Muckleshoot Tribe v. Lummi Indian Tribe

• Decision Date: 17 April 1998
• Docket Number: Nos. 96-35341,96-35342,s. 96-35341
• Citation: 141 F.3d 1355
• Parties: 28 Envtl. L. Rep. 21,174, 98 Cal. Daily Op. Serv. 2843, 98 Daily Journal D.A.R. 3920 MUCKLESHOOT TRIBE, Plaintiff-Appellee, and Squaxin Island; Nisqually Indian Tribe; Puyallup Tribe, Plaintiffs, v. LUMMI INDIAN TRIBE, Defendant-Appellant. MUCKLESHOOT TRIBE, Plaintiff-Appellee, and Squaxin Island; Puyallup Tribe; Nisqually Indian Tribe, Plaintiffs, v. LUMMI INDIAN TRIBE, Defendant, v. SWINOMISH INDIAN TRIBAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1355

141 F.3d 1355

28 Envtl. L. Rep. 21,174, 98 Cal. Daily Op.

Serv. 2843,

98 Daily Journal D.A.R. 3920

MUCKLESHOOT TRIBE, Plaintiff-Appellee, and Squaxin Island; Nisqually Indian Tribe; Puyallup Tribe, Plaintiffs, v. LUMMI INDIAN TRIBE, Defendant-Appellant.

MUCKLESHOOT TRIBE, Plaintiff-Appellee, and Squaxin Island; Puyallup Tribe; Nisqually Indian Tribe, Plaintiffs, v. LUMMI INDIAN TRIBE, Defendant, v. SWINOMISH INDIAN TRIBAL, Defendant-Appellant.

Nos. 96-35341, 96-35342.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1997.

Decided April 17, 1998.

Harry L. Johnsen and Daniel A. Raas, Raas, Johnsen & Stuen, Bellingham, WA; Allan E. Olson, Office of the Tribal Attorney, LaConner, WA, for defendants-appellants.

Gregory M. O'Leary, Seattle, WA, for plaintiff-appellee.

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

Before: FLETCHER and O'SCANNLAIN, Circuit Judges, and SCHWARZER, ^* Senior District Judge.

SCHWARZER, Senior District Judge:

This appeal brings before us two disputes, (1) between the Muckleshoot Indian Tribe ("Muckleshoot") and the Swinomish Indian Tribal Community ("Swinomish") and (2) between the Muckleshoot and the Lummi Indian Nation ("Lummi"), over the interpretation of a decree adjudicating Indian treaty fishing rights in Washington state in respect to salmon and defining the "usual and accustomed fishing places" of the parties to this appeal in respect thereto. United States v. Washington, 384 F.Supp. 312, 360 (W.D.Wash.1974) (Boldt, J.) [hereinafter "Decision I"]; United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (Boldt, J.) [hereinafter "Decision II"]. The district court granted summary judgment adopting the interpretations claimed by Muckleshoot. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In September 1986, Muckleshoot, along with other south Puget Sound tribes, invoked After lengthy and unsuccessful mediation efforts, the north Puget Sound tribes in February 1995 moved to dismiss subproceeding 86-5. At the same time, Muckleshoot filed a motion for partial summary judgment against Swinomish and Lummi seeking rulings that (1) Swinomish's "usual and accustomed fishing grounds and places," as adjudicated in Finding of Fact No. 6 ("FF 6") in Decision II, 459 F.Supp. at 1049, did not include waters within Puget Sound Commercial Salmon Management and Catch Reporting Area 10 ("Area 10") ¹ and (2) Lummi's "usual and accustomed fishing grounds and places," as adjudicated in Finding of Fact No. 46 ("FF 46") in Decision I, 384 F.Supp. at 360, did not include waters within Area 10.

the district court's continuing jurisdiction under Decision I by filing a request for determination ("RFD"), initiating subproceeding 86-5 to seek "equitable allocation" of the treaty share of the case-area salmon harvest. The petitioning south Puget Sound tribes asked for an injunction restraining the fisheries of certain north Puget Sound tribes, including Lummi and Swinomish, that intercepted south Puget Sound salmon on their return migration through the ocean, the Strait of Juan de Fuca and Puget Sound.

The district court granted Muckleshoot's motion for partial summary judgment against Swinomish, determining that the latter tribe's fishing locations under Decision II did not include waters in Area 10. At the same time, the court continued the motion against Lummi to permit that tribe to depose Dr. Barbara Lane, an expert witness whose anthropological report on historical tribal fishing grounds was the major item of evidence relied on by Judge Boldt in Decision I, 384 F.Supp. at 350. The district court subsequently granted Muckleshoot's motion for partial summary judgment against Lummi, determining that Lummi's fishing locations under Decision I did not include waters in Area 10. It also dismissed subproceeding 86-5 without prejudice but subject to limitations on refiling.

