reached the wrong conclusion here because she made a number of mistakes of fact st and most importantly and i think the government admits this the trial court erroneous late held that the three tribes had the right to catch fish in climates like they do not those fish are protected by the endangered species act and it is a criminal offense to catch this error and lead the court to believe that there are and to hold that there were water rights supporting these nonexistent fishing rights in klamath like with the result that the court held that the water in climate lake was to be used to support those fishing rights and not the rights of the plaintiffs to irrigate their lands and wonder what if we were to read the lower court's opinion about upper klamath lake as is what she was really trying to say and she said it in other places especially in reference to cases like adair that what was important about upper klamath lake was to retain a certain amount of water understand your point which is at one point the lower court may have said something about fishing in upper klamath lake or something to that effect but there's enough other places that make clear at least to me that what was really going on here was an interest in preserving the water in a climate like in order for those different tribes to be able ready to continue to fish what they had always fished in the waters that are on reservation yes well  get i think then your honor to the key issue and that is that the trial court's holding if if it is the one that i think the court has just articulated is directly contrary to this court's recent holding in crow creek sue try in that case the this court held that it was erroneous for the tribe to argue that because they have the senior water right they have the right to all the water in the river rather they have only so much water as is necessary to fulfill the purposes of the reservation in the purposes of the reservation  this case were of course to allow for fishing and hunting both on reservation for the klamath and adjacent to the reservation for the hook and the euro those were the original purposes of the reservation regrettably those fish runs aren't there anymore and there is no case that i'm aware of that holds either that a reservation in indian reservation has as its purpose the recovery or conservation of an endangered or threatened species nor is is there a holding that even though the fish populations are new york stink sion and have been decimated over the years for whatever reasons that water is to be released as though the fish were there or to support those fish so the key issue comes down to under current circumstances what is the nature and extent of the rights to fish and the i d r case th circuit which defined the existence of the climate tribes rights i think gives us that answer what that case says is or that the tribes are entitled to hunting and fishing rights as currently exercised and not as the existed in eight suggesting that whatever ready the federal government agreed to an eight hundred and sixty four there are not necessarily bound by because according to your understanding of the airport  sent is that if for whatever reason regrettably the species is no longer contributing to the livelihood of the tribe it's not their e p can't because there aren't sucker fish to support the tribe as as food and some livelihood then you would simply be wasting water to apply that water to a tribal right that no longer exists where did it dare say and obviously changed dramatically no speaking to hunting and fishing rights what they did their court said is no we interpret the trial court's holding to mean that the tribe has the rights and is presently exercise the water right the release of water or the storage of water has to support some right that is currently being exercised in two thousand and one would it have made any sense to say  if this were the case that water needs to be released some pow in order to support a fishery that hasn't existed for fifty years that would simply be releasing water for no purpose and of course the other difficulty here with specifically with climate tribes is that the the lake is downstream and by the way the air court your hon relied on the supreme court's decision in washington versus passenger vessel which dealt with that same issue and and said that the government doesn't have a trust trust in you'll you'll note your honor that the court continually refers to historically these fish species have been of great significance to the tribes and perhaps in the future your honor if they are recovered and if those fisheries again available then water to support those fisheries would also become available but remember that the water right the implied water right is created at the time of the reservation interpretation of congress's intent in creating this reservation of land to provide sufficient water to fulfill the purposes for which that reservation was created to conserve species that were threatened or endangered in that's a purpose of these indian reservations so it simply is the case that there is lacking a nexus between the endangered species act which is admittedly i think undisputedly the reason for which the government acted here and the implied purposes for creating the indian reservations the court stitch those two together and said they were the same but there is no authority for doing so i could touch briefly then on the contract issue i think it's pretty straightforward government never has to deliver any water and they're never going to be liable for any clause second that provision does not as the trial court seem to say alter waiver of a constitutional right the rights just compensation so it is in effective to do the work that the trial court has given it and  bar all claims under the th amendment on behalf of the plaintiffs here who are in this i think is is that the coup de gras the plaintiffs didn't sign that contract it's not their contract can someone else waive their constitutional rights by signing it was an e s u is this separate or is this issue stance regardless of what we do with respect to the tribal rights issue you spent most of your argument talking about  issue separate from it is your honor because while the reserve water rights issue affects all plaintiffs the warren act issue only affects some plaintiffs the trial court held their districts contracts so you're saying that even if the court were to agree with the court of federal claims of the tribal rights issues the sequester earlier this issue would still remain well i guess it's the other way round if you agreed with the court that no