the fish in terms of both speed and endurance.

3.31 Different species of salmon have different swimming strengths.

3.32 Juvenile salmon have less swimming strength than adult salmon of the same species.

3.33 Larger culverts have lower head; water at a given flow than smaller culverts and pass debris and sediment better than smaller culverts and therefore reduce the risk of structural failure of culverts at road crossings. Washington law currently requires that culverts shall be installed according to an approved design to maintain structural integrity to the 100-year peak flow with consideration of the debris loading likely to be encountered.

3.34 Among other factors, a partial fish passage barrier may delay migration and block the passage of smaller salmon.

CULVERT CORRECTION AND DESIGNS

3.35 Various options are available to prevent or remedy the existence of fish passage barrier culverts at stream-road intersections. These options include bridges, different types of culvert design methods, and relocation of roads to avoid the stream.

3.36 Scientists employed by state, federal and tribal agencies continue to conduct research on fish passage through culverts.

3.37 The current state of scientific knowledge supports the proposition that culverts which most closely simulate the characteristics of the natural stream channel and substrate are the least likely to inhibit fish passage.

3.38 During the 1990s, the Washington Department of Fish and Wildlife began developing a new method for designing culverts called the “stream simulation” method. That method is described in Exhibit AT-121 (W-089-B), Design of Road Culverts for Fish Passage (WDFW, 2003). Other entities, including the U.S. Forest Service, have developed and use similar “stream simulation” culvert design methodologies. See Stream Simulation: An Ecological Approach to Providing Passage for Aquatic Organisms at Road-Stream Crossings, May 2008 (AT-119). “Stream simulation” culverts are designed to create or maintain natural stream processes within the culvert. To accomplish that objective, all stream simulation designs dictate that a culvert should be at least as wide as bank-full width plus a buffer. Each agency calculates the width of the buffer slightly differently but the required culvert size is not significantly different.

3.39 No state, federal or tribal manual or regulation requires the use of stream simulation in the design, construction, or maintenance of culverts, although many agencies prefer the use of stream simulation culverts in anadromous fish bearing streams.

3.40 The Washington Department of Fish and Wildlife (“WDFW”), along with federal agencies such as National Marine Fisheries Service (“NMFS”) and United States Forest Service (“USFS”), currently recommends use of the stream simulation method, and the State uses it in some culvert replacement projects.

3.41 At this time, the stream simulation method of culvert design as described in Design of Road Culverts for Fish Passage (WDFW, 2003) (Exhibits AT-121 and W-089-B), as well as the version developed by the U.S. Forest Service, see Stream Simulation: An Ecological Approach to Providing Passage for Aquatic Organisms at Road-Stream Crossings, May 2008 (AT-119), represents the best science currently available for designing culverts that provide fish passage and allow fluvial processes.

3.42 In most places, the stream simulation culvert design method provides effective transport of sediment.

3.43 Culverts designed to result in predetermined water velocities or depths at predetermined flows are known as “hydraulically designed” culverts.

3.44 The hydraulic design criteria in Table 1 of WAC 220-110-070(3) (Exhibit W-089-F) include criteria intended to permit passage by a 6-inch adult trout.

3.45 The State uses the adult trout criteria from Table 1 of WAC 220-110-070(3) (Exhibit W-089-F) when designing hydraulically designed culverts for juvenile salmon passage.

3.46 The hydraulic design criteria in the adult trout portion of Table 1 of WAC 220-110-070(3) establish a maximum permissible change in water surface elevation at or above the culvert outlet of 0.8 foot.

3.47 For culverts built in fish-bearing waters, WDFW regulations at WAC 220-110-070(3) (Exhibit W-089-F) also permit culverts in small streams using a “no-slope” design method in which the culvert is placed on a flat gradient and is partially buried in the streambed. The WDFW no-slope design method for fish passage is accepted by the National Marine Fisheries Service under the Endangered Species Act for use only in very small streams where the natural slope is less than 3 percent and the culvert length is less than 80 feet, among other limitations. The Tribes have been involved in at least one barrier correction involving the no-slope design.

