United States v. State

• Decision Date: 09 July 2015
• Docket Number: No. C70–9213,Subproceeding No. 09–01,C70–9213
• Citation: 129 F.Supp.3d 1069
• Parties: United States of America, et al, Plaintiffs, v. State of Washington, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

129 F.Supp.3d 1069

United States of America, et al, Plaintiffs,

v.State of Washington, et al., Defendants.

No. C70–9213

Subproceeding No. 09–01

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

Signed July 9, 2015

Kerry Jane Keefe, US Attorney's Office, Jane Garrett Steadman, Phillip Evan Katzen, Kanji & Katzen, Eric J. Nielsen, Nielsen, Broman & Koch, Seattle, WA, Vanessa Boyd Willard, US Department of Justice, Denver, CO, John William Ogan, Karnopp Petersen LLP, Bend, OR, Riyaz Amir Kanji, Kanji & Katzen, Ann Arbor, MI, James Rittenhouse Bellis, Suquamish Tribe, Suquamish, WA, Fawn R. Sharp, Tribal Attorney, Taholah, WA, Katherine K. Krueger, Quileute Natural Resources, Lapush, WA, Lori Ellen Nies, Raymond G. Dodge, Jr., Tribal Attorney, Skokomish Nation, WA, Emily Rae Hutchinson Haley, Swinomish Indian Tribal Community, James Miller Jannetta, Office of the Tribal Attorney, La Conner, WA, Thomas A. Zeilman, Law Office of Thomas A. Zeilman, Yakima, WA, for Plaintiffs.

Rene David Tomisser, Bryce E. Brown, Jr., Laura J. Watson, Noah Guzzo Purcell, Philip Michael Ferester, Terence A. Pruit, Laura J. Watson, Joseph V. Panesko, Michael S. Grossmann, Joseph Earl Shorin, III, Attorney General's Office, Olympia, WA, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM ORDER

RICARDO S. MARTINEZ, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This subproceeding is before the Court pursuant to the request of the Makah Indian Tribe (the "Makah") to determine the usual and accustomed fishing grounds ("U & A") of the Quileute Indian Tribe (the "Quileute") and the Quinault Indian Nation (the "Quinault"), to the extent not specifically determined by Judge Hugo Boldt in Final Decision # 1 of this case. The Court is specifically asked to determine the western boundaries of the U & As of the Quileute and Quinault in the Pacific Ocean, as well as the northern boundary of the Quileute's U & A. A 23 –day bench trial was held to adjudicate these boundaries, after which the Court received extensive supplemental briefing by the Makah, Quileute, Quinault, and numerous Interested Parties and took the matter under advisement. The Court has considered the vast evidence presented at trial, the exhibits admitted into evidence, trial, post-trial, and supplemental briefs, proposed Findings of Fact and Conclusions of Law, and the arguments of counsel at trial and attendant hearings. The Court, being fully advised, now makes the following Findings of Fact and Conclusions of Law. To the extent certain findings of fact may be deemed conclusions of law, or certain conclusions of law be deemed findings of fact, they shall each be considered conclusions or findings, respectively.

I. BACKGROUND

On February 12, 1974, Judge Hugo Boldt entered Final Decision # 1 in this case. The decision set forth usual and accustomed fishing grounds and stations ("U & As") for fourteen tribes of western Washington, wherein the tribes had a treaty-secured right to take up to 50% of the harvestable number of fish that could be taken by all fishermen. SeeUnited States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) ("Final Decision 1"). The Court enforced its ruling through entry of a Permanent Injunction, whereby it provided for any party to the case to invoke the continuing jurisdiction of the Court on seven different grounds, the sixth of which permits adjudication of "the location of any of a tribe's usual and accustomed fishing grounds not specifically determined by Final Decision # I." Id. at 419 (Permanent Injunction, ¶ 25(a)(6)), as modified by the Court's Order Modifying Paragraph 25, Dkt. # 13599.¹ After innumerable subproceedings and appeals and multiple decisions from this country's highest Court, this forty year-old injunction remains in place, safeguarding the rights reserved by these tribes in treating with the United States government to continue to fish as they had always done, beyond the boundaries of reservations to which they agreed to confine their homes.

It is under the jurisdiction set forth by the Permanent Injunction that the parties are again before this Court. The Makah Indian Tribe initiated this subproceeding on December 4, 2009 by filing a request for this Court to determine the usual and accustomed fishing grounds and stations of the Quileute Indian Tribe and the Quinault Indian Nation, to the extent not specifically determined by Judge Boldt in Final Decision # 1. In particular, the Makah ask the Court to define the western and northern boundaries of the Quileute U & A and the western boundary of the Quinault's U & A in the Pacific Ocean—waters beyond the original case area considered by Judge Boldt.² After a series of pre-trial rulings, this subproceeding proceeded to trial under Paragraph 25(a)(6) of the Permanent Injunction. See No. 09–01, Order on Motions, Dkt. # 304.

