billions of dollars to achieve that goal our objection is the unworkable tree right the ninth circuit announced respondents have abandoned that court's reasoning here but the alternative theories that they offer were not addressed by the courts below and cannot support the judgment so this court should reverse or at most should clarify what legal rule the trees imposed and then remained to the district court to apply i think you mean at least right well sorry we prefer that your verse sorry how you want to cut you again the respondents have abandoned the rule that the ninth circuit advanced and rightly so and instead there are going to new theory but even under that theory the treaties would regulate virtually every significant human activity off reservation and federal courts in the north west would be regulating essentially would be imposing environmental laws would be the primary environmental regulators rather than leaving most decisions to state and federal policymakers as should be the case in the courts below during the argument  fish means the right to take fish if you decide you want to provide fish is that correct i remember that answer while you are in that it was a mistake at oral argument about how or what is your position now when can you and how much can you block fish so your honor we believe that to show a tree violation the tribes have to show for things that a state barrier is causing a large decline in a particular river and that it's not justified by substantial i mean for now i don't know that it's a large decline i think it has to be a material decline now well it ever a temporary the precise word your honor we're less concerned about than that it be a meaningful decline because otherwise as i was saying the concern is that there are many many things that affect salmon your own or from zoning decisions to climate change to transportation and if you don't set the bar at least at some reasonable level well don't you think the court ok i know you're on of the court below explicitly said that respondents did not need to show not exclude ones even where there is another barrier ten yards upstream or ten yards downstream that the state does not control so we have to replace culverts even where no salmon can reach them and that is an utter waste of public funds and and  could view the choice to measure it no no it measures by how much habitat is upstream regardless of other barriers so the state is more incentivized under this ruling to replace a culvert that has ten miles of high stream even if there are five downstream barriers that prevent any salmon even from sample of three hundred fifteen c culverts two hundred twenty downstream barriers so it's not that it's true that many more barriers may be upstream but there are still hundreds and hundreds downstream and that this also highlights your honor that the first treaty point that seattle might well be able to show that coverts on a stream your saddle are affecting its rate of taking fish that doesn't say anything about the effect of culverts on the olympic peninsula hundreds of miles away where the court might be in a completely different place in the watershed it might be different species of salmon there might be other habitat issues and that the district court didn't just just didn't require it all that such that type of evidence about the effect on particular rivers and that's also crucial under this court's decision in fishing vessel where the court said that the tree right of sharing fish is measured on a river but river basis so so it's really crucial that you now if this be done in that more precise way i'm just having a hard time as i understood it this year the district court essentially took your every mediation that was going to take ninety nine years and condense it to seventeen so it took all of your own studies and your own decisions about priority and what needed to be done and what time level and what studies needed to be done to accelerate what projects faster than others and gave you the opening to come and tell them why you were wrong and why something should be  proposed injunction a one week later we file the post trial brief there is every single objection i'm raising here today if you look at joint appendix twenty eight documentary six sixty three that filing itself is not in the appendix but it's available on pacer and if you read it you'll see we raised every single objection i'm raising here we also raise them a closing argument several months later three years passed and the district court entered the exact injunction that respondents had asked for without without addressing any of the concerns we raised and so it's just not right  said was just incorrect when it said that that we had not participated could we say could you say again what would you think the standard is that the tree talks about the rate of taking fish yes what do you think that means well it's clear that it guarantees three important rights you know th has recognized a right to access historic fishing places that's when it's a right of a fair share of the available fish that's fishing vessel and then a right to be free of certain types of state actions that are not justified by substantial public interests and applied here we think that means that the plaintiffs need to show that state barriers are causing a large decline in a particular river and that it's not justified by substantial public interest and with what is the difference between that and the federal government's position about  substantially degrading the supply of salmon well your honor for one thing it's not i'm not i'm not sure whether they would limit their rule to obstructions and we think that that's important because the party stipulated early in this case a petition appendix one seventy three to seventy four that that's all this case was about so that's one potential difference it's also what all the briefing here is focused on it as to this case which involves supposed obstructions right that's not a difference between two possession i just i was one of that's important so second the way they  and here it as we explain in our brief that the highest estimate they gave of the effect of cortes on salmon is a fraction of one percent of historic harvest so if you define it that way it just the trees become a catchall environmental statute that will certainly a decline of half the salmon would certainly easily qualify but they haven't alleged you don't you know i don't think you need to do you have a number in your head i think well i