plea of has a right because of the indian reserve water rights then this issue becomes moot but if you reverse and remain and i think you would have to say that you would have to address the question of whether the claims that apply with respect to the van river ditch issue and also the of the lessees who had interest on the wildlife refuge yet those who are are in a different subset  brimmer your honor are in the same situation as everyone else the trial court just got that wrong they have a beneficial interest just like everyone else and i think she misinterpreted that  from the government rather than owning the land once again that's a contract interpretation issue so the court found yes they they fit into this subset the court would have to address those two issues as well if we really essential components of the arguments in the amicus briefs in the amicus briefs there are approximately there's one by the association of california water agencies that's made up of four hundred and thirty  agencies and irrigation districts all of whom raise the same objection as were raised in the other amicus briefs including the amicus brief of the state of oregon so in the argument they raise goes to the essential consequences of affirming the trial court as it relates to western water law the trial court in explaining it this way so the way in which the prior appropriation doctrine was evolved involved in the same way that form follows function in architecture that because of the changes in quantities of water that were going every year down the stream into reservoirs and on down to the users that had as just a system of how to allocate that water they concluded the best way to do it to protect investment was to give it to the st user in time the st users in time in the case of virtually all of the major streams where reservations exist are the union's reservations themselves either through treaty executive order or act of congress given that they are they take st priority position but priority alone without in the process to identify how those butter should be allocated is not enough the mere existence of a priority date doesn't give you the authority to go into very spring into action against anyone else because everyone is right as what you're saying is even assuming you're saying given the priority date here with respect to the klamath tribes and the valley in europe tribes that even that priority still can yield to other circumstances to a process that was specifically set up in each state and that is an adjudication process to determine the quantities of water that the senior priority user can use as opposed to other users of water in the system you know exist in and i would just know i can only speak for myself but i found the the various amicus briefs on on both sides of the case both those urging  here and i guess what you're saying is this is what the your regulations should have done in two thousand and one yes that's exactly what i'm saying now the question i have i read about it i read it and it it seems like it would  you it might yield some very worthwhile results but the question i have is how practical would that have been given the situation that the bureau of reclamation faced you know one it had the upcoming season april may june it had this but candra opinion so could the bureau have really gone through the process that you lay out here even assuming it would be a very fruitful process in terms of yielding helpful result i mean what could the good the bureau of really done what you're proposing here sure that's a great question and i think that is under these circumstances i think the bureau was trying to do st of all in the year two thousand and one during that time period there was tremendous conflict not just in klamath but all over the country where you had kanchan between two principles the prior appropriation doctrine of water use and the needs of the species that was a very difficult situation but my point very is if the bureau chose because they felt they didn't have any choice but to take the water away from the farmers understand the water was behind the damp they had a choice could they would they let it go down the river to the farmers and let them divert it or would they give it to the species they chose to do that the bureau chose to do that the bureau is not a court if the bureau wanted to do what they suggested they needed to do they could have gone and gotten at least some sort of participatory process whereby everybody would get an opportunity to weigh in on the issue and maybe get a temporary restraining order but they could have done  as you point it was in a bind they said we have to do something here but so they took the water physically way from farmers in the park fields died and were two hundred thousand acres worth of people and many many people lost their livelihoods gates would be opened along the river so that farmers irrigators could receive their a portion of water what happened here it is pursuant to the order of the bureau of reclamation following the fish wildlife and the national marine fisheries opinions the gates were kept close for a period of time is that physically what happened yes that's physically what happened and it they were only opened and after the props were all incapable of being grown when they were opened in july  ts right in this through really who's here can tell you that as a potato farmer that was too late for him but i but i guess where what my argument is the following from the perspective of western water law just exercise the function of a court appears a bureau of reclamation and just not let the water be released to the people who have water rights to it and the euro have a very significant and important water right to receive water in stream downs they are one hundred and twelve miles away and i think the record shows that the amount that actually gets there is a very small amount or percent but whatever it is they have that right they could have chosen to join in the adjudication they could have done that they chose not to the bureau of indian affairs chose not to have them join after under the oregon system you're given notice everyone has a time period he said you and your of indian affairs did they have control over the two tribes in california as to whether or not they could join with a they could should know that they could have tried to join on their behalf but the tribe to not let them typically it goes the other way the tribes insist that the bureau of indian affairs of the united states join in the bureau of indian affairs as not joint and then there's a conflict in suit for breach of bits of the