Lower Elwha Band of S'klallams v. Lummi Indian Tribe

• Decision Date: 13 December 2000
• Docket Number: No. 98-35964,98-35964
• Citation: 235 F.3d 443
• Parties: (9th Cir. 2000) UNITED STATES of America, Plaintiff, and LOWER ELWHA BAND OF S'KLALLAMS; JAMESTOWN BAND OF S'KLALLAMS; PORT GAMBLE BAND OF S'KLALLAMS; and the SKOKOMISH INDIAN TRIBE, Plaintiffs-Appellees, v. LUMMI INDIAN TRIBE, Defendant-Appellant,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 443

235 F.3d 443 (9th Cir. 2000)

UNITED STATES of America, Plaintiff, and LOWER ELWHA BAND OF S'KLALLAMS; JAMESTOWN BAND OF S'KLALLAMS; PORT GAMBLE BAND OF S'KLALLAMS; and the SKOKOMISH INDIAN TRIBE, Plaintiffs-Appellees, v. LUMMI INDIAN TRIBE, Defendant-Appellant,

No. 98-35964

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 12, 2000

Filed December 13, 2000

[Copyrighted Material Omitted] Harry L. Johnson, Raas, Johnson & Stuen, P.S., Bellingham, Washington, for the defendant-appellant.

Kathryn J. Nelson, Eisenhower & Carlson, PLLC, Tacoma, Washington, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief District Judge, Presiding. D.C. No.CV-70-09213 BJR

Before: Mary M. Schroeder, Robert R. Beezer and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Beezer

BEEZER, Circuit Judge:

The Lummi Indian Tribe appeals from the final judgment entered in favor of the Lower Elwha Band of S'Klallams, the Jamestown Band of S'Klallams, the Port Gamble Band of S'Klallams and the Skokomish Indian Tribe (collectively "the Four Tribes"). The district court concluded that Judge Boldt, in United States v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974) (Boldt, J.) (hereinafter "Decision I"), aff'd, 520 F.2d 676 (9th Cir. 1975), did not intend for the Lummi's usual and accustomed fishing grounds and stations to include the Strait of Juan de Fuca, Admiralty Inlet or the mouth of the Hood Canal. We have jurisdiction pursuant to 28 U.S.C. 1291. We conclude that Judge Boldt intended to: (1) exclude the Strait of Juan de Fuca and the mouth of the Hood Canal and (2) include Admiralty Inlet in the Lummi's usual and accustomed fishing grounds and stations. We affirm in part and reverse in part.

I

This appeal involves the scope of fishing rights secured by the Lummi Indian Tribe in the 1855 Treaty of Point Elliott. Tribes who were party to the Treaty, including the Lummi, reserved the right to fish at all "usual and accustomed grounds and stations." Act of Jan. 22, 1855, Art. V, 12 Stat. 927, 928. The term "usual and accustomed grounds and stations" includes "every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters." Decision I, 384 F. Supp. at 332.

The United States filed the underlying action in Decision I, on its own behalf and as trustee for several Western Washington Indian tribes, to enforce compliance by the State of Washington with treaty fishing rights. See Decision I, 384 F. Supp. at 327-28. As part of Decision I, Judge Boldt determined the various tribes' usual and accustomed fishing grounds and stations. With respect to the Lummi, Judge Boldt described their usual and accustomed grounds and stations as follows:

45. Prior to the Treaty of Point Elliott, the Lummi, Semiahmoo and Samish Indians had been engaged in trade in salmon, halibut and shellfish with other Indi ans and with non-Indians. This trade continued after the treaty. At the time of the treaty they maintained prosperous communities by virtue of their ownership of lucrative saltwater fisheries. The single most valu able fish resource was undoubtedly the sockeye, which the Lummis were able to intercept in the Straits on the annual migration of the sockeye from the ocean to the Fraser River. Lummi Indians devel oped a highly efficient technique, known as reef net ting, for taking large quantities of salmon in salt water. Aboriginal Indian "reef netting" differs from present methods and techniques described by the same term. The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point. When nature did not provide optimum reef condi tions the Indians artificially created them. Reef net ting was one of the two most important economic activities engaged in by these Indians, the other being the sale of dog fish oil. These Indians also took spring, silver and humpback salmon and steel head by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpoons and bas ketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon.

46. In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fra ser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Bound ary Bay south to Fidalgo Bay.