think and i think that the kind of half or anything approaching half would obviously be a large decline a substantial decline but certainly something between one and five percent is not a substantial decline and five percent is often deemed a material number in other contexts of law so why wouldn't it be here when i percent decline in stock price or something like that and it is often used as a point of reference and in securities law for example several points about on a first of all and the five percent was we were just saying that's five percent from very recent harvest level so that essentially holds against the state every other thing that has reduced salmon numbers including federal dams and many many other actions so essentially it's saying you know that's a causation argument as opposed to materiality when there are two different elements fair enough i guess what i'm saying is that the denominator matters when you measure from is important and what the plaintiffs are asking you to do is just say when we file our lawsuit it's causing five percent of it i understand the causation argument there might be other causes for the five percent decline in that and i want to argue those but is five percent if they could show that five percent is attributable to the culverts would that sufficed to satisfy you i don't think if not i guess somewhere justice kagan is what's what's your number well again i think it's you know something approaching half would obviously qualify i don't think five percent should suffice because otherwise again the range of things that will describe are the preeminent which guarantees the right to all usual and customary fishing grounds really means  no no that's that's not what i mean at all your honor we're talking about measuring in a particular river what has that declined then and i don't even understand why it's why decline or degradation matters suppose that there were more salmon than anybody knew what to do with and then there was that the state did something that caused the climb with would that be a violation of the treaty i don't think that would be a violation even under the respondent series your honor i don't i don't think that would be  no and and that recognises the crucial other piece of language that that is in the treaties is that the treaty ceded control of the offer as a racial plan to the future government to regulate in the public interest and so the government has to have the ability to make some types of decisions even if they affect the treaty fishing right when they are against interest involved i think that's really where the case points down and and i'm struggling with that right you assert that you have rights to pursue other public goods and that those can outweigh the potentially eliminate the trio altogether and doesn't wouldn't defeated entirely the point of a treaty i would have thought would have been to to freeze in time certain rights and to ensure their existence in perpetuity regardless of what other social benefits a leader municipality might be able to claim you know we're not saying at all that they outweigh the treaty or saying that the treaty recognize it in the treaty that it recognized that there were other interests that they were the future government regulate off reservation land and it's just not possible that that the parties intended that none of the truly it allowed the whole poetry was to give up land i understand that but it i don't see anything in the treaty maybe you can point to maybe i'm dismissing it textually anything in the tree that says a nd your rights those usual customary grounds and stations is limited by and me to be completely eliminated if necessary to meet other domestic interests that a municipality might have which is i think the position of taking i think before this court not exactly on the tree right first all there's a session which is the right in common and then if you look at this court's decisions in the gallup cases this court said that the state could completely shut down fishing if necessary for important state interest bakkies was only about conservation but the principle has to be broader like things like public safety or public ally or riders have to be brought i would have thought a treaty would have been the supreme law of the land and would have overridden any m interests and worsening it consider those it considers it so for example the state sometimes has to shut down all shellfish for shellfish harvesting excuse me because of elevated bacterial levels in the water and effects in the end on indian shellfish har and obviously that affects the right of taking fish estate saying no one can harvest the shellfish right now and i can't imagine that the other side would say that's a treaty violation you know i don't understand what was discussed and i'm having trouble for this reason i thought that the district court had said and i can't get the number but that since tree times the number of the fish have declined alarmingly yes i don't know what alarmingly is supposed to refer to but i think it's probably a lot yes then in the as a finding one sixty one where he says if you look at the whole watershed of the water the cold barrier culverts are counting for six to thirteen percent of the decline and if you look at the tributaries it's forty four percent to fifty eight percent or when i read something like that i thought but what's a lot so i don't have to worry about that issue now well now when are you going to tell me why do you have to worry about it then well i went and looked at the thought but the court of appeals held and it said we're not if there's an act of god or some good reason you known so and so forth we're not saying you have to replace it but we are saying we are nothing like that is present you do ok on this schedule which is the schedule so do i have it all wrong i don't want to you have it all wrong your honor but you know what if i got parts of it wrong so two things number one that was a study of a single river and it was a study of all there is on that river not state colin but i mean i can't go back and review the bride can but i mean it's pretty hard to start reviewing the details of a district court record with unless there's something that you've told the court of appeals and told everybody else this is clearly wrong and so forth we should have that but that the district or didn't make any finding that that was sort of across the board a fact it was just citing a study about one river and in that river the effect of all barriers