IN THE UNITED STATES COURT OF APPEALS Upper Skagit Indian ... · David Hawkins, WSBA No. 35370 Office of the Tribal Attorney Upper Skagit Indian Tribe 25944 Community Plaza Way Sedro

No. 15-35540

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Upper Skagit Indian Tribe,

Plaintiff—Appellee

v.

Suquamish Indian Tribe, Defendant—Appellant

On Appeal from the United States District Court Western District of Washington at Seattle

The Honorable Ricardo S. Martinez (District Court No. 70-9213, Phase I)

(Subproceeding No. 14-1)

RESPONSE BRIEF OF APPELLEE UPPER SKAGIT INDIAN TRIBE Harold Chesnin, WSBA No. 398 David Hawkins, WSBA No. 35370 Office of the Tribal Attorney Upper Skagit Indian Tribe 25944 Community Plaza Way Sedro Woolley, WA 98284 Phone: 360-854-7090/Fax: 360-854-7004 [email protected] [email protected] Attorneys for Appellee Upper Skagit Indian Tribe

Andrew H. Salter, WSBA No. 11954 Teton Law Group LLC 180 North Center Street #11 Jackson, WY 83001 Phone: 307.201.1145 /Fax: 888.417.4560 [email protected]

Case: 15-35540, 12/07/2015, ID: 9782324, DktEntry: 26-1, Page 1 of 31

mailto:[email protected]



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CORPORATE DISCLOSURE STATEMENT

(Circuit Rule 26.1)

Appellee Upper Skagit Indian Tribe is a federally recognized Indian tribe. It

has issued no shares of stock to the public and has no parent company, subsidiary

or affiliate that has done so.


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TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION 1

II. STATEMENT OF ISSUES PRESENTED 1

III. STATEMENT OF CASE AND PROCEEDINGS BELOW 2

A. Upper Skagit’s Request for Determination 4

B. Cross Motions for Summary Judgment 5

C. The District Court Grants Upper Skagit’s Motion for Summary Judgment And Denies Suquamish’s Cross-Motion 6

IV. STATEMENT OF FACTS 6

A. Upper Skagit’s U&A 6

B. Suquamish’s U&A 7

V. STANDARD OF REVIEW 9

VI. SUMMARY OF ARGUMENT 9

VII. ARGUMENT 10

A. The District Court Was Correct in Granting Upper Skagit’s Motion for Summary Judgment 10 1. The Ninth Circuit Clearly Established the Procedure to

Use in Ruling On a Request for Determination Seeking Clarification of the Extent of a Tribe’s U&A 11

2. The District Court Properly Examined the Evidence

Before Judge Boldt to Make This Determination 13

3. Suquamish Wishes This Court to Draw and Impermissible


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Inference In Its Favor Based On The “Lack of Tribal Objection” 17

4. Suquamish Wishes this Court to Review Irrelevant

Regulations Issued After the Ruling by Judge Boldt 20

5. The Suquamish Discussion of the Relevance of Hale Passage to This Inquiry Is Not Supported By The Facts And, At Best, Asks This Court to Make An Inference Instead Of Relying On Actual Facts 21

6. The District Court Was Correct. Issue Preclusion Does Not Apply

Here, But If It Did, It Was Suquamish Which Lost The Subproceeding 05-3 Case and The Rulings Would, Of Necessity, Destroy the Suquamish Claim Here 22

VIII. CONCLUSION 23


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TABLE OF AUTHORITIES

Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F3d 1355 (9th Cir, 1998)……………………………………………… 9, 11, 13 Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F3d 1099 (9th Cir. 2000)……………………………………………………...11 Puyallup Indian Tribe, et. al. v. Muckleshoot Indian Tribe 235 F.3d 429 (9th Cir. 2000)…………………………………………………..11, 15 U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)………………………………………….3, 18 U.S. v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978)……………………………………….3, 7, 8 Upper Skagit Indian Tribe v. Suquamish, 590 F.3d 1020 (9th Cir. 2010)……………………1, 2, 5, 8, 9, 10, 11, 12, 20, 22, 23 Memorandum Opinion and Order in U.S. v. Washington, Subproceeding 89-3 (December 20, 1994)…………………………………………………….………3, 6 Washington v. Washington State Commercial Passenger Fishing Vessel Association, 433 U.S. 658 (1979)………………………………………………………………..2