trust duty but here they did not join once the time period for joined or in oregon expired their opportunity to participate in the anything involving the allocation of water in that system in oregon was extinguished that's what the brief says it says very clearly what the rules are in oregon where it is and ironic so they were extinguished as a function of their failure to join in the process more importantly if you just one thing if i of valley in the europe tribe could have received water in other words from the lake in other words it is your view that they are not barred because of the distance from the lake no no to the distance from the lake is factual i'm not making  argument i'm arguing that you are just the lake the distance from the lake doesn't impact whether or not they're entitled to some kind of diversion from the lake that would assist them no that's true but in the court to do something to attack those issues or file their own adjudication suit in california but so i what i mean is i have a couple questions just go ahead and one is what should we make of pinions  compare and dare which seem to solve competing water rights claims between human tribes farmers without any need to go to state court in those situations that there was a recognition that federal courts also have jurisdiction when it comes to determining us water right federal water rights sure and so those didn't seem to be examples where federal courts held that they needed to wait for some state adjudicatory process to be completed before they took up any action you know adair adair is a good example there is a simply a case where they they went the federal united states went in and they tried to determine the scope of the impediment to water whether or not i in capper we allowed that there was a using that water rights adjudication there and that's because it wasn't he stream system kept the case she relied on was ground water there was no there's no stream system involved in kaffir it was state court so there's a lot of trust in the united states people said look we'll let you do that but you have to out has to be a comprehensive adjudication involving everyone providing them due process and it has to be on a stream full stream system mccarran amendment was the basis for joinder of the united states tempted jointer of the klamath tribe in the state of oregon there are resistance on behalf of the climate tribe saying because it's a word that seems to flow throughout the briefs it seems to be in the cases does it mean just right next to or does it mean it's something that flows with what you always even if it's not right next to it you know this is what exactly does a permanent mean in the setting of this area of the law through a great question it means that in the reclamation act of one thousand no two under which this project was constructed says i understand section eight but the water rights released from the reservoir and used by your gators shall be pertinent to the land and beneficial you should be the basis the measure in the limit of the right to use the water that's all it means it means that so when you put water on land it fixes to that land like a profit a ponder something it is a it is a word of a person and mean in that it meant that it had to be the water had to be right next to the layout means applied on to the land even if not right not right this is next to the land no it has to be on the land water can you have a series of irrigation district decisions ditches they put water on a piece of land it becomes a pertinent to the land and the only amount you can use  project is the amount that you can beneficially use and it's measured by that amount and you can't waste it that's what that means that's completely different from the important interests in stream flow rights which are available  to the downstream tribes such as who come in the your rock and who put drives it also is different from the climate which as you point out can mean fishing in the full reach where there might be fish available but in those cases those are natural flow rights they are the not the same those rights and this is pointed out an association of california water agencies but they are not the same as a storage right dams were  in order to store water when there is more than enough water for the downstream tribes or for the other tribes to use water once the water is stored during excess times that water that is stored becomes the exclusively over the farmers no that's true fact if anything it was the tribes that have a senior rights that's true and that makes my point exactly and i think that's a great question because it does well it makes the distinction i want to make so assum g it was stored at a time when it wasn't running down when there was plenty of water available for the downstream tribes assuming it was stored during that time period and it became the water  reclamation which the primary purpose is irrigation but superimposed on that is the endangered species act in the obligation to protect species and it is also true that there's a trust duty for the tribes bureaus got several hats but the question then becomes and this is the concern of the basically the one thousand four hundred and thirty agencies that expressed their good views in this case they said well if that's the case that water stored  for irrigation when there was plenty of water when water was actually made available if that's the case is it possible then for the bureau reclamation to take the same water that normally would be stored for those who stored it themselves for their own use could remember it's not not need it downstream by the tribe is it possible for them to release that water to make it make the situation better than it was when there was a natural flow under natural flow though that's what the right is it's not it's not a diversionary right it's the natural state of things when you just devilish the reservation you're assuming they could have released today new order to serve all of the had a right to stop somebody or upstream or downstream so what what's the water right they get they qualified it yes the quantified it as they were supposed to do using the mccarran amendment in the adjudication process to please the court good morning honest john sponsor for the united states on your honors there were no takings in this case for two independent reasons st because the water that was it in two thousand and one was not legally available climate project farmers because  s beneficially news to satisfy senior tribal rights and nd because the contracts in this case define the beneficial interests of the climate project