STATE CULVERTS

3.48 Washington State law has long required that obstructions across or in streams be provided with a durable and efficient fishway, maintained in an effective condition and continuously supplied with sufficient water to freely pass fish.

3.49 As early as 1881, Washington residents recognized the need to preserve fish access to habitat and passed laws to prohibit the construction of human-made barriers.

3.50 In 1949, the Washington Department of Fisheries issued a publication noting that salmon spawning areas are constricted by major obstructions such as dams and minor obstructions such as barrier culverts. In 1950, the Attorney General of Washington published an Attorney General’s Opinion, AGO 1950 No. 304, stating that highway culverts are subject to the Washington State law requiring fish passage at stream obstructions.

3.51 The principal State road- and land-managing agencies, and consequently the principal agencies responsible for state-owned stream crossing culverts, are Washington State Department of Transportation (“WSDOT”), Washington Department of Natural Resources (‘WDNR”), WDFW and State Parks. WSDOT is not the principal land-owning agency in the Case Area.

3.52 The WSDOT is the State agency responsible for constructing and maintaining State Highways so that, when the highways cross fish bearing streams, fish passage is not obstructed.

3.53 The WDNR manages State trust lands within the Case Area and it manages an extensive network of roads on those lands, many of which cross streams bearing salmon.

3.54 The WDFW owns or manages Wildlife Areas and other lands in the Case Area that contain roads that cross streams bearing salmon. Some of the streams are routed through culverts under these roads.

3.55 In the early 1990’s WSDOT commenced a project with the WDFW to identify barrier culverts under State highways.

3.56 In 1997 the State initiated efforts to identify and correct barrier culverts on lands owned or managed by WDFW.

3.57 In 1998 the State initiated efforts to identify and correct barrier culverts owned by the WDNR and located on its forest lands.

3.58 The State began an effort to identify barrier culverts on State Parks’ lands in 2001.

3.59 State Parks hired WDFW to identify barrier culverts on its lands within the Case Area, but the contract has expired.

3.60 WDNR differed from the other state agencies (WDFW, WSDOT, and State Parks) in the way it assessed fish bearing streams.

3.61 The WDFW maintains a database called the Fish Passage and Diversion Screening Inventory database (FPDSI) that contains data from culvert inventories that WDFW has conducted or that other governmental and private entities have submitted to WDFW. The WDNR maintains a separate database for its culverts. The State has not generated a consolidated list of barrier culverts owned by the different State agencies.

3.62 Because the FPDSI is a live database that is regularly edited and updated, inventory numbers relate only for a specified date. Inventory numbers also depend on distinguishing between numbers of barriers, which may include structures other than culverts; numbers of sites, which may include more than one culvert; and between sites that affect “fish,” “anadro-mous fish,” which include bull trout, sea run cutthroat trout, and kokanee or just “salmon.”

3.63 As of March 2009, the WDFW culvert database showed 1215 anadromous and resident fish passage barrier culverts under WSDOT roads in the Case Area. Of these, 807 barriers had more than 200 meters of anadromous salmonid habitat upstream. Included within the 807 barrier culverts are some 20-30 sites that are barriers only to bull trout, sea run cutthroat trout, or kokanee.

3.64 In December 2000, WDNR completed its formal inventory efforts to identify barrier culverts at stream crossings on its forest roads statewide within lands that it owned as of that year. Since that date, WDNR has not conducted a formal culvert inventory.

3.65 The initial WDNR barrier culvert inventory, completed in 2001, identified potential barrier culvert sites using road maps and stream location maps that contain inaccuracies and omissions of both streams and roads.

3.66 Because of assumptions made during the WDNR inventory process, WDNR’s barrier culvert inventory included some culverts on streams that do not have fish, and excluded some blocking culverts where salmon are present. WDNR, Plaintiff Tribes and others have identified additional fish-bearing streams on WDNR lands, and additional barrier culverts under WDNR roads, which were not identified during WDNR’s formal inventory.

