United States v. Washington
| Decision Date | 31 December 2013 |
| Docket Number | Case No. CV 9213. |
| Citation | 20 F.Supp.3d 986 |
| Parties | UNITED STATES of America, et al., Plaintiffs, v. State of WASHINGTON, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
COMPILATION OF MAJOR POST–TRIAL SUBSTANTIVE ORDERS (Through December 31, 2013)
The Suquamish Tribe has filed a motion for reconsideration of the Court's November 20, 2012 Order granting a motion to quash a deposition subpoena directed to Dr. Barbara Lane, and granting a protective order from further discovery. Dkt. 216, 223. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Court deems it unnecessary to direct opposing party Tulalip to respond to the motion, and shall deny it.
Suquamish argues that it “needs Dr. Lane's expert opinions, the methods she used to derive them and the specific facts and data she used to support them to properly prepare its case.” Motion for Reconsideration, Dkt. # 223, p. 2. Further, Suquamish asserts that the Court committed manifest error in the statement that “it does not appear to the Court that Dr. Lane has been identified by the Tulalip as an expert.” Id., quoting Order on Motion to Quash, Dkt. # 218, p. 3. Suquamish has attached to the Motion for Reconsideration a copy of the Tulalip Tribe's revised witness list, designating Dr. Lane as an expert witness in this matter. This designation was filed by Tulalip on October 17, 2012. Dkt. # 183. However, nowhere in the Suquamish response to the Tulalip motion to quash, or in the attached declaration, did Suquamish point to or cite to this designation. The parties' witness lists were filed in accordance with the Court's pre-trial schedule, which was proposed by the parties and adopted by the Court on March 20, 2012. Dkt. # 161. The witness lists were filed in anticipation of the trial, which at that time was set for February 4, 2013. The Court does not normally review these until the week prior to trial. In the absence of a citation to the specific document, the Court had no reason to review the entire record for evidence to support the Suquamish argument that Tulalip had designated Dr. Lane as an expert.
The Court did not commit “manifest error” because it did not make an actual finding that Dr. Lane had not been designated an expert by Tulalip. Instead, it simply made the observation that this did not appear to be the case. Moreover, the Court's decision on the motion to quash was based on other reasons as set forth in the Order.
Nor does the Tulalip designation constitute “new evidence” which could not have been produced earlier. In responding to the motion to quash, Suquamish could have cited or pointed to the expert witness designation filed at Dkt. # 183 to bring it to the Court's attention, but failed to do so. Thus the designation cannot serve as a basis for reconsideration. Local Rule CR 7(h)(1). However, the Court now acknowledges that Tulalip did designate Dr. Lane as an expert witness on October 17, 2012. This acknowledgment does not constitute a finding that the designation was timely or proper under the rules and procedures applicable to this case, particularly those relating to latter-day testimony by Dr. Lane.
Beyond this acknowledgment, the motion for reconsideration is DENIED.
ORDER ON MOTION FOR REFERRAL TO SETTLEMENT JUDGE
Subproceeding No. 91–1 (Halibut)
(February 1, 2013)
This matter is before the Court for consideration of a request by the Quileute Tribe for referral to a settlement judge. Dkt. # 411. The request is made pursuant to language in the Court's March 14, 2012 Order on Motions to Modify the Status Quo, in which the Court stated, “Should the parties wish to return to settlement negotiations following this year's halibut fishery, they may request a referral to Magistrate Judge Tsuchida.” Dkt. # 397, p. 6. The request is timely under the Court's February 26, 2010, directive that requests for assistance in changing the status quo for the halibut fishery must be filed by September 30 for the following year's fishery. Dkt. # 228. However, the Quileute Tribe does not specify what modifications to the status quo are sought; the request appears to simply contemplate a return to the 2012 settlement negotiations that concluded unsuccessfully.
No other Tribe has joined in the request. The Port Gamble S'Klallam and Jamestown S'Klallam Tribes (“S'Klallam”) have opposed it. Dkt. # 413. Pointing to the management measures which were put in place for 2012 to supplement the status quo plan, they state, Response to Request for Reference to Settlement Judge, Dkt. # 413, p. 5. The Court would like to see that as well.