not state culverts all barriers was six to thirteen percent of the salmon he said that was the whole watershed so apparently you're saying that if in fact i looked at the record i would discover that you showed it was very much lower in fact that romber is wrong and you are for don't make this finding and it's clearly erroneous and that the court of appeals didn't consider it and that we should reverse on that ground now i haven't found that in your brief that i think that's not what i'm saying or i'm saying why if there weren't some substantial just occasions public interest for those courts and and but that's not all that this court did the dish court didn't say anything about the facts other than that citing that one study about particular rivers or particular places and it varies  decline and it wasn't for good reason then there would be a treaty violation so now we have a number it says thirty percent but but but you are continually putting in this and it has to be reason that has to be unjustified there can't be any reason why the state is doing what it's doing and might just discourse and i'm wondering where that is in the treaty well i think it's in the in the session language in the in common with what language we point into the control over office recently into the future government to regulate your own if you don't this is what i mean that cuts against you in general because this is a compact a contract made into federal law in which the indians gave up a very substantial thing it gave up all their land and it got something in return which is the right to take fish absolutely and we're saying there would need to be very substantial public interest but at least that she considered so for example under the other side's  every single hydroelectric dam in washington or we are just this public interest theory come in in the treaty i thought this is an agreement i give you my land you give me the right to take fish and that's just even make it narrower here the  will not put up obstructions on these streams such that i can't take fish what you are if if the rule is merely limited like that it's much less problematic for the state but there's also not this findings it would not support that rule and it would outlaw every dam in the northwest so it's inconsistent with the party's longstanding behavior of the federal government built unlicensed dams throughout the northwest for decades starting the early one nine hundred that completely obstructed rivers and decimate its own populations often over use if we're going to regulate fishing for the purposes of ensuring that there is integrity they've been a fish bacteria some other form of fishing that would be more harmful than than your catch we've said that's ok but if you are going to degre day for the benefit of the landowners as opposed to the people in title to the fish that you can't do that because you have to make sure that the indians receive their fair amount of the of the catch well so you are substantial public need is not creating that difference for me it's not it's not defining what type of public need is is proper and that's fair enough you know we think that  it is taking out going to require a waste of public funds as many of the culverts here i'm sorry if if you could have built this bridge in a way to per minute free flow of fish you seem to be saying that you they had you know they were blocking a significant number of fish on a particular river and there was a cost wise it there was no good reason to leave them and i'm not saying we will always win under this test i think for example the dams the federal government recently remove river which will bring back more salmon than all the courts in this case combined is the estimate those were probably violate this test and i'm saying i'm not trying to set up a test the tribes never meet my point is just the hunt met either this test or even their own test in the in the district court the district or didn't apply this test because it wasn't for him he didn't find that the that the state's fair culverts were all obstructions under the theory they're advancing here because half the states your cohorts are only partial obstructions and which which  tested you say the district court did not consider the idea that that as i understand their theory here is that obstructions that cause a substantial degradation are treated violation and that the phrase substantial bigger nation doesn't appear anywhere in the ninth circuit opinion the briefing tonight circuit the dish court opinion and also the way they defined obstruction here is is essential to the common law and the common law allowed partial barriers that's very clear and and that just wasn't an issue in this or court so at least half of the that we are going to remove at some point but that doesn't make it a tree violation the common law cases that we root for mind say things like is a good massachusetts k c i just it's good because it to match the it says that impeding the passage of fish into the lakes or ponds where they by instinct prepare for multiplication of the species is a nuisance and it doesn't say that you know it doesn't use a quantitative measurement well but your honor as we explained in our reply brief and we would have addressed this more in the opening brief had we known this was barriers and you've cited several treatises about that in cases and they are but he hasn't i mean what's worrying me about this is i'm not sure what the disagreement is it seems to me there is no disagreement perhaps on the common law tradition that a nuisance could consist of simply blocking fish from coming up the river into your area and then it seems to me the indians ought to have at least as much right as a person had under the common law given the treaty and then we seem to be arguing about what counts as an amount and when i read through the briefs i came away with the impression well whatever the amount is there's certainly a lot of fish being blocked by th what they argued in their in their response to here and so it's really only a reply brief that addresses the arguments they're making now in the ninth circuit and the district court the argument was any diminishment from historic harvest levels is a treaty violation and that's essentially what the district court found with the kni polled so what we're saying now is at the it at least i'll say that at least at least there should be a remained for application of this of this new theory because there's all sorts of evidence that wasn't relevant before