Muckleshoot Indian Tribe v. Hall

• Decision Date: 06 September 1988
• Docket Number: No. C88-384Z.,C88-384Z.
• Citation: 698 F. Supp. 1504
• Parties: MUCKLESHOOT INDIAN TRIBE and Suquamish Indian Tribe, Plaintiffs, v. Colonel Philip L. HALL, District Engineer for the Seattle District of the United States Army Corps of Engineers; John O. Marsh, Secretary of the Army; United States Department of the Army, Corps of Engineers; City of Seattle, a municipality of the State of Washington; Elliott Bay Marina Group, a partnership; and David M. Abercrombie, Defendants.
• Court: U.S. District Court — Western District of Washington

698 F. Supp. 1504

MUCKLESHOOT INDIAN TRIBE and Suquamish Indian Tribe, Plaintiffs, v. Colonel Philip L. HALL, District Engineer for the Seattle District of the United States Army Corps of Engineers; John O. Marsh, Secretary of the Army; United States Department of the Army, Corps of Engineers; City of Seattle, a municipality of the State of Washington; Elliott Bay Marina Group, a partnership; and David M. Abercrombie, Defendants.

No. C88-384Z.

United States District Court, W.D. Washington, at Seattle.

July 5, 1988.

On Determination of Bond and For Temporary Restraining Order July 11, 1988.

On Motion for Reconsideration September 6, 1988.

Robert L. Otsea, Jr., Laura Ann Lavi, Office of the Tribal Atty., Muckleshoot Indian Tribe, Auburn, Wash., Phillip E. Katzen, Alexandra Harmon, Evergreen Legal Services, Native American Project, Seattle, Wash., for plaintiffs.

Susan Barnes, Asst. U.S. Atty., Seattle, Wash., for Colonel Philip L. Hall, John O. Marsh, U.S. Dept. of the Army Corps of Engineers.

G. Richard Hill, John McCullough, Foster, Pepper & Shefelman, Seattle, Wash., for Elliott Bay Marina Group.

Judith B. Barbour, Seattle City Atty., Seattle, Wash., for City of Seattle.

Mair, Abercrombie, Camiel & Rummonds, Seattle, Wash., for David M. Abercrombie.

Mason D. Morisset, Terence L. Thatcher, Pirtle, Morisset, Schlosser & Ayer, Seattle, Wash., for Tulalip Tribes of Washington, amicus curiae.

Richard S. White, Helsell Fetterman Martin Todd, Seattle, Wash., for Homeowners, intervenors.

ORDER GRANTING PRELIMINARY INJUNCTION

ZILLY, District Judge.

THIS MATTER comes before the Court on the motion of plaintiffs Muckleshoot Indian Tribe and Suquamish Indian Tribe ("the Tribes") for a preliminary injunction enjoining the construction of a 1200-slip marina, the Elliott Bay Small Craft Harbor (the "Marina"), pending trial of the merits in this case. The Tribes contend that a preliminary injunction is necessary because construction of the Marina would eliminate a portion of one of their usual and accustomed fishing areas in Elliott Bay and thus would interfere with their treaty right to fish at the Marina site.

The Tribes seek an order specifically (1) restraining the defendant partnership Elliott Bay Marina Group ("Marina Group") from building the Marina and from dredging any material or placing any material into Elliott Bay; and (2) requiring defendants the United States Department of the Army Corps of Engineers, Col. Philip L. Hall (District Engineer for the Seattle District of the United States Army Corps of Engineers), John O. Marsh (Secretary of the Army) (collectively referred to herein as "the Corps" or "the federal defendants"), and the City of Seattle ("the City") to suspend any permit or other permission that would allow the Marina Group to proceed with construction or operation of the Marina, and enjoining these defendants from taking any action to permit or allow any further construction.¹

Having reviewed the motion, together with all documents and materials filed in support and in opposition, having heard oral argument and being fully advised, the Court has concluded that a preliminary injunction should issue. The Court entered an order granting a preliminary injunction on June 30, 1988. This order provides the parties with the reasons for the Court's decision. See Fed.R.Civ.P. 65(d).

I. FACTS

A. The Marina Project and the Claimed Impact of the Loss to the Tribes' Usual and Accustomed Fishing Area

The defendant Marina Group proposes to construct a 1200-slip boat moorage basin at the base of Magnolia Bluff in Seattle, occupying approximately 78 acres on the north side of Elliott Bay in Puget Sound. Final Environmental Impact Statement ("EIS"), at 28. The project site is about 1000 feet west of the existing Pier 91 and fronts about 2800 feet of shoreline. Final EIS, at iii; Record of Decision ("ROD"), at 3.

Elliott Bay is located within two harvest management catch reporting areas designated by the Washington State Department of Fisheries — Areas 10 (Outer Elliott Bay) and 10A (Inner Elliott Bay). ROD, at 43; Final EIS, at 140; Technical Appendix O, at 0-4. The present boundary between the two areas is a straight line from Pier 91 to Duwamish Head. The proposed Marina site is next to the eastern boundary of Area 10 (Outer Elliott Bay), between Four Mile Rock and Pier 91. ROD, at 38; Final EIS, at 212.