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I. STATEMENT OF JURISDICTION

Appellee Upper Skagit Indian Tribe (“Upper Skagit”) agrees with the

Statement of Jurisdiction set forth in the Opening Brief of Appellant Suquamish

Tribe, except that the Request for Determination challenged the claim of the

Suquamish Tribe to usual and accustomed fishing rights in areas the Court had

previously declared to be within the usual and accustomed fishing grounds and

stations of Upper Skagit in Chuckanut Bay, Samish Bay and portions of Padilla

Bay. Dkt 4 / SER 1 – 7.

II. STATEMENT OF ISSUES PRESENTED

A. Whether the absence of actual evidence that the Suquamish Tribe fished in the

Subproceeding areas at treaty times and the judicial admission of the Suquamish

Tribe regarding its lack of fishing or travel through to Chuckanut Bay, Samish

Bay and portions of Padilla Bay properly led the District Court to conclude that

Upper Skagit met its burden to demonstrate that Judge Boldt did not intend to

include those areas in the Suquamish Tribe’s usual and accustomed fishing

grounds and stations.

B. Whether the Suquamish Tribe can collaterally attack the rulings of this Court

in Upper Skagit Indian Tribe v. Suquamish, 590 F. 3d 1020, 1025 (9th Cir. 2010)


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(the “Subproceeding 05-3 Case”), by attempting to introduce both irrelevant

documents and impermissible inferences for consideration by this Court.1

III. STATEMENT OF CASE AND PROCEEDINGS BELOW

This is a subsequent, but a companion case to this Court’s ruling in the

Subproceeding 05-3 Case. This is an appeal of a decision issued in Subproceeding

14-1 of U.S. v. Washington, Case No. 70-9213. U.S. v. Washington was originally

filed in 1970 by the United States on its own behalf and as trustee for seven Indian

Tribes seeking an injunction against the State of Washington (“State”) requiring

the State to protect the Indian share of the anadromous fish runs. Washington v.

Washington State Commercial Passenger Fishing Vessel Association, 443 U.S.

658, 674-75 (1979). The Upper Skagit Indian Tribe (“Upper Skagit”) was an

original plaintiff in U.S. v. Washington and the Suquamish Indian Tribe

(“Suquamish”) subsequently intervened as a plaintiff.

Over the years, the District Court has adjudicated in U.S. v. Washington the

geographic scope of the tribes’ usual and accustomed grounds and stations

(“U&A”). A tribe’s U&A is defined as:

[E]very fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the

1 As the Ninth Circuit stated the burden, the inquiry was to focus on that “there was no [actual] evidence before Judge Boldt” Subproceeding 05-3 Case at p. 1023, which determination was supported by the Ninth Circuit’s ruling that in the Suquamish 05-3 Case “[T]here is no evidence” (emphasis added). Id. at p. 1025.


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then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters . . .

U.S. v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974).2 The District

Court also retained continuing jurisdiction to resolve disputes concerning “the

location of any of a tribe’s usual and accustomed fishing grounds not specifically

determined” in the collection of Court orders issued in that case. Id. at 419.

In Subproceeding 14- 1, United States District Court Judge Ricardo S.

Martinez was asked by Upper Skagit to clarify whether the U&A of Suquamish

included Chuckanut Bay, Samish Bay and portions of Padilla Bay (the

“Subproceeding Areas”), which are located north and east of Whidbey Island and

within the adjudicated U&A of Upper Skagit. The U&A for each of these two

Tribes has been determined by the District Court in the original U.S. v. Washington

proceedings and in subsequent subproceedings. U.S. v. Washington, 384 F. Supp.

at 379; U.S. v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978);

Memorandum Opinion and Order in U.S. v. Washington Subproceeding 89-3,

December 20, 1994.