3.67 As part of its program to consolidate its upland holdings in the state, WDNR sells, purchases or exchanges for-estlands on a monthly basis. When WDNR adds to, reduces, or exchanges its upland holdings, it affects both the number of roads and culverts beneath those roads. These additional culverts undergo a preliminary assessment for fish passage during the exchange appraisal process and are included in WDNR’s inventory once the purchase or exchange is finalized.-

3.68 Following the completion of WDNR’s culvert inventory in 2001 and taking into account adjustments to the inventory, WDNR identified 860 culverts within the Case Area to remediate because they were barriers to either resident or anadromous fish. As of April 2009, the WDNR culvert database showed 455 remaining culverts that are barriers to either resident or anadromous fish under roads it manages on lands within the Case Area. As of April 2009, WDNR has identified 228 culverts within the Case Area which are anadromous barriers.

3.69 In 2007, WDFW completed its efforts to identify barrier culverts at stream-road crossings on lands it owns or manages in the Case Area except for some water access sites and lands WDFW acquired within the past 2 years. Because its initial inventory has not been fully completed statewide, WDFW has not yet developed a plan for reassessing WDFW-owned culverts that WDFW has previously determined to be passable.

3.70 As of March 2009, the WDFW culvert database showed 89 fish passage barrier culverts on State Parks lands within the Case Area, of which 28 have at least 200 meters of salmon habitat both upstream and downstream. State Parks has corrected one of its barrier culverts in the Case Area.

3.71 As of July 2009, WDFW had identified 71 fish passage barrier culverts under roads on its lands in the Case Area, of which 51 have at least 200 meters of salmon habitat both upstream and downstream.

CULVERT INVENTORY, ASSESSMENT, AND PRIORITIZATION

3.72 Before 1998, to determine whether a culvert passed fish, the State relied upon the professional judgment of biologists and engineers. In the 1990s, the WDFW published a standardized methodology for assessing culverts for fish passage. The most recent version is entitled Fish Passage Barrier and Surface Water Diversion Screening Assessment and Prioritization Manual (WDFW 2000) (Exhibits AT-051 and W-087-E) (hereinafter referred to as WDFW’s Assessment Manual (2000)). Some Tribes and federal agencies have used the WDFW methodology to assess culverts for fish passage.

3.73 Since 1998, to determine whether a culvert meets the maximum velocity and other requirements of WAC 220-110-070(3)(b)(ii) (Exhibit W-089-F), WDFW has relied on evaluation of physical characteristics of the culvert. WDFW refers to this as a “Level A” barrier assessment. This assessment is described in WDFW’s Assessment Manual (2000) (Exhibits AT-051 and W-087-E).

3.74 In some cases, WDFW considers physical characteristics of the culvert insufficient by themselves to assess barrier status. In such cases it assesses the potential barrier using hydraulic calculations, known as a “Level B” analysis. This assessment is described in WDFW’s Assessment Manual (2000) (Exhibits AT-051 and W-087-E).

3.75 Level B barrier assessment requires a determination of the area of drainage basin upstream of the culvert. Level B assessment is difficult or impossible in many cases, particularly for sites within floodplains or tidal streams or having multiple parallel culverts, or culverts set at an unusual gradient.

3.76 Because streams are dynamic in nature, periodic re-assessment or monitoring of culverts is necessary.

8.77 WDFW uses the hydraulic criteria for adult trout in Table 1 of WAC 220-110-070(3) (Exhibit W-089-F) to determine whether or not a culvert is a barrier to juvenile salmon.

3.78 The WDFW developed the Priority Index methodology as a tool for organizing information, to help decision-makers prioritize culverts for correction. It is not law. Although the State calculates Priority Index values for 'many of its barrier culverts, those values -do not control the order in which culverts are repaired and do not represent a “priority list.” Other factors may cause a culvert with a lower PI score to be corrected before a culvert with a higher PI score.

3.79 In its initial inventory completed in 2001, WDNR determined Priority Index values (“PI values”) for barrier culverts. WDNR has not updated those values subsequently, nor has it determined PI values for barrier culverts that were not identified in the initial inventory.

