WASHINGTON, Petitioner, v. UNITED STATES, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Neil Gorsuch, Sonia Sotomayor
Interviewee(s): William M. Jay, Noah Purcell, Allon Kedem

John G. Roberts, Jr.: We will hear argument next in Case 17-269, Washington versus the United States. Mr. Purcell.

Noah Purcell: Thank you, Mr. Chief Justice, and may it please the Court: The State of Washington wants to protect salmon and has voluntarily spent billions of dollars to achieve that goal.

Our objection is the unworkable treaty 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 treaties impose and then remand to the district court to apply it.

John G. Roberts, Jr.: I think you mean at least, right?

Noah Purcell: Well, sorry, we'd prefer that you reverse.

Sorry, how you want to clarify -- yeah, at most, at least.

Sorry. Sorry, Mr. Chief Justice.

You -- you're the better oral advocate on all of this, I'll stipulate that. The central question, though, is what legal standard the treaties apply -- impose. And, again, the Respondents have abandoned the rule that the Ninth Circuit advanced and -- and rightly so, and instead they're arguing a new theory.

But even under that theory, the treaties would regulate virtually every significant human activity off reservation, and federal courts in the Northwest 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.

Sonia Sotomayor: In the courts below during the argument in the Ninth Circuit, you said the Stevens Treaty would not prohibit Washington from blocking completely every salmon stream into Puget Sound.

Basically, the right to take fish, to you, means the right to take fish if you decide you want to provide fish.

Is that correct?

Noah Purcell: I -- I remember that answer well, Your Honor, and that was a mistake at oral argument about how our theory --

Sonia Sotomayor: So what is your position now? When can you and how much can you block fish?

Noah Purcell: So, Your Honor, we believe that to show a treaty violation, the tribes should have to show four things: That a state barrier is causing a large decline in a particular river and that it's not justified by substantial compelling interests.

Sonia Sotomayor: I don't know -- I don't know that it's a large decline.

I think it has to be a material decline, no?

Noah Purcell: Well, it --

Sonia Sotomayor: Every -- every --

Noah Purcell: 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 Honor, from zoning decisions to climate change to transportation, and if you don't set the bar at least at some reasonable level, then --

Sonia Sotomayor: Well, don't you think the court below did?

Noah Purcell: No, Your Honor, the court below explicitly said that Respondents did not need to show anything about the -- to quantify the effect of state culverts on salmon and -- and just said that any diminishment is a treaty violation.

And under that rule, that's why courts applying the treaties will be --

Sonia Sotomayor: Well, it didn't quite do that, because, as I looked at its remedy, it -- it chose not to have you fix culverts that were -- were degradating the fish, but it said they can wait until the normal life of the culvert ends.

Noah Purcell: Your Honor, that --

Sonia Sotomayor: And so --

Noah Purcell: Sorry.

Sonia Sotomayor: And it also gave you leeway, rather substantial leeway, 200 culverts, I think, or over 200, not to fix at all.

So what the court does -- did was take your plan and accelerate it.

You made the judgment already.

Noah Purcell: Your Honor, the court told us we could defer until the end of the useful life culverts that had less than 200 meters upstream of useful habitat. So the -- the -- those are culverts that will make extremely little difference to be replaced, and each one costs several million dollars.

So that's --

Sonia Sotomayor: And the court excluded those?

Noah Purcell: Well, the court said that those are the ones we could do at the end of the useful -- at the end of the useful life. The court --

Sonia Sotomayor: Yeah, well, that means, because if you don't do it then --

Noah Purcell: Fair enough, Your Honor.

Sonia Sotomayor: -- it's going to fall down.

So --

Noah Purcell: My -- my point is the court did not exclude ones even where there's another barrier 10 yards upstream or 10 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 -- and unreasonable even under the Respondents' theory here.

Sonia Sotomayor: But they gave you the discretion to exclude those?

Noah Purcell: No.

The -- the judge said that we could defer culverts blocking 10 percent of the habitat. But that -- that -- the problem is that that doesn't -- it measures it in exactly the wrong way.

So we could -- we could --

Sonia Sotomayor: It gave you the choice to measure it.

Noah Purcell: 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 10 miles of habitat upstream even if there are five downstream barriers that prevent any salmon even from reaching the state barrier.

So --

Sonia Sotomayor: I think your adversaries told me that there aren't hardly any culverts downstream, that virtually all of them are upstream from you.

Noah Purcell: I don't think they would characterize it that way, and if they would, it's incorrect, Your Honor.

We showed in -- in our reply brief, at the end of our reply brief, a sample of 315 state culverts; 220 had downstream barriers.

So it's not -- it's -- it's true that many more barriers may be upstream, but there are still hundreds and hundreds downstream. And that -- this all highlights, Your Honor, the -- the first treaty point, that the -- the Respondents should have to prove the effect of specific state culverts on particular rivers.

And that just was completely glossed over by the district court here. The -- the fact that a tribe -- each tribe has its own separate treaty fishing rights and its own historic fishing places. And a tribe near Seattle might well be able to show that culverts on a stream near Seattle are affecting its right of taking fish.

That doesn't say anything about the effect of culverts on the Olympic peninsula hundreds of miles away, where the culvert might be in a completely different place in the watershed, there might be different species of salmon, there might be other habitat issues, and that the district court didn't just -- just didn't require at all that -- 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 treaty right of -- of sharing fish is measured on a river-by-river basis. So -- so it's really crucial that the analysis be done in that more precise way.

Sonia Sotomayor: I -- I'm just still having a hard time.

As I understood it, the district -- the district court essentially took your plan of remediation that was going to take 99 years, and it condensed it to 17.

So it took all of your own studies and your own decisions about priority and what needed to be done on what time level and what studies needed to be done to accelerate what projects faster than others, and gave you the opening to come back and tell them why you were wrong and why something should be deferred or not.

