USA, et al v. State of Washington

Filing

Filed Order for PUBLICATION (WILLIAM A. FLETCHER, RONALD M. GOULD and DAVID A. EZRA) (Concurrence by Judge W. Fletcher; Opinion Respecting Denial by Judge O Scannlain; Statement by Judge Hurwitz) The panel, as constituted above, has voted unanimously to deny the petition for panel rehearing. Judges Fletcher and Gould have voted to deny the petition for rehearing en banc, and Judge Ezra so recommends. A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). The petition for rehearing and the petition for rehearing en banc, filed August 11, 2016, are DENIED. [10440900]

Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 1 of 9

en.oxforddictionaries.com

5-6 minutes

noun
A tunnel carrying a stream or open drain under a road or railway.
‘There are also plans to dig a culvert to carry water if the drainage
ditch is full but he doubted there was enough room to dig one within
the width of the road.’
‘He directed the officials to complete the construction of culverts
and link roads and ensure the proper drinking water supply.’
‘What appears to be the problem to us is the size of a culvert
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underneath the road into the ornamentalfpond.’
Was

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State of n 29.5-foot fill over an old
‘The project also required construction o a
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concrete box culvert.’
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‘According . 13 1996 Highway Road Humps Regulations they
o to the
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must not be built on or within 25 metres of bridges, subways,
culverts or tunnels.’
‘These criminal acts will retard progress and push up costs of
building the road as the demolished culverts will have to be
replaced.’
‘The South Fork of the Elkhorn River goes under the road in a
culvert.’
‘A nearby culvert, meant to carry away the sewage, is totally
damaged.’
‘Earth pressure distribution around concrete box culverts has been
the subject of a few studies.’
‘The tanks, roads, culverts and lagoon opening have all suffered
through the lack of maintenance.’
‘Variables considered in the analysis were culvert size, location,
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Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 2 of 9
and wall thickness.’
‘Aggravating the problems is a pair of culverts through Provincial
Road 205, which have been set at the wrong level.’
‘The figure also shows a little tensile stress at the roof center of
larger culverts.’
‘However, the size and weight of concrete box culverts can make
transportation and handling a problem.’
‘A culvert stabilized with snow was the first structure tested for
small streams.’
‘They also have to cut several miles of drain, installing several large
culverts along the system.’
‘Drivers often don't even realize when they cross streams, nor that
the culverts built to carry those streams might pose problems to
endangered salmon and trout species.’
‘It is asphalted and the gradient runs south to north up to n village
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road surface, upsetting the natural gradient.’ ay 15
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‘A culvert has d inbeen opened iv below
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‘Thus, culverts stabilized with snow are not needed when the
temple, except near the village pond where aashin has raised the
culvert
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stream is already frozen solid.’
verb
[WITH OBJECT]
Channel (a stream or drain) through a culvert.
‘we have asked for the river to be culverted’
‘Where I grew up in Ohio, we saw crawdads, or crayfish, in the
culverted, sewage-scented ‘creeks’ and would no sooner eat one
than we would kitty litter.’
‘The river is now culverted beneath the largely Victorian town.’
‘Talking to the engineers, environmentalists and politicians
responsible, I realised that here, where council engineers want to
culvert more of it, we are ten years behind the times.’

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Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 3 of 9
‘Sprawl and malls are filling in the vacant lots and woodlands where
we used to play; rivers and streams are culverted, channelized, and
barren; and the coasts, lakesides, and mountains are spotted with
trophy homes and locked gates.’
‘Or it might have happened later, when the creek was culverted and
the woods cut down to make way for subdivisions and shopping
malls.’
‘I have agreed details to culverting streams, adjacent to the M4
motorway, to allow the canal to be extended over these
watercourses.’
‘But since the city wants to use water diverted from Bradford Beck which is culverted under the city centre - experts have been
working on ways of making sure the river's quality is up to scratch.’
‘She has happy recollections of childhood life in the area and the
freedom to roam before rivers were culverted and open land was

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‘Of course, if I got my planning permission, I'd have to ,divert yon
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‘And duringtthe next 12 4 arc up to
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and filled in.’ 13-3
No.
developed.’

‘The flood would not have occurred if the stream had not been
culverted or if a culvert of sufficient size had been installed.’
‘The plans include culverting part of Willowbeck and the agency has
now withdrawn its objection, saying it is satisfied the development
‘will not have a significant effect on flooding in Northallerton’.’
‘Ironically, all that culverting work bounced back in his face, literally,
for when we did have a heavy storm, the overflow went the other
way and flushed several thousand pounds' worth of rainbow trout
into the beck.’
‘He made his report following a motion that the stream be
culverted.’
Origin
Late 18th century: of unknown origin.