After filing cross motions for summary judgment, Judge Martinez granted

Upper Skagit’s motion for summary judgment and denied Suquamish’s motion for

summary judgment. Dkt. 62 / ER 5-23. Judge Martinez correctly concluded, 2 Fishing had to “customarily” occur in an area to qualify as a U&A; “occasional and incidental” fishing in an area was not sufficient. 384 F. Supp. at 353.


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based upon an exhaustive review of the actual evidence before the Court at the

time in 1975, that Judge Boldt did not intend to include the Subproceeding Areas

in Suquamish’s U&A. That decision, the subject of this appeal, should be affirmed

by this Court.

A. Upper Skagit’s Request For Determination.

Upper Skagit initiated Subproceeding 14-1 by filing a Request for

Determination, asking the District Court to clarify Suquamish’s U&A. Dkt 4 /

SER 1 -7. Specifically, Upper Skagit sought a determination that Suquamish’s

U&A did not include the Subproceeding Areas.

Upper Skagit’s Request for Determination was filed in response to improper

efforts by Suquamish to attempt to expand its fishing and shellfishing into waters

Upper Skagit relies on as part of its primary salt water fishing and shellfishing

U&A. This attempted expansion commenced almost 40 years after Suquamish’s

U&A was originally established in 1975, violating the District Court’s original

determination of Suquamish’s U&A as well as ignoring the import of this Court’s

determination in the Subproceeding 05-3 Case, which prohibited Suquamish

fishing in Saratoga Passage and Skagit Bay on the east side of Whidbey Island.

B. Cross-Motions For Summary Judgment.

After an agreed upon exchange of documents upon which each side intended

to rely relating to Judge Boldt’s U&A decision for Suquamish in 1975, Upper


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Skagit and Suquamish each filed a Cross-Motion for Summary Judgment. Upper

Skagit contended that Judge Boldt did not intend the Subproceeding Areas to be

included in Suquamish’s U&A and that the scope of Suquamish’s U&A must be

clarified by the District Court under the continuing jurisdiction of U.S. v.

Washington.

Upper Skagit argued: (1) there was no actual evidence in the record before

Judge Boldt in 1975 from which he could have concluded that Suquamish’s U&A

included the Subproceeding Areas3; (2) the Suquamish Tribe’s judicial admission

at footnote 3 in its briefing in connection with the summary judgment motions

supported the position that Squamish’s U&A did not extend to the Subproceeding

Areas (Dkt 37 / SER -11); and (3) had Judge Boldt intended to include the

Subproceeding Areas within Suquamish’s U&A, he would have stated so directly

and unequivocally. Upper Skagit further asserted that the determination in the

Subproceeding 05-3 Case established the burden that Upper Skagit was required to

carry in this subproceeding and defined the relevant evidence that could be

presented by the parties and considered by the Court here.

3 “The determination is to be based on the record before Judge Boldt as of April 18, 1975”, 590 F.3d 1020 at 1024.


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C. The District Court Grants Upper Skagit’s Motion For Summary Judgment and Denies Suquamish’s Cross-Motion.

The District Court, after reviewing the record before Judge Boldt and the

evidence submitted by the parties, denied the Suquamish Cross-Motion and

granted the Upper Skagit Motion, concluding that the Suquamish’s U&A did not

include the Subproceeding Areas. (Dkt. 62 / ER 5-23). The District Court found

that there was no evidence to support a Suquamish claim to a U&A in the

Subproceeding Areas.

…there must still be some evidence in the record before Judge Boldt indicating his intent to include (the Subproceeding Areas) within a tribe’s U&A. The evidence in this case points only to the opposite conclusion. ... (Dkt. 62 / ER 20, Ln 9-11). The Ninth Circuit has indicated that the fact that Judge Boldt neglected to mention Skagit Bay and Saratoga Passage in delineating the Suquamish U&A “supports (the) conclusion that he did not intend them to be included.” Id. This analysis applies with equal force here. (Dkt. 62 / ER 20, Ln 20-24.).

