590 F.3d 1020 (9th Cir. 2010), 07-35061, Upper Skagit Indian Tribe v. State of Washington

Docket Nº:07-35061.
Citation:590 F.3d 1020
Opinion Judge:RYMER, Circuit Judge:
Party Name:UPPER SKAGIT INDIAN TRIBE, Plaintiff-Appellee, v. State of WASHINGTON, Defendant, and United States of America, Plaintiff, and Suquamish Indian Tribe, Defendant-Appellant, v. Jamestown S'Klallam Tribe; Lower Elwha Klallam Tribe; Lummi Indian Nation; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Skokomish Indian Tribe; Tulalip Tribe, Plaintif
Attorney:Michelle Hansen, Office of Tribal Attorney, Suquamish, WA, for appellant, Suquamish Tribe. Douglas B.L. Endreson, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, for appellant Skokomish Indian Tribe. Lorane F. Hebert, Hogan & Hartson, Washington, DC, for appellant, Lower Elwha Klalla...
Judge Panel:Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER and ANDREW J. KLEINFELD, Circuit Judges. KLEINFELD, Circuit Judge, dissenting:
Case Date:January 05, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1020

590 F.3d 1020 (9th Cir. 2010)

UPPER SKAGIT INDIAN TRIBE, Plaintiff-Appellee,

and

United States of America, Plaintiff,

v.

State of WASHINGTON, Defendant,

and

Suquamish Indian Tribe, Defendant-Appellant,

v.

Jamestown S'Klallam Tribe; Lower Elwha Klallam Tribe; Lummi Indian Nation; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Skokomish Indian Tribe; Tulalip Tribe, Plaintiff-intervenors-Appellees,

Swinomish Indian Tribal Community, Cross-claimant-Appellee.

No. 07-35061.

United States Court of Appeals, Ninth Circuit.

January 5, 2010

Argued and Submitted Oct. 21, 2008.

Page 1021

Michelle Hansen, Office of Tribal Attorney, Suquamish, WA, for appellant, Suquamish Tribe. Douglas B.L. Endreson, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, for appellant Skokomish Indian Tribe. Lorane F. Hebert, Hogan & Hartson, Washington, DC, for appellant, Lower Elwha Klallam Tribe.

Harold Chesnin, David S. Hawkins, Office of the Tribal Attorney, Sedro Woolley, WA, (argued); Andrew H. Salter, Seattle, WA, for appellee, Upper Skagit Indian Tribe. James M. Jannetta, LaConner, W. WA, for appellee, Swinomish Indian Tribal Community. Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen, Seattle, WA, for appellees, Port Gamble S'Klallam and Jamestown S'Klallam Tribes. Mason D. Morisset, Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA, for appellee, The Tulalip Tribes.

Richard M. Berley, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for intervenor-appellants.

Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District

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Judge, Presiding. D.C. Nos. CV-70-09213-RSM, SP-05-00003-RSM.

Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER and ANDREW J. KLEINFELD, Circuit Judges.

ORDER AND OPINION

ORDER

The petition for rehearing, filed August 20, 2009, is GRANTED and the petition for rehearing en banc is denied as moot.

This court's opinion filed, August 6, 2009 and published at Upper Skagit Tribe v. Washington, 576 F.3d 920 (9th Cir.2009), is hereby withdrawn. A new opinion is filed concurrently herewith.

OPINION

RYMER, Circuit Judge:

This case arises out of, and is a sub-proceeding of, United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (" Decision I " ), where Judge Boldt determined the usual and accustomed fishing grounds (" U & A" ) for Puget Sound tribes. Invoking the district court's continuing jurisdiction, id. at 419, Upper Skagit Indian Tribe 1 filed a Request for Determination that Saratoga Passage and Skagit Bay on the eastern side of Whidbey Island are not within the Suquamish Tribe's U & A (Subproceeding 05-3). On cross-motions for summary judgment, the district court concluded that Judge Boldt did not intend to include those areas in Suquamish's U & A, and accordingly granted summary judgment for Upper Skagit. We affirm.

I

As we previously said, " [w]e cannot think of a more comprehensive and complex case than this." United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir.1990). In short, Judge Boldt defined " usual and accustomed grounds and stations" as " 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; United States v. Lummi Indian Tribe, 235 F.3d 443, 445 (9th Cir.2000) (quoting Decision I ). The term " customarily" does not include " occasional and incidental" fishing or trolling incidental to travel. Decision I, 384 F.Supp. at 353. Tribes are entitled to take up to 50 percent of the harvested fish from runs passing through their off-reservation U & A grounds. Id. at 343.2

Judge Boldt determined Suquamish's U & A during supplemental proceedings on April 9-11, 1975. See United States v. Washington, 459 F.Supp. 1020, 1048-50 (W.D.Wash.1978) (" Decision II " ). The evidence consisted of the April 9 testimony and report of Dr. Barbara Lane, an expert for the United States on tribal identity, treaty status and fisheries for all of the tribes who intervened in the original proceedings in Decision I . She provided a map of Suquamish fishing sites, and her testimony also addressed a map attached to proposed Suquamish fishing regulations that outlined disputed areas of Suquamish's

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and other tribes' U & As. Based on this evidence, Judge Boldt ruled that the Suquamish had made a " prima facie" showing that its U & A fishing grounds were: " the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal." Finding of Fact No. 5 (FF 5), Decision II, 459 F.Supp. at 1049.3

In this Subproceeding, Upper Skagit alleges that the Suquamish began fishing in the Subproceeding Area 4 for the first time in 2004. It seeks an order determining that the portion of Saratoga Passage from the Snatelum Point Line to the Greenbank Line and Skagit Bay to the Deception Pass bridge is not a U & A for the Suquamish. Upper Skagit argued in district court that there was no evidence before Judge Boldt in 1975 that Suquamish's U & A included those areas. Suquamish, on the other hand, contended that Judge Boldt's definition of its U & A unambiguously included the contested areas.

The district court adhered to a two-step...

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