that indicated hey look we're looking at one particular treaty that's not necessarily control all three to me the key thing i want to focus on here is that this is a victim we've got a situation where this tr pushed off at the very top of the klamath range by the way very typical of what happened to reservations throughout the rocky mountains in the plains very different than what happened to try reservations in tribes in the northwest so under pacific they were allowed to leave the reservation and elaine elaine documentation here makes it clear that salmon was a key component of their treaty fishing forty thousand pounds of fresh salmon a year eighty thousand pounds of dry town and so for pacific war to prevail their theory is that these trees these indians who couldn't leave the reservation somehow had patrol six hundred miles of this river from their reservations to the pacific ocean even though they couldn't leave the reservation and the day that somebody went into this river and put a dam on it boom and this is in california they had to strike get in find a court find a lawyer and somehow stop the construction of the dam that's one promise the other promise is  even though this court on three occasions i'll talk very briefly about it as has his work to preserve this treaty right and congress has an act it's three pieces of legislation to preserve this treaty right but all these actions of this court  congress were done after one nine hundred seventeen after kako was put in place and so all you guys were interested in was preserving a nonstandard portion of the treaty fishery and i think that also is a promise that is very difficult because the heart of this treaty right what's an now just a few things here for example in there this court said that that treaty right was that it was designed to preserve a limitation issues for a moment what remedies are available to enforce that right and who shouldn't force that right but i don't know i'm not sure the question is who but yeah and the rule didn't turn on whether the fishing in it was a little part of the reservation on or off i don't understand that i think that's right but i'm asking you to ok so so there never has been a case where the question was what how do you enforce a treaty where the state is not involved where it's a private party because it's except for a but that reflected a certain set of facts there yes it's true that there has not been a case like this but it's also true there's nothing in scole missions that prevents the the use of damages when that is the appropriate remedy and i now know what else to say you're on your right that is not a case for all time and all places ok it's just i don't get is for the night circuit on well but i mean let me just let me make a couple more a couple more comments i mean you've got to realize pretty different trees to these indians were not allowed to leave the one point two million acre klamath reservation ok they they were completely separated the all the off reservation right treaties are completely different for example that was not a permanent thirty four hundred acre reservation if you look at the treaty it basically says we're going to put you there for a while you may move and it said we're going to put some money in for medicine for doctors or for farmers but it's not on your reservation it's all in the region so my point is that it didn't stick indians in a particular spot and so the nature of their rights and the question of who else has an obligation to fulfill that treaty is fundamentally different now for example here pacific or says and i agree with them that there were two sets of beneficiaries here the indians and the non indians who got the klamath out of their way of life and you know they cited a case literally right on it's a famous case one of the most famous of these cases and just as car that might be so different or the circumstances of that treaty might be so different that it might be possible to construe a private eye remedy for damages against a non contracting party putting aside the question of private versus governmental and so i think you need to demonstrate if you can why the this treaty the klamath treaty i it's a sham and the right to the tree fishery was primarily salmon all parties knew that salmon move up and down the klamath river the klamath river is the only drainage the only way that treaty could be have any long term  as recognized by this coordinate there is that you somehow have to leave that drainage along and so the question becomes how do you protect that right and under the ship under understood comissioner if you if you if you say you're stuck with the scots the commission you're telling these indians they had to leave their reservation even though the treaty said they couldn't and patrol that six hundred miles and i'm saying that treaty that treaty doesn't allow them to do so therefore that is not an appropriate remedy in this situation and indeed the white people on the ground if you will cause go they understood in one thousand nine hundred sixty that they had an obligation to these indians and they tried to do it by getting them fish and the same thing in one nine hundred seventy they understood they had an obligation when they called that reef at the bottom of the lake they said they would compensate they use the word  they would incur a liability i mean that's not that that's the language of of keeping the indians whole that's recognition that the indians couldn't stop the construction of the exams i don't know how else w next step further and said hey we didn't you know i don't know if they claim that i guess they must have inherently claim they didn't they lost their right of access so they said we're going to try to get money ok and i think you know i'm  lawyer to me that was a reach because they lost one of their many many off reservation if you round they didn't get there in time to stop it apparently but they had others these guys they don't have that option and everybody understood that from the get go so and your honor in answer to your question they reserved the identical right the right in both treaties was that both treaties secured and that was the language secured the right of taking reservation or off we're talking about in the interest of reserve interest in the available fish i don't think it makes a difference as to whether it's on or off whether there are many usual when  from fishing places or only one now that might go to the to the question of has there been an injury if a tribe has one hundred different fish in places and only while its last perhaps there is no injury or a ghost of the question of damages but it can't go to the question of the underlying question of subject matter jurisdiction or whether there is an implied cause of action i might mention your honor makes any difference but i would point out that in talking about this offer as a ration reserved right said that that right was as important to the tribal members as atmosphere they breathed i don't see how the right here can be much more important than the more over damage the alleged amount of damages here it's a billion now i simply don't see how again subject matter jurisdiction or an implied cause of action and turn on how much the alleged damages are or the degree of of the injury the second point overarching point i wanted to make was i think the jurisdictional history of this case presents an even more compelling entities city of the coma and the public utility the disagreement between the majority in the dissent was whether and to what extent governmental entities that were not parties to the treaty could be helped li here i'm referring i think it was put no four in the majority decision involved only a minor part license from the federal power commission and therefore the usual rules of preemption exclusive jurisdiction and so forth did not apply like to go into just a little bit more detail about that because the supreme court has emphasized for example in the city of