IV. STATEMENT OF FACTS

A. Upper Skagit’s U&A.

Upper Skagit’s salt water U&A was established in Subproceeding 89-34,

some 20 years after Suquamish’s U&A was adjudicated. Prior to the

Subproceeding 05-3 Case, Upper Skagit did not have cause to seek a clarification

of Suquamish’s U&A. For more than 10 years, Upper Skagit, other tribes, and the

4

Memorandum Opinion and Order in U.S. v. Washington, Subproceeding 89-3, December 20, 1994.


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State have collectively reached fisheries management determinations in the

Subproceeding Areas without Suquamish. Upper Skagit’s salt water U&A, proven

through a far more rigorous process than used in 1975, is specific as to location,

narrow as to scope, and its infringement by any tribe causes significant hardship to

Upper Skagit and its fishermen because of their limited geographic access to fish in

the salt water and shellfish resources.

B. Suquamish’s U&A.

In 1975, the District Court issued an order as a result of a dispute over treaty

fishing for herring. U.S. v. Washington, 459 F. Supp. at 1048. The District Court,

in order to permit a tribal herring fishery, held that Suquamish had made a “prima

facie” showing that its U&A fishing grounds were in “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.” Id. at 1049. This Order was entered on

April 18, 1975. (Dkt. 62 / ER 24 - 30). At the April 9, 1975, evidentiary hearing

shortly before that Order was entered, Judge Boldt clarified on the record the de

minimus standard he was using to determine Suquamish’s U&A as a result of the

impending opening of the herring fishery:

The problems relating to the herring fishery were brought to the Court’s attention very late in the game, as it were . . . . The press of innumerable other matters in this litigation has kept everyone working


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overtime constantly; but we had all hoped that the herring fishery matter could be brought on with ample time to develop everything about it and get it settled once and for all in final form subject, of course, to appeal. That was not possible, as a result of which I have gone through great pains to expedite a prima facie determination for the benefit of the Fisheries Department even above the tribal questions. And it seems to me that all we need to concern ourselves with at this time or all that we have time to consider as this time is the matter of prima facie showing with respect to this matter. Dkt. 37-1 /ER 43, Ln. 4 - 21.

Notwithstanding the timing of the herring fishery, as Judge Martinez

noted at p. 3 of his order, the hearing over the next several days was

intended “to receive anthropological and biological evidence” from which

to determine the Suquamish U&A. (Dkt. 62 / ER 7, Ln 15-16).5 On April

10, 1975, Judge Boldt confirmed on the record that the U&A he was

designating for Suquamish included only “areas one and two as designated

by the state.” Dkt. 37-2 / ER - 891. As shown on the map to which Judge

Boldt referred, the Subproceeding Areas at issue here are in area three, not

in areas one and two. (See the map in question Dkt. 16-4 / ER1117.)

In 2007, this Court ruled in the Subproceeding 05-3 Case, that Suquamish

did not have a U&A in the Upper Skagit U&A areas of Saratoga Passage and

5 This understanding is derived from Judge Boldt’s Order of March 28, 1975 at paragraph 6 (Dkt. 16-3, ER 31-35.)


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Skagit Bay. This Court confirmed the test to be followed in an adjudication of

similar claims, such as in this case, ruling:

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 426 (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 has the burden to show that there was no evidence before Judge Boldt that the Suquamish fished [in the disputed area] or traveled there in route to the San Juans and the Fraser River area. 590 F.3d at 1023

V. STANDARD OF REVIEW

The Appellate Court reviews a grant of summary judgment de novo.

Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355, 1357

(9th Cir. 1998).

