[00:00:00] Speaker 03:
Good morning, your honor.

[00:00:01] Speaker 03:
May it please the court and Sven Brandt Erickson for Electron Hydro and Mr. Tom Fisher and Mr. Fisher is here in the courtroom with me today.

[00:00:10] Speaker 03:
There are three issues in this appeal.

[00:00:13] Speaker 03:
The district court's holding that simply impeding fish passage is take under the Endangered Species Act is wrong as a matter of law.

[00:00:21] Speaker 03:
The district court also wrongly picked between competing evidence at the summary judgment stage and having found liability

[00:00:29] Speaker 03:
The district court abused its discretion in granting the expansive relief sought by the tribe.

[00:00:36] Speaker 03:
I'd like to start with a remedy because the panel faces an immediate decision whether to stay the district court's injunction.

[00:00:45] Speaker 03:
The motion panel deferred Electron's motion to stay the district court's injunction order to this panel and expedited briefing so that we could have argument today.

[00:00:56] Speaker 03:
Absent action by this panel, construction could start as early as next week.

[00:01:01] Speaker 03:
Where we stand right now, we have all of the permits needed to do the work, except for one.

[00:01:07] Speaker 03:
We have one agency that still has not signed off on the project.

[00:01:12] Speaker 03:
Once that's done, all approvals will be in place.

[00:01:15] Speaker 03:
The company is mobilized and prepared to proceed.

[00:01:18] Speaker 03:
So that's where we stand today.

[00:01:19] Speaker 02:
And what does that actually look like?

[00:01:21] Speaker 02:
What will you be physically doing if the district court's order holds?

[00:01:26] Speaker 03:
uh... so the process in essence what what happens is

[00:01:31] Speaker 03:
Constructing to cofferdams is the first step, a cofferdam upstream and downstream to block off where the spillway is.

[00:01:38] Speaker 03:
And then coming in from upstream, there's a little access road coming down in, digging the sediment away from the upstream side of the spillway down to the rock, cutting off the steel, moving the rock, doing the work below the spillway, putting in basically an apron of rock below the spillway.

[00:01:59] Speaker 03:
and constructing the rock on the side on the left bank to stabilize that bank.

[00:02:06] Speaker 03:
And when that work is done, then removing the cofferdams.

[00:02:10] Speaker 01:
Let me ask you if we were to agree with you with respect to factual issues, and it went back to the district court, what is the timing

[00:02:22] Speaker 01:
implication of that because I know up to now you haven't had the permits to even go forward.

[00:02:27] Speaker 01:
Do they have an expiration date?

[00:02:29] Speaker 01:
What is the timeline for the construction?

[00:02:33] Speaker 03:
The timeline for this construction, there's an in-water work season, and the in-water work season is from July 15 to September 15.

[00:02:41] Speaker 03:
So basically, we're right at the verge of the construction season.

[00:02:45] Speaker 03:
The two alternative remedies that we identified, both could be that we presented to the district court, both could be executed very quickly.

[00:02:53] Speaker 03:
One of them is simply removing gravel above on the right-hand side so that water flow returns back to the right-hand side of the structure.

[00:03:03] Speaker 03:
as was authorized by all of the agencies in 2021.

[00:03:07] Speaker 03:
The other is simply to construct a cofferdam.

[00:03:10] Speaker 02:
Can you just pause you there?

[00:03:11] Speaker 02:
Do you need additional approvals for that now or do you have that, could you do that work now if you were permitted?

[00:03:16] Speaker 03:
We need approvals for any work that we would do.

[00:03:19] Speaker 03:
Okay.

[00:03:19] Speaker 03:
And the other would be to construct a cofferdam and only construct the cofferdam to block off flow to the diversion.

[00:03:27] Speaker 01:
So you haven't quite answered my question and that is, I understand the water

[00:03:33] Speaker 01:
construction season but if you were to go back to the district court because of a factual issue yes then you have to have trial yes and so then are we into next season yes and would you need the second part of my question then was would you need new permits and would you have to start over on the permitting process

[00:03:55] Speaker 03:
It depends on what is being proposed.

[00:03:57] Speaker 03:
If we were to do exactly the same thing, these permits would still be valid.

[00:04:02] Speaker 03:
They should be.

[00:04:03] Speaker 01:
But if you were to do your proposed alternative, you would need different permits.

[00:04:09] Speaker 03:
Yes, slightly different, yeah, which is going back through a process with the agencies.

[00:04:15] Speaker 03:
So the issue is here that, and I would also note that we're talking about a temporary structure and that in fact at the same time the company is pursuing permits for the permanent.

[00:04:29] Speaker 03:
solution and has put years of work into that process and basically is, you know, has applications pending with the agencies to proceed with the permanent solution, which is to put a permanent spillway in this diversion structure.

[00:04:45] Speaker 04:
Now, has the Court... Your position is that we should send this back to district court to resolve these factual issues?

[00:04:55] Speaker 03:
Applying the correct legal standard and resolve the factual issues.

[00:04:59] Speaker 04:
Is this something that folks should feel comfortable about having a jury decide?

[00:05:08] Speaker 03:
It is, well, you know, I don't know why a jury couldn't decide this issue.

[00:05:14] Speaker 03:
I mean, the issues are, you know, it's basically expert decision, you know, expert opinions as to what the effects of these structures are.

[00:05:22] Speaker 03:
I'd also note right now the case is scheduled to be heard by the judge, although we may request a jury.

