United States v. State, Case No. CV 9213.

• Decision Date: 31 December 2012
• Docket Number: Case No. CV 9213.
• Citation: 20 F.Supp.3d 899
• Parties: UNITED STATES of America, et al., Plaintiffs, v. State of WASHINGTON, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

20 F.Supp.3d 899

UNITED STATES of America, et al., Plaintiffs,
v.
State of WASHINGTON, et al., Defendants.

Case No. CV 9213.

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

COMPILATION OF MAJOR
POST–TRIAL SUBSTANTIVE ORDERS
(January 1, 2008 through December 31, 2012)

Ordered accordingly.

See appellate decisions, 593 F.3d 790, 763 F.3d 1180.

TABLE OF CONTENTS

ORDER	PAGE
Order Granting Suquamish Tribes' Motion to Deny A & K Trust's request for Intervenor Status (6/13/08)	905
Order Granting Suquamish Tribe's Motion for Summary Judgment (6/13/08)	908
Order Granting Suquamish tribe's Motion for Summary Judgment re A & K Trust Tidelands ad Chico Bay (6/13/08)	910
Order on Rule 60(B) Motion to Reopen (9/2/08)	912
Joint Motion for Order to Adopt Stipulation Regarding Implementation of Shellfish Settlement Agreement (10/10/08)	934
Order Adopting Stipulations Regarding Implementation of Shellfish Settlement Agreement (10/21/08)	935
Order on Motion to Dismiss (11/13/08)	935
Order on Motion for Certificate of Appealability (1/5/09)	937
Order on Motion to Dismiss (6/16/09)	940
Order on Motion for Reconsideration (7/14/09)	941
Order on Motion of Makah Indian Tribe to Clarify the Status Quo (2/26/10) Minute Order—Motion (3/5/10)	944
Order (3/10/11)	945
Order on Motion for Leave to File a Cross-request for Determination (4/12/11)	946
Order on Motions to Dismiss (9/28/11)	948
Order Regarding Dispute Resolution (10/18/11)	951
Amended Order Granting Suquamish and Tulalip joint Request for Clarification of Section III.B.1 & B.6 of 1983 Muckleshoot Suquamish and Tulalip Settlement Agreement (10/27/11)	958
Supplemental Order on Paragraph 25 Procedures (11/9/11)	959
Order on Motion for Reconsideration (2/13/12)	960
Order on Motion to Dismiss (2/13/12)	961
Order on Motions for Reconsideration (3/14/12)	962
Order on Motions to Modify the Status Quo (3/14/12)	963
Order on Motion for Clarification (3/16/12)	967
Minute Order (3/23/12)	968
Order on Motion for Leave to Intervene (8/9/12)	968
Order on Motion for Summary Judgment (10/11/12)	968
Order on Motion to Quash and For a Protective Order (11/20/12)	980
Order on Electronic Filing Procedures for C70–9213 (11/20/12)	982
Amended Supplemental Order on Paragraph 25 Procedures (11/20/12)	982
Order (12/5/12)	983

[20 F.Supp.3d 905]

COMPILATION OF MAJOR POST–TRIAL SUBSTANTIVE ORDERS (Through December 31, 2012) ORDER GRANTING SUQUAMISH TRIBE'S MOTION TO DENY A & K TRUST'S REQUEST FOR INTERVENOR STATUS
Subproceeding Nos. 89–3 (Shellfish), 89–3–05 (June 13, 2008) RICARDO S. MARTINEZ, District Judge.

This matter is before the Court for consideration of a motion filed by the Suquamish Tribe to deny A & K Trust's Request for Intervention. Dkt. # 14565 (also docketed as Dkt. # 31 in Subproceeding 89–305). This motion was filed pursuant to the Settlement Agreement filed in Subproceeding 89–3, and procedures set forth in the subsequent Order adopting the Settlement Agreement. Dkt. 14476, 14482. The A & K Trust has appeared to oppose the motion. Oral argument was heard on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the Court shall grant the motion.

DISCUSSION

On June 20, 2007, the parties filed a Settlement Agreement in this matter, setting forth an agreement by which the Tribes, the Intervenor Shellfish Growers, the State of Washington, and the United States settled a long-standing dispute regarding the Tribes' treaty right to take shellfish on tidelands owned by the State of Washington or owned or leased by private parties. The significant aspect of this agreement is that the Tribes agreed that upon the fulfillment of certain contingencies (leading to the payment of $33 million to the Tribes), “any and all shellfish on ‘covered tidelands' ... are deemed as of the date of this Settlement Agreement to be ‘staked and cultivated by citizens' for the purpose of implementing the Treaties ...” Settlement Agreement, ¶ 6A. The

[20 F.Supp.3d 906]

designation of the “covered tidelands” as “staked and cultivated” thus brought these tidelands under the so-called Shellfish Proviso of the Stevens' Treaties, which reserved to the Tribes the right of taking fish in common with all citizens of the Territory, “ Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.” United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998). This determination as to what constitutes a “staked and cultivated bed” immune from Tribal harvest has been the focus of the on-going “Density Dispute” (Subproceeding 89–3).