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Pronunciation

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In the cold, clear waters of the Pacific Northwest, some of the world's most important
and beautiful fish--the trout, salmon and char--have evolved. But none of these native
salmonids (the name used for members of the Salmonidae family) are as pretty or as
mysterious as our native char, the Dolly Varden and bull trout.
Found in lakes and rivers, as well as small headwater streams, sometimes migrating
back and forth between fresh and salt water, and sometimes not, these fish have
puzzled fisheries biologists and ichthyologists (people who specialize in the study of
fish) since they were first discovered. About the only thing everyone agreed on was
that they were members of the char family. And they are the only char native to
Washington.
Early studies described these fish as a variety of the Arctic char, while later work
declared them to be a separate species. For a long time, the bull trout was considered just a localized version of the Dolly Varden. Now many
fisheries scientists believe that Dolly Varden and bull trout are two distinct species that look amazingly similar. One thing is clear, though, as more of
the puzzle surrounding these species unravels: these fish are reeling from a head-on collision with rampant human population growth and
environmental damage, and are losing.
Historically, sport fishing regulations were liberal for bull trout and Dolly Varden. But in more recent years, as indications of fish abundance began to
decline, more restrictive regulations were imposed.
Contact your local Washington Department of Fish and Wildlife regional office to find out which waters in your area are currently open to fishing for
bull trout/Dolly Varden. Also consult the latest WDFW fishing regulations pamphlet.

ton
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as
Description
of W y 15, 2
ate
Bull trout and Dolly Varden can grow quite large, with typical adults reaching two to five pounds in Washington. The state record bull trout, caught
v. St the d on Ma taken from the Skykomish River, weighed 10 pounds.
from the Tieton River, weighed 22 pounds, 8 ounces, while
record Dolly Varden,
A
n US a char--which includes
itrout in body shape, rchive the imported brook trout and lake trout--can be distinguished from their
Although closely resembling
cited 54 reverse
relatives by their very fine scales and a74 coloration. Char have dark-colored bodies with light spots while trout (such as rainbow and
-3
cutthroat) and Pacific salmon have light-colored bodies with dark spots.
o. 13
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Bull trout and Dolly Varden are difficult to distinguish from each other, even for specialists. Dolly Varden tend to have a more rounded body shape
while bull trout have a larger, more flattened head and a more pronounced hook on the lower jaw. Some scientists believe that one of the
distinguishing characteristics of bull trout is that they do not migrate to saltwater. However, Washington biologists have recently found bull trout in
Puget Sound.
Their color varies with habitat and locality, but the body is generally olive green, the back being darker than the pale sides; cream to pale yellow
spots (slightly smaller than the pupil of the eye) cover the back, and red or orange spots cover the sides; and the pectoral, pelvic and anal fins have
white or cream-colored margins. The male in full fall spawning dress sports a dark olive back, sometimes bordering on black, an orange-red belly,
bright red spots and fluorescent white fin edges, rivaling fall's spectacular colors. Sea-run dollies are silvery and the spots may be very faint.

Fishing Hotline
360-902-2500
Shellfish Rule
Change Hotline
1-866-880-5431

This unique coloration led to the common name Dolly Varden. Dolly Varden is a character in the Charles Dickens novel "Barnaby Rudge" who
wears colorful clothing. This novel also led to the same name being given to a pink-spotted calico material that was popular at that time. Because
the name is taken from a proper noun, Dolly Varden is one of the few species whose common name is capitalized in scientific literature.
Bull trout and Dolly Varden can be distinguished from eastern brook trout by the absence of vermiculations ("worm tracks") on their back. In
addition, the eastern brook trout's red spots are surrounded by blue halos. To keep things interesting, though, bull trout and brook trout have been
known to spawn together. Their hybrid offspring can have features of both parents. (Hybridization can be a serious problem in some areas, resulting
in the dilution or destruction of the gene pool of the native bull trout.)