DISCUSSION

I. Appellate Jurisdiction and Standard of Review

The district court had subject matter jurisdiction of the underlying proceedings pursuant to 28 U.S.C. §§ 1345, 1362 and 1331. In Decision I, the district court had retained continuing jurisdiction to administer the decree and to resolve specified matters as they arose. 384 F.Supp. at 419.

Upon granting Muckleshoot's motion for partial summary judgment, the court directed entry of judgment pursuant to Fed.R.Civ.P. 54(b). Accordingly we have jurisdiction under 28 U.S.C. § 1291.

A grant of summary judgment is reviewed de novo. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997).

II. Failure to Initiate Separate Subproceeding

Swinomish contends that the district court erred in entertaining Muckleshoot's partial summary judgment motion within subproceeding 86-5. The tribe argues that Muckleshoot violated the decree by pursuing the Area 10 fishing grounds claims in subproceeding 86-5 rather than initiating a separate subproceeding as provided for in paragraph 25 of the decree in Decision I ("Paragraph 25"). See 384 F.Supp. at 419. ² Subproceeding While agreeing that Muckleshoot failed to follow the procedure of convening a conference pursuant to Paragraph 25 and then filing a separate subproceeding, the district court nevertheless determined that appellants had not stated any practical reason for requiring technical compliance with Paragraph 25 under the circumstances of this case. Because both Lummi and Swinomish had notice of the issue for several years, the court found that the failure to file a separate subproceeding did not prejudice them. Muckleshoot's motion, moreover, did not seek determination of a new issue but sought only clarification of two findings in the prior decrees.

86-5, Swinomish argues, raised only fair allocation issues of treaty-share salmon, not clarification of usual and accustomed fishing grounds. As a result, Swinomish claims, it did not have sufficient notice of Muckleshoot's intent to litigate these claims.

We review a decision regarding the management of litigation for abuse of discretion. O'Neill v. United States, 50 F.3d 677, 687 (9th Cir.1995). We find no abuse of discretion in the district court's decision to entertain Muckleshoot's motion without requiring initiation of a new, separate subproceeding with all of the attendant cost and delay. Since the district court limited its review to clarifying the two prior findings by Judge Boldt, neither Swinomish nor Lummi was prejudiced by the district court because both appellants had notice of Muckleshoot's contention with respect to Area 10 for several years. In the RFD, the petitioners specifically identified Area 10 as a marine area where northern tribes had developed large fisheries that took south Puget Sound region-of-origin salmon. During mediation, Muckleshoot raised Lummi's and Swinomish's right to fish in Area 10 as a key issue relating to intertribal allocation of the salmon harvest. Therefore, clarification of designated fishing areas was relevant to any discussion of equitable fish allocation since, as alleged in the RFD, allocation concerns where the fish may be harvested. Moreover, there is no indication that appellants sought additional time for preparation from the district court; the schedule for briefing and hearing of the motions was set by pretrial order without objection. ³

III. Summary Judgment Against Swinomish

FF 6 states:

6. The usual and accustomed fishing places of the Swinomish Tribal Community include the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidalgo, Guemes, Samish, Cypress and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island.

Decision II, 459 F.Supp. at 1049 (emphasis added). The district court interpreted this finding to exclude waters in Area 10 because the southern tip of Whidbey Island, the southernmost land point named, lies seven miles north of the northernmost part of Area 10. ⁴

Swinomish argues that because FF 6 describes "marine areas" surrounding Whidbey Island, Judge Boldt intended that some portion of the northern part of Area 10, though not all of it, be within its usual and accustomed fishing places. There is no evidence to support that assertion and we agree with the district court's determination that when the decree refers to "marine areas ... south to and including Whidbey ... Island[ ]," it does not include a marine area seven miles south of Whidbey Island. While Swinomish argues that Muckleshoot has not met its

burden in establishing that Area 10 (or a portion of it) is not a "marine area" of Whidbey Island, Swinomish offered no evidence that suggests that FF 6 is ambiguous or that the court intended something other than its apparent meaning when it rendered Decision I. Accordingly, we agree with the district court that "marine areas of northern Puget Sound ... south to and including Whidbey Island" does not include any portion of Area 10. ⁵

IV. Summary Judgment Against Lummi

FF 46 states in relevant part:

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 Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.

Decision I, 384 F.Supp. at 360 (emphasis added). ⁶

The district court correctly determined that "the key to resolving the controversy lies in determining what Judge Boldt meant in precise geographic terms by his use of the phrase 'the present environs of Seattle.' " Because the phrase derives from Dr. Barbara Lane's "Anthropological Report on the Identity, Treaty Status, and Fisheries of the...