This is only the second subproceeding in the long history of this case in which this Court has been asked to rule on the boundaries of a tribe's usual and accustomed fishing grounds in the Pacific Ocean. In the first such subproceeding, this Court in 1982 adjudicated the boundaries of the Makah Tribe's Pacific Ocean U & A, determining its western boundary to be located forty miles offshore and its southern boundary to be located at a line drawn westerly from Norwegian Memorial. United States v. Washington , 626 F.Supp. 1405, 1467 (W.D.Wash.1985) ("Makah"), aff'd 730 F.2d 1314 (9th Cir.1984). Since that time, the Quileute and Quinault have been fishing at locations up to forty miles offshore under regulations adopted by the federal government pending formal adjudication by this Court. See No. 09–01, Dkt. # 304 at pp. 3–4.

The subproceeding was tried to the Court over the course of 23 days commencing March 2, 2015 and concluding April 22, 2015. The Court heard testimony from eleven witnesses and admitted 472 exhibits comprised of thousands of pages. The Court also heard argument and reviewed briefs by the Makah, Quileute, Quinault, and a number of Interested Parties, including the State of Washington and the Hoh, Port Gamble S'Klallam, Jamestown S'Klallam, Tulalip, Swinomish, Upper Skagit, Nisqually, Squaxin Island, Muckleshoot, Puyallup, and Suquamish Tribes. The Court commends counsel for each of these parties—and for the Makah, Quinault, and Quileute in particular—for their exhaustive, thorough, and diligent efforts throughout the course of trial and the proceedings leading up to it. Indeed, trial on these three boundaries exceeded the length of the original trial before Judge Boldt leading to Final Decision # 1, a reflection of the great care and extensive research time and resources invested by all parties to this case. It is with the utmost respect for the impassioned efforts and the sincere professionalism demonstrated by all parties during this unusually extensive trial, as well as for the profound investment of diverse communities in the decision rendered herein, that the Court sets forth the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

The following findings of fact are based upon a preponderance of the evidence presented at trial. Where relevant, the Court also draws on findings of fact set forth by Judge Boldt in Final Decision # 1.

A. Treaty Background

As an initial matter, the Makah and Interested Party the State of Washington are at odds with the Quileute, Quinault, and a number of Interested Party tribes with respect to the scope of the treaty-secured "right of taking fish." Specifically, the parties dispute whether evidence of a tribe's harvest of marine mammals, including fur seals and whales, may be the basis for establishing a tribe's U & A. The Makah and the State, joined by three Interested Parties, take the position that a tribe's U & A must be established on the basis of locations where it went at treaty time for the purpose of taking finfish. By contrast, the Quileute and Quinault, with support from a number of Interested Parties, argue for a construction of their treaty that would allow for a U & A to be established based on a broader interpretation of "fish" inclusive of evidence of a tribe's treaty-time marine mammal harvest activities. The following findings of fact concerning the background of tribal treaty rights are made in answer to the question of treaty interpretation raised by the parties.

1. General Context of Treaty Negotiations

1.1. On August 30, 1854, Isaac Stevens, the first Governor and Superintendent of Indian Affairs of the Washington Territory, was notified of his appointment to negotiate treaties with tribes west of the Cascade Range (hereinafter, the "Stevens Treaties"). The principal purposes of the Stevens Treaties were to extinguish Indian claims to the land in Washington Territory and to provide for peaceful and compatible coexistence of Indians and non-Indians in the area. Governor Stevens and the treaty commissioners who worked with him were not authorized to grant to the Indians or treat away on behalf of the United States any governmental authority of the United States. Final Decision 1, Findings of Fact ("FF") 17, 19.

1.2. At the treaty negotiations, a primary concern of the Indians whose way of life was so heavily dependent upon harvesting fish, was that they have freedom to move about to gather food at their usual and accustomed fishing places. In 1856, it was felt that the development of the non-Indian fisheries in the case area would not interfere with the subsistence of the Indians, and Governor Stevens and the treaty commissioners assured the Indians that they would be allowed to continue their fishing activities. FF 20.

1.3. It was the intention of the United States in negotiating the treaties to make at least non-coastal tribes agriculturists, to diversify Indian economy, and to otherwise facilitate the tribes' assimilation into non-Indian culture. There was no intent, however to prevent the Indians from using the fisheries for economic gain. FF 21.

1.4. There is nothing in the...