that would be relevant now like the fact about partial barriers the fact that as i said half of the states here culverts allow many fish to pass and the district court just adopted our list which we need for good policy reasons but that but it doesn't mean that personal barrier is a treaty violation just because you know ten percent of fish can't get through it so if there's if the court you know has concerns about the details of the of the facts and such keep in mind the district court found liability of the state had violated the trees on summary judgment i mean that the district court held us live on summary judgment so saying the factual issues centrally don't matter fact in two thousand and seven the whole trial was just about the remedy so so i mean i you know if the court disagrees with the rule we're saying here and it won't stop some version of there's the appropriate course would be to remain with mr chief justice and may please the court when the united states promised the tribes federal protection for their preexisting right to take fish that included more than just the hollow promise of access to fisheries that could be blocked off and emptied of their semen i like to start by taking head on the state's suggestion that we've changed our position in this litigation and i don't want to mince words the united states has never asked for and did not receive a ruling guaranteeing to the tribes a moderate living from their fisheries you may not have sought it but isn't that what the ninth circuit panel did it's not and let me run you through what we understand to be the ninth circuit's least if you look at the beginning of the discussion section page eighty six a of the petition appendix you'll see that the ninth circuit posed the relevant question as follows whether the state was correct to quote that it has no treaty base duty to refrain from building and maintaining burial culverts it then spends the next six pages refuting that argument based on the text of the treaty the understanding of the parties this court case law then six pages later on ninety two the court says even if the treaties did not contain such protection explicitly the court wouldn't for it and then two pages later we get the infamous sentence in which moderate living makes its first appearance so at best we're talking about something that supports an alternative holding it's also not what the parties argue for the state takes about a half dozen quotations out of context from more than a thousand pages of record and briefing if you want to know what the united states has asked for throughout this entire litigation look at our demand for judgment on page sixty two of the joint appendix you'll see that the very first thing that we asked for was a declaration the very first thing that we asked for is a declaration that the state had an obligation under the treaties quote to refrain from degrading the fishery resource that is the basis of the district court's ruling on page one you there's an awful lot in your brief about the common law nuisance theory supporting the prohibition on physical barriers that wasn't presented before was it no that is evidence in support of what we took to be the central position that we've been arguing this whole time and it wasn't pretty prominently featured and it's the state makes the argument that well there are exceptions or what the common law theory of nuisance with respect to barriers inhibiting access to fish is a complicated question and you don't just say well it's a nuisance so you when there are responses and they have not had an opportunity to test those there hasn't been any evidence presented addressing those arguments and i wonder if that means that we ought to send it back and let the courts who haven't had that opportunity yet have an opportunity no your honor you could put aside all of the specifics of the common law it really just goes to the central question that's been at the heart of this case namely whether there is any substantive protection for the tribes fisheries against actions to harm them that  treaty language gives gives their tribe the right to take place in common with all citizens that's correct why does that mean anything more than simply what rights non indians enjoy indians also enjoy that is you could read it as a provision for non discrimination and indians if you read it as much more than a you know i'm discrimination if that's correct taking just the words you could read it as an equal access provision this court in fishing vessel however found it unequivocal that the state was wrong in advancing an equal access argument there that it provided some greater protection which the state now seems to continue to concede includes substantive protection against harm that substantially degrades the tribes fisheries we also build in arguments not just based on the common law but based on the course of dealing between the parties representations that were made to the tribes substantive representations this paper secures your fish or governor stevens referred to the tribes as his children and said i want for you the same things that i would want from my own children to do the dems that the federal government has built on the lower snake river the lower columbia river violate the treaty so you're going to hear me say a number of times today the state didn't argue that or it's not in the record and it's not because i'm trying to duck your question i always have a second response is because there are certain legal issues that are not as developed either factually or in terms of legal concepts as we might expect at this stage the answer is no first of all there are many federal dams that are built with what are known as fish ladders these are structures that are built in to allow the fish to pass either around the dam or over the dam there are some instances where fish ladders are just not feasible and in many of those instances the united states has compensated the tribe for their harm to the fisheries either through the indian claims commission or in many cases through federal legislation and there are articles  claiming that they have caused more damage to salmon them anything else there are some dams and you say that what's good for the state of washington is not good for the federal government that's not correct in many instances the united states has repeatedly provided compensation they have paid monetary compensation they have put in fish ladder they put in hatcheries and in some cases the army corps of engineers actually uses