[00:05:29] Speaker 03:
But I'd like to point out that this court has recognized injunctive relief must be tailored to remedy the specific harm alleged.

[00:05:39] Speaker 03:
Here, the district court found that water flowing over the temporary spillway distracts fish from the functional fish ladder, which has been in place for 20 years.

[00:05:49] Speaker 03:
Instead of directing Electron to take steps to address that flow of water, to either limit or remove that distraction, the court ordered Electron to create an entirely new pathway for PIP fish passage through the spillway.

[00:06:09] Speaker 02:
Can you kind of maybe back you up a little bit to the disputes of fact?

[00:06:12] Speaker 02:
Can you walk through what you think are the genuine disputes of fact that require a trial as between the opinions of the two experts?

[00:06:19] Speaker 03:
Yes, yeah.

[00:06:20] Speaker 03:
The issues are both direct and indirect harm to the fish.

[00:06:25] Speaker 03:
Whether or not there is, in fact, any direct harm to fish resulting from their encounters with this spillway, whether downstream migrants or upstream migrants are injured or killed directly.

[00:06:36] Speaker 04:
Whether the spillway impedes the safe passage of the fish.

[00:06:42] Speaker 03:
Yes.

[00:06:43] Speaker 04:
Your expert says no.

[00:06:44] Speaker 04:
Correct.

[00:06:45] Speaker 04:
Their expert says yes.

[00:06:46] Speaker 03:
Yes.

[00:06:47] Speaker 03:
And then secondarily, whether, even if the fish are not directly injured or killed by their encounter with a spillway, whether they are so distracted by water flow over the spillway that they don't find their way to the fish ladder.

[00:07:01] Speaker 04:
That was the sort of secondary thing your experts said, right?

[00:07:04] Speaker 03:
Yes.

[00:07:05] Speaker 04:
They could find their way.

[00:07:06] Speaker 03:
Yes.

[00:07:06] Speaker 03:
He said, based on what I have seen, they can find their way.

[00:07:10] Speaker 03:
And fish that try to go over the spillway would be washed down in front over to the left and would find their way.

[00:07:16] Speaker 03:
And in fact, they observe fish going through the fish ladder.

[00:07:19] Speaker 01:
But so Dr. Barrett says, OK, the fish can go to the fish ladder.

[00:07:25] Speaker 03:
Yes.

[00:07:26] Speaker 01:
In layman's terms.

[00:07:28] Speaker 01:
But the tribe shows that that fish ladder is not always accessible.

[00:07:33] Speaker 01:
That's not disputed, right?

[00:07:38] Speaker 03:
There are.

[00:07:39] Speaker 01:
Because of lack of water.

[00:07:41] Speaker 03:
All right.

[00:07:41] Speaker 03:
There are.

[00:07:43] Speaker 01:
Yes or no?

[00:07:43] Speaker 01:
Is that disputed?

[00:07:46] Speaker 03:
I'd say it, at current, I'd say not for any length of time.

[00:07:50] Speaker 03:
It does happen periodically, but not for any material length of time.

[00:07:55] Speaker 03:
I'd also say that fish ladders was designed by the tribe's own experts.

[00:08:00] Speaker 01:
Yeah.

[00:08:02] Speaker 03:
And there is a range.

[00:08:03] Speaker 03:
There's a range of flows that it was designed for.

[00:08:06] Speaker 03:
And when flows are within that range, then it's going to function.

[00:08:09] Speaker 03:
It does have to be maintained.

[00:08:11] Speaker 01:
But if there's a lack of water, then there's an issue.

[00:08:13] Speaker 01:
And so the question is that during those periods when the fish can't get over there and there's a water problem, is there a significant impairment at least during that time frame?

[00:08:30] Speaker 03:
First of all, recognize that this is still a temporary situation.

[00:08:35] Speaker 03:
and that those issues are best addressed through the long-term design and structure for this facility.

[00:08:41] Speaker 01:
Well, that might be, but we're not there.

[00:08:44] Speaker 01:
We're here.

[00:08:45] Speaker 01:
So here and now, what's the answer to my question?

[00:08:49] Speaker 03:
If there is a very low flow as a time period where the fish can't move up the river, the same thing would be true at other stages, other parts of the river.

[00:08:58] Speaker 03:
There are other places in the river where very low flows are going to make it very difficult for the fish to move up the river.

[00:09:05] Speaker 03:
That's, there's a highly, you know, it's a highly variable flow in this river and that happens.

[00:09:10] Speaker 03:
Fish move up the river with the rains, they move up with the flow and the flows are higher.

[00:09:15] Speaker 03:
I want to move to the legal standard applicable here.

[00:09:19] Speaker 01:
Before you do that, I think back to, I think it was Judge Hawkins' question about what are the key factual issues?

[00:09:27] Speaker 01:
Is it just, is it primarily the dispute between the experts?

[00:09:32] Speaker 03:
All of the testimony, basically, the evidence presented at summary judgment was expert declarations.

[00:09:40] Speaker 03:
So yes, it's basically a dispute between the experts.

[00:09:43] Speaker 03:
And the court chose between the experts and decided that it preferred the perspective of the tribes' experts.

[00:09:51] Speaker 04:
And right now it's a bench trial?

[00:09:53] Speaker 03:
Yes.

[00:09:54] Speaker 04:
You didn't request, make a demand for a jury trial earlier in the proceeding?

[00:10:00] Speaker 03:
That is correct.