And you just didn't participate in the injunction. So why should we remand to do something you refused to do when given the opportunity?

Noah Purcell: First of all, Your Honor, the Ninth Circuit was incorrect when it said we refused to participate in the injunction.

The -- the plaintiffs filed a proposed injunction.

One week later, we filed a post-trial brief that raised every single objection I'm raising here today.

If you look at Joint Appendix 28, it's Docket Entry 663, the -- the -- the 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 raised them at 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 -- so it's just not right; the Ninth Circuit was just incorrect when it said that -- that we had not participated.

We --

Samuel A. Alito, Jr.: Could you say -- could you say again what -- what you think the standard is? The treaty talks about the right of taking fish.

Noah Purcell: Yes.

Samuel A. Alito, Jr.: What do you think that means?

Noah Purcell: Well, it's clear that it guarantees three important rights, Your Honor, this Court has recognized: A right to access historic fishing places.

That's Winans.

A right of 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 interest. And -- and applied here, we think that means that the -- 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.

Samuel A. Alito, Jr.: And what do -- what is the difference between that and the federal government's position about substantially degrading the supply of salmon?

Noah Purcell: 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 -- and we think that that's important because the parties stipulated early in this case, at Petition Appendix 173 to 74, 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.

Samuel A. Alito, Jr.: All right.

But as to this case, which involves -- supposed obstructions --

Noah Purcell: Right.

Samuel A. Alito, Jr.: -- that's not a difference between the two positions.

Noah Purcell: Okay.

I just -- I just wanted -- that's important. So, second, the way they've defined substantial degradation here, it -- it -- as we explained in our brief, that the highest estimate they gave of the effect of culverts on salmon is a fraction of 1 percent of historic harvests.

So, if you define it that way, it just -- the treaties become a catch-all environmental statute that will regulate every significant activity in the Northwest, so --

Samuel A. Alito, Jr.: So what -- again, what -- they say substantial degradation, and you say what?

Noah Purcell: We -- we said large decline, Your Honor.

But, again, I'm not --

Samuel A. Alito, Jr.: A large decline.

Noah Purcell: I'm not being -- I don't want to be picky about the word.

The word is less important to us than the concept that it be meaningful.

And --

Elena Kagan: What does it mean?

Samuel A. Alito, Jr.: Well, I don't understand what either of those things means. I don't know whether it's substantial degradation or a large decline.

Noah Purcell: Well, it -- it has to be more than -- than a fraction of 1 percent of historic harvests or 5 percent of recent harvests.

We think, for example, certainly a decline of half the salmon would certainly easily qualify, but they haven't alleged -- you don't -- I don't think you need to --

Elena Kagan: I mean, do you have a number in your head?

Noah Purcell: Well, again, I think that a decline of half or anything approaching half would obviously be a large decline, a substantial decline, but certainly something between 1 and 5 percent is not a substantial decline.

And --

Neil Gorsuch: Well, 5 percent is often deemed a material number in other contexts of law.

So why wouldn't it be here?

Noah Purcell: Well, Your Honor --

Neil Gorsuch: A 5 percent decline in stock price or something like that is often used as a point of reference in -- in securities law, for example.

Noah Purcell: Several points about that, Your Honor.

First of all, the -- the 5 percent was -- we were just saying that's 5 percent from very recent harvest levels.

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 --

Neil Gorsuch: Well, now that's a causation argument as opposed to a materiality argument.

They're two different elements.

Noah Purcell: 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 me to do is to say when we file our lawsuit, it's -- it's causing 5 percent of the decline.

Neil Gorsuch: Again, I understand the causation argument.

There might be other causes for the 5 percent decline and -- and you'd want to argue those.

But is 5 percent, if they could show that 5 percent is attributable to the culverts, would that suffice to -- to satisfy you?

Noah Purcell: I don't think it --

Neil Gorsuch: And, if not, I guess I'm where Justice Kagan is.

What's -- what's your number?

Noah Purcell: Well, again, I think, you know, something approaching half would obviously qualify.

I don't think 5 percent should suffice because otherwise, again, the range of things that --

Neil Gorsuch: So the -- so the treaty --

Noah Purcell: -- will affect 5 percent of the salmon --

Neil Gorsuch: -- the treaty, which guarantees the right to all usual and customary fishing grounds, really means half of them?

Noah Purcell: No, no, 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 the decline been.

Samuel A. Alito, Jr.: 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 -- the state did something that caused a decline.

Would -- would that be a violation of the treaty?

Noah Purcell: I don't think that would be a violation even under the Respondents' theory, Your Honor.

I don't -- I don't think that would be, no.

And -- and -- and -- and that recognizes the crucial other piece of language that -- that is in the treaties, is that the treaties ceded control of the off-reservation land 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 there are substantial interests involved.

Neil Gorsuch: I guess that's -- for me, I think that's really where the case boils down, and -- and -- and I'm struggling with that.

Right? You -- you assert that you have rights to pursue other public goods and that those can outweigh the treaty, effectively. And -- and -- and so any violation of these culverts has to be weighed against the benefits they provide to other persons.

But -- but -- but doesn't that potentially eliminate the treaty altogether, and doesn't -- wouldn't it defeat it entirely? The point of a treaty I -- I would have thought would have been to -- to freeze in time certain rights and -- and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim.

Noah Purcell: Your Honor, we're not saying at all that they outweigh the treaty. We're saying that the treaty recognized -- in the treaty, it recognized that there were other interests, that there were -- the future government would regulate the off-reservation land.

And it's just not plausible that the -- that the parties intended that the tribes would be --

Neil Gorsuch: Surely, it allowed -- the whole point of the treaty was to give up land.

I understand that. But it -- I don't see anything in the treaty -- maybe you can point it to me, maybe I'm just missing it textually -- anything in the treaty that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you're taking, I think, before this Court.

Noah Purcell: Not exactly, Your Honor. The treaty right -- first of all, there's the cession language.