VI. SUMMARY OF ARGUMENT

This is a subsequent, but a companion case to this Court’s ruling in the

Subproceeding 05-3 Case. The District Court correctly granted summary judgment

to Upper Skagit and denied the Suquamish Cross-Motion here, determining that

Judge Boldt did not intend to include the Subproceeding Areas within Suquamish’s

U&A. This conclusion was reached after examining the record before Judge

Boldt, the transcript of proceedings before Judge Boldt, and Judge Boldt’s own


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language in describing the U&As of Suquamish and of other tribes6. The District

Court below and this Court in its ruling in the Subproceeding 05-3 Case also made

it abundantly clear that any and all information or claims subsequent to the date of

Judge Boldt’s decision were irrelevant and not to be considered as part of the

record relied upon to determine the meaning of Suquamish’s U&A.

VII. ARGUMENT

A. The District Court Was Correct In Granting Upper Skagit’s Motion For Summary Judgment.

In addressing the parties’ motions for summary judgment, the District Court

followed the dictates of the Subproceeding 05-3 Case that the burden in this

subproceeding was on the requesting party—Upper Skagit —to prove that there

was no evidence presented to Judge Boldt in 1975 to support the Suquamish U&A

claim to treaty time fishing in the Subproceeding Areas. Upper Skagit met that

burden and the District Court properly concluded that “Judge Boldt did not intend

to include Chuckanut, Samish, and the disputed portions of Padilla Bay within the

U&A of the Suquamish Tribe.” Dkt. 62 / ER 18.

6 As mandated by this Courts precedent set forth in the Muckleshoot trilogy and affirmed in Subproceeding 05-3 Case.


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1. The Ninth Circuit Clearly Established the Procedure To Use In Ruling Upon A Request For Determination Seeking Clarification Of The Extent Of A Tribe’s U&A.

In a series of prior decisions, this Court established and defined the

procedure a District Court must follow in addressing requests for determination

such as this. Upper Skagit v. Suquamish, 590 F.3d. 1020 (9th Cir. 2010),

Muckleshoot Indian Tribe, et al. 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”); Puyallup Indian Tribe, et al. v.

Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (“Muckleshoot III”).

(Muckleshoot I, Muckleshoot II and Muckleshoot III will collectively be referred

to herein as the “Muckleshoot Trilogy”). In those decisions, this Court directed the

District Court to determine “what Judge Boldt meant in precise geographic terms,”

by reviewing the record before Judge Boldt at the time his U&A determination was

rendered. 7 Muckleshoot I, 141 F.3d at 1359 (“[T]he only relevant evidence is that

which was considered by Judge Boldt when he made his finding”);

Muckleshoot III, 235 F.3d at 432-33. The District Court here did just that.

As this Court will see from the Appellant’s Brief and submissions, the

Suquamish can identify no actual facts, much less the permitted evidence as

7 After the ruling of this Court in the Subproceeding 05-3 Case, there is no longer an issue as to “ambiguity” as that issue was adjudicated in that case.


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defined in the Subproceeding 05-3 Case, that support the claim to include the

Subproceeding Areas as part of the Suquamish U&A. Without actual evidence in

the record, the Suquamish are left with attempting to build a case based exclusively

on inference. However, while it is clear that Judge Boldt could have used

inferences to make his determination, the District Court and this Court must rely

only upon the actual evidence before Judge Boldt, and not inferences drawn from

documents that do not constitute evidence upon which the District Court could

rely. In this Paragraph 25(a)(1) case, the inferences which Suquamish desperately

attempts to string together to attempt to achieve a result in its favor have

previously and consistently been determined to be irrelevant and not permitted to

support the Suquamish claim. See Upper Skagit v. Suquamish, 590 F.3d. 1020 at

1023 and 1025.

