United States v. State

• Decision Date: 20 September 2021
• Docket Number: Subproceeding 19-01 RSM,C70-9213 RSM
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES OF AMERICA, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.

UNITED STATES OF AMERICA, et al., Plaintiffs, v. STATE OF WASHINGTON, et al., Defendants.

No. C70-9213 RSM

Subproceeding No. 19-01 RSM

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

September 20, 2021

ORDER ON PENDING MOTIONS

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This subproceeding is before the Court on cross-motions for summary judgment filed by each of the four tribes actively litigating this matter: the requesting parties the Swinomish Indian Tribal Community (“Swinomish”), the Tulalip Tribes (“Tulalip”), and the Upper Skagit Indian Tribe (“Upper Skagit”) (collectively, the “Region 2 East Tribes”) and responding party the Lummi Nation (“Lummi”). Dkt. #3.^[1] The Region 2 East Tribes sought judgment determining that “[t]he adjudicated usual and accustomed fishing places of the Lummi Nation do not include” the waters east of Whidbey Island (the “Disputed Waters”).^[2] Id. at ¶ 30. The Region 2 East Tribes now seek summary judgment and permanent injunctive relief. Dkt #73-1^[3] (Swinomish); Dkt. #55^[4] (Upper Skagit); Dkt. #57^[5] (Tulalip).

Lummi opposes the Region 2 East Tribes and seeks summary judgment and a ruling that its usual and accustomed fishing grounds and stations specifically include the Disputed Waters. Dkt. #67 (Lummi opposition);^[6] Dkt. #59 (Lummi motion for summary judgment).^[7] Having reviewed the matter, the Court finds for the Region 2 East Tribes and determines that Judge Boldt intended to exclude the Disputed Waters from his determination of Lummi's usual and accustomed fishing grounds and stations.

II. BACKGROUND

Almost one half-century ago, Judge Boldt determined Lummi's usual and accustomed fishing grounds and stations (“U&A”), as reserved under the Treaty of Point Elliott:^[8]

45.....The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point....These Indians also took spring, silver and humpback salmon and steelhead by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpoons and basketry 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 Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.

United States v. Washington, 384 F.Supp. 312, 360 (W.D. Wash. 1974), aff'd and remanded, 520 F.2d 676 (9th Cir. 1975) (the “Boldt Decree”) (citations omitted).

Through extensive prior litigation, this Court and the Ninth Circuit have determined that Judge Boldt intended for his expansive and general description of the “marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle” to include Admiralty Inlet on the western side of Whidbey Island and “exclude[s] the Strait of Juan de Fuca and the mouth of the Hood Canal.” United States v. Lummi Indian Tribe, 235 F.3d 443, 445, 451-52 (9th Cir. 2000) (“Lummi I”). Noting that “Admiralty Inlet ‘would likely be a passage through which the Lummi would have traveled' from the Fraser River, south through the San Juan Islands, to the present environs of Seattle, ” the Ninth Circuit has further concluded that Judge Boldt intended to include “the waters immediately to the west of northern Whidbey Island . . . within the Lummi's U&A.” United States v. Lummi Nation, 763 F.3d 1180, 1187 (9th Cir. 2014) (Lummi II). Subsequently, the Ninth Circuit expanded “the waters immediately to the west of northern Whidbey Island” to include, at least, “the waters ‘northeasterly of a line running from Trial Island near Victoria, British Columbia, to Point Wilson on the westerly opening of Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait.'” United States v. Lummi Nation, 876 F.3d 1004 (9th Cir. 2017) (“Lummi III”); Lower Elwha Klallam Indian Tribe v. Lummi Nation, 849 Fed.Appx. 216, 218 (9th Cir. 2021).

The Court is now tasked with determining whether the expansive and general description of Lummi U&A includes the Disputed Waters. Lummi's general position is that the Disputed Waters are so obviously contained within Judge Boldt's description of “the marine areas of Northern Puget Sound” that to otherwise mention geographic anchors within the Disputed Waters would be unnecessarily redundant. Conversely, the Region 2 East Tribes maintain that the omission of geographic anchors, combined with the lack of evidence of Lummi fishing or travel in the Disputed Waters, clearly convey Judge Boldt's intent to omit the Disputed Waters from Lummi's U&A.