[00:10:02] Speaker 03:
That is correct.

[00:10:02] Speaker 03:
Although I might revisit that based on the judge's rulings.

[00:10:05] Speaker 04:
Well, that would be interesting to see whether he allows you to do that.

[00:10:08] Speaker 03:
Whether that would be permitted at this stage.

[00:10:10] Speaker 03:
I understand that, Your Honor.

[00:10:12] Speaker 03:
I understand that.

[00:10:13] Speaker 03:
But that's kind of getting ahead of the game.

[00:10:17] Speaker 03:
uh... one of our primary concerns about this case the remedy that has been worked by the court obviously is very important to us uh... the uh... you know the fact that the judge has ordered us to open up a new channel through the spillway instead of making the fish ladder work better uh... has profound effects and that in essence we are going to be launched down that path within a few weeks

[00:10:46] Speaker 03:
But we're also very concerned about the legal standard that the court applied here.

[00:10:51] Speaker 03:
The terms impede or distract are both vague.

[00:10:57] Speaker 03:
They encompass a wide range of impacts.

[00:11:00] Speaker 03:
Saying that an impediment disrupts normal behavior does not tell us how much impact it actually had on the fish.

[00:11:09] Speaker 03:
It defined harm, National Marine Fisheries Service recognized that there had to be a causal link between the disruption and injury or death to listed species.

[00:11:20] Speaker 03:
This court in Bernal also recognized that habitat modification does not constitute harm unless it is actually connected to death or injury to wildlife.

[00:11:32] Speaker 03:
National Marine Fisheries Service and this court followed the Supreme Court's recognition in Sweet Home that every term of the definition of harm is subservient to the phrase and act which actually kills or injures wildlife.

[00:11:45] Speaker 03:
That piece of the legal standard is missing from the district court's analysis.

[00:11:52] Speaker 02:
If you look at the district court's decision, it was- How do you, we have cases that say,

[00:11:59] Speaker 02:
habitat modification, which significantly impairs the breeding and sheltering of a protected species, amounts to harm under the ESA.

[00:12:06] Speaker 02:
Do you disagree with that statement of law?

[00:12:10] Speaker 03:
You have to look at what the nature of the harm is that was identified as actually take.

[00:12:16] Speaker 03:
For example, in the marbled murrelet cases, you have cases where removing trees, a significant amount of trees of habitat from an area with known marbled murrelet population,

[00:12:29] Speaker 03:
was identified as take because it would have an impact on the ability of a known population to breed.

[00:12:36] Speaker 03:
In a spotted owl case you have, which we cited, Audubon case, you have an injunction was denied because while there was evidence of impact on habitat, there was no evidence that that would cause there to be insufficient habitat available for breeding.

[00:12:51] Speaker 02:
Right.

[00:12:51] Speaker 02:
So I mean, isn't, I guess, question hearing this, whether the dispute we're discussing is more factual than legal.

[00:12:58] Speaker 02:
Because I think we could all agree there would be ways you could build a brick wall over the river and nobody could get up it.

[00:13:04] Speaker 02:
And we would know that that is causing harm.

[00:13:08] Speaker 03:
But the court has to recognize what the bar is that it is applying.

[00:13:12] Speaker 03:
What's the standard that it is applying to the evidence that was presented?

[00:13:16] Speaker 03:
And the district court applied a low bar

[00:13:19] Speaker 03:
a low level of impediment.

[00:13:21] Speaker 03:
It did not require evidence that there was actually an impact on the ability of fish to spawn.

[00:13:27] Speaker 03:
If it had made a determination based upon that, then it could only get to that place by accepting, by going with the tribe on the disputed issues of fact.

[00:13:40] Speaker 03:
Because there was clear evidence that if there was an impediment, it was not preventing fish from getting up the river.

[00:13:51] Speaker 03:
So I also want to touch briefly on mootness.

[00:13:54] Speaker 03:
And I am going to try to reserve about four minutes for rebuttal.

[00:14:00] Speaker 03:
We've asked you to stay the district court's order.

[00:14:03] Speaker 03:
And this is an appeal from an injunction order.

[00:14:06] Speaker 03:
And so I expect an argument that if you don't grant a stay, that this is a moot appeal.

[00:14:17] Speaker 03:
Even in the absence of a stay, this appeal remains a live controversy.

[00:14:21] Speaker 03:
The question is not whether the precise relief sought at the time of the appeal filed is still available.

[00:14:26] Speaker 03:
The question is whether there can still be any effective relief.

[00:14:30] Speaker 03:
And the tribe filed a contempt motion against Electron shortly within a month after the injunction was issued, asking the district court to find that Electron is not complying with the injunction order.

[00:14:45] Speaker 03:
That motion has been continued.

[00:14:47] Speaker 03:
It's actually set for hearing next Tuesday, although talking to the council, it may be put off to see, it may actually be dismissed and we'll see if a new motion is filed.

[00:14:58] Speaker 03:
But until the spillway project is completed, Electron is at risk of renewed claims of deficiencies from the tribe.

[00:15:08] Speaker 03:
Even after the spillway project is completed, the tribe has reserved the right to claim the diversion is still taking ESA-listed fish even after the channel through the spillway is open.

[00:15:18] Speaker 03:
Having the wrong ESA standard as a law of the case puts Electron at risk of further injunction orders.

[00:15:26] Speaker 03:
So that is why.

[00:15:29] Speaker 03:
Regardless of whether or not the court issues a stay in the next week, this case will not be mooted by that decision.