As was done in the Subproceeding 05-3 Case, the District Court here

examined the actual evidence before Judge Boldt when he defined Suquamish’s

U&A to determine if Judge Boldt intended something other than the apparent

meaning of Suquamish’s U&A. The District Court placed the burden on the Upper

Skagit to demonstrate that there was no actual evidence before Judge Boldt that

Suquamish fished in the Subproceeding Areas at treaty times. Upper Skagit met

that burden. The District Court exhaustively examined and rejected Suquamish’s


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proffer of “evidence”, in the nature of inferences and inferences derived from

inferences, that the Suquamish U&A encompassed the Subproceeding Areas.

2. The District Court Reviewed the Evidence Before Judge Boldt to Make This Determination

In its effort to examine the evidence before Judge Boldt in 1975, when

Suquamish’s U&A was adjudicated, the District Court extensively reviewed the

reports and testimony of Dr. Barbara Lane. In support of its claim to U&A rights

before the trial court in 1975, Suquamish submitted a report dated December 15,

1974, entitled “Identity, Treaty Status and Fisheries of the Suquamish Tribe of the

Port Madison Reservation” authored by Dr. Barbara Lane. The report was

admitted at trial as USA 73. Dkt. 16-9 / ER 1197-1223. Dr. Lane, an

anthropologist, was the “expert witness whose anthropological report on historical

tribal fishing grounds was the major item of evidence relied on by Judge Boldt.”

Muckleshoot I, 141 F.3d at 1357. When looking at Dr. Lane’s evidence presented

on behalf of Suquamish, unlike other portions of her report addressing Suquamish

fishing in state designated areas one and two on the map discussed above (Dkt. 16-

4 / ER1117), she presented no place names for Suquamish fishing in the

Subproceeding Areas. This is a clear indication of a lack of Suquamish fishing in

the Subproceeding Areas. Next, when discussing the areas in which Suquamish

fished, Dr. Lane never designated Area 3, in which the Subproceeding Areas


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reside, as a location of Suquamish fishing. Indeed, as the District Court repeatedly

determined in its Order, there was no testimony or evidence regarding a Suquamish

U&A in Areas 3. As Dr. Lane testified, the areas in which she found Suquamish

fishing and, therefore, its U&A, were only Areas 1 and 2. Dkt. 37-1 /ER 56 -57.

Within minutes of Dr. Lane’s testimony specifically limiting Suquamish’s U&A to

areas 1 and 2 on the State’s map, Suquamish counsel, Alan Stay, unambiguously

represented to Judge Boldt “no fishing will take place other than the usual and

accustomed areas that have been described by Dr. Lane.” Dkt. 37-1 / ER 792.

Finally, Dr. Lane unequivocally ruled out Suquamish traveling to or fishing in

Bellingham Bay8. As Dr. Lane stated:

In the normal way my understanding, my best understanding, is that at treaty times Lummi fishermen would not come and harvest herring from the spawning places in the inlets inside Suquamish territory, and you can refer to the Suquamish report to specific places where herring were taken. They had herring places closer to their own place, where they lived. In the same way Suquamish would not go all the way over into Bellingham Bay in order to get herring that were spawning right inside where the Lummi lived because they had their own places. Dkt. 37 – 1 / ER 816 (emphasis added).

This statement by Dr. Lane is dispositive, because Suquamish in its Motion for

Summary Judgment made a crucial judicial admission when it admitted at footnote

3 on page 4 that:

8 An observation of a Puget Sound map shows that areas 1 and 2 are west of Bellingham Bay and the Subproceeding Areas at issue here are east and southeast of Bellingham Bay.


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A review of a map of the contested waters at issue makes clear that Chuckanut Bay can only be accessed overwater by crossing through Bellingham Bay. Similarly, the contested Suquamish U&A in Samish Bay and Padilla Bay are located directly south and adjacent to Bellingham Bay. (emphasis added). (Dkt 37 / SER -11).