Id. at 360 (citations to the record omitted) (emphasis added).

Almost fifteen years after Decision I, the Four Tribes initiated Subproceeding 89-2 by filing a request for determination, pursuant to the continuing jurisdiction of the court.¹ The Four Tribes sought a determination that the Lummi were violating Decision I by fishing in areas outside of their adjudicated usual and accustomed grounds and stations, specifically in the Strait of Juan de Fuca, Admiralty Inlet and the mouth of the Hood Canal. The Four Tribes claim these same fishing areas as part of their usual and accustomed grounds and stations.

The Four Tribes and the Lummi both moved for summary judgment as to whether the disputed areas were contained within the Lummi's usual and accustomed grounds and stations. Judge Coyle, a visiting judge assigned to preside at many of the Decision I subproceedings, determined that Judge Boldt had not intended the disputed areas to be included within the Lummi's usual and accustomed grounds and stations. On February 15, 1990, Judge Coyle granted the Four Tribes' motion for summary judgment and denied the Lummi's motion. Although no apparent issues remained pending, a final judgment was not entered.

Instead, the Lummi filed an amended response to the Four Tribes' request for determination and a cross-request for determination on April 12, 1990.² The cross-request sought a determination that the Lummi's usual and accustomed grounds and stations should be expanded to include the three disputed areas.³

Based on the Lummi's "expansion" theory, several years of discovery ensued, after which the parties again filed crossmotions for summary judgment. By this point, Subproceeding 89-2 had been transferred to Judge Rothstein. On February 7, 1994, Judge Rothstein denied both summary judgment motions. Judge Rothstein concluded that, despite the weakness of the Lummi's evidence, genuine issues of material fact remained as to whether the disputed areas should be added to the Lummi's usual and accustomed grounds and stations.

During the next few years, the parties were heavily involved in the litigation of other subproceedings. Consequently, the trial in Subproceeding 89-2 was repeatedly delayed. In the meantime, an opinion was filed in Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998).

One month prior to the now seemingly-firm trial date of June 15, 1998, the Lummi moved to vacate that date and to reopen discovery, arguing essentially that Muckleshoot required reframing of the issues. According to the Lummi, the correct focus was no longer whether the disputed areas should be added to the usual and accustomed grounds and stations, but rather whether Judge Coyle correctly determined in 1990 that the areas were not intended by Judge Boldt to be included in the findings of Decision I. The Lummi argued that Judge Coyle impermissibly relied on latter-day evidence that was not presented to Judge Boldt in order to determine Judge Boldt's intent.

The Four Tribes opposed the Lummi's motion, and moved to dismiss the Lummi's cross-request for determination. Judge Rothstein denied the Lummi's motion to vacate the trial date and later entered an order setting a briefing schedule to resolve the outstanding issues. The Lummi then moved to dismiss or, in the alternative, for summary judgment.

On September 1, 1998, Judge Rothstein denied the Lummi's alternative motions and granted the Four Tribes' motion to dismiss. Judge Rothstein applied the law of the case doctrine and accepted Judge Coyle's 1990 decision that Judge Boldt did not intend to include the Strait of Juan de Fuca, Admiralty Inlet or the mouth of the Hood Canal in the Lummi's usual and accustomed grounds and stations. Final judgment was entered on September 2, 1998, dismissing Subproceeding 89-2. The Lummi timely appeal.

II

At the outset, the Four Tribes raise two arguments as to why we should not review Judge Coyle's 1990 summary judgment order, which established that Judge Boldt did not intend to include the disputed areas within the Lummi's usual and accustomed grounds and stations. First, the Four Tribes argue that the order was final in 1990, thus any attempt by the Lummi to appeal now is untimely. Second, the Four Tribes argue that Judge Rothstein's application of the law of the case doctrine insulates Judge Coyle's order from review. We address each argument in turn.

A.

According to the Four Tribes, Judge Coyle's 1990 decision was a final one, from which the Lummi may no longer appeal. Thus, the Four Tribes argue that we are limited to reviewing only Judge Rothstein's application of the law of the case doctrine and not the merits of the usual and accustomed grounds and stations dispute.

Section 1291 confers jurisdiction on us to hear "appeals from all final decisions of the district courts. " 28 U.S.C. 1291. "A final decision is one that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Does v. Advanced Textile Corp., 214 F.3d 1058, 1065-66 (9th Cir. 2000) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). We observe that"[...