[00:15:37] Speaker 03:
It remains a live controversy.

[00:15:39] Speaker 01:
I want to cut much into your rebuttal time, but I want to precisely understand where you think the district court went wrong, because the district court does cite the right standard.

[00:15:52] Speaker 01:
So where did the district court go wrong, in your view, because you're saying,

[00:15:57] Speaker 01:
the district court did not apply the correct standard.

[00:16:01] Speaker 03:
Yes, if you look at, I believe it's at ER 10, so at ER 8 is the page of the decision in which the court recites the arguments as to impact made by the tribe and actually cites to the tribe's brief.

[00:16:15] Speaker 03:
There's then some discussion, and then on ER 10, the court states its conclusion that as a matter of law, that electron has caused take by impairing safe fish passage.

[00:16:30] Speaker 03:
And it is that which we say the judge, that's where he made the mistake.

[00:16:36] Speaker 01:
Despite having other places where he cites the correct standard?

[00:16:40] Speaker 03:
He references, well, for example, he references the National Marine Fisheries Service a portion of the Federal Register notice for when it defined harm.

[00:16:51] Speaker 03:
But as we've pointed out, he misses the relevant piece of that Federal Register notice where the service explained that the impediment to upstream migration, the impediment to fish passage, has to actually be linked to some

[00:17:09] Speaker 03:
Actual injury to the fish injury or death to fish which could be for example actually preventing them from spawning Thank you, thank you we'll now hear from miss Brimmer I

[00:17:32] Speaker 00:
Thank you, Your Honor.

[00:17:33] Speaker 00:
My name is Jeanette Broomer.

[00:17:34] Speaker 00:
I'm here on behalf of the Puyallup Tribe of Indians.

[00:17:38] Speaker 00:
And I'm going to start, I'll dispense with the introduction.

[00:17:42] Speaker 00:
I want to start right away with what Mr. Brand Erickson was talking about with respect to the remedy.

[00:17:48] Speaker 00:
Mr. Brant Erickson, in presenting his remedy argument to you, moves pretty quickly past the merits.

[00:17:55] Speaker 00:
And that's an important part of determining either whether a stay of the remedy is appropriate here or whether the remedy itself was an abuse of discretion by the district court.

[00:18:06] Speaker 00:
And in fact, the merits are critical because the defendants here cannot succeed on the merits of this case.

[00:18:16] Speaker 00:
The court applied the correct legal standard and did not impermissibly weigh evidence or judge credibility.

[00:18:23] Speaker 00:
But even more importantly, the district court was very careful in the remedy here.

[00:18:28] Speaker 00:
The district court

[00:18:31] Speaker 00:
clearly remedied the take that the court had found, and it has an obligation under the case law to do so.

[00:18:39] Speaker 00:
The court also narrowly tailored that.

[00:18:42] Speaker 00:
Mr. Brant Erickson presents to you the cofferdam alternative.

[00:18:46] Speaker 00:
That was their preferred alternative.

[00:18:48] Speaker 00:
Now, that was their preferred alternative because they wanted to protect their structures, and yet they now recognize that the stipulated order will protect their structures, that that is no longer a concern.

[00:19:00] Speaker 00:
Nonetheless, the remedy that Mr. Brant Erickson argues for was appropriately rejected by the district court.

[00:19:09] Speaker 00:
It involves building an even larger cofferdam than they built in 2021.

[00:19:15] Speaker 00:
It adds significant gravel, rock, sand, other material to the river itself.

[00:19:20] Speaker 00:
That will go in the middle of the river.

[00:19:22] Speaker 00:
in order to redirect flows.

[00:19:24] Speaker 00:
It will involve the use of heavy equipment.

[00:19:26] Speaker 00:
And the court properly recognized that that very thing failed in 2021 when they did it.

[00:19:33] Speaker 00:
It failed a year later and it directed flows back over the rock dam, creating the exact problem that we have now that leads to take.

[00:19:41] Speaker 00:
So I just wanted to be clear that in this instance,

[00:19:45] Speaker 00:
There is nothing wrong with the remedy and the court properly tailored it and was very, very careful in its consideration, having separate briefing, having a separate hearing on that.

[00:19:56] Speaker 00:
The court even went out to the site and viewed it before issuing the remedy.

[00:20:00] Speaker 02:
Can you help me on the disputed issue?

[00:20:04] Speaker 02:
The district court said there was no dispute, but we seem to have two experts who have different perspectives on this.

[00:20:09] Speaker 00:
Thank you, Your Honor, because I think you're right, that the merits of this case really is where the meat of this is and what needs to be decided here.

[00:20:17] Speaker 00:
And that's really about, I'm going to address first the summary judgment issue and whether or not this is proper for summary judgment, and then I will turn to the application of the ESA standard here.

[00:20:28] Speaker 00:
On summary judgment, first of all, I was surprised to hear Mr. Brant Erickson say that now he wants a jury.

[00:20:34] Speaker 00:
This decision was issued a scant two months before we were supposed to go to trial, and we had not heard anything about a jury.

[00:20:42] Speaker 04:
To him, he was simply correcting me about when I asked if this was an appropriate kind or package of issues to be resolved by a lay jury, and he reminded me that right now it's a bench trial.

[00:20:57] Speaker 04:
Yes, Your Honor, and that is correct.

[00:20:58] Speaker 04:
And anyone who has practiced in federal court for any length of time knows that if you don't make that demand early on, you're probably in trouble.