More Hotline Information...
For more information on
fishing, please contact the
WDFW Fish Program.
360-902-2700
Fish Program District Biologists
For fishing regulation
questions, e-mail us at:
[e-mail]
For all other questions and
comments, e-mail us at:
[e-mail]

Range
Bull trout/Dolly Varden were historically found throughout the Pacific Northwest, from Northern California to the upper Yukon and Mackenzie
drainages in Canada, as well as Siberia and Korea. Inland populations were found in Idaho, Montana, Utah, and Nevada. Bull trout may be
extirpated in California, and have declined in numbers in much of their range.
Bull trout/Dolly Varden are found throughout Washington except the area east of the Columbia River and north of the Snake River in eastern
Washington, and the extreme southwest portion of the state. The geographic ranges of bull trout and Dolly Varden overlap along the Washington
coast and Puget Sound. Bull trout are found throughout the state, but Dolly Varden are found only in Western Washington. Bull trout have probably
been extirpated from parts of their former range in Washington, such as Lake Chelan and the Okanogan River.

Habitat and Life History
Bull trout and Dolly Varden prefer deep pools of cold rivers, lakes, and reservoirs. Streams with abundant cover (cut banks, root wads, and other

Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 6 of 9
woody debris) and clean gravel and cobble beds provide the best habitat. Their preferred summer water temperature is generally less than 55
degrees Fahrenheit, while temperatures less than 40 degrees Fahrenheit are tolerated. Spawning during fall usually starts when water temperatures
drop to the mid- to low-40s. Cold, clear water is required for successful reproduction.
Bull trout and Dolly Varden have complex, but similar life histories. Anadromous (sea-going) and migratory resident populations (for example, lakedwelling stocks and main-stem rearing stocks) often journey long distances in summer and fall, migrating to the small headwater streams where
they hatched, to spawn. Mature adults with these characteristics are generally four to seven years old and 18 to 22 inches in length when they make
their first spawning run.
The adults on their spawning runs can undergo some impressive journeys. Fish in the Skagit River system may travel more than 115 miles from the
river mouth and ascend to an elevation of more than 3000 feet. The spawning area may be upstream of areas used by any other anadromous
species.
Log jams, cascades and falls that are barriers to the chinook's brute strength and the steelhead's acrobatic abilities may be only minor obstacles to
the cunning and guile of Dolly Varden and bull trout. While these char can jump remarkably well for fish their size, as much as seven or eight vertical
feet under good conditions, they are just as likely to maneuver around a difficult spot. At a potential barrier they sometimes seem to be actively
seeking alternative ways around it. Some go as far as to stick their heads out of the water to peek at the situation and find the easiest route.
Bull trout and Dolly Varden use headwater areas that typically are in pristine environments. Spawning begins in late August, peaking in September
and October and ending in November. Fish in a given stream spawn over a short period of time; two weeks or less. The fish select clean, one- to
three-inch gravel to construct their redds. Ideally, the female moves the smaller gravel away to expose the larger four- to eight-inch rocks below.
Attended by several males, with the largest aggressively defending her and the redd, she deposits her eggs in the exposed spaces between the
larger rocks and then buries the eggs with smaller gravel.
Almost immediately after spawning, adults begin to work their way back to the main-stem rivers, lakes or reservoirs to over-winter. Some of these
fish stay put, others move on to salt water in the spring. Some survive the perils of the river to spawn a second or even third time. Kelts (spawnedout fish) feed aggressively to recover from the stress of spawning. This also happens to be the time when many anglers are searching the river for
winter steelhead. Steelhead anglers must learn how to identify these fish and safely release them.
Newly-hatched fish emerge from the gravel the following spring. Those that migrate down to the main rivers, reservoirs and saltwater normally leave
the headwater areas as two year olds. But complicating the picture even more are the resident stream populations that exhibit limited movements,
living their entire lives in the same stretch of headwater stream. These fish may not mature until they are seven to eight years old, and rarely reach
sizes greater than 14 inches in length. Biologists have observed these local residents spawning side-by-side with their much larger anadromous kin.
Bull trout and Dolly Varden are opportunistic feeders, eating aquatic insects, shrimp, snails, leeches, fish eggs and fish. Early beliefs that these fish
are serious predators of salmon and steelhead (the state of Alaska once offered a bounty on them, believing that this would improve other salmonid
populations) are generally not believed any longer. These native char are now beginning to get a reputation as highly-prized sport fish.