barges to transport young seamen down t river to go around the dam so they don't get hurt by it we have taken extraordinary efforts to remediate some of the problems that are being caused by some of these federal dam and in some cases with federal permits right here that that is not correct what they point to is a general engineering manual that has charts and tables which say that if you have this much had water and a pipe of this diameter you end up with this amount of outflow it's about flood management it says nothing about wildlife it says nothing about treaty rights they also point to a general permit under the clean water act which again is just a blanket permit granted in advance it doesn't take account or purport to take account of local conditions the government doesn't review individual culverts for every single state road around the country so there is no reason even assuming that the state could find that the government was stop as a result of this there is no basis for claiming that the state was required by federal law to build the coverage as they did and in fact in fact they have changed the design of their culverts to allow for fish passage there's no reason that they couldn't have done so from the of substantial appreciable the serial degradation so we should send it back for it to make that first determination which of these culverts substantially degree materially degrade you've got to tell me what the right word is sure and second that they did not weigh whatever and however we define substantial public interest and i'm still troubled by their refusal to give me a definition of that that would not give them free rein to design things that will degrade materially or run only because they want to help some other  landowner so starting first with substantial degradation i pointed you to page two seventy of the petition appendix where the district court talked about significantly degrades the district court made extensive factual findings at one fifty seven to one sixty two of the petition appendix that there was a substantial degradation caused by the state's barrier culverts to the tribes fisheries and they used those findings have not been challenge as clearly or literally as you use that term do you have a number in your head so we don't have a number i think you are talking about harm that is both durable and appreciable meaning the type of thing that shows up year after year despite normal fluctuations the district court didn't approve use a number population number approach it instead used a habitat focused approach and that means sense because there were extensive findings that there is a direct connection between the health of the fisheries and the populations of salmon it also connected that to the amount of benefit that you would get and this is at one sixty six to one sixty eight of the petition appendix from remediating the habitat i just want to get back to it was a while ago but i understood you to say that clean water act permits do not take account of local conditions the clean water act permit that we're talking about the only thing that the state has pointed to is a blanket permit that's granted in advance and it says generally that you need to take account of these things but it doesn't review individual culverts it doesn't give a thumbs up or thumbs down to particular take account of these things what or what are these things well it sometimes mentions threats to wildlife or treaty obligations but it doesn't again in advance tell you that you have in fact complied because you're talking with what you read from the government's prayer from relief as i heard it it didn't have anything to do with  it's particularly that's elsewhere in the sentence so you are arguing only with respect to obstructions today is that correct that's certainly all that's at issue here we are not denying that in theory you could have some other harmful action by the state or someone else that also substantially degrades the fisheries but that's obviously not here in quintessentially we're talking about obstruction and what is your view of the state's right under the treaty to take account of other public interests so we would describe it in the way that this court did in that pew all of trio which is that the state can enact nondiscriminatory measures that are aimed at protecting the resource so in the example that my friend gave about poisoning of shellfish or other fish would be an action that the state could take to reasonably protect the resource that wasn't needed however to come from though because if you point to the common law nuisance and there it is it appears to be from my first read to defense that there's another public good us yes if you look at the very next sentence in that treatise it makes very clear that an obstruction is not a nuisance simply because on balance you think it does more good than harm instead what it says is and if you read the cases that support the treatise that if there is a way to build whatever structure you want to put in the water in such a way that it does not obstruct usually the cases are talking about navigation but presumably would apply as well to fish if you can do so then it is a nuisance to fail to do so or not is cases involving actions taken by private parties or by governmental authorities are these nuisance cases cases involving actions taken by private parties or by the government by and large there are actions taken by private parties but what you think it's clear that the same standard applies to under the common law the same standard would apply to things that were done by the sovereign i think what you would need under the common law is a legislative enact meant saying that whatever would otherwise be a nuisance is not a nuisance we don't have that certainly from the federal government here we also don't have anything of the sort from the state here and also any of these issues discussed in the court of appeals pardon any of these issues discussed in the court of appeals not with respect to the common law but again we're not arguing that the stevens trees incorporates the common law in all of its particulars but it does go to the central question of whether there is subsidy protection for the tribes fisheries were not also resting solely on the common law were pointing to the course of negotiation between the parties the fact that washington's organic statute required that any structure put into a river or stream insure a fish passage were also relying on this  which have recognized that protection