[00:21:06] Speaker 00:
Yeah, understood, Your Honor.

[00:21:07] Speaker 00:
So go ahead.

[00:21:08] Speaker 00:
Sure.

[00:21:11] Speaker 00:
The Puyallup tribe

[00:21:13] Speaker 00:
obviously carries the burden initially here in making the motion for summary judgment.

[00:21:17] Speaker 00:
But once the tribe carries that burden, it is up to Electron to demonstrate evidence that raises a genuine issue of material fact.

[00:21:27] Speaker 00:
And then the court applies the law to that evidence.

[00:21:30] Speaker 00:
Now here, Electron did not introduce evidence that raises a genuine issue of material fact.

[00:21:36] Speaker 00:
And importantly, the court did not weigh credibility in evidence.

[00:21:40] Speaker 00:
First, the Puyallup River is occupied by three listed species.

[00:21:45] Speaker 00:
There's no dispute about that.

[00:21:47] Speaker 00:
There's no dispute about historically those species occupied places above the dam.

[00:21:52] Speaker 00:
In fact, sometimes they still are found above the dam.

[00:21:55] Speaker 00:
No one is arguing that the dam blocks all fish all the time.

[00:21:59] Speaker 00:
The electron dam, the problem here is not the dam in the entirety.

[00:22:04] Speaker 00:
What we're arguing about here is a section of the dam that was installed by electron after the artificial turf blowout, the issue that led to Clean Water Act violations.

[00:22:15] Speaker 00:
So here, we're referring it to the rock dam.

[00:22:17] Speaker 00:
It is a sheet metal pile wall.

[00:22:19] Speaker 00:
It is this huge wall installed vertically in the river.

[00:22:23] Speaker 00:
with non-native boulders spread below that on a fairly steep slope.

[00:22:29] Speaker 00:
That is what is causing the false attraction flow, and that is the issue here, and that is what the judge has asked to be removed, not the entirety.

[00:22:39] Speaker 00:
That sheet pile wall and the flow coming over that is on the opposite side of the river from the fish ladder.

[00:22:47] Speaker 00:
And while indeed the tribes experts designed that fish ladder, they did so being forced to put it on the side of the river where they said it would not be best.

[00:22:58] Speaker 00:
And that ladder was designed before this rock dam was installed.

[00:23:01] Speaker 00:
So who designed the ladder is really immaterial here.

[00:23:04] Speaker 00:
So let's talk about what the court did in terms of the facts and what the court accepted.

[00:23:11] Speaker 00:
The court accepted all the evidence here as true.

[00:23:15] Speaker 00:
It did not judge and discard evidence.

[00:23:17] Speaker 00:
It did not weigh credibility.

[00:23:19] Speaker 00:
And the court was very clear about that.

[00:23:21] Speaker 00:
But the evidence as a whole, including all of the evidence offered by Electron, did not give rise to a genuine issue of material fact.

[00:23:30] Speaker 00:
that fish are being harmed in their migration, and they are being harmed in their ability to reach breeding habitat in this case.

[00:23:40] Speaker 00:
And that meets the definition that this court has set forth.

[00:23:43] Speaker 02:
I don't think Dr. Barrett agrees with that.

[00:23:46] Speaker 02:
And he has reasons for that, including inspections and other things that he did, other theories for that.

[00:23:54] Speaker 00:
Absolutely, Your Honor.

[00:23:55] Speaker 00:
I know that Dr. Barrett did not agree with that conclusion, the legal conclusion, but let's look at what Dr. Barrett did agree to.

[00:24:03] Speaker 00:
In sworn testimony, Dr. Barrett agreed that the rock dam is creating a false attraction flow away from the fish ladder.

[00:24:13] Speaker 00:
In deposition testimony, Dr. Barrett agreed with all of these statements made in the tribe's experts report of Russell Ladley.

[00:24:23] Speaker 00:
He is a fisheries biologist with 30 years of experience, both for the tribe and on this river.

[00:24:29] Speaker 00:
And Dr. Barrett said, I can't think of anything that I disagree with in Russ Ladley's expert report.

[00:24:35] Speaker 00:
That was in his sworn deposition.

[00:24:38] Speaker 01:
Didn't Dr. Barrett disagree as to whether, with respect to these false attraction flows, whether it would actually impact the migration?

[00:24:50] Speaker 00:
What Dr. Barrett said in his declaration on the summary judgment, not in his earlier deposition, is that fish may be able to get over the rock damn side sometimes at very high flows.

[00:25:06] Speaker 00:
That does not alleviate a take.

[00:25:09] Speaker 00:
The court was able to accept that testimony and say, all right, maybe fish make it over some of the time.

[00:25:16] Speaker 00:
That does not mean that fish aren't blocked by that.

[00:25:19] Speaker 00:
It does not mean that juveniles aren't harmed when they fall over the sheet pile into the boulders.

[00:25:24] Speaker 00:
That is a fact that Dr. Barrett never questioned.

[00:25:28] Speaker 00:
It doesn't alleviate the fact that the fish ladder is often inoperable at lower flows.

[00:25:35] Speaker 00:
Often that occurs in the month of October, which is prime Chinook spawning and migration season.

[00:25:43] Speaker 00:
So again, these are important details that Dr. Barrett did not contest.

[00:25:48] Speaker 00:
And the court accepted that maybe the rock dam was passable sometimes.