farmers and the contracts clearly say that the farmers will not by the court just a little bit of perspective on the issue of storage when the klamath project was built they didn't create a new storage reservoir the upper climate was already there the project actually made the surface area of the lake smaller and it didn't succeed typically raise the elevation of a lake with the project did was to cut a big hole in the reef that help back the waters of upper klamath like to put a dam in front of that hole that they cut in reef and they put in it effectively substituted the artificial drainage from the from the dam in the release of the dam for what was the natural release system and what it allowed the project to do was then drain the   in the in the th century the project did not exist so the project has to provide for those senior rights and there were already senior rights existing within upper klamath lake  for the fisheries that were reserved to the claim of tribes and so when the united states came in with the project in reengineered it whatever rights it got to the project were secondary to the senior tribal rights and so the united states came in and made a way to divert more water at the lake that would that imperil the senior rights of the climate drives the dam did not significantly add to the storage and it certainly didn't add  extra three feet we can now lower it is about five hundred thousand dollars your feet so there's way more water in an ordinary year coming down the river coming into the d m and then being released into the main channel of the river and then also to the irrigation projects so in the ordinary circumstance the way the project operates is to regulate the flows in to provide the flows to lands that had been drained ever formally went on they're not adding additional water to this system by creating reservoir they created a pot of water that's not this case in this case as these side needs facts on the facts of this case when the in two thousand and one in the operations plan when it said minimum link levels those were within natural levels the lead in to there it is in this case and this appeal that the water that was at upper klamath lake in two thousand and one it needed to natural lake level in the natural flow it's going to come down and would always come down when the lake was a natural lake over the reef and down the climates rip now it's an artificial grain and so reclamation controls the amount of the release but that doesn't mean that when they control the amount of the released to replicate natural flows that there and they do it to to provide for the fishing rights that they're there somehow not exercising it's in your right and the reason the water wasn't delivered is because there wasn't enough water coming down from above the upper klamath lake in that basin to keep the lake levels at the minimum levels and to provide the downstream flows and provide you know additional water new they didn't get to the minimum like levels they didn't  average flow created above the basin in this year there was only one hundred and eight thousand acre feet forecast and so all we're saying is that one hundred and eighty thousand forecast coming into the system has to be used st to maintain the natural lake respect to these various species of fish there was no really there were no fish to protect so to speak you were calling yes what is your response to his argument well i certainly was making right he was a right it's hard to understand exactly what these are doing and you may be arguing that the right has been somehow abandoned or forfeited because the fisheries are no longer there but senior travel rights and federal reserve rights are not subject to bringing me to the next one i think that's what he was saying it doesn't make any sense to me i mean obviously if you have a right to maintain a fishery for subsistence purposes and something happens to the fish disease whatever you hit have a right if the fish are still there you're still using that right in order to have that species recover the endangered species act in this case in the senior travel rights are completely and overlap the purpose of the endangered species act is of course to allow a species to recover so it can then be fished again right i mean that's the whole point and supporters being beneficially used in order to avoid the extinction of the species that's important for the subsistence species certainly that use of that water is within the scene or right to maintain the fishery in perpetuity so it couldn't beat the subsistence needs of the trop this sort of gets me i guess to what i was discussing a little bit with mr du mars but also it relates to the argument that the it's in the blue brief that page twenty eight  the argument is that the court of federal claims misapplied the supreme court's holding in winters the united states which recognizes an implied water right only where that water is a pertinent to with the on land it says that the lands reserve sufficient water for the purposes of the reservation and if there's water there to be reserved because it's boundary water because it's groundwater because it's stream flows through because it's a lake that's on if the circumstances are such is relating to that sort of the purpose and is that water accessible for purposes of you know the reason of the reservation that that gives the united states the right to reach two hundred miles or whatever in the case of with their history that was the culture you know that have a substantial that flow is to be maintained so if you look at what's the purpose of the reservations put land here so the tribes can fish you have to retain a flow in the river and not just the flow through the river it's not be water delivered to the river it's the flow to maintain the habitat of the fish within the climate system which is why that the right or at least in the bias in this case it was measured at the iron gate dam because that's the  i can remember if it was mr de mars or mr marzullo kept referring to it being downstream i mean that's really not quite right that is a long border from the along the lake from the former  reservation with the fish flow the fish will swim back up into the williamson river well that's part of it you're on but i'm the st part of my answer is that the stream just like in winters was a boundary water right and so it's not the border where the lake begins is where the reservation is is that right yes ok so then the climate tried is doesn't have a right to fish that relate to the relationship between the fishery you know upper klamath like in the rights of the the climate