There's the right in common. And then, if you look at this Court's decisions in the Puyallup cases, this Court said that the state could completely shut down fishing, if necessary, for important state interests. That case was only about conservation, but the principle has to be broader, like, things like public safety or public health.

Neil Gorsuch: Why?

Noah Purcell: Well, for example --

Neil Gorsuch: Why does it have to be broader? I would have thought a treaty would have been the supreme law of the land and would have overridden any municipal interests and --

Noah Purcell: We're saying it considered those.

It considers those.

And so, for example, the state sometimes has to shut down all shellfish -- shellfish harvesting, excuse me, because of elevated bacteria levels in the water.

And that affects Indian and non-Indian shellfish harvesters. And, obviously, that affects the right of taking fish.

The state's saying no one can harvest any shellfish right now.

And I can't imagine that the other side would say that's a treaty violation, you know.

Stephen G. Breyer: I don't understand what we're -- this discussion.

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 treaty times, the number of the fish have declined alarmingly.

Noah Purcell: Yes.

Stephen G. Breyer: I don't know what "alarmingly" is supposed to refer to, but I think probably a lot.

Noah Purcell: Yes.

Stephen G. Breyer: Then in the -- there's a Finding 161 where he says, if you look at the whole watershed, the water -- the -- the -- barrier culverts are accounting for 6 to 13 percent of the decline.

And if you look at the tributaries, it's 44 percent to 58 percent. All right.

When I read something like that, I thought, well, that's a lot, so I don't have to worry about that issue.

Now -- now --

Noah Purcell: Well --

Stephen G. Breyer: -- now you're going to tell me why I do have to worry about it.

Noah Purcell: I will.

Stephen G. Breyer: Then I went and looked at what the court of appeals held, and it said we're not -- if there's an act of God or some good reason, you know, so on and so forth, we're not saying you have to replace it, but we are saying where -- where nothing like that is -- is present, you do.

Okay? On this schedule, which is the schedule -- now do I have it all wrong? Yes? Okay.

You can --

Noah Purcell: I don't want to say you have it all wrong, Your Honor.

Stephen G. Breyer: What have I got?

Noah Purcell: But you have some parts of it wrong. So two things.

Number one, that was a study of a single river and it was a study of all barriers on that river, not state culverts.

Stephen G. Breyer: Yeah, but, I mean, I can't go back and review -- I can, but, I mean, it's pretty hard to start reviewing the details of a district court record --

Noah Purcell: Well, it --

Stephen G. Breyer: -- unless there's something that you've told the court of appeals and told everybody else this is clearly wrong and so forth, which I haven't found.

Noah Purcell: But the -- the district court didn't make any finding that that was a sort of across-the-board effect.

It was just citing a study about one river.

And in that river, the effect of all barriers, not state culverts, all barriers was 6 to 13 percent of -- of the salmon.

Stephen G. Breyer: They 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 number is wrong -- and, therefore, 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, I take it.

Noah Purcell: That's -- that's not what I'm saying, Your Honor.

I'm saying if the district court had said I'm analyzing -- I believe that was about the Skagit River -- I'm analyzing the Skagit River, and the Skagit River state culverts are causing 35 percent of the decline in salmon runs. We're saying that might well be a treaty violation if there weren't good reasons why -- if there weren't substantial justifications of public interest for those culverts. And -- and -- but that's not at all what the district court did.

The district court didn't say anything about the effects, other than citing that one study about particular rivers or particular places, and -- and it varies dramatically. I mean, just as that --

Elena Kagan: But, General --

Noah Purcell: -- as that finding of fact shows, the effect in tributaries is dramatically different than the effect in larger bodies of water.

Elena Kagan: General, just to take you back to Justice Gorsuch's question, because I think you just gave an answer and it went something like this: It said if there were a 30 percent decline and it wasn't for good reason, then there would be a treaty violation. So now we have a number.

It says 30 percent.

But -- but -- but you are continually putting in this, and it has to be reasonless, it has to be unjustified, there can't be any reason why the state is doing what it's doing.

And -- and like Justice Gorsuch, I'm wondering where that is in the treaty.

Noah Purcell: Well, I think it's in the -- in the cession language, in the "in common with" language --

Elena Kagan: What -- what language are we pointing to?

Noah Purcell: The -- the fact that the tribes ceded control over off-reservation land to the future government to regulate. And, Your Honor, if you don't adopt that --

Elena Kagan: But this is -- I mean, that cuts against you, 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.

Noah Purcell: Right.

Elena Kagan: And it got something in return, which is the right to take fish.

Noah Purcell: Absolutely.

And we're saying there would need to be very substantial public interest, but at least that should be considered.

So, for example, under the other side's theory, every single hydroelectric dam in Washington, Oregon, and Idaho --

Elena Kagan: But where does this public interest theory come in in the treaty? I thought this was an agreement.

I give you my land.

You give me the right to take fish.

And -- and let's just even make it narrower here. The right -- I -- I have the right that you will not put up obstructions on these streams such that I can't take fish.

Noah Purcell: Well, Your Honor, if -- if the rule is narrowly limited like that, it's much less problematic for the state, but there's also not -- the findings would not support that rule, and it would outlaw every dam in the Northwest.

So it's -- it's inconsistent with the parties' long-standing behavior. The federal government built and licensed dams throughout the Northwest for decades starting in the early 1900s that completely obstructed rivers and decimated salmon populations, often over the state's objection.

So, if they're right that all you need to show is an obstruction and that -- some level of decline, every single one of those dams is a treaty violation.

Now those aren't state dams.

Sonia Sotomayor: They -- they could --

Noah Purcell: We're not --

Sonia Sotomayor: We've had cases that have basically said, the example you used -- if we're going to regulate fishing for the purposes of ensuring that there isn't degradation of fish, bacteria, some other form of fishing that -- that would be more harmful than -- than your catch, we've said that's okay, but if you're going to degradate for the benefit of the landowners, as opposed to the people entitled 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.