[00:25:56] Speaker 00:
Electron, I also want to make note that when Mr. Brant Erickson talks about the fact that when the fish letter is impassable, and it is impassable for weeks at a time, the evidence is undisputed on that, and often, as I said, during prime migration season when flows are lower,

[00:26:17] Speaker 00:
There is no evidence in the record that that mimics the rest of the river.

[00:26:21] Speaker 00:
Mr. Brand Erickson has said to you here today, well, that's not any different than what fish have to struggle through the rest of the time.

[00:26:28] Speaker 00:
There's no evidence of that.

[00:26:30] Speaker 00:
In fact, this is an artificial construction in the river.

[00:26:33] Speaker 00:
It does have an impact on a fish that is not like the natural river.

[00:26:37] Speaker 00:
And I just want to make note that there's nothing about that in the record.

[00:26:43] Speaker 00:
I also want to talk about the fact that I think Judge Bress pointed out that there is also some testimony from Dr. Barrett about observations he made.

[00:26:53] Speaker 00:
And I think that that is important to note that, again, the district court accepted that.

[00:26:58] Speaker 00:
Dr. Barrett testified that he went to the fish ladder for about an hour on one day in October of 2023, four or five months before the motions.

[00:27:09] Speaker 00:
And he observed seven fish in the ladder that day.

[00:27:13] Speaker 00:
The court absolutely accepted that testimony.

[00:27:16] Speaker 00:
The court also, however, had already accepted all of the testimony of the tribe, who again has the burden here, that there were 5,800 GoPro photographs of the fish ladder for the entire month of October 2023.

[00:27:32] Speaker 00:
And the fisheries biologists for the tribe reviewed each and every one of those 5,800 photographs.

[00:27:39] Speaker 00:
And not one of them showed fish in the latter during prime Chinook migration season.

[00:27:45] Speaker 00:
In fact, not one of the 200 photos during the day that Dr. Barrett was there showed fish.

[00:27:51] Speaker 00:
Now that isn't a dispute of fact.

[00:27:53] Speaker 00:
That's a group of facts that show that there's evidence that seven fish made it up the ladder in October of 2023.

[00:28:00] Speaker 00:
There is also evidence that for 5,800 photos taken at minutes long intervals, there were no fish.

[00:28:08] Speaker 00:
That is evidence that the court could accept that most fish are not making it through the ladder.

[00:28:15] Speaker 00:
And that is exactly what the tribes experts have testified to.

[00:28:18] Speaker 02:
Right, but isn't there a question still as to why that is?

[00:28:23] Speaker 00:
Your Honor, the tribe's experts carried their burden and said the reason why is because there are false attraction flows attracting fish away from the ladder.

[00:28:32] Speaker 00:
Salmonids are reo-tactical, and that's something that means that they follow the flow.

[00:28:36] Speaker 00:
They are genetically programmed to point their nose to where the primary flow is coming from and go in that direction.

[00:28:44] Speaker 00:
That's why the tribe didn't want to build the ladder on the side of the river.

[00:28:47] Speaker 00:
It did.

[00:28:47] Speaker 00:
The primary flow is on the side where the rock dam is.

[00:28:50] Speaker 00:
So when they built the rock dam, it started to cause the primary flow to come over the rock dam, and it causes a signal to the salmon that, hey, that's the way to go.

[00:29:00] Speaker 00:
Instead of taking a sharp left turn, if you look at the photographs that are in the record, you can see how this is set up.

[00:29:07] Speaker 00:
Sharp left turn in a lower flow situation, almost slack water at times, to try to get to the far side of the river to where the ladder is.

[00:29:16] Speaker 00:
The tribe's experts were very clear that that is false attraction flow that is, all experts agree, is harm to fish.

[00:29:25] Speaker 00:
They are going to be attracted to that side of the river, which is impassable.

[00:29:29] Speaker 00:
They can't jump up over the vertical sheet pile wall, except, as Dr. Barrett speculates, in very high flows.

[00:29:35] Speaker 00:
They get trapped in the boulders.

[00:29:38] Speaker 00:
There's expert testimony about that.

[00:29:41] Speaker 00:
They can exhaust themselves.

[00:29:42] Speaker 00:
They can be late getting to their breeding grounds.

[00:29:45] Speaker 00:
So even if they make it over, they may not make it to the tributaries that have the prime habitat, which is where they would have successful breeding.

[00:29:53] Speaker 00:
If they breed in less successful places, their eggs will be washed out, their eggs will be buried.

[00:29:58] Speaker 00:
They will be more prone to predation.

[00:30:00] Speaker 00:
The fish can injure themselves on the boulders.

[00:30:03] Speaker 00:
Again, they might still make it upstream, but they are now injured, and they are not going to be as successful at breeding.

[00:30:09] Speaker 00:
They may expire before they can get to the breeding place.

[00:30:13] Speaker 00:
And there's nothing in Dr. Barrett's testimony that addresses juveniles being harmed with respect to dropping over the dam, except the informal surveys that he tried to have his staff do in the spring of the year,

[00:30:27] Speaker 00:
and they said they found no dead juveniles.

[00:30:31] Speaker 00:
Court accepted that, but the court also accepted the testimony of multiple experts from the tribe that explained why you would not find dead juveniles, that that is not really a thing that is going to produce the evidence that a lectern wants to produce.

[00:30:47] Speaker 00:
Juveniles are extraordinarily small, so they're hard to find in the first instance.

[00:30:53] Speaker 00:
They may just float to the bottom and be trapped in the boulder dam.