The Muckleshoot and Suquamish Tribes identify the area between Four Mile Rock and Pier 91 as a prime chinook fishing area. The Tribes indicate that they fish for chinook in the kelp beds, as close to the shoreline as possible. Final EIS, at 212. The Tribes also identify the area from West Point to Pier 91 as a productive fishing site. Final EIS, at 212.

The Tribes claim that Area 10 is a usual and accustomed fishing place, reserved for their access and use under the Treaty of Point Elliott, 12 Stat. 927 (1855), and that construction of the Marina, by occupying a portion of Area 10 and eliminating a part of their usual and accustomed fishing places, would irrevocably deny them their federally-protected right of access to this area. The Muckleshoot Tribe indicates that it first notified the developer of its opposition to the Marina in 1983. Administrative Record, at E-371.

The Corps, in its Record of Decision ("ROD"), states that the Marina would eliminate about 130 acres of the area between West Point and Pier 91, about 70 acres of which the Tribes presently use for net retrieval of fish. Final EIS, at 212. According to the Corps, the area to be eliminated represents about 6% of the chinook fishing area from West Point to Pier 91, and about 27% of the prime chinook fishing area between Four Mile Rock and Pier 91. ROD, at 38; Final EIS, at 212, Figure 35. In contrast, the Tribes estimate a loss of over 40% of the fishing area between Four Mile Rock and Pier 91. ROD, Appendix A (Comments on the Final EIS and the District Engineer's Responses), at 10-13; Hatch Declaration, para. 36; see also Technical Appendix O, at 0-22 to 0-30.

The Final EIS states that the Tribes' salmon fishing is limited to a few areas within the combined usual and accustomed fishing places, for numerous reasons, including fishing conditions and interference from traffic in Puget Sound. Final EIS, at 136. The Corps identifies seven major areas of concentrated commercial fishing activity by the Tribes in central Puget Sound, including the area from West Point to Pier 91. Final EIS, at 136; see also Amended Record of Decision ("AROD"), at 50-51. Three of these Puget Sound fishing areas are in Elliott Bay: the area offshore Magnolia Bluff between Pier 91 and Four Mile Rock, where the Marina is to be built; the mouth of the Duwamish; and the area between Duwamish Head and Alki Point. However, the Tribes contend that difficulties with the latter two areas make the first area more important to their fishing. See AROD, at 27; Hatch Declaration, paras. 32-33. The Tribes contend that the area between Pier 91 and Four Mile Rock is "by far the most productive" of the three areas, that fishing in this area is important to their livelihood, subsistence, and culture, and that there are few places other than Elliott Bay where they can now fish for chinook salmon because of conservation and allocation concerns. Hatch Declaration, para. 25. The Corps recognizes that "available fishing places have shrunk through development of Seattle's shoreline. Due to this, the Four Mile Rock to Pier 91 area may well have importance now that it did not have at treaty times." AROD, at 49.

The Corps estimates that the proposed development will cause the Tribes financial loss in the amount of $9,335 in lost annual harvest and a $3,745 minimum average annual increase in gear loss (as a result of increased boat traffic). Final EIS, at 214-16. Another estimate by the Corps provides a range of loss from $25,000 to $40,000. Administrative Record, at H-110. The Tribes calculate the possible loss to Indian fishers as a result of the development to be over $255,000 annually (based on a partial accounting of impacts). Meyer Declaration, para. 4.

B. History of the Permit Process

The Marina Group began applying for permits from the City of Seattle and the United States Army Corps of Engineers² in 1983. The entire process has been extensive in time and in efforts to involve all interested parties. See, e.g., Final EIS, at 269; Appendix Q, Public and Agency Review.

On May 19, 1983, the Marina Group applied to the Corps for a permit under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and Section 404 of the Clean Water Act of 1977, 33 U.S.C. § 1344, to develop a small craft harbor and marina for approximately 1200 boats. ROD, at 3. The primary purpose and benefit of the Marina would be to meet a documented need for moorage space in King County, a need which is expected to increase during the next decade. Final EIS, at 6, 23 et seq. On June 6, 1983, the Seattle District of the Army Corps of Engineers issued an initial Public Notice of Application for Permit. Final EIS, at 269; ROD, at 3-4.³

After holding meetings and receiving public and agency comments, on June 1, 1984, the Corps issued a revised public notice reflecting a modified proposal. The Draft Environmental Impact Statement ("EIS") under the National Environmental Policy Act ("NEPA") was published in October 1984.

In light of comments received on the revised proposal from the concerned public, the Tribes, and environmental reviewing agencies, the project was again modified and a new public notice issued on August 15, 1986. ROD, at 4. The NEPA Final EIS was published in January 1987. On July 24, 1987, the Corps issued the Record of Decision and permit for the proposed Marina. By this time, the Corps had held additional meetings and discussions and reviewed a substantial amount of documentation and comments. The ROD explains the District Engineer's reasoning, summarizes public comment...