On the basis of that review, the District Court concluded that Dr. Lane’s reports

and testimony contained no references to Suquamish fishing or traveling in the

Subproceeding Areas.9

The District Court correctly limited its review of the record to that which

was before Judge Boldt during the 1975 adjudication of Suquamish’s U&A, as

required by Muckleshoot III, 235 F.3d at 432-433 (“The only relevant evidence is

that which was considered by Judge Boldt when he made his finding.”). The

District Court’s review of that record and the evidence presented by Suquamish

and its expert to Judge Boldt during the 1975 hearing confirmed that there was no

evidence before Judge Boldt that Suquamish either fished in or traveled through

the Subproceeding Areas. It is undisputed, upon a review of both Dr. Lane’s

written report and her testimony submitted during the course of the April, 1975

U&A hearing before Judge Boldt, that Dr. Lane found no evidence that Suquamish

ever fished in the Subproceeding Areas.

9 While she did testify that the Suquamish traveled up to the Fraser River, her reference to the Strait of Juan de Fuca, Haro and Rosario Strait places their route on the west side of Whidbey Island, from the Port Madison area and up through the San Juan Islands, not wandering east toward Bellingham Bay.


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The heart of the issue before the District Court was whether the record as of

the date of the 1975 Order establishing the Suquamish U&A contained any

documentary or testimonial evidence to support Suquamish’s claim to U&A rights

in the Subproceeding Areas. The District Court was correct in finding that no such

evidence existed. Certainly Judge Boldt could not have intended to permit a Tribe

to exercise a right to fish in areas where it had not fished prior to and at treaty

times.

In fact, Judge Boldt himself clearly ruled that Suquamish did not have U&A

rights in the Subproceeding Areas. At the conclusion of the U&A portion of the

hearing before him on April 10, 1975, Judge Boldt specifically determined that

Suquamish had U&A rights in “areas one and two as designated by the state.” Dkt.

37-2 / ER 891 . This confirmed Judge Boldt’s direct understanding of the areas in

which Suquamish had proven its U&A when, at the beginning of the April 10,

1975 hearing, he requested the Clerk to identify the areas in question and the Clerk

identified areas 1 and 2 without change or correction by the Judge or counsel. Dkt.

37-2 / ER 4, Ln. 4 -14. The Subproceeding Areas are in area three, not in areas

one and two. Thus, this Court has more than just the foregoing evidence that

Judge Boldt intended to exclude the Subproceeding Areas from Suquamish’s

U&A; it has Judge Boldt’s specific findings on the issue. This is a direct,

affirmative, and unambiguous confirmation that Judge Boldt did not intend


17

Suquamish’s U&A to include the Subproceeding Areas. He said so himself.

Nothing could be clearer.

3. Suquamish Wishes This Court to Draw an Impermissible Inference in its Favor Based on the “Lack of Tribal Objection”. This argument fails for several reasons. First, this Court in all its prior

decisions has ruled that “actual evidence” and not inferences are required in this

type of proceeding. Suquamish strains to string an inference upon an inference in

an attempt to support its claim. Just because the herring fishery determination was

hurried doesn’t mean that actual facts and evidence were not required to support

the inclusion of the Subproceeding Areas in the Suquamish U&A. Moreover, the

language quoted to this Court by Suquamish occurred on April 9, 1975. That, of

course was the same day that Dr. Lane’s testimony unambiguously barred

Suquamish from Bellingham Bay. Of even greater significance is that, even after

the pronouncement about a prima facie case upon which Suquamish wishes to rely,

Judge Boldt unequivocally limited his U&A finding to areas 1 and 2 on the map he

was reviewing and not area 3 where the Subproceeding Areas reside.

As if the timing and the Judge’s own statements, which contradict the

inferences the Suquamish wish this Court to apply, weren’t sufficient, this

argument ignores the reality that, in defining U&As of other tribes that included


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portions of Puget Sound, Judge Boldt routinely provided specific geographical

definitions as to their boundaries, and specifically identified bays, straits, and

island areas that he intended to include. For example:

The U&A for the Lummi Tribe was defined as “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries include the river drainage systems, especially the Nooksack, emptying in the bays from Boundary Bay south to Fidalgo Bay.” U.S. v. Washington, 384 F. Supp. at 360.