[00:30:58] Speaker 00:
They may wash downstream, which Dr. Barrett acknowledged that.

[00:31:01] Speaker 00:
He said in certain conditions, those fish could very well have washed downstream.

[00:31:06] Speaker 01:
May I ask you a question?

[00:31:09] Speaker ?:
Sure.

[00:31:09] Speaker 01:
But it's the tribe that moved for partial summary judgment.

[00:31:12] Speaker 00:
Correct.

[00:31:13] Speaker 00:
That's correct.

[00:31:14] Speaker 01:
Did the tribe, independent of that, also move for an injunction?

[00:31:18] Speaker 00:
Yes.

[00:31:19] Speaker 01:
So do you see those as inextricably linked, or are they independent?

[00:31:27] Speaker 00:
I think that they are.

[00:31:29] Speaker 00:
Can I say both?

[00:31:32] Speaker 00:
What I would argue is that

[00:31:36] Speaker 00:
The tribe moving for summary judgment on the merits produces the finding and the ruling that there is an illegal take under the Endangered Species Act.

[00:31:44] Speaker 00:
At that point in time, the district court does have an obligation to remedy that take.

[00:31:50] Speaker 00:
So in that respect, they are inextricably linked.

[00:31:53] Speaker 00:
What the district court orders, though, to address that take is subject to some discretion.

[00:32:00] Speaker 00:
And so there is some independence with respect to what is in the injunctive relief.

[00:32:05] Speaker 00:
But I do believe that once that take is found, there is an obligation under the case law for the court to address that take.

[00:32:12] Speaker 01:
So in hearing that answer, I guess I interpret that to mean that there is not really a preliminary injunction request unhinged from a determination on the merits, as opposed to in a typical injunction, we'd be looking at the likelihood of success on the merits and then all of the others.

[00:32:35] Speaker 00:
And to be clear, your honor, let me tell the court how this then played out.

[00:32:39] Speaker 00:
This was partial summary judgment, so there would have been additional issues perhaps for trial at that time.

[00:32:46] Speaker 00:
So it was appropriate for the tribe to caption this as a preliminary injunction.

[00:32:53] Speaker 00:
The net result was that this actually became the ultimate relief in the case because

[00:32:57] Speaker 00:
The court disposed of some of the other issues that the tribe had raised as premature and not yet ripe, and the tribe did not contest that.

[00:33:07] Speaker 00:
And then I think there was perhaps one issue remaining that the tribe and the defendants decided would not be pursued.

[00:33:15] Speaker 01:
So if the tribe had lost at partial summary judgment,

[00:33:21] Speaker 01:
then it wouldn't have had a freestanding motion for preliminary injunction remaining, is that correct?

[00:33:27] Speaker 00:
That is correct.

[00:33:28] Speaker 00:
All right, thank you.

[00:33:28] Speaker 00:
That is correct.

[00:33:35] Speaker 00:
I'd like to turn, barring any additional questions with respect to the facts and the fact that there was really no genuine issue, as I said.

[00:33:44] Speaker 00:
The court didn't weigh credibility.

[00:33:46] Speaker 00:
The court took all the facts under advisement.

[00:33:48] Speaker 00:
The tribe carried its burden of showing harm through experts, just like in the Muralet series of cases.

[00:33:56] Speaker 00:
In fact, the one that was discussed, the Cascadia Wildlands case that was decided recently.

[00:34:02] Speaker 00:
Same thing Fisher in the river.

[00:34:04] Speaker 02:
There's expert testimony connecting harm to the fish from the electron dam There's expert testimony describing how that harm happens And dr. Barrett's position that you know there's not evidence of dead or injured fish I grant your point that that's not a strict requirement But I think the argument is we can at least draw something from that and someone could infer from that that maybe the situation is not as as bad as your clients say and

[00:34:31] Speaker 00:
Your Honor, someone could if the tribe had not already carried the burden in that regard.

[00:34:36] Speaker 00:
And what I am noting for the Court is that, first, Dr. Barrett admits that his surveys for dead and injured fish were only for juveniles.

[00:34:47] Speaker 00:
So there was no survey or any attempt for Dr. Barrett to look at whether there were dead and injured fish, there were adults.

[00:34:55] Speaker 02:
But I think he's also saying there's an absence of evidence on your client's part about that, too.

[00:35:00] Speaker 00:
But my clients carried the burden of showing why that would be an impossibility for the most part.

[00:35:06] Speaker 00:
That in fact in this instance when you have this kind of harm, the tribes fisheries biologists again collectively with over 40 years of experience between them on this river and as to fisheries biology in general.

[00:35:20] Speaker 00:
address that very fact and they gave multiple reasons why dead and injured fish in a situation like this are not going to be observable and are not going to be present and if you even see one dead or injured fish that that would be unusual.

[00:35:36] Speaker 00:
And they said it's because dead fish sink to the bottom.

[00:35:40] Speaker 00:
They're carried away.

[00:35:41] Speaker 00:
They are predated very quickly.

[00:35:43] Speaker 00:
Eagles, osprey, mink, otter, bears are all in this region.

[00:35:48] Speaker 00:
Again, Dr. Barrett acknowledged that because when he designed the study for juveniles, he instructed the person to doing the study to go out very, very early in the morning, basically at or before sunrise, because otherwise they are going to miss any fish that would be predated.

[00:36:06] Speaker 00:
And in fact, the testimony, sworn testimony of the person doing those surveys, is she never went out then.