tribes and the court should be aware of those and so what i'd like to read is just read a little bit it's available online it's in our brief the link and we've cited in the briefs to the page numbers that you can pull up to find the case and i'd like to draw the court's attention to and the  subsistence needs for an entire year the evidence also indicates that prides regularly harvested fish directly from up claimed boy the key here is those fish the sucker fish are lake dwelling fish that swim up and they go to the shoreline fish swam up from the lake up the streams the cave you do to do to cater went on that set to say based on the overwhelming weight of historical evidence the right to take fish included the right to continue the fishing practices that were central to the tribes subsistence and culture goes on to say because the lake elevations claim here are necessary to establish to maintain a healthy productive habitat for the target species the tree must be interpreted to protect that right t since the early ninety's late eighty's seventy five ers to the and it was delayed for a time when there were arguments over jurisdiction and the other government challenge the juristic i know this late edition's been going on for eighteen that the your rock arms are in the climate tribes stopped fishing because of the the damage to the fishery and they wanted to recover their fishery and they stopped a year or two before the actual listing but again the purpose of the endanger completely overlaps with the scene you're right because the purpose is to bring it back to the level where it can be fished again and i believe that the tribe is still able to take some fish for ceremonial purposes and to take it up with with what  the reservation which bordered the lake in there the evidence was that they fished in camps on the lake shore they would camp on the lake shore on the about interim one thousand what were they fishing in two thousand  whatever they're currently existing right this whatever they are currently fishing that's really what they're fishing on i think i think and so therefore you need whatever water so for them to continue to opinion was talking about was was reacting to the notion that the tribes because they regionally control the entire territory and they could exploit the entire resource that was no longer the case today what the what the pinion was saying is that the  of reclamation could just unilaterally choose to do what it did in two thousand and one without going through the state adjudicatory process that we heard opposing counsel talk about croswell not in two thousand and one right but in two thousand and one of course that the bureau of reclamation had no choice but to meet the limits that were imposed through the biological opinions in the endangered species and it wasn't a choice to meet the senior wri they were obligated to do what they did under the biopsy for purposes of the endangered species act then the question for this court becomes well when the government takes regulatory action under a statue what are the background principles of law that govern the property rights in  and did did the government act within the scope of its own property rights and what we are saying in this case is there can't be a taking from the e s a action because the government acted within the scope of the senior reserves federal reserve water ri the when is there a situation where federal water rights have to go through a state your dictatorial process st before the federal government takes action like there is no situation where i mean there's no situation in oregon people have been exercising their water rights we have been exercising our water rights on behalf of the climate project since one hundred thousand and five or whenever we got the you know the canals set up the right doesn't have to be adjudicated in order to exercise the right process maybe a call system where oregon can then sort out priority and and go through that process but the united states doesn't have to wait for that process to complete in order to say hey we have a senior right in the water that we california as we pointed out in our brief mccarran amendment waiver doesn't go beyond the jurisdiction of the state court in the state court's jurisdiction is for diversions and beneficial use within the waters of oregon once you get down to beneficial use in the versions from waters downstream in california that subject of california's jurisdiction and the fact the the water rights on behalf of the california tribes were not claimed in california or in the oregon this case the existence and nature of those federal reserve water rights the exact and precise quantification of those will be taken care of in the subsequent state education that's ongoing what happened in two thousand  given the nature and existence of those rights which are based on fishing rights and so reserve enough water to support the issue that takes both lake water and stream water the court said we don't know where the exact ceiling on that right yes but we can say for sure that is at least enough water to keep the species from going extinct and that's how we got to the conclusion in two thousand and one that all of the exist tribal reserved water rights that support the fishery of the klamath tried and that those are the senior water rights in the basin those are federal rights they aren't abandoned they exist there is tension between that and state water law but those federal rights come st and the federal government has a duty to protect and make sure they are met what the court below said is that in this case the existence of those senior federal rights required at least as much water as was necessary to comply with the e s a because the e s a is intended to prevent the extinction of species the federal rights  the court the trial court here the finding that the water was needed in two thousand and one to protect the reserved water rights is not clearly erroneous and the court went through a lengthy analysis of the biological opinions and what was necessary to support those reserved rights the other thing i would say is that the state court the juda cation of the final amount of the most senior water rights ultimately control the way rights are used down the road but the existence of those federal rights did not need to wait for a state adjudication to be protected from out of stream uses by others so that they are right that the federal government has a trustee to protect and that exists why not in view ready of santa karen and that because they are if they are for federal rights and if you go through the adair case i think what it