of the resource is the central concern of the street is if i could move to this one percent of historic harvest number that my friend gives i think that's wrong both on the numerator and on the denominator for the numerator he's talking about a two hundred thousand fish figure that first of all this district court did not credit and second of all comes from a one thousand nine hundred seven state agency report that was based on two hundred fifty linear miles of habitat being opened up but here we're talking about approximately four four times that much a thousand linear miles moreover with respect to the denominator we're not talking about historical harvests we're talking about what would happen absent the action that is being challenge and here absent the state barrier culvert there would be a substantial increase in the fish population what do we look at to see that this tree or that that figure the substantial increase so i think for the benefits that you would get you would look to pages one says sixty six to one sixty eight of the petition appendix if you want to know about the harms that would be at one fifty seven to one sixty two finally my friend brought up the idea of partial obstructions that is a forfeited waived and meritless argument is forfeited because it was raised for the first time in the reply brief before this court it's waves because it's contrary to the joint stipulation of the parties on which the district court relied using the state's own definition of what it means to be a  meritless because there is no such thing as a ten percent barrier so his argument was waived because he didn't make it until it got to this court martin the argument you're talking about was waived by your friend on the other side because it wasn't raised until they got to this particular case got to this court if you're making a new argument as to why it was that the district court abused its discretion that is the type of argument that you would normally expect at a minimum to be brought up in the court of appeals if not in the district  addition to all of the other efforts that it is it is undertaken to need it mitigate harms and to compensate the tribes thank you counsel mr jay mr chief justice and may please the court if the promise made by the united states in exchange for millions of acres of the tribes land means anything in terms of substantive protection of the fishery it protects against a threat to the fishery like  threat that obstructs fish from getting to the usual and accustomed to fishing grounds where the tribes have a right to fish and this is densely degrades the fish population and and the idea that the state or a locality or even the united states can simply disregard that based on and agencies or in an individual local governments balancing of its own perceived public interest against the promise made by the president ratified by the senate is simply not consistent with the if so what is the number i don't think it means a pardon fast number i think it is something that you would look at in context in context of the particular species in context of the part of the strength of the species at a particular time so i think that that would be something that you would determine factually in the context of one fish species versus another but in this case the district court found at i would look in particular at one sixty two way of the petition appendix without giving a number it said that the state's culverts are so numerous and cover so large an area that they are creating a significant total impact throughout the case area on the fishery i mean the the with what happens here happens here may or may not meet any definition of significant or substantial that's not the my question but i just don't see how that can mean anything other than a number and i still haven't gotten any answer that seems to give any substance and this you say it varies from fish species to fish species well i think that it it takes account of what kind of question you are asking and just discourse such as question mentioned the idea that that fire percent can be material in the context of securities fraud we are not asking the court to adopt you know the idea that five percent is material in all contexts but we are it would be a context it would be sensitive to the context of the fishery it would be it would have to be as my friend mr kevin said it would have to be something durable in other words not something that is simply washed out in the next years returning fish population they were and would have to be something that not tried to draw the line between de minimus and substantial in this case i think for safety because the state was litigating the case all along not on the ground that it's called for it's we're not having a substantial impact but on the ground that it had no duty to refrain from having such an impact because the fishery was not protected and i don't buy that if we can decide a global standard for all of the in problems but the question presented here are three questions one was the scope of the remedy too much second question is whether the government house to contribute in light of its equitable situation but the first question was whether the treaty right of taking fish from common with all citizens guaranteed that the number of fish would always be sufficient to provide a moderate living to the truck that's the question presented to you in the others have argued and i did it is true that the judge in the lower court specifically denied that he had they were imposing that standard he said we're not doing that but they think they were doing that maybe they didn't say it but they were all right what do you recommend we do we recommend that you look at what the injunction says and  it because the injunction says nothing about a moderate living the liability determination on which the injunction rests says at page two sixty three that the court specifically need not address what is a moderate living because and again and here i would turn to page two seventy one the district court is an bases its liability ruling on what it called a narrow duty was very narrow directive to refrain from impeding fish runs in one specific manner that is not a moderate living holdings so we don't think that the state's characterization of the ninth circuit's opinion is correct but you don't you can simply write in your opinion that the judgment is affirmed and that you don't agree with the state's character with you or if it do you agree with that to do it guarantees a moderate