Noah Purcell: Well --

Sonia Sotomayor: So your substantial public need is not creating that difference for me.

Noah Purcell: Okay.

Well --

Sonia Sotomayor: It's -- it's not defining what type of public need is -- is proper.

Noah Purcell: Right.

And that's fair enough, Your Honor.

We think that to -- to define that, courts -- the district court could look at factors like those that Respondents have cited under the common law.

Is this a total barrier? What are the public benefits of it? Was it justified by law? Was it authorized by law? Those sorts of things. But to be -- and just is it -- is taking it out going to require a waste of public funds, as many of the culverts here would?

Sonia Sotomayor: Well, I'm sorry, if -- if you could have built this bridge in a way to permit the free flow of fish, you seem to be saying that you can get out of that obligation merely because you wanted to spend less money.

Noah Purcell: No, not at all, Your Honor.

Not at all.

We're -- we're saying we might well -- under the theory I'm saying, there are -- I'm confident there are culverts that we've already taken out that would have violated this test.

And they -- they had -- you know, they -- they were blocking a significant number of fish on a particular river and there was -- cost-wise, it -- there was no good reason to leave them in. I -- I'm -- I'm not saying we will always win under this test.

I think, for example, the dams the federal government recently removed on the Elwha River, which will bring back more salmon than all the culverts in this case combined, is the estimate, those were -- probably violate this test that I'm saying. I'm not trying to set out a test the tribes can never meet. My point is just they haven't met either this test or -- or even their own test in the -- in the district court.

The district court didn't apply this test because it wasn't before him.

He didn't even find that the -- that the state's barrier culverts were all obstructions under the theory they're advancing here because half the state's barrier culverts are only partial obstructions.

And this --

John G. Roberts, Jr.: Which -- which test did you say the district court did not consider?

Noah Purcell: The -- the idea that -- that -- as I understand their theory here, it's that obstructions that cause a substantial degradation are a treaty violation.

And -- and the phrase "substantial degradation" doesn't appear anywhere in the Ninth Circuit opinion, the briefing to the Ninth Circuit, the district court opinion.

And -- and also, the way they've defined obstruction here is -- is essentially under the common law.

And the common law allowed partial barriers, that's very clear. And -- and that just wasn't at issue in the district court.

So at least half of the barriers that -- that are what we define as barrier culverts under state policy allow many fish to pass, up to 90 -- a barrier can be up to 90 -- sorry, a culvert can be up to 90 percent passable and -- and the state still has made a policy choice to define that as a barrier culvert that we are going to remove at some point --

Stephen G. Breyer: Well --

Noah Purcell: -- but that doesn't make it a treaty violation.

Stephen G. Breyer: -- the common law cases that we were able to find say things like -- there's a good Massachusetts case here -- I just say it's good because it's from Massachusetts. (Laughter.)

Stephen G. Breyer: But 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.

Noah Purcell: 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 going to be an issue -- but in our reply brief, we did our best to summarize the common law also -- there are three important differences between the theory they're advocating here and the common law.

The common law approved -- did not -- if a barrier was for a public benefit, it was not automatically a nuisance. Number two, the common law did not prohibit total barriers.

And we've cited several treatises about that and cases.

And number --

Stephen G. Breyer: 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 a 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 the culverts.

Now -- now -- now, suddenly here, I think, well, you're arguing, no, no, there weren't a lot.

There were just a few.

And I don't know quite how to deal with that argument.

Noah Purcell: Your Honor, in part, that's because the Respondents have completely changed the theory of the case from what the Ninth Circuit ruled to what they've argued in their -- in their response brief here.

And so it's really only our 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 -- is a treaty violation.

And that's essentially what the district court found and what the Ninth Circuit upheld.

So what we're saying now is at the -- at least, I'll say at least, at least there should be a remand 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 state's "barrier culverts" allow many fish to pass. And the district court just adopted our list, which we made for good policy reasons, but that -- but it doesn't mean that a partial barrier is a treaty violation just because, you know, 10 percent of fish can't get through it. So if there's -- if the Court, you know, has concerns about the -- the details of -- of the facts and such, keep in mind the district court found liability, of -- the state had violated the treaties, on summary judgment. I mean, the -- the district court held us liable on summary judgment.

So saying the factual issues essentially don't matter, back in 2007, the whole trial was just about the remedy. So -- so, I mean, you know, if -- if the Court disagrees with the rule we're saying here and it wants to adopt some version of theirs, the appropriate course would be to remand with direction to the district court. And if I may reserve the remainder of my time.

John G. Roberts, Jr.: Thank you, counsel. Mr. Kedem.

Allon Kedem: Mr. Chief Justice, and may it 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 salmon. I'd 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.

Neil Gorsuch: Well, you may not have sought it, but isn't that what the Ninth Circuit panel did?

Allon Kedem: It's not.

And let me run you through what we understand to be the Ninth Circuit's ruling.

Neil Gorsuch: Please.

Allon Kedem: If you look at the beginning of the discussion section, page 86a of the Petition Appendix, you'll see that the Ninth Circuit posed the relevant question as follows: Whether the state was correct "that it has no treaty-based duty to refrain from building and maintaining barrier 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's case law. Then six pages later, on 92, the court says: "Even if the treaties did not contain such protection explicitly, the court would infer 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 argued for.

The state takes about a half dozen quotations out of context from more than 1,000 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 62 of the Joint Appendix, you'll see that the very first thing that we asked for was a declaration -- this is the wrong one -- the very first thing that we asked for is a declaration that the state had an obligation under the treaties "to refrain from degrading the fishery resource." That is the basis of the district court's ruling on page 27 --

John G. Roberts, Jr.: Well, there's --

Elena Kagan: When you say --

John G. Roberts, Jr.: -- 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?

Allon Kedem: No.