The request for referral to a settlement judge (Dkt. # 411) is accordingly DENIED.
Subproceeding 11–2
(February 5, 2013)
This matter is before the Court on a motion for reconsideration filed by the Suquamish Tribe (“Suquamish”). Dkt. # 62. The Suquamish ask the Court to strike a footnote from the Order on Motion for Summary Judgment filed October 11, 2012. Dkt. # 59. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Court deems it unnecessary to direct other parties to respond to the motion, and shall deny it for the reasons set forth below.
The Suquamish have objected to footnote 5 to the Order, which, viewed in context, was a footnote to the following statement:
While Judge Boldt described the Lummi U & A in FF 46 as including marine areas from Fraser River south to the present environs of Seattle, “and particularly Bellingham Bay,” the Lummi have pointed to no facts before Judge Boldt which would support the conclusion that he intended to include all the marine waters in between. Indeed, this Court has found in a previous subproceeding that Judge Boldt's “from” and “to” language in describing a U & A does not include all the waters in between.
Order on Motion for Summary Judgment, Dkt. # 59, p. 15 (emphasis in original). The Court illustrated this statement with the challenged footnote, which reads as follows:
In a recent subproceeding addressing similar language by Judge Boldt in describing the Suquamish U & A (“the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal”), this Court found that Judge Boldt did not intend to include all of Puget Sound, and excluded certain area to the east of Whidbey Island. Subproceeding 05–03, affirmed, U.S. v. Washington (Upper Skagit v. Suquamish), 590 F.3d 1020 (9th Cir.2010). This determination was made by examining the evidence that was before Judge Boldt, specifically Dr. Lane's report on Suquamish fishing areas.
Id., p. 15 n. 5 (emphasis in original).
In asking the Court to strike this footnote, the Suquamish state the following objection:
In footnote 5, the court sua sponte opined that not only did Judge Boldt not intend to include all of Puget Sound in his 1975 determination of Suquamish's usual and accustomed fishing ground (“U & A”) but that he excluded certain area to the east of Whidbey Island, indicating an affirmative action by Judge Boldt to exclude the area. This particular issue was not before the court in the above subproceeding and nothing in the record in subproceeding 11–02 supports this finding.
Motion for Reconsideration, Dkt. # 62, p. 1–2. They argue that the footnote constitutes manifest error because “the court's opinion in footnote 5 does not reflect the current state of the law in this case and if footnote 5 is not stricken, the result will be a manifest injustice against Suquamish and any other tribe who hereafter tries to expand its U & A pursuant to Paragraph 25(a)(6).” Id., p. 6.
The Suquamish have misconstrued both the meaning and the effect of the footnote. First of all, the footnote is not an opinion or finding of the Court. It is a summary of the Court's ruling in a subproceeding in which the U & A of the Squamish Tribe was put at issue. Subproceeding 05–03. It is that ruling, not a footnote summarizing it, which is the law of the case. That ruling has been affirmed on appeal and the time for reconsideration is past. Second, the Suquamish have overlooked a comma and misread the plain language of the footnote. The footnote does not state that “he [Judge Boldt] excluded certain area to the east of Whidbey Island” as they argue in the motion. It was this Court that excluded certain areas to the east of Whidbey Island, specifically Saratoga passage and Skagit Bay, from the Suquamish U & A. Order on Motions for Summary Judgment, Subproceeding 05–03, Dkt. # 198, p. 15. The Court found that “in describing the Suquamish U & A as the marine waters of Puget Sound from Vashon Island up to the Fraser River, Judge Boldt could not have intended to include Saratoga passage or Saratoga Bay.” Id. Thus the sentence to which the Suquamish object should be read as follows: “[T]his Court found that Judge Boldt did not intend to include all of Puget Sound, and [the Court] excluded certain area[s] to the east of Whidbey Island.”
The Court finds it unnecessary to strike and re-state the footnote, as it is sufficiently clear as written. The motion for reconsideration is accordingly...
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United States v. State, Case No. CV 9213.
...20 F.Supp.3d 986UNITED 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 MAJORPOST–TRIAL SUBSTANTIVE ORDERS(January 1, 2013 through December 31, Ordered accordingly. TABLE......