3.80 Each of WDNR’s regions has its own protocols that it follows to reassess habitat.

3.81 Because of the time and expense ’ associated with determining habitat gain in the field, WDNR has used a GIS-based process to calculate the habitat gain. Since 2001, WDNR regions have used the RMAP process and their own prioritization methods to determine when barriers will be removed.

3.82 WDNR does not have direct knowledge of all of the culverts located upstream or downstream of its culverts.

3.83 The relative location (upstream or downstream) of barrier culverts in relation to one another is not uniformly maintained in the State’s Fish Passage and Diversion Screening Inventory (FPDSI) database.

3.84 The WDFW, under a contract with WSDOT, has been assessing the extent and condition of habitat above and below WSDOT barrier culverts in order to help prioritize corrections.

3.85 As of October, 2009, the WDFW estimated that it will complete its habitat assessments and prioritization for all WSDOT barrier culverts in the Case Area by January 2013, assuming present staffing levels. Priority Index values have not been calculated for every fish barrier. In the absence of complete habitat assessment information, it is possible to create a Surrogate PI (SPI) using Geographic Information Systems (GIS) data. WDFW sometimes uses surrogate Pis to decide where to focus habitat assessment efforts before identifying projects for scoping.

3.86 Fishery scientists use marine survival rates to annually estimate how many Coho salmon smolts will survive to enter fisheries as adults. These annual estimates of adult abundance, by stock, are compared to the average stock abundance during the FRAM Coho Base Period and that proportion is used in annual pre-sea-son modeling — designated as a stock specific “Abundance Scalar”. These stock scalars vary from year to year as they reflect both the environmental conditions that produced the out-migrating smolts (freshwater survival) and the resulting adults (marine survival).

STATE CULVERT CORRECTION PROGRAMS

3.87 In 1990, WDFW and WSDOT executed a Memorandum of Understanding Concerning Compliance With the Hydraulic Code (Exhibits AT-153 and W-087-B). Among other things, the agencies agreed to conduct an inventory of fish passage barriers on WSDOT rights-of-way.

3.88 In 1997, the Washington State legislature created the Fish Passage Task Force.

3.89 In December 1997, the Fish Passage Task Force reported to the State legislature that fish passage barrier culverts are a “key factor” in the wild salmon equation. It concluded that “Clearly, the creation of new barriers must be prevented and the rate of barrier correction must be accelerated if Washington wild salmon and trout stocks are to recover.” Since 1997, the state agencies have identified fish passage barriers under their roads and have accelerated the rate of correction of such barriers.

3.90 The WDFW and State Parks each have asserted a goal of correcting their barrier culverts by July 2016.

3.91 The State currently has set no deadline for the WSDOT to correct all of its barrier culverts.

3.92 The primary factor determining the rate at which the State can correct fish barrier culverts is the level of funding for such corrections.

3.93 The WDFW determines that a barrier culvert is “corrected” when it has been removed, replaced or modified in such a way as to meet the hydraulic design criteria of WAC 220-110-070(3) (Exhibit W-089-F).

3.94 According to the WDFW Assessment Manual (Exhibits AT-051 and W-087-E), “A significant reach is defined as a section of stream having at least 200 linear meters of useable habitat without a gradient or natural point barrier.... An exception to the significant reach threshold may occur if high quality ... habitat exists upstream ■ of the barrier in anadromous waters.”

3.95 WSDOT-owned culverts that are fish passage barriers are largely remedi-ated through two different funding structures. First, fish barriers can be reme-diated as part of a capital construction project when the barriers fall within the boundaries of a highway construction project. This funding comes from the capital part of the Transportation budget. Second, fish passage barriers can be addressed with funding from the WSDOT 1-4 (aka, Environmental Retrofit) budget.

3.96 WSDOT and WDFW have agreed pursuant to a Memorandum of Agreement (W-093-G) that barrier culverts shall be corrected as part of a highway project when in-stream work at the site of the culvert requires that WSDOT obtain a Hydraulic Project Approval (“HPA”).