That is our evidence in support of what we took to be the central position that we've been arguing this whole time.

And our point --

John G. Roberts, Jr.: Well, it's pretty prominently featured, and it's -- the -- 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 win.

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 that opportunity.

Allon Kedem: 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 tribe's fisheries against actions to harm them.

That is a --

Ruth Bader Ginsburg: And on that basic point, can you explain -- the treaty language gives -- gives the tribes the right to take fish in common with all citizens.

Allon Kedem: That's correct.

Ruth Bader Ginsburg: 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 against Indians, but you read it as much more than a non-discrimination provision, right?

Allon Kedem: 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 concede -- concede includes substantive protection against harm that substantially degrades the -- 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, where Governor Stevens referred to the tribes as "his children" and said "I want for you the same things that I would want for my own children."

Samuel A. Alito, Jr.: Do the dams that the -- do the dams that the federal government has built on the lower Snake River and the lower Columbia River violate the treaty?

Allon Kedem: 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. It's 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.

Samuel A. Alito, Jr.: There are articles claiming that they have caused more damage to salmon than anything else.

Allon Kedem: There -- there are some dams and we don't --

Samuel A. Alito, Jr.: Did you say what's good for the State of Washington is not good for the federal government?

Allon Kedem: That's not correct.

In many instances, the United States has repeatedly provided compensation.

They have paid monetary compensation.

They have put in fish ladders.

They have put in hatcheries. And in some cases, the Army Corps of Engineers actually uses barges to transport young salmon down the 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 have been caused by some of these federal dams.

Elena Kagan: Mr. Kedem, in your earlier --

Ruth Bader Ginsburg: What about the state's argument that -- that the state was simply doing what the United States said was okay? It built these culverts in -- in -- consistent with federal standards and, in some cases, with federal permits, right?

Allon Kedem: 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 headwater 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's no reason, even assuming that the state could find that the government was estopped as a result of this, there's no basis for claiming that the state was required by federal law to build the culverts as they did.

John G. Roberts, Jr.: Could we --

Allon Kedem: And, in fact --

John G. Roberts, Jr.: Go ahead.

Allon Kedem: 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 beginning.

Sonia Sotomayor: Could you go back to --

John G. Roberts, Jr.: Did I understand you to -- go ahead.

Sonia Sotomayor: I'm sorry.

Can you go back to the Chief Justice's original question? Your adversary is saying that the district court did not apply the definition of substantial, appreciable, material degradation, so we should send it back for it to make that first determination, which of these culverts substantially degrade, materially degrade, you've got to tell me what the right word is, okay?

Allon Kedem: Sure.

Sonia Sotomayor: And, second, that they did not weigh whatever and however we define substantial public interest.

And -- and I'm still troubled by --

Allon Kedem: Right.

Sonia Sotomayor: -- their refusal to give me a definition of that that would not give them free rein to design things that will degrade materially a run, only because they want to help some other landowner.

Allon Kedem: Right.

So starting first with substantial degradation, I pointed you to page 270 of the Petition Appendix where the district court talked about "significantly degrades." The district court made extensive factual findings at 157 to 162 of the Petition Appendix that there was substantial degradation caused by the state's barrier culverts to the tribe's fisheries.

And those -- those findings have not been challenged as clearly erroneous here.

Elena Kagan: Well, when you use that term, do you have a number in your head?

Allon Kedem: 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 use a number -- population number approach.

It instead used a habitat-focused approach.

And that made 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 166 to 168 of the Petition Appendix -- from remediating the habitat.

John G. Roberts, Jr.: I just want to get back to -- it was a while ago, but I -- I understood you to say that Clean Water Act permits do not take account of local conditions?

Allon Kedem: 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 a thumbs down to particular culverts.

John G. Roberts, Jr.: To take account of these things.

What are -- what are "these things"?

Allon Kedem: 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. Talking about --

Elena Kagan: Mr. Kedem, when you read from the government's prayer from relief, as I heard it, it didn't have anything to do with obstructions or dams --

Allon Kedem: That's --

Elena Kagan: -- or culverts particularly.

Allon Kedem: That's elsewhere in the sentence.

Elena Kagan: So you are arguing only with respect to obstructions today, is that correct?

Allon Kedem: 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 at here.

And quintessentially, we're talking about obstructions.

Elena Kagan: And what is your view of the state's right under the treaty to take account of other public interests?

Allon Kedem: So we would describe it in the way that this Court did in the Puyallup trio, which is that the state can enact non-discriminatory measures that are aimed at protecting the resource. So, in the example that my friend gave about poisoning of shellfish or other fish, that would be an action that the state could take to reasonably protect the resource.

Neil Gorsuch: Where does that --

Allon Kedem: That doesn't mean, however --

Neil Gorsuch: Where does that come from, though? Because you pointed us to the common law of nuisance.

Allon Kedem: Yeah.

Neil Gorsuch: And there it appears to be, from my first read, a defense that there's another public good unrelated to the resource that might outweigh the -- the problems of the nuisance and -- and diminish it. So where --

Allon Kedem: Not as a general --

Neil Gorsuch: -- where do you -- where do you get your rule from?

Allon Kedem: So the common law does not allow that as a defense as a general matter.

Neil Gorsuch: Okay.

Allon Kedem: They cite the Woolrych Treatise.

Neil Gorsuch: Yes.

Allon Kedem: If you look at the very next sentence in that treatise --

Neil Gorsuch: Yes.

Allon Kedem: -- 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, it would apply as well to fish -- if you can do so, then it is a nuisance to fail to do so. And that is --

Samuel A. Alito, Jr.: Are these cases involving actions taken by private parties or by governmental authorities?

Allon Kedem: Pardon?

Samuel A. Alito, Jr.: Are these nuisance cases cases involving actions taken by private parties or by the government?

Allon Kedem: By and large, they're actions taken by private parties, but what the --

Samuel A. Alito, Jr.: Do 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?