cheryl hayes and it's important to look after jurisdictional history the conduct here was the construction of one single dam opcode number one now mr his role in his remarks began talking about the link river dam in a agreement dealing with the link river dam mr israel passage now on the jurisdictional history pop go during world war one didn't simply unilaterally give up on attempting to provide for fish passage it's undisputed that the state of california ordered ordered capos to stop trying to create fish passage stop focusing on that and instead to provide various mitigation to provide fish for the north and south of the dam and the record shows that at least for a period of time california and oregon work together to share the fry from that fish hatchery those efforts tapered off during the great depression and ended but there was a government issue not that the fault of pop go apo did what the state of california ordered it to do and then during the eisenhower administr any time either through to through the project licensed or the secretary of interior had the power to require fishwives the federal government could have sued brought suit and mr israelis noted in his brief that indeed some employees of the department of justice in the one nine hundred forty s and fifty's looked at a possible lawsuit dealing with this is this very damning salient point is the federal government rejected that lawsuit didn't deem circumstances of getting damages either against a governmental anon us governmental entity or a private party based on a treaty right violation right now i don't because the majority did emphasize your honor that you have to look at every treaty on its own terms and there may well be treaties that require a different outcome my point is simply that when you lin you know stuck on the reservation you know apparently travel to fit and have you had to travel to get their exercise their fishing rights to go to different locations right before that for the climate then they could exercise their fishing rights right there on their reservation the extent of injury or the degree of damages but i don't see how that can affect subject matter jurisdiction itself because it was the same right involve think they reserve the right to fish indicating the reserved right secured right of taking action you simply cannot it seems to me have a rule of jurisdiction those go to injury and damages but it seems to me not subject matter jurisdiction century and that is when a dam was spelt and it was too high to allow fish passage the regulators would allow the dam to be built but require dam builder to provide that occasion facilities in lieu of fish passage that's the model that the u s supreme court approved of in f p c versus oregon in one nine hundred fifty five this court repeatedly approved of that model and indeed that may harm on reservation natural resources i agree the preservation and seed of traditional state pork was remedies might for example if the and why did the reservation  a stake cause of action might lie but and this is one of the points in our brief there is no federal common law action for damages against private parties and i prefer the court in particular to the supreme court's recent decision and sheryl sheryl is the next supreme court case after zero nine to two deals with the same product same treaties and cheryl clarified what the court only against a governmental entity not against a private party and the court in cheryl approvingly noted that the lower courts after a night or two had refused to allow that common law action to be extended to two private individuals who over many many many generations at rely on the state of new york in the federal government  so i'm not aware of any case that has ever recognized a cause of action against private parties for offers aeration activities that interfere with fishing the state and federal governments there is a very unique special statue limitations at work here the klamath was a terminated trog the supreme court's decision in t not just fish but two hundred twenty five square miles of land water natural resources and so forth and when the taleban were terminated as they tried justice stevens writing for the court to eight you guys can do with that you want to sleep look at it they've ignored more importantly and i don't think this was pointed out before but in the restoration act look at the following sentence i think this is under provisions of such act which is determination act to the extent that they are inconsistent with this act shall be in applicable to the dr and to members of the tribe after the date of the enactment of this act now i didn't raise i didn't really see this until this argument the district court kind of talk about the restoration part of that paragraph but i would make the argument that that is specific direction that congress is saying after this  act nothing that happened in terminations is on the table and so languorous says the general rule is the regime in place at the time of the action controls and and  institution of suit was justified unless we had further assurance that the alleged damages suffered by the indians could be proved so that doesn't go to to a cause of action that's the justice department saying we want proof and of course lane and lane and eighty one was the effort to try to develop that proof and i said second time we don't feel the evidence at hand is sufficient to establish the damages claim by the indians so i think it's fair to say that you got the united states god bless it at some point wanting to go forward on a damage case here but being held back not because of a cause of action not because of you know you know because of a lack of damages damage pro seventeen we will we are liable to the indians for any damage that's part of the understanding of the parties and that still is in front of the court specific order said he didn't provide the document but i have co stood you separate these indians could not leave how they cannot police this river calmly show of course recognize an implied cause of action that's what injunctive relief is the question is what is the appropriate form of that implied cause of action this court didn't say there was no implied cause of action it just said we're not going to recognize damages and and  three why would this court in a day or an campbell reach so hard to preserve this treaty right if it was only dealing with non anatomist fish because everyone knew that it was salmon which was critical and why would congress in the terminations act in the public was to lady in restoration keep keep hammering away at the preservation of these treaty rights knowing under pacific or syria that of course that the in the most valuable component had been lost forever in one nine hundred seventeen and there was no way to make the indians whole so you know it seems to me and i would only ask you as you consider this case take a look at that eight hundred fifty five treaty it's a typical steven st it's a small placed temporary residence and the whole idea was you were to you guys were going to come out and live with us if the clan was couldn't live with the white men they had to immediately get over to that reservation that's not true in on the face of the eight hundred fifty five treat the sick amish folks were allowed to intermingle and they had a common federal agency i mean it's just a very different says that they're not available the question is what kind of guy and i think here if you if you turn us down you're saying you guys couldn't leave the reservation but somehow you were it was your job in one nine sixteen to get yourself down to california and stop this damn now sheriff look oneida was a test case against a couple counties ok that's why the counties were defendants and they recognize damages sure i was an equitable case and the supreme court said we are not going after two hundred years we're not after two hundred years going to disrupt the lives of these folks and but we are preserving