U.S. v. State of Wash.

• Decision Date: 23 October 1996
• Docket Number: No. 95-35202,95-35202
• Citation: 98 F.3d 1159
• Parties: , 36 Fed.R.Serv.3d 66, 96 Cal. Daily Op. Serv. 7792, 96 Daily Journal D.A.R. 12,887 UNITED STATES of America, Plaintiff-Appellee, and Duwamish Indian Tribe; Snohomish Indian Tribe; Steilacoom Indian Tribe, Plaintiffs-Intervenors-Appellants, v. STATE OF WASHINGTON; Nisqually Indian Tribe; Hoh Indian Tribe; Lummi Indian Nation; Skokomish Indian Tribe; Jamestown Band of Klallams; Lower Elwha Klallam Tribe; Port Gamble Band Clallam; Muckleshoot Indian Tribe; Quinault Indian Nation; Quileute Indian Tribe; Tulalip Tribe; Makah Indian Tribe; Suquamish Indian Tribe; Puyallup Tribe; Swinomish Indian Tribal Community; Nooksack Tribe; Upper Skagit Tribe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1159

98 F.3d 1159

65 USLW 2297, 36 Fed.R.Serv.3d 66, 96

Cal. Daily Op. Serv. 7792,

96 Daily Journal D.A.R. 12,887

UNITED STATES of America, Plaintiff-Appellee and Duwamish Indian Tribe; Snohomish Indian Tribe; Steilacoom Indian Tribe, Plaintiffs-Intervenors-Appellants, v. STATE OF WASHINGTON; Nisqually Indian Tribe; Hoh Indian Tribe; Lummi Indian Nation; Skokomish Indian Tribe Jamestown Band of Klallams; Lower Elwha Klallam Tribe Port Gamble Band Clallam; Muckleshoot Indian Tribe Quinault Indian Nation; Quileute Indian Tribe; Tulalip Tribe; Makah Indian Tribe; Suquamish Indian Tribe; Puyallup Tribe; Swinomish Indian Tribal Community; Nooksack Tribe; Upper Skagit Tribe, Defendants-Appellees.

No. 95-35202.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1995.

Decided Oct. 23, 1996.

Tim Atkeson, Arnold & Porter, Denver, CO; Dennis J. Whittlesey, Venable, Baetjer, Howard & Civiletti, Washington, DC, for plaintiffs-intervenors-appellants.

David C. Shilton, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for plaintiff-appellee.

Fronda Woods, Assistant Attorney General, Fish and Wildlife, Olympia, WA; Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA; Annette Marie Klapstein, Tacoma, WA; Jeffrey Jon Bode, Bellingham, WA; Richard M. Berley, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA; Kathryn J. Nelson, Eisenhower & Carlson, Tacoma, WA; Robert L. Otsea, Jr., Auburn, WA; Sharon Ilene Haensly, Office of the Tribal Attorney, LaConner, WA; Harold Chesnin, Mathews, Garlington-Mathews & Chesnin, Seattle, WA; Daniel A. Raas, Raas, Johnsen & Stuen, Bellingham, WA, for defendants-appellees.

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

Before: FLETCHER, KOZINSKI and LEAVY, Circuit Judges.

Opinion by Judge LEAVY; Concurrence by Judge KOZINSKI.

LEAVY, Circuit Judge:

In 1979, United States District Judge George H. Boldt ruled that five Northwest Indian tribes had no treaty fishing rights. In 1993, three of these tribes, the Duwamish, Snohomish, and Steilacoom Tribes ("the Three Tribes"), petitioned the United States District Court for Western Washington for relief from the 1979 judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) on the ground that Judge Boldt may have suffered from Alzheimer's disease in 1979. The United States, the State of Washington, and most tribes with treaty fishing rights ¹ opposed the Three Tribes' motion. On January 23, 1995, the district court denied the motion and the Three Tribes timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS AND PRIOR PROCEEDINGS

In 1970, the United States in its capacity as trustee for seven Indian tribes brought this action against the State of Washington to enforce the Stevens Treaties, which concern After Judge Boldt's 1974 decision, five additional tribes moved to intervene as plaintiffs in United States v. Washington: the Duwamish, Snohomish, Steilacoom, Snoqualmie, and Samish ("the Five Tribes"). On September 13, 1974, Judge Boldt referred the issue of the treaty status of these Five Tribes to Magistrate Judge Robert E. Cooper. Magistrate Judge Cooper held hearings and received evidence on whether the Five Tribes had treaty fishing rights. On March 5, 1975, Magistrate Judge Cooper issued a Report finding that none of the Five Tribes had maintained their political cohesion, and thus recommending a conclusion of law that none had rights under the Stevens Treaties. After appeal by the Five Tribes from the magistrate judge's report, Judge Boldt held a three-day de novo evidentiary hearing later in 1975, directed the parties to submit additional evidence in 1976, and heard oral argument in 1977.