Allon Kedem: I think what you would need under the common law is a legislative enactment 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 --

John G. Roberts, Jr.: Any of these issues discussed in the court of appeals?

Allon Kedem: Pardon?

John G. Roberts, Jr.: Any of these issues discussed in the court of appeals?

Allon Kedem: Not with respect to the common law.

But, again, we're not arguing that the Stevens Treaty incorporates the common law in all of its particulars.

But it does go to the central question of whether there is substantive protection for the tribes' fisheries. We're not also resting solely on the common law.

We're 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 ensure fish passage.

We're also relying on this -- this Court's own cases, which have recognized that protection of the resource is the central concern of these treaties. If I could move to this 1 percent of historic harvests 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 200,000 fish figure that, first of all, the district court did not credit and, second of all, comes from a 1997 state agency report that was based on 250 linear miles of habitat being opened up.

But, here, we're talking about approximately four of -- four times that much, 1,000 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 challenged? And, here, absent the state's barrier culvert, there would be a substantial increase in the fish population.

Sonia Sotomayor: What do we look at to -- to see that the district court looked at that figure, the substantial increase?

Allon Kedem: So I think, for the benefits that you would get, you would look to pages 166 to 168 of the Petition Appendix.

If you want to know about the harms, that would be at 157 to 162. Finally, my friend brought up the idea of partial obstructions.

That is a forfeited, waived, and meritless argument.

It's forfeited because it was raised for the first time in the reply brief before this Court.

It's waived 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 barrier culvert.

And it's meritless because there is no such thing as a 10 percent barrier.

So --

John G. Roberts, Jr.: So his argument was waived because he didn't make it until it got to this Court?

Allon Kedem: Pardon?

John G. Roberts, Jr.: The argument you're talking about was waived by your friend on the other side because it wasn't raised until it got to this -- until the case got to this Court?

Allon Kedem: 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 court itself.

John G. Roberts, Jr.: Thank you, counsel.

Samuel A. Alito, Jr.: I mean, I --

Ruth Bader Ginsburg: Did the United States pick up any of this tab? I mean, the principal state's objection is the cost to the state.

And the United States has some complicity in what went on.

Allon Kedem: The United States pays tens of millions of dollars directly to the state, in addition to all of the other efforts that it has -- it has undertaken to mitigate harms and to compensate the tribes.

John G. Roberts, Jr.: Thank you, counsel. Mr. Jay.

William M. Jay: Mr. Chief Justice, and may it 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 these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish and that substantially degrades the fish population. And the idea that the state or a locality or even the United States can simply disregard that based on an agency's or an individual local government's balancing of its own perceived public interest against the promise made by the president, ratified by the Senate, is simply not consistent with the promises in the treaty or the background of the treaty.

Samuel A. Alito, Jr.: I hate to keep asking the same question, but is "substantial" -- does "substantial degradation" mean a number or "significant degradation" mean a number? And, if so, what is the number?

William M. Jay: I don't think it means a hard and fast number.

I think it is something that you would look at in context, in context of the particular species, in context of the -- 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 -- and I would look in particular at 162a 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.

Samuel A. Alito, Jr.: I mean, the -- the -- the -- what -- what happens here -- happened here, may or may not meet any definition of "significant" or "substantial." That's not the -- my question.

But I -- 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 to this. So you say it varies from fish species to fish species?

William M. Jay: Well, I think that it -- it takes account of what kind of question you were asking.

I mean, Justice Gorsuch's question mentioned the idea that -- that 5 percent can be material in the context of securities fraud. We are not asking the Court to adopt, you know, the idea that 5 percent is material in all contexts, but we are -- it would be a context -- it would be sensitive to the context of a fishery.

It would be -- it would have to be, as my friend Mr. Kedem said, it would have to be something durable; in other words, not something that is simply washed out in the next year's returning fish population.

And it would -- and it would have to be something that materially affects the fish population --

Elena Kagan: So when you say --

William M. Jay: -- year after year.

Elena Kagan: -- "materially affects," is that just a kind of it can't be de minimis, but if it's not de minimis, then, yes, there's an obligation?

William M. Jay: It certainly can't be de minimis.

I mean, in our -- the parties have not tried to draw the line between de minimis and substantial in this case, I think precisely because the state was litigating the case all along, not on the ground that its culverts were 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 in any subsequent way --

Stephen G. Breyer: I don't know --

William M. Jay: -- by the treaty.

Stephen G. Breyer: -- if we can decide a global standard for all of the Indian problems, but the question presented here -- there are three questions: One, was the scope of the remedy too much; the second question is whether the government has to contribute in light of its equitable situation. But the first question was whether the treaty right of taking fish in common with all citizens guaranteed that the number of fish would always be sufficient to provide a moderate living to the tribes.

That's the question presented. Now you and the others have argued, and I did -- it is true that the judge in the lower court specifically denied that you -- they were imposing that standard.

They 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?

William M. Jay: We recommend that you look at what the injunction says and affirm it, because the injunction says nothing about a moderate living.

The liability determination on which the injunction rests says, at page 263, that the court specifically "need not address what is a moderate living," because -- and, again, now here I would turn to page 271 -- the district court bases its liability ruling on what it called a narrow duty -- I'm sorry, "a narrow directive to refrain from impeding fish runs in one specific manner." That is not a moderate living holding. 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 -- you don't agree with the state's characterization where if it --

John G. Roberts, Jr.: But do you -- do you agree with that, that it guarantees a moderate living, regardless of what you think the court said in the injunction? Is that the standard that you want us to adopt?

William M. Jay: It's not.

We -- we have characterized the idea of a moderate living as a defense that the state could have raised but did not.

What we ask is that the -- and what we obtained from the district court is an injunction prohibiting the state from taking affirmative action to obstruct and thereby degrade the fishery.

John G. Roberts, Jr.: Well, but you just told me you want us to affirm an injunction that specifies a moderate living.

