United States v. Washington
| Decision Date | 15 March 2022 |
| Docket Number | 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. |
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE TESTIMONY
This subproceeding, which was initiated by the Stillaguamish Tribe of Indians (“Stillaguamish”) to adjudicate its claimed treaty right to “harvest all species of fish and shellfish in the marine waters on the eastern side of Whidbey Island and both shores of Camano Island, ” is before the Court on several pending full or partial summary judgment motions. All the motions are opposed and have been fully briefed.
Stillaguamish seeks partial summary judgment determining that the area of its treaty fishing rights include Port Susan, a portion of the marine waters at issue. Dkt. #170.[1] The Upper Skagit Indian Tribe (“Upper Skagit”) seeks summary judgment determining that Stillaguamish has no treaty right to fish in any of the marine waters at issue. Dkt. #174.[2]
The Swinomish Indian Tribal Community (“Swinomish”) seeks summary judgment determining that Stillaguamish has no treaty right to fish in any of the marine waters at issue in this case outside of Port Susan.[3] Dkt. #179.[4]
The Tulalip Tribes (“Tulalip”) seeks partial summary judgment determining that Stillaguamish lacks treaty fishing rights in the marine waters at issue in this case, except for a portion of northern Port Susan and a portion of Skagit Bay, both of which Tulalip previously agreed was “non-exclusive usual and accustomed fishing area of the Stillaguamish Tribe.” Dkt. #176[5] at 2.
Also before the Court are several evidentiary disputes. Most notably, Upper Skagit seeks to exclude portions of the testimony of Dr. Chris Friday, Stillaguamish's expert witness for this matter. Dkt. #173.[6] Additionally, the parties have made various requests for the Court to strike and not consider evidence submitted in support of the pending summary judgment motions. See e.g., Dkt. #191[7] at 2-9; Dkt. #206[8] at 3-4; Dkt. #223[9] at 2.
Having fully considered the matter and the record before the Court, the Court denies the motions for full and partial summary judgment and denies the evidentiary challenges without prejudice.
Stillaguamish was an original intervenor in the case underlying this subproceeding: United States v. Washington, Case No. C70-9213RSM (the “Main Case”). Within the Main Case, Judge Boldt considered Stillaguamish's right to take fish at the tribe's usual and accustomed fishing grounds and stations (“U&A”), as reserved under the Treaty of Point Elliott.[10]In Final Decision #1, Judge Boldt concluded that “fishing constituted a means of subsistence for the Indians inhabiting the area embracing the Stillaguamish River and its north and south forks, which river system constituted the usual and accustomed fishing places of the tribe.” United States v. Washington, 384 F.Supp. 312, 379 (W.D. Wash. 1974) (“Final Decision #1”), aff'd and , 520 F.2d 676 (9th Cir. 1975).
This is not the first time that Stillaguamish has sought to establish treaty fishing rights in marine waters, but none of those prior proceedings have advanced to a final determination.
Id. (citation omitted).
Several years later, Stillaguamish did seek a marine U&A determination from the Court, a request that resulted in subproceeding 79-1. Dkt. #4[11] ¶ 11. Tulalip objected to Stillaguamish's request and, shortly thereafter, sought a more detailed determination of its own U&A and to establish exclusive fishing rights within a portion of that U&A. See United States v. Washington, C70-9213RSM, Subproceeding No. 80-1 (W.D. Wash. 1980). Stillaguamish similarly opposed Tulalip's request and asserted its own right to fish in parts of Tulalip's claimed U&A. Tulalip and Stillaguamish were able, however, to reach a settlement agreement which was ultimately entered into the record by the Court. See United States v. Washington, 626 F.Supp. 1405, 1480- 83 (W.D. Wash. 1985). Pursuant to their agreement, Tulalip recognized a portion of Port Susan, “north of a line from Kayak Point due west to Camano Island (Northern 8A) as a non-exclusive usual and accustomed fishing area of the Stillaguamish Tribe.” Id. at 1482. Further, Tulalip agreed to “support the Stillaguamish Tribe's request for a determination that the Stillaguamish Tribe's usual and accustomed fishing areas extend throughout Northern 8A and that portion of Area 8 southerly of a line drawn from Milltown to Polnell Point and northeasterly of a line drawn from Polnell Point to Rocky Point.” Id. Following the agreement between Tulalip and Stillaguamish, Stillaguamish's claims in subproceeding 79-1 were dismissed without prejudice. Dkt. #4 ¶ 11.
Finally, Stillaguamish once again sought to establish marine U&A in 1993 as a part of subproceeding 89-3. But Stillaguamish lacked the financial resources necessary to pursue its claim to completion and was forced to voluntarily dismiss the claim. Dkt. #4 ¶ 12.
During this subproceeding, both Upper Skagit and Swinomish have each sought dismissal, challenging the jurisdictional basis for the action and maintaining that Judge Boldt had already specifically determined Stillaguamish U&A, had excluded marine waters, and had intentionally limited Stillaguamish U&A to the Stillaguamish River.[12] See Dkt. #64[13] (Skagit motion to dismiss); Dkt. #66[14] (Swinomish motion to dismiss). The Court rejected these jurisdictional challenges, finding that Judge Boldt's statement that the Stillaguamish River “constituted the usual and accustomed fishing places of the tribe” was meant to identify “one element of a whole.” Dkt. #91[15] at 5. As such, the Court “conclude[d] that the entirety of Stillaguamish U&A was not specifically determined by” Final Decision #1. Id. at 6.
The Court begins with the evidentiary challenges that the parties have included in their briefing and separately.
Upper Skagit, concurrent with filing its motion for summary judgment, filed a motion seeking to exclude most of the anticipated testimony of Stillaguamish's retained expert witness, historian Dr. Chris Friday.[16] Dkt. #173.
The motion primarily invokes Federal Rule of Evidence 702 and its allowance of opinion testimony from witnesses “qualified as an expert by knowledge, skill, experience, training, or education” so long as enumerated conditions are satisfied. Fed.R.Evid. 702. Specifically, that Rule requires that the expert's opinion testimony be helpful to the trier of fact, be based on sufficient facts or data, be based on reliable principles and methods, and result from a reliable application of the principles and methods to the facts of the case. Fed.R.Evid. 702(a)-(d).
Upper Skagit allows that, under Rule 702, Dr. Friday “may testify about historical facts and provide ‘historical context to' that evidence.” Dkt. #173 at 2 (citation omitted). But Upper Skagit takes issue with Dr Friday's inference, from historical facts and context, “that Stillaguamish fished in marine waters, ” maintaining that the inference is unsupported by historical expertise or factual data. Id. Further, Upper Skagit maintains that such an inference is for the Court, as the trier of fact, to draw, if at all, and that Dr. Friday's expertise is not necessary to aid the Court in drawing such inferences. I...
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