The “covered tidelands” to be designated as “staked and cultivated” are those owned or leased by eight named shellfish growers who were the original Intervenors in this Subproceeding: Taylor United, Inc.; Olympia Oyster Co.; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minterbrook Oyster Co.; Charles and Willa Murray; Skookum Bay Oyster Co.; and J & G Gunstone Clams, Inc. Settlement Agreement, ¶ 2(A). Pursuant to the Settlement Agreement and a subsequent stipulation regarding its implementation, other shellfish growers who meet the conditions set forth in the Settlement Agreement could become Intervenors and be bound by the terms of the Settlement Agreement by filing a Notice and Request for Intervention on or before March 1, 2008. Such Notice must include documentation which would establish that the requirements for Intervenor status set forth in the Settlement Agreement had been met. Settlement Agreement, ¶¶ 2(B), 2(C). The Tribes would then have eight months to file objections to any such Notice. Stipulation Regarding Implementation of Settlement Agreement, Dkt. # 14481. A & K Trust (“the Trust”) filed a Notice and Request for Intervention on February 29, 2008. Dkt. # 14497. To date, the Suquamish Tribe's objection to the Notice filed by the Trust is the only objection filed by the Tribes.

The criteria that a grower must meet to qualify for Intervenor status under the Settlement Agreement, and have tidelands regarded as “covered tidelands”, are set forth in that Agreement. First, the person must be a member of the Puget Sound Legal Defense Fund. Second, the grower must have, on or before August 28, 1995, owned tidelands, leased them from a private party, or “otherwise had a right to commercial harvests of shellfish from tidelands” and either (1) had an active aquatic farm registration for commercial harvest of shellfish from tidelands on or before August 28, 1995, and a Washington Department of Health certification for those tidelands; or (2) on or before the date the party seeks intervention, he or she had an active aquatic farm registration for commercial shellfishing on designated tidelands, together with a health certification for those tidelands, and the person provides documentary evidence establishing that those tidelands were used for “sustained commercial production” of shellfish during some portion of the time between January 1, 1985, and August 28, 1995. Settlement Agreement, ¶¶ 2(B)(i), 2(B)(ii). In addition, a grower seeking to qualify under either section must provide sufficient identification of the specific tidelands to be covered, as by county and tax parcel number. A third route to qualification, not relevant here, provides for Intervenor status for growers who acquired the right to grow and harvest shellfish from someone else who already qualified, either as one of the original eight Intervenors, or through one of the routes set forth in ¶¶ 2(B)(i) and (ii).

Together with the Notice and Request for Intervention, the Trust filed over 350 pages of documents, including copies of aquatic farm registrations, deeds, tax record,

[20 F.Supp.3d 907]

lease agreements, and licenses, all purportedly relating to various tidelands in Dyes Inlet, Washington.¹ Dkt. # 14497. In moving to deny Intervenor status to the Trust, the Suquamish Tribe asserts that none of the documentation satisfies the requirements set forth under either ¶ 2(B)(i) or (ii), and that none of it sufficiently identifies the specific tidelands to be considered as “covered tidelands.”. In opposing the motion, the Trust identifies six particular tax parcels, and argues that various leases and oyster transfer permits provide sufficient documentation to meet the requirements set forth under ¶ 2(B)(ii) of demonstrating “sustained commercial production” on those tidelands at some time between January 1, 1985, and August 28, 1995. The Court finds that is not so.

The tidelands which the Trust seeks to include as “covered tidelands” in its Notice and Request for Intervention lie adjacent to Chico Bay, Phinney Bay, and Erlands Point, all within Dyes Inlet, Washington. It is undisputed that this entire area was closed to the commercial harvest of shellfish from the late 1960's until 1996—after the crucial date of August 28, 1995, due to pollution of the surrounding waters. In 1996, some areas of Dyes Inlet were opened to restricted harvest, as by relying clams from there to clean waters elsewhere for a period of purging. However, prior to August 28, 1995, even that limited harvest was not allowed.

The Trust thus conceded at oral argument that no “sustained commercial production” took place on these tidelands between 1985 and August 28, 1995, as required to qualify under ¶ 2(B)(ii). Instead, the Trust urged the Court to consider that under the circumstances here, where the tidelands were closed to harvest throughout the critical period, a demonstration of “sustained commercial activity ” should be considered sufficient to meet the requirement set forth in the Settlement Agreement. The Trust offered several documents which purported to show commercial “activity” during the relevant period, such as oyster transfer permits. Trust's Response, filed in Subproceeding 89–305 only, Dkt. # 36, Exhibits C, D. However, these unauthenticated documents are inadmissible hearsay, and further fail to...