William M. Jay: No.

No, Your Honor.

John G. Roberts, Jr.: No?

William M. Jay: There's not a word about moderate living in the injunction.

Not a word.

John G. Roberts, Jr.: Well, where did the words come from?

William M. Jay: Historically or in this case?

John G. Roberts, Jr.: In this case.

William M. Jay: In this case, the -- as Mr. Kedem walked you through, the Ninth Circuit has two hold -- two pieces of its analysis starting at 1 -- at 158 and it -- and it -- that's not right -- starting at 58 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 supposed moderate living holding, but -- and we think that the analogy to the Winters doctrine actually helps to refute that. The Winters doctrine is a doctrine whereby, when Congress creates an Indian reservation, it doesn't expressly make provision for water.

If water is necessary to -- to fulfill the purpose of the reservation, it's inferred.

But if there's --

John G. Roberts, Jr.: So if we were to write an opinion in this case, you would have no objection if it said that there is no moderate living standard at issue here?

William M. Jay: We would have no objection to that at all.

Elena Kagan: And just so I understand it, you're saying that that was not at issue.

You never raised it and the district court never considered it?

William M. Jay: The district court says, at 163, that it's not considering it.

The state says, at Footnote 75 of its summary judgment brief, that it is not raising the moderate living defense.

That -- that's absolutely correct. And -- and for that reason, we -- what we think the Court should focus on is the -- the actual basis for the injunction, the liability ruling and then the injunction itself and whether the injunction is an abuse of discretion.

John G. Roberts, Jr.: And how would you phrase that, if not moderate living? What would be the determine -- what would be the standard that you think should be applied in interpreting the injunction?

William M. Jay: In interpreting the injunction? Well, 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 anadromous fish from getting to the usual and accustomed 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 that --

Samuel A. Alito, Jr.: Do your clients agree with the United States that the dams that were built by the United States are in compliance with the treaty?

William M. Jay: So let me -- let me give just a conceptual answer.

The -- not all dams block fish passage.

I mean, as my friend Mr. Kedem said and as is reflected in Section 18 of the Federal Power Act and its predecessor going back to 1906, various executive agencies have had the power to require fishways, you know, devices for ensuring fish passage around dams. So simply saying there were dams is not in any way to say there was an obstruction to fish passage.

Samuel A. Alito, Jr.: Yeah, 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.

William M. Jay: Well, what I can say is that when the federal government has built dams without ensuring fish passage, that the federal government quite appropriately has paid compensation to the Indian tribes in exchange for the destruction of its usual and accustomed fishing grounds and the inability to take fish there. So, certainly, a dam or another obstruction that blocks a usual and accustomed fishing ground can be a violation, but there's nothing in the record in this case, because it has not been litigated, about particular dams that don't meet that standard. My friend from the state talked about the idea that the state's -- some of the state's barriers are partial barriers, and there are a number of things I'd like to say about that. First is the idea that the common law did not prohibit partial barriers to passage. That is simply incorrect.

I think that this is discussed in detail at pages 17 to 20 of the Law Professors' amicus brief. On page 20, it says it is at this point clear -- this is in the -- in the 1800s -- 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 -- I would be happy to go into great detail about what the tests 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, 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 -- up to 10 percent of the habitat, which we think could add up to more than 200 yards --

Stephen G. Breyer: But there's still 600 -- there are about 600 and something left. Suppose they discover --

William M. Jay: Five-hundred something.

Stephen G. Breyer: Because that's a lot of them, when they go out there, that there are like five culverts somewhere which would be unbelievably expensive to change, and, moreover, it would really save only 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?

William M. Jay: That's exactly what, at page 125, of the Petition Appendix you will see that the court of appeals underscored, that the district court retains equitable discretion under this Court's cases, applying Rule 60, to modify the injunction if changed circumstances warrant it. And the -- the court of appeals said that it's confident that the district court, which has supervised this case, these proceedings, and this injunction for a long, long time will exercise its discretion appropriately.

Elena Kagan: Do -- do you think, Mr. Jay, that this -- that these treaty obligations differ at all from the reigning common law principles? And, if so, how?

William M. Jay: I agree with what Mr. Kedem said, that the common law is a guide to what the -- to what the treaties' protected right of taking fish means.

I think that the reason that it is a guide and not -- not a codification rests in the fact that it is a treaty between the United States and the Indian tribes. The Indian 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.

That's why the tribes themselves had adopted the practice of removing obstructions to permit the survival.

Elena Kagan: But what I'm really --

William M. Jay: My second point --

Elena Kagan: -- asking is when you look at the common law and you look at this treaty, do you see any difference between the two --

William M. Jay: The -- the --

Elena Kagan: -- and where would that difference be?

William M. Jay: The principal difference, I think, is on this point that Mr. Purcell brought up, the idea that there could be some public interest balancing.

Now we don't -- we agree with Mr. Kedem that that's not what the common law says writ 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 locale -- 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 effected by these treaties. The problem --

Sonia Sotomayor: Mr. Jay, what do I look at? I know the district court made certain findings about the costs of remediation.

The state has always said it's $2.13 billion.

I know the district court said that wasn't true, that, on average, the remediation of 12 or 15 culverts to date have cost, on average, $600,000.

William M. Jay: Right.

Sonia Sotomayor: What can I look at to tell me what the cost is projected to be? I -- I just need a realistic number, and I wasn't sure I got it from anybody.

William M. Jay: Yeah.

I think, Your Honor, you've looked at the right parts of the opinion.

I would also point you to 119a where the court of appeals explains why the state's total estimate is "demonstrably incorrect."

Sonia Sotomayor: Six hundred million dollars is still a lot of money.

William M. Jay: I don't think it would be $600 million, I mean, but --

Sonia Sotomayor: There are 600 -- I'm on average.