3.97 The Washington State Salmon Recovery Funding Board has no record of WSDOT ever receiving grant award funds towards a culvert or fish passage project.

3.98 WDFW has received grants for culvert inventory work, but as of January 2009, not for culvert correction or monitoring.

3.99 About 20% of WDNR’s barrier remediation projects have been accomplished by requiring timber purchasers to correct culverts as part of a timber sale contract. WDNR pays for corrections to its barrier culverts not remediated by timber purchasers principally through fees on timber sales that are credited to the Access Road Revolving Fund (“ARRF Fund”). The ARRF Fund is a non-appropriated account managed by the WDNR to maintain, repair, and reconstruct access roads, or public roads used to provide access to public lands. RCW 79.38.050. WDNR also uses grant funds and FEMA funds to correct small numbers of culverts.

3.100 For the biennia covering the period from 2007-11, WDNR did not request any appropriations of general funds from the State legislature for correction of barrier culverts on state-owned trust lands. WDNR requested such funds in its proposed budget for the 2005-2007 biennium and in prior biennia for other road maintenance work, but the requested funds were not appropriated by the legislature. WDNR requested and received general fund monies for seven barrier culvert remediation projects on non-trust lands dedicated to conservation (called Natural Area Preserves and Natural Resource Conservation Areas).

3.101 The funding available from the ARRF Fund for culvert corrections, and the number corrected as part of timber sales, depend in part on the volume and price of timber sold and harvested from WDNR lands.

3.102 Before 2001, WDNR had no deadline for correcting its fish passage barrier culverts.

3.103 Prior to 2006, the WDNR did not have sufficient funding to correct all of its barrier culverts by July 2016.

3.104 WDNR believes it will be able to correct its anadromous barrier culverts within the Case Area prior to July 2016, which is the deadline set by State law.

3.105 State agencies request separate appropriations for their operating and capital budgets. The budget requests for WDFW, WDNR and State Parks are made as part of the general budget and WSDOT’s budget requests are included in a separate transportation budget. Funds for culvert work on lands or roads an agency manages may fall within its capital budget or its operating budget, or the transportation budget.

3.106 As of January 2009, WDFW reports that it has expended approximately $2,000,000 to fix state-owned barriers in the Case Area since 1999. WDFW includes dams, fishways as well as culverts in “state owned barriers.” Also included within the $2,000,000 was some post-construction monitoring.

3.107 WDFW has prepared a 10-year project planning document for correcting by July 2016 its statewide fish passage barriers.

3.108 The WDNR has determined the average cost of remediating its barrier culverts as follows:

a) no slope design method: $41,000

b) stream simulation design method: $54,000

c) bridge: $123,000.

The average of all three types of structures is approximately $81,000. However, none of those figures includes costs for the engineering related to the design of the replacement structure, which are typically around 10% of the total project cost. WDNR estimates the average cost to remove a culvert from a forest road that is being abandoned is $13,000.

3.109 WDFW estimates that the average cost to correct its fish passage barriers is $230,000 in 2008 dollars.

3.110 In the transportation budget, the State legislature may re-appropriate funds not expended by the end of the biennium. Such re-appropriations are made at the subprogram level and are not project specific.

3.111 WSDOT has tracked the costs of performing stand-alone barrier correction projects through its 1-4 Environmental Retrofit program. WSDOT has not been able to track the costs of corrections undertaken as part of a larger highway improvement project because the barrier replacement costs are not easily segregated from the cost of the rest of the project. For example, documentation of the costs of cement is typically for the entire project, without an easy way to extract how much was exclusively used for the culvert construction.

3.112 The funding source (federal versus state), the bidding environment, and labor laws can all affect the cost of the project.

3.113 The Washington State Legislature could designate specific additional revenue sources for fish passage barrier remediation in a manner similar to the current “Nickel” (5 cent per gallon special gasoline tax) or Transportation Partnership Act (“TPA”) (9.5 cent per gallon special gas tax) programs either as additional programs or when the current Nickel and TPA progr