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Population Status
of W y 15, 2
While bull trout and Dolly Varden are more abundant in tanorth Puget Sound a statewide their populations are low and in some cases
S the te o determined that
v. (USFWS) recentlyn Marea, bull trout are at a moderate risk of extinction in five western
declining. In fact, the U.S. Fish and Wildlife Service
d
SA
states, including Washington. n U
the
i The USFWS foundrthathivunderbull trout as threatened wasAct. under the Federal Endangered Species Act
c listinge the Endangered Species warranted
d
on November 1, 1999. Dolly Varden are currently not listed
4a
cite
5 international
3(an47 organization of fisheries scientists) has classified bull trout as a "Fish of Special Concern." This
The American Fisheries Society
13means that biologists believe this species may become threatened or endangered by relatively minor disturbances to their habitat, and that
No. is needed to determine their status.
additional information

Habitat loss and over-harvest have both contributed to the decline of bull trout and Dolly Varden in Washington. Protection of spawning and juvenile
rearing habitat (particularly the critical cold stream temperatures and clean spawning gravel), regulating harvest and controlling poaching are
required in order to maintain or increase populations. The threat of global warming is especially alarming for bull trout and Dolly Varden because of
limited areas with low enough temperatures for spawning.
Siltation and stream sedimentation are extremely harmful to the char's reproductive needs. Dollies and bull trout must have very clean gravel to
spawn in. Destruction of stream-side vegetation through improper logging and agricultural activities increases siltation and stream temperatures,
dealing a double blow to these fragile populations.
And if this isn't enough, Dolly Varden and bull trout face another threat from their cousin, the eastern brook trout. This non-native species can
hybridize with both the Dollies and bull trout, effectively eliminating them from these areas.

Management
While bull trout and Dolly Varden are currently classified as game fish in Washington, they have been red-flagged as a species of concern by the
Washington Department of Fish and Wildlife (WDFW). They are a priority species under the WDFW Priority Habitats and Species Project.
Maintaining stream-side vegetation is essential for controlling stream temperatures and providing cover. Since very cold water and clear gravel are
required for spawning and egg incubation, protecting streams that have this habitat feature is one of the critical elements in managing bull trout.
WDFW biologists are continuing to collect the required information to better understand bull trout and Dolly Varden, and are writing a new
management plan for the species. In the meantime, newly implemented, restrictive sport fishing regulations will help protect our state's only native
char for this and future generations.
With their requirements for cool water and clean gravel and the use of the whole river system at some time in their life history, Dolly Varden and bull
trout are good indicators of the general health of the system. A decline in the number of Dollies and bull trout is a cause for concern not only for the
fish but for people as well.

RECREATIONAL OPPORTUNITIES

Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 7 of 9
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kiro7.com

EndPlay
2-3 minutes

Updated: Aug 19, 2016 - 4:46 PM

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© 2017 Cox Media Group.
PACIFIC, Wash. - Drivers who use southbound SR 167 near the
city of Pacific will have to find another way around during a
weekend closure.
The lanes will be shut down between Sumner and Auburn.
There will be detours in place, but officials warn they will be
challenging.
Between 11 p.m. Friday and 5 a.m. Monday, all southbound lanes
will be closed between Ellingston Road and 8th Street East. The
8th Street East off-ramp from southbound SR 167 will be closed as
well.
>> WSDOT has provided a PDF document of the detour route.
>> See the South King Slowdown Calendar - August 19-22 with a
map here

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Case: 13-35474, 05/19/2017, ID: 10440900, DktEntry: 140-2, Page 9 of 9
>> To see maps from previous weekends, click here
Over the weekend, crews plan to repave a mile of southbound SR
167, finalize the highway’s permanent configuration, and install the
west half of the Jovita Creek 368-foot fish-passable culvert that
crosses under the southbound lanes of the freeway.
According to the News Tribune, the culvert project has to do with a
court decision in a Federal lawsuit brought forward by Northwest
tribes.
The News Tribune says an injunction in the case requires the
Washington State Department of Transportation to rebuild poorlydesigned culverts - pipes that carry water under roads-- blocking
salmon and steelhead trout from reaching spawning beds.
Nearly 1,000 culverts will have to be replaced statewide by 2030.
The other project is part of widening SR 167 to add a lane in the
southbound direction and extend the existing high occupancy toll
lanes system south on SR 167 in the Green River Valley.n
gto

n
ashi , 2017
Expanding the 9-mile SR 167 HOT te of will connect King and
lanes W
15
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Mayin the Puget
n
Pierce County communitiesv. employment hubs
to
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Sound area.ed i
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cit
3547
13Extending the southbound HOT lane from its existing end point at
No.
37th Street NW in Auburn to 8th Street East in Pacific will reduce
congestion and improve traffic flow and safety on SR 167,
according to WSDOT.
The work on the addition of the lane will continue into the fall.
© 2017 Cox Media Group.

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