garnett's of what you think the courts and the junction is that the standard that you want us to adopt it's not we are we have characterized the idea of a moderate living as a defense that the state could have raised but did not what we asked is that the and what we obtain from the district it right starting at fifty eight and continuing on until it gets to a place where it says even if the treaty did not make this express promise and even if there weren't the express promises by governor stevens in the negotiation even if we would infer such a promise and analogizing to the winters doctrine that is the section from which the state derives the supposedly living holding but we think that the analogy to the winters doctrine actually helps to refute that  winters doctrine is a doctrine whereby when congress creates an indian reservation doesn't expressly make provision for water if water is necessary to fulfill the purpose of the reservation it's inferred so here we were to write an opinion in this case you would have no objection if it said that there is no moderate living standard issue here we would have no objection to that at all and just cylinder standard you're saying that that was not at issue you never raised it and the district court never considered it the district court says it won sixty three that it's not considering it the state says it footnote seventy five of its summary judgment brief that it is not raising the moderate living defense that's absolutely correct and for that reason we what we think the courts would focus on is the  actual basis for the injunction the liability ruling and on the injunction itself and whether the injunction is an abuse of discretion and how would you phrase that if not moderate living would be the determining would be the standard that you think should be applied to pretty neat injunction the injunction what we think that the reason an injunction was justified in this case is because the state has violated the treaty by one putting barrier culverts in the streams that prevent salmon and other naturist fish from getting to the usual unaccustomed fishing grounds all of which all of which are places where the state the tribes have a right to fish and second those blockages those same blockages are what is degrading the fishery in a substantial way and their clients agree with the united states that the them that were built by the united states are in compliance with the treaty so let me get let me give a just a conceptual answer the not all dams block fish passage i mean as my friend mr ghanem said and as is reflected in section eighteen of the federal power act and its predecessor going back to nine hundred six various executive agencies have had the power to require fish ways you know devices for ensuring fish passes around dams so simply saying there were dams is not  in any way to say there was an obstruction to fish passage i understand that but there are particular dams on particular rivers and i wonder if your clients have a position as to whether those are in compliance with the treaty as the government has told us this morning what i can say is that when the federal government has built dams without insuring fish passage that the federal government quite appropriately has paid compensation to the indian tribes in exchange for the destruction of its usual on the custom fishing grounds and the inability to take fish there so certainly a down or another obstruction that blocks the usual unaccustomed fishing ground can be a violation but there's nothing in the record in this case because it has not been litigat about particular downs that don't meet that standard my friend from the state talked about the idea that the states some of the states barriers are partial barriers and there are a number of things i'd like to say about that the in the eighteenth hundreds that partial barriers to fish passage are prohibited as well and that is not surprising because a barrier to fish passage is an obstruction even if a single particularly strong fish can get upstream now there's no i'll be happy to go into great detail about what the test should be but in this case you don't have to get into that because the state stipulated stipulated expressly to to the definition of barrier culverts and that is why the injunction in this case is tailored to number one its streams that are suitable for salmon only number two barrier culverts using the state's own definition only number three barrier culverts that block a significant stretch of habitat and it has a fourth safeguard as well which is that the state can decline to remediate up to up to ten percent of the habitat which we think just a little six hundred have ado about six hundred  something left suppose they discover because it's a lot of money go out there that they're like five culvert somewhere which would be unbelievably expensive to change and moreover it would release a bill in the three fish or something now suppose that they find that out can they go back into the district court and say judge we would like you to modify this in respect to those five that's exactly what at page one twenty five of the petition appendix you'll see that the court of appeals underscored that the district court retains equitable discretion under that's course cases applying rule sixty to modify the injunction if changed circumstances warrant it and that if a court of appeals said that it's johnson confident that the district court which has supervised this case these proceedings and this injunction for a long long a guide to what the two what the treaties to protect right of taking fish means i think that the reason that it is a guide and not and not a codification rest in the fact that it is a treaty between the united states and the indian tribes in your tribes of course were not thoroughly familiar with the english common law but what the tribes did understand was that obstructions to the salmon fishery were a threat to the continued survival of the of the species point that mr purcel brought up the idea that there could be some public interest balancing now we don't we agree with mr khaddam that that's not what the common law says written large about nuisance but it is true that nuisance was a common law  creation the legislature could supersede nuisance in particular instances by passing a statute saying this shall not be a nuisance the state and local and local governments don't have the power to do that because this right of taking fish is secured by a federal treaty so it's not that