[00:36:12] Speaker 00:
She always went out later in the morning.

[00:36:15] Speaker 00:
So again, the tribe carried its burden of showing all of the ways that expert biologists assess harm in this situation.

[00:36:24] Speaker 00:
And they draw conclusions of harm, and they explain that to the court.

[00:36:29] Speaker 00:
And their testimony concerning why you would not find dead and injured fish was unrebutted by electron.

[00:36:36] Speaker 00:
They were not able to explain why they thought that dead and injured fish would be present in this situation.

[00:36:43] Speaker 00:
And so again, they did not carry their burden of raising the genuine issue of material effect after the tribe carried its.

[00:36:58] Speaker 00:
Turning to the standard, the ESA standard, as Judge McEwen has pointed out in her questions to my opponent, the judge did, in this case, the district court did correctly state the standard, stated the Endangered Species Act standard, cited and quoted to the regulatory language with respect to what constitutes harm or injury or harassment to fish.

[00:37:25] Speaker 00:
And then the judge set forth all of the facts that I've been discussing today accepted all of those facts as true Applied that standard to that evidence and said I find that there is a section 9 take here and again the judge did that In a way that comports with this court's recent case law and case law going back The judge noted there are fish in the river that are listed and

[00:37:52] Speaker 01:
I want to ask maybe one last question on my part anyway.

[00:37:58] Speaker 01:
If we were to determine that there was a factual issue, where would the case go then procedurally in your view?

[00:38:07] Speaker 00:
My understanding is if this court were to determine that there is a genuine issue of material fact, it would be remanded for trial to the court to Judge Kuhnauer and that the judge would set this matter for trial.

[00:38:19] Speaker 00:
That's my understanding.

[00:38:22] Speaker 00:
And I see that my time is up.

[00:38:23] Speaker 00:
So barring any further questions, thank you.

[00:38:25] Speaker 02:
Thank you.

[00:38:36] Speaker 03:
Your Honors, I want to start just briefly on material issues of fact.

[00:38:42] Speaker 03:
Dr. Barrett explained that the tribes experts, the tribes biologists have presented what amounts to a hypothetical based upon their understanding of the standard behavior of fish and their concerns about this structure.

[00:38:58] Speaker 03:
And as he explained, they expressed some of those concerns in 2021 when it was being

[00:39:05] Speaker 03:
the authorization to 2020 and 2021, when the authorization to put the structure was made, and then when plans to address fish passage were implemented in 2021.

[00:39:20] Speaker 03:
Between 2021 and 2023, he engaged in several different kinds of data collection.

[00:39:29] Speaker 03:
And he explained in his declaration how the various types of information

[00:39:35] Speaker 03:
actual extrinsic evidence responded to that hypothetical, and that's why there are material issues of fact.

[00:39:41] Speaker 03:
And we also pointed to where he explained what would happen.

[00:39:44] Speaker 02:
Walk through the data collection, then.

[00:39:46] Speaker 02:
What are the forms of data that he collected that, in your view, rebut the tribe's position?

[00:39:52] Speaker 03:
All right, he had a person go out and do observations for a couple of months on a regular basis in the morning to see what she found.

[00:40:02] Speaker 03:
She actually saw some live fish, live juvenile fish off on the side of the river.

[00:40:07] Speaker 03:
Saw no dead or injured fish.

[00:40:10] Speaker 03:
There is a requirement that there be weekly surveys done of the fish ladder.

[00:40:15] Speaker 03:
That was required on an ongoing basis.

[00:40:17] Speaker 03:
Not only do we have the observations that were made of the fish ladder, but the folks who did that work did informal surveys looking down the river to see if they saw anything.

[00:40:27] Speaker 03:
Then he also went out to the river.

[00:40:30] Speaker 03:
And then also the person who was assigned to collecting water quality data went out and, as part of what he was doing, went and made observations of the spillway.

[00:40:40] Speaker 03:
So those were, you know, it's not a formal survey, but a wide variety of information that he collected and which formed the basis for his opinions.

[00:40:50] Speaker 02:
That's sort of opinions about data collection, but are there also opinions that are essentially theoretical or modeling opinions relating to how this whole structure works together?

[00:41:00] Speaker 03:
So, out of that information, he concluded that, and in observations of the spillway, that the first that fish are not being injured by their interaction with the spillway,

[00:41:10] Speaker 03:
And two, that while fish could be distracted by it, they would still find their way over to the fish ladder, and in fact, were finding their way through the fish ladder.

[00:41:20] Speaker 03:
I also would point out- A meaning the fish.

[00:41:22] Speaker 01:
The fish.

[00:41:22] Speaker 01:
But how many fish?

[00:41:24] Speaker 03:
Well, there's no fish counter.

[00:41:26] Speaker 01:
Right.

[00:41:27] Speaker 03:
But I also would point out that the district court did not find that the fish ladder is not functional.

[00:41:34] Speaker 03:
There is nothing in the district court's order finding any problem with the fish ladder.

[00:41:40] Speaker 03:
I have used up my time.

[00:41:42] Speaker 03:
So I'll stop unless you have any other questions.

[00:41:46] Speaker 02:
Hearing none, I want to thank you.

[00:41:47] Speaker 02:
Thank you both for your helpful briefing and argument.

[00:41:49] Speaker 02:
This matter is submitted and will be adjourned for the day.

[00:41:52] Speaker 02:
And the court will stand in recess until tomorrow.