III. DISCUSSION

A. Legal Standard

This subproceeding invokes the Court's continuing jurisdiction under Paragraph 25(a)(1) of Judge Boldt's injunction, as subsequently modified. Dkt. #3 at ¶ 2; Boldt Decree, 384 F.Supp. at 419, as modified United States v. Washington, 18 F.Supp.3d 1172, 1213-1216 (W.D. Wash. 1993).^[9] Accordingly, the Court considers whether Lummi fishing within the Disputed Waters would be “in conformity with [the Boldt Decree and] or this injunction.” Boldt Decree, 384 F.Supp. at 419. In doing so, the Court interprets Judge Boldt's prior orders and construes the “judgment so as to give effect to the intention of the issuing court.” Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir. 1998) (“Muckleshoot I”) (quoting Narramore v. United States, 852 F.2d 485, 490 (9th Cir. 1988)) (internal quotation marks omitted). The Court's consideration proceeds under the two-step process established by the Muckleshoot trilogy of cases.

First, the party asserting ambiguity must offer “evidence that suggests that [the U&A] is ambiguous or that the court intended something other than its apparent meaning.” United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (“Muckleshoot III”) (quoting Muckleshoot I, 141 F.3d at 1358) (cleaned up). This is a more searching process than statutory interpretation because “the ‘language of the court must be read in the light of the facts before it.'” Muckleshoot III, 235 F.3d at 433 (quoting Julian Petroleum Corp. v. Courtney Petroleum Co., 22 F.2d 360, 362 (9th Cir. 1927)). Accordingly, the mere fact that a geographic term may include the waters at issue does not resolve the matter. Id. Rather, the Court may consider the record before Judge Boldt when he established the U&A and “may also include additional evidence if it sheds light on the understanding that Judge Boldt had of the geography at the time.” Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1024-25 (9th Cir. 2010) (“Upper Skagit”) (quoting Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000) (“Muckleshoot II”)) (quotation marks omitted).

If Judge Boldt's U&A determinations are ambiguous or mean something other than their apparent meaning, the moving party must then “show that there was no evidence before Judge Boldt that [the responding party] fished [in the disputed waters] or traveled there in route to” other portions of the responding party's U&A. Upper Skagit, 590 F.3d at 1023; see also Lummi III, 876 F.3d at 1010. Conversely, summary judgment in favor of the responding party is appropriate if it can establish that it fished in or traveled through the disputed waters.

Here, the determinations are appropriately resolved on the parties' motions for summary judgment. Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248.

Neither party offers additional evidence of Judge Boldt's contemporaneous understanding of geography and rely on the record before Judge Boldt, obviating factual disputes. Muckleshoot I, 141 F.3d at 1359 (noting pretrial order providing that “the only relevant evidence is that which was considered by Judge Boldt when he made his finding”). Because the Court's review is limited, almost exclusively, to the record before Judge Boldt and because of the practical difficulties presented by the underlying case and its numerous subproceedings, the Ninth Circuit has relaxed summary judgment strictures in the context of this case. See Upper Skagit, 590 F.3d at 1025 n.9. Where each party had the opportunity to augment the record with evidence of Judge Boldt's contemporaneous understanding of ambiguous terms, “a trial on the merits would reveal no additional relevant facts.” Id. Accordingly, “the district judge, who is also the trier of fact, may resolve conflicting inferences and evaluate the evidence to determine Judge Boldt's intent.” Id. (citations omitted).

B. Lummi's U&A is Ambiguous

The relevant portion of Lummi's U&A determination is “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.” The Court has little trouble concluding that Judge Boldt's broad use of “the marine areas of Northern Puget Sound” is ambiguous.

First, and most importantly, Lummi's U&A determination does not include any geographic anchors within the Disputed Waters for Judge Boldt's use of “Northern Puget Sound.” The Ninth Circuit has previously noted the importance of geographic anchors where more general geographic terms are used. See Upper Skagit, 590 F.3d at 1025-26. Because the Court's inquiry must “focus[] on individual...