does is try to balance the mccarran amendment comprehensive education with the federal that are the basis of this of the tribes rights and the fishery and the reserved water rights and so it says these senior reserve rights exist and they are enough water to support the fisheries that the tribes reserve the right to continue and it doesn't matter whether they're fish catch today tomorrow or yesterday what matters is that the tribe has that right it's doing everything it can to restore that fishery and i'm sure it would prefer that the fish were not listed and endangered species act but that really that doesn't matter to their right to have a fishery and to do everything they can to protect that issue and that's the federal government's been violating the eight hundred and sixty four treaty by allowing these two types of sucker fish to then i think the tribes would tell you the answer that is yes that they have not been up holding their duty they did not up hold it for many years that doesn't because these rights aren't abandoned diminished or thrown away because there are too few fish i don't think that matters and if the tribe one day wants to bring some kind of claim for violation of the treaty they may well do that but i believe the tribes w got it exactly right that the senior reserved water rights of the tribes both in the lake and in the river required all of the water that was available in two thousand and one and so there was no property point that these rights are not like you use rights they are rights to a fishery connected to a reservation so whether there is land immediately adjacent to where that issue areas exercise with the government want to think is a very extraordinary contention that there is an overlap a complete overlap we heard between the endangered species act and the tribal fishing rights that is utterly inconsistent with the facts found in this case let us remember that in january two thousand and one rep limitation proposed to deliver water to the plaintiffs consistent with historical deliverance the same kind of thing they've been doing year after year you know find a biological assessment at bendix twenty six months to six hundred and sixteen the biological assessment that reclamation prepared said we're going to deliver the water and that is consistent with our trust responsibility but it's likely to impair the or jeopardize the continued existence of the species therefore under the endangered species act we have a duty to consult following that consultation on april th the two fishery agencies having issued biological opinions the they're over reclamation put because the biological opinions prohibit that this is found at appendix three thousand and twenty six not to say senior water rights prohibited but the endangered species act were habits and you'll quote complete overlap between the endangered species act and the tribal fishing rights number two the government has repeatedly referenced trust responsibility the trust responsibility is an obligation of the united states because i'd be a treaty and i think that the council who just spoke before me may we'll be right that there has been a breach of the treaty obligations that the united states owed to the tribes with respect to their their fishing rights over the the many decades and more than a century they may have a cause of action for that does that give them the right to take property that belongs to someone else to satisfy the government's trust responsibility i think the answer is pretty simple let's of suppose instead of fish we're talking about deer that is hunted by the tribes  provide their subsistence if the deer populations had been decimated by government action could the government take over someone some farmers of land to raise deer you know order to provide adequate  the for the tribes and could they say well it was our trust responsibility to do that so we have the right to take your property rd point with respect to the climate  previously it is in trial it is in the circuit court i don't want the court to misunderstand and i'm i'm sure that counsel for our mickey would concur that that is is being contested originally there was a settlement agreement the other half of that finding your honor was that the tribes had agreed not to try to enforce any such right and that's because there was a settlement agreement that had to do very massive settlement agreement having to do with removal of dams on the river and to do with fisheries and so forth that settlement agreement did not eventuate congress didn't fund it so the parties are now back to contesting their  well we know that eighty eight percent of the flows of the climb of river in it come from the lower climate base climate like is in the upper climate basin two hundred miles away did congress really intend that this lake two hundred miles away which might supply well there's no hydrologic testimony the government didn't produce any testimony as to how or what climate like might supply but  congress really intended that this late two hundred miles away which might produce what one percent two percent no percent of the flows needed for the salmon runs at the hoopa that congress really intended that would all come from climate lake and not from anywhere else like say the trinity river which has flows of over a one million acre feet per year finally i think that the united states will be mightily concerned if council is right and that the obligation of the united states to each and every tribe vs our view water rights is to restore their original fisheries and that they have all the water rights that attached to those fisheries as they existed in the one thousand nine hundred century that is certainly directly contrary contrary to the supreme court's decision in washington versus fishing vessel association in which the supreme court said the united states does not have the obligation there's there is not an obligation this long down the road to restore the original fisheries as they existed at a time when this country was unsettled it's unfortunate it's too bad and we do need to do things to  recover the fisheries and for that matter to the wildlife of our nation but the indian treaties the indian fishing rights do not include the rights which once again are our obligations on the united states created by the endangered species act and the endangered species act does not reference has nothing to do with indian fishing rights indian hunting rights or a duty of trust but rather it has to do with an obligation quite separate and independent lately on any of those things to restore the species as a paramount interest as some reports