William M. Jay: Right, it's --

Sonia Sotomayor: Six hundred culverts, you're right, he -- he said it was like $650,000 per culvert, so you're right, maybe half that.

It's still a lot of money.

William M. Jay: It -- it is a lot of money. Of course, in the context of the state's transportation budget, in -- at that figure, we think it's about a half a percent of the state's transportation budget.

But I think --

Sonia Sotomayor: And I know there's some federal money coming.

William M. Jay: There is federal money coming in.

There are -- there are other sources of funding as well that are remediating both state and local and private culverts, but I think that, when looking at the cost, I think what you have to see is that much of the cost comes not from like the designing of the culvert or the -- what kind of culvert you put in but the choice to remediate the culvert. Now -- and it's very important to notice that Washington State has had a law requiring fish passage.

And the attorney general of Washington opined in 1950 -- 1950 -- that culverts installed by the State Highway Department under state roads had to meet those requirements for fish passage. So, if the state decided not to do that and to install non-compliant culverts, culverts that blocked fish passage, and it's going to cost, you know, a fairly substantial sum to remediate them, the state bears a -- a fair amount of that responsibility itself. Now, ultimately, the district court in its discretion looked at those costs, looked at the state's argument about whether it would be worthwhile, balanced the equities, and concluded that the balance of the harms tipped substantially in the tribes' favor and in the 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's very consistent with the public interest to resolve this problem on the tailored scale -- tailored timetable that the district court set out. Thank you, Mr. Chief Justice.

John G. Roberts, Jr.: Thank you, counsel. Mr. Purcell, you have five minutes remaining.

Noah Purcell: Thank you, Mr. Chief Justice. I'd like to make three points.

First, counsel for the United States pointed you to paragraph 4.1 at Joint Appendix 62a.

I'd urge you to turn to it and look at it. He -- he stopped reading part way through.

It says, "has a duty not to build or maintain culverts in a way that deprives the tribes of a moderate living from fishing." Moderate living came from their -- 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 250a.

He described their claim as seeking a moderate living from fishing. The phrase "moderate living" appears dozens of times in the briefs to the Ninth Circuit.

The phrase "substantial degradation" doesn't appear a single time in any brief to the Ninth Circuit.

That was not the argument. So I raise that point not to emphasize that -- that they should be barred from raising that argument here but just to emphasize that if the Court's going to adopt some version of that test, really the appropriate --

Stephen G. Breyer: Some -- the sentence says, "in the context of state culverts that appreciably degrade fish passage and interfere with the tribe's ability to obtain a moderate" -- so they have to do both: One, appreciably inter -- degrade fish passage; and two, also interfere with the moderate standing. Isn't that what it says?

Noah Purcell: That's what they claimed, Your Honor.

Stephen G. Breyer: Well, that's what it seemed to me to say.

Noah Purcell: The -- the district court essentially said the moderate 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 -- 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. Jay said, Petition Appendix 263a, the district court said, "the tribes find that harvests have been diminished, together with the logical inference that a significant portion of this diminishment is due to blocked culverts, is sufficient to support a finding of a treaty violation." So --

Sonia Sotomayor: Counsel, I -- I -- you know, I -- I have read the language.

I don't understand exactly why the district court did it.

I think the circuit court tried to clarify it. But, as I understand things, the Indians are entitled to 50 percent, but we have said it doesn't have to be more than a moderate living.

So it could be less than 50 percent of whatever the catch is. Am I correct on that?

Noah Purcell: In Fishing Vessel, the Court said the tribe -- each side is entitled to half the available fish.

Sonia Sotomayor: Right.

And unless?

Noah Purcell: Unless less than that is sufficient to provide a moderate living.

Sonia Sotomayor: Exactly.

As I understand what the government said to me earlier, you stipulated that a moderate living wasn't at issue.

So you weren't claiming, I don't think, as a defense that the existing catch was more than sufficient or exceeded a moderate living by so much that we didn't have to fix the culverts because of that reason.

Noah Purcell: We said we would not dispute that the tribes were not currently earning a moderate living from fishing.

And that's why --

Sonia Sotomayor: So --

Noah Purcell: -- the district court said I don't need to define this term.

Sonia Sotomayor: So it doesn't really matter.

Once there's significant degradation, that means they're not getting 50 percent of what they need.

Noah Purcell: No, Your Honor.

This Court in Fishing Vessel said 50 percent is the maximum, even if it's less than the tribe's moderate living needs.

That's what the Court said in Fishing Vessel.

Sonia Sotomayor: Yes, but -- but what I'm saying to you is, if you stipulated that they're not making a moderate living, they're still entitled to 50 percent of the undegradated catch.

Noah Purcell: That's not what the Court held in Fishing Vessel at all, Your Honor.

The Court held 50 percent of the currently available catch.

If that had been the rule, they would have been entitled to every single fish -- the -- the -- the undegradated catch, Your Honor, would be tens of millions of salmon.

And it's undisputed that -- that -- that the -- the runs have declined vastly long before the state built any culverts.

That's -- that's not what the Court said.

Sonia Sotomayor: Then my words are -- are wrong.

They caught X amount.

If the proof is that Y amount would have happened absent the obstruction, they're entitled to 50 percent of Y amount.

I don't care what caused the decimation.

Noah Purcell: Again, that's not the Court -- the approach the Court took in Fishing Vessel.

And if the Court's going to remand with some sort of direction that the district -- I would urge the Court that if you're going to say some version of that, the appropriate course is to remand to the district court because the district court just did not consider these arguments.

The district court -- it's -- I mean, we didn't waive the idea that these aren't all obstructions.

That wasn't an issue. The definition -- 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. We did in our post-trial brief, again, at Joint Appendix 28, 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 to the district court and -- and he ignored them and entered the exact injunction that they proposed. And -- and so that's -- that's the concern.

It flips the burden of proof on its head to say, okay, we're going to assume that all state barrier 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 see my time has expired.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.