Upper Skagit Indian Tribe v. Washington

• Decision Date: 05 January 2010
• Docket Number: No. 07-35061.,07-35061.
• Citation: 590 F.3d 1020
• Parties: UPPER SKAGIT INDIAN TRIBE, Plaintiff-Appellee, and United States of America, Plaintiff, v. State of WASHINGTON, Defendant, and Suquamish Indian Tribe, Defendant-Appellant, v. Jamestown S'Klallam Tribe; Lower Elwha Klallam Tribe; Lummi Indian Nation; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Skokomish Indian Tribe; Tulalip Tribe, Plaintiff-intervenors-Appellees, Swinomish Indian Tribal Community, Cross-claimant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 1020

UPPER SKAGIT INDIAN TRIBE, Plaintiff-Appellee, and United States of America, Plaintiff, v. State of WASHINGTON, Defendant, and Suquamish Indian Tribe, Defendant-Appellant, v. Jamestown S'Klallam Tribe; Lower Elwha Klallam Tribe; Lummi Indian Nation; Nisqually Indian Tribe; Port Gamble S'Klallam Tribe; Skokomish Indian Tribe; Tulalip Tribe, Plaintiff-intervenors-Appellees, Swinomish Indian Tribal Community, Cross-claimant-Appellee.

No. 07-35061.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2008.

Decided January 5, 2010.

Michelle Hansen, Office of Tribal Attorney, Suquamish, WA, for appellant, Suquamish Tribe. Douglas B.L. Endreson, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, for appellant Skokomish Indian Tribe. Lorane F. Hebert, Hogan & Hartson, Washington, DC, for appellant, Lower Elwha Klallam Tribe.

Harold Chesnin, David S. Hawkins, Office of the Tribal Attorney, Sedro Woolley, WA, (argued); Andrew H. Salter, Seattle, WA, for appellee, Upper Skagit Indian Tribe. James M. Jannetta, LaConner, W. WA, for appellee, Swinomish Indian Tribal Community. Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen, Seattle, WA, for appellees, Port Gamble S'Klallam and Jamestown S'Klallam Tribes. Mason D. Morisset, Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA, for appellee, The Tulalip Tribes.

Richard M. Berley, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for intervenor-appellants.

Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District

Judge, Presiding. D.C. Nos. CV-70-09213-RSM, SP-05-00003-RSM.

Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER and ANDREW J. KLEINFELD, Circuit Judges.

ORDER AND OPINION ORDER

The petition for rehearing, filed August 20, 2009, is GRANTED and the petition for rehearing en banc is denied as moot.

This court's opinion filed, August 6, 2009 and published at Upper Skagit Tribe v. Washington, 576 F.3d 920 (9th Cir.2009), is hereby withdrawn. A new opinion is filed concurrently herewith.

OPINION

RYMER, Circuit Judge:

This case arises out of, and is a sub-proceeding of, United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) ("Decision I"), where Judge Boldt determined the usual and accustomed fishing grounds ("U & A") for Puget Sound tribes. Invoking the district court's continuing jurisdiction, id. at 419, Upper Skagit Indian Tribe¹ filed a Request for Determination that Saratoga Passage and Skagit Bay on the eastern side of Whidbey Island are not within the Suquamish Tribe's U & A (Subproceeding 05-3). On cross-motions for summary judgment, the district court concluded that Judge Boldt did not intend to include those areas in Suquamish's U & A, and accordingly granted summary judgment for Upper Skagit. We affirm.

I

As we previously said, "[w]e cannot think of a more comprehensive and complex case than this." United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir.1990). In short, Judge Boldt defined "usual and accustomed grounds and stations" as "every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters." Decision I, 384 F.Supp. at 332; United States v. Lummi Indian Tribe, 235 F.3d 443, 445 (9th Cir. 2000) (quoting Decision I). The term "customarily" does not include "occasional and incidental" fishing or trolling incidental to travel. Decision I, 384 F.Supp. at 353. Tribes are entitled to take up to 50 percent of the harvested fish from runs passing through their off-reservation U & A grounds. Id. at 343.²

Judge Boldt determined Suquamish's U & A during supplemental proceedings on April 9-11, 1975. See United States v. Washington, 459 F.Supp. 1020, 1048-50 (W.D.Wash.1978) ("Decision II"). The evidence consisted of the April 9 testimony and report of Dr. Barbara Lane, an expert for the United States on tribal identity, treaty status and fisheries for all of the tribes who intervened in the original proceedings in Decision I. She provided a map of Suquamish fishing sites, and her testimony also addressed a map attached to proposed Suquamish fishing regulations that outlined disputed areas of Suquamish's and other tribes' U & As. Based on this evidence, Judge Boldt ruled that the Suquamish had made a "prima facie" showing that its U & A fishing grounds were: "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." Finding of Fact No. 5 (FF 5), Decision II, 459 F.Supp. at 1049.³