Indian fishing rights. ² Seven other tribes intervened as plaintiffs. In 1974, Judge Boldt ruled that all fourteen tribes had treaty fishing rights which entitled them to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312. ³

In February 1978, before issuing a decision, Judge Boldt underwent surgery for an aortic aneurysm. By letter dated July 25, 1978, Judge Boldt informed all counsel involved in the pending case that, although he was making "very good progress" in recovering from surgery, he was not fully recovered. He stated his intent to rule on the status of the Five Tribes within the next several months.

However, on February 7, 1979, Judge Boldt notified all counsel that, in light of his health, he had asked then Chief Judge Walter T. McGovern to remove him from the case. The Samish, Snoqualmie, Snohomish, and Steilacoom tribes filed a motion on February 15, 1979, in which they requested that Judge Boldt decide whether they qualified as treaty tribes with respect to fishing rights. In an order dated March 14, 1979, Chief Judge McGovern granted the tribes' motion on the grounds that it was "in the best interests of judicial administration and economy, and in the interest of all parties." In a footnote, Judge McGovern stated that "[t]he Nine days later, on March 23, 1979, Judge Boldt ruled that the Five Tribes had no rights under the Stevens Treaties. United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). In doing so he adopted with minor changes the proposed findings of fact and conclusions of law submitted by the United States. On April 25, 1979, Judge Boldt denied the tribes' motion for reconsideration.

court has been informed that Judge Boldt is willing, if requested, to consider and issue a ruling on this matter."

The Five Tribes appealed to this court, which, in a split decision, affirmed Judge Boldt. 641 F.2d at 1374. Because Judge Boldt adopted the proposed findings of the United States, his decision was given "close scrutiny." Id. at 1371. This court concluded that Judge Boldt had applied an incorrect legal test (i.e., that federal recognition or nonrecognition was decisive) to determine whether a tribe had treaty rights. The proper inquiry was whether a "group of Indian descendants ... have maintained an organized tribal structure." Id. at 1372. Applying the correct test directly to the record, this court concluded "[a]fter close scrutiny, ... that the evidence supported [Judge Boldt's] finding of fact" that the tribes had not functioned since treaty times as "continuous separate, distinct and cohesive Indian cultural or political communit[ies]." Id. at 1373. This court affirmed Judge Boldt because "the district court correctly resolved this question despite its failure to apply the proper standard." Id. at 1374.

The United States Supreme Court subsequently denied the tribes' petition for certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).

Judge Boldt died in 1984.

On June 11, 1992, the Seattle Post-Intelligencer published a front-page article, "Alzheimer's Strikes Indians Through Judge," which reported that, at the time of his 1979 ruling, Judge Boldt suffered from Alzheimer's disease. Paul Shukovsky, Alzheimer's Strikes Indians Through Judge, Seattle Post-Intelligencer, June 11, 1992, at A1, A6. The article was based, in part, on Judge Boldt's death certificate which lists pneumonia as the immediate cause of death and Alzheimer's disease as a secondary cause. According to the death certificate, the Alzheimer's set in during 1978. In the newspaper article, Judge Boldt's son is quoted concerning his father's medical condition:

"He was so bright, so sharp, so articulate all his life until February of 1978," his son said. "He was a different man afterwards. He went into a state of deterioration. He went into a six year decline" that ended with his death in 1984.

"He started to develop a lot of the symptoms of Alzheimer's and continued to have them," his son said.

Judge Boldt's son also stated in the article that he believed his father to have been mentally competent when he ruled against the tribes in 1979: "He loved the law." "He would not do anything to violate his duties as a judge."

On November 22, 1993, the Three Tribes filed a motion in the United States District Court for Western Washington for relief from Judge Boldt's 1979 judgment pursuant to Rule 60(b)(6). At oral argument on the motion, held on November 11, 1994, almost a year after the motion was filed, the Three Tribes argued that their motion was for the limited purpose of conducting discovery into the state of Judge Boldt's mental health at the time he rendered his 1979 decision. The record does not indicate that the Three Tribes moved for discovery during oral argument or in the year that elapsed between the time they filed their Rule 60(b)(6) motion and their oral argument.

On January 23, 1995, Judge Barbara J. Rothstein, without deciding whether the broad language of Rule 60(b)(6) provided a remedy in case of a judge's disability, denied the Three Tribes' motion. The district court noted that 15 years had passed since Judge Boldt's decision, but "decline[d] to deny the tribes' motion on this ground alone." Instead, the court rested its denial on three foundations. First, courts should avoid disturbing the public interest in the finality of judgments. Second, a ruling for the Three

                Tribes would open the floodgates to future challenges to judgments on grounds of judicial incompetence.  Third, the Three Tribes suffered no "manifest injustice" because the magistrate judge and the Ninth Circuit reached the same conclusion as Judge Boldt.  The district court concluded that "the moving tribes have failed to demonstrate the existence of any extraordinary circumstances which would warrant reopening the final order of March 23, 1979 for the purpose of conducting discovery into Judge Boldt's

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