the treaty embodies only a promise that you will have the right of taking fish so long as the state and local governments decide not to abrogate it only congress can abrogate a treaty with the indian tribes and that certainly makes sense given the exchange that is acted by these treaties this is probably what two i'm looking at i know that this report made certain findings about the cost of creamy deviation the state has only said it's two point one three billion dollars i know the district court said that wasn't true he said it was like six hundred fifty thousand dollars per covert so you're right maybe half there still a lot of money it is a lot of money of course in the context of the state's transportation budget you know at that figure we think it's about a half a percent of the state's transportation budget and i know that but i think th l money coming there is federal money coming in there are there are other sources of funding as well that are meeting both state and local and private culverts but i think that way when looking at the cost i think what you have to see is that much of the cost comes not from the the designing of the  that what kind of culvert you put in but the choice to remediate the colbert now and it's very important to note that washington state has had a law requiring fish passage and the attorney general of washington opined in one nine hundred fifty one nine hundred fifty that coverts installed by the state highway department under state roads had to be those requirements for fish passage so if the state decided not to do that and to install non compliant culverts cover to block fish passage and it's going to cost you know a fairly substantial sum to remediate them the state bears a fair amount of that responsibility itself that ultimately the district court in its discretion looked at those costs looked at the state's argument about whether it be worthwhile balance the equities and concluded that the balance of the harms tip substantially in the tribes favor and in favor of the public interest and i think that this is well brought out by the non indian fishermen's brief both commercial and recreational fishermen who explain in detail why it could very consistent with the public interest to resolve chief justice i'd like to make three points first counsel for united states point of view to paragraph four point want to join appendix sixty two a i had urged you to turn to it and look at it he stopped reading partway through it says it has a duty not to build or maintain culverts in tribes of a moderate living from fishing moderate living came from there that's their complaint that's the equivalent of their complaint in this case the district court understood their complaint that way if you look at petition appendix to fifty eight he described their claim as seeking a moderate living from fishing the phrase moderate living appears dozens of times and at least the ninth circuit the for a substantial degree nation doesn't if you're a single time in any brief to the ninth circuit that was not the argument so i resigned point not to emphasize that that they should be barred from reasoned argument here but just to emphasize that if the court's go with the tribes ability to obtain a moderate so they have to do both one appreciably in pure d grade fish passage and to also interfere with the moderate standard isn't that what it says that's what they claim drop of blood would seem to me to say the district court essentially said the modern living standard any decline from that is a violation and all the factual findings they're citing your honor keep in mind that was after the district court had already held that the state violated the treaties the violation finding was on summary judgment and what the district court said i encourage you to turn to actually the same page that mr j said position connects to sixty three of the district court said the tribe showing that harvests have been diminished together with the logical inference significant portion of this diminishment is due to block coverts is sufficient to support that finding of a tree violation so i you know i i have read the language i don't understand exactly why the district court did i think the circuit court tr clarify it but as i understand things the indians are in title to fifty percent but we have said it doesn't have to be more than a moderate living so it could be less than fifty percent of earlier you stipulated that a moderate living wasn't at issue so you weren't claiming i don't think as a defense that these existing cash was more than sufficient or exceeded a moderately good thing by so much that we didn't have to fix the culverts because of that reason we said we would not dispute that the tribes were not currently earning a moderate living for fishing  that means they're not getting fifty percent of what they need oh you're out of this court and fishing russell said fifty percent is the maximum even if it's what the tribes moderate living needs that's what we're just pissing around like what i'm saying to you is if you stipulated that they're not making a moderate living they're still entitle to fifty percent of the degradative catch that's not what the court held a fishing vessel at all your honor the court held fifty percent of the currently available cash if that had been the rule they would have been entitled to every single fish that  remain with some sort of direction that the i would urge the court that if you're going to say some version of that the appropriate course is to remain to the district court has the district court just did not consider these arguments the district court i mean we didn't we the idea that these are all obstructions that wasn't an issue the definite the common law definition of obstruction was never raised in the district court by the other parties we had no opportunity to make that point but we did in our post brief again it to an appendix twenty eight we argued extensively about the flaws in the injunction every single flaw justice breyer asked why can't we go back to the district court we already pointed out all of these flaws of the district court and he ignored them and enter the exact injunction that they proposed and so that's that's the concern it flips the burden of proof on its head to say ok we're going to assume culverts regardless of where they are or anything about the river or anything like that is a violation and then you can go back and ask for relief i say my time is expired thank you thank you counsel the case is submitted