In this Subproceeding, Upper Skagit alleges that the Suquamish began fishing in the Subproceeding Area⁴ for the first time in 2004. It seeks an order determining that the portion of Saratoga Passage from the Snatelum Point Line to the Greenbank Line and Skagit Bay to the Deception Pass bridge is not a U & A for the Suquamish. Upper Skagit argued in district court that there was no evidence before Judge Boldt in 1975 that Suquamish's U & A included those areas. Suquamish, on the other hand, contended that Judge Boldt's definition of its U & A unambiguously included the contested areas.

The district court adhered to a two-step procedure in keeping with our decisions in Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.1998) ("Muckleshoot I"), Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir.2000) ("Muckleshoot II"), and United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000) ("Muckleshoot III"). First, it determined that Upper Skagit had the burden to offer evidence that FF 5 was ambiguous, or that Judge Boldt intended something other than its apparent meaning (i.e., all salt waters of Puget Sound). Second, if the evidence, including contemporaneous understanding of the extent of "the marine waters of Puget Sound," showed that "Puget Sound" as used in the Suquamish U & A included the Subproceeding Area, Upper Skagit had the burden to show that there was no evidence before Judge Boldt that the Suquamish fished on the east side of Whidbey Island or traveled there in route to the San Juans and the Fraser River area.

Applying this analysis, the court found that "Puget Sound" as defined by Judge Boldt included the waters of Saratoga Passage and Skagit Bay.⁵ However, based on the actual evidence that was before Judge Boldt, the district court in this Subproceeding concluded that the judge meant something other than this in FF 5 given that nothing in the record showed the Suquamish fished on the east side of Whidbey Island, or traveled through there on their way up to the San Juans and the Fraser River area. The court noted that Judge Boldt relied heavily on Dr. Lane's reports and testimony. While she did say that the Suquamish traveled widely by canoe (as was "normal" for "all Indians in Western Washington"), Lane provided no evidence that the tribe fished or traveled in Saratoga Passage or Skagit Bay.⁶ Her report listed places where the Suquamish traditionally took fish, but neither Saratoga Passage nor Skagit Bay was among them.⁷ And when asked about a map delineating areas of Puget Sound where the Suquamish traveled, Lane referred only to areas that omitted Saratoga Passage and Skagit Bay. The Suquamish pointed out that they fished at the mouth of the Snohomish River, which is on the eastern side of Whidbey Island, but this area is well south of the Subproceeding Area and was described by Lane as a fall and winter fishing site at the mouth of a river, which was "separate and distinct from the spring and summer travels up to the Fraser River." Further, the district court noted the Suquamish's position that they maintained close relations with the Skagit and Snohomish people, who had fishing camps on Whidbey and Camano Islands, but thought it would be speculative to conclude this meant that the Suquamish must necessarily have camped and fished there as well. Finally, the court found that Judge Boldt's description of the Suquamish U & A tracks nearly verbatim the language in Dr. Lane's report, demonstrating the judge's intent to conform the Suquamish U & A only to those areas documented by Lane.

The Suquamish timely appealed.

II

The Suquamish mainly fault the district court for having engaged in a sufficiency of the evidence analysis instead of accepting Judge Boldt's unambiguous definition of "Puget Sound." In our view, however, the court faithfully followed the Muckleshoot construct. As Muckleshoot III indicates, whether the language of one of Judge Boldt's findings is ambiguous is a factor in ascertaining the judge's intent, but not a dispositive one, because it is necessary to understand the findings "in light of the facts of the case." 235 F.3d at 433 (internal quotation marks omitted). This means that, as the district court held here, the tribe asserting ambiguity in a U & A determination must offer "`evidence that suggests that [the U & A] is ambiguous or that the court intended something other than its apparent meaning.'" Id. (quoting Muckleshoot I, 141 F.3d at 1358) (emphasis added in Muckleshoot III omitted). The determination is to be based on the record before Judge Boldt as of April 18, 1975, when he established the Suquamish's U & A, but may also include additional evidence if it sheds light on the understanding that Judge Boldt had of the geography at the time. Muckleshoot II, 234 F.3d at 1100 (citing Muckleshoot I, 141 F.3d at 1360).

We agree with the district court that Upper Skagit met this burden. There is no evidence in the record before Judge Boldt that the Suquamish fished or traveled in the waters on the eastern side of Whidbey Island, particularly in Saratoga Passage or Skagit Bay. In addition to Dr. Lane's testimony and analysis...