The U&A of the Puyallup Tribe was defined as “the marine areas around Vashon Island and adjacent portions of Puget Sound, Commencement Bay, the Puyallup River, and the tributary rivers and creeks.” Id. at 371.

The U&A of the Nooksack Tribe was defined as “the Nooksack River and its tributaries, Bellingham Bay, Chuckanut Bay, Birch Bay, Semiahmoo Bay, and Semiahmoo Spit and surrounding marine waters.” U.S. v. Washington, 459 F. Supp. at 1049.

The U&A of Swinomish was defined as “the Skagit River and its tributaries, the Samish River and its tributaries, and the marine areas of Northern Puget Sound from the Fraser River south to and including Whidby, Camano, Fidalgo, Guemes, Samish, Cyprus, and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island.” Id. at 1049.

The U&A of Tulalip Tribes was defined as “[b]eginning at Admiralty Head on Whidbey Island and proceeding south, those waters described as Admiralty Bay and Admiralty Inlet, then southeasterly to include the remainder of Admiralty Inlet including Mutiny and Useless Bay, then northeasterly to include Possession Sound and Port Gardner Bay, then northwesterly to include the waters of Port Susan up to a line drawn true


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west of Kyak Point and Holmes Harbor and Saratoga Passage up to a line drawn true west of Camano on Camano Island.” Id. at 1059.

Even a cursory review of the U&A descriptions of other Puget Sound tribes

confirms that their U&A’s were routinely defined and bounded by the inclusion of

specifically identified geographic anchors. Specific areas of a tribe’s U&A were

defined by inclusion and not by either omission or inference, as Suquamish asserts.

If Judge Boldt had intended to include the bays such as the Subproceeding

Areas at issue here, those bays would have been specifically called out in

Suquamish’s U&A, just as Judge Boldt saw fit to do in defining the U&A of the

Tulalip Tribes and other tribes. It is of great significance, then, that they were not.

Only Haro and Rosario Straits, located significantly to the west of the

Subproceeding Areas, were specifically called out as included in Suquamish’s

U&A. Had Judge Boldt intended to include Chuckanut Bay, Samish Bay and the

portions of Padilla Bay at issue here, he would have and could have specifically

defined them. It is undisputed that he did not. It is also undisputed that Suquamish

did not seek reconsideration of its U&A to include those areas after Judge Boldt

ruled on April 18, 1975.

The Suquamish wish this Court to focus on the “detour” language of the

District Court. This, however, conveniently ignores the evidence discussed above.

Judge Boldt and Dr. Lane both explicitly and unambiguously ruled out area 3 on


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the map under consideration at the hearing from Suquamish’s claimed U&A. Dr.

Lane ruled out Suquamish going to Bellingham Bay and the Suquamish admitted

that they would have had to go through Bellingham Bay to access the

Subproceeding Areas.10

4. Suquamish Wishes this Court to Review Irrelevant Regulations Issued After the Ruling of Judge Boldt.

Upper Skagit has moved to strike all of the documents, declarations and

regulation contained in Suquamish’s excerpt of records which were issued

subsequent to the Order which established Suquamish’s U&A in 1975, or which

were issued or dated after the entry of that 1975 Order. 11 Suquamish’s attempt to

get this Court to consider such irrelevant information is actually a not so subtle,

impermissible collateral attack on the rulings in cases such as the Muckleshoot

Trilogy and the Subproceeding 05-3 Case. This Court has consistently ruled that

the “actual evidence” that was before Judge Boldt is all that can and should be

considered in attempting to determine his intent. Moreover, evidence of either

illegal fishing by Suquamish or their “capacious” efforts to insert extraneous

10 To put this in geographic perspective, starting at the Straits actually identified by Judge Boldt, Haro and Rosario are to the west of Bellingham Bay and in area 1 and 2, Hale Passage discussed by Suquamish is in area 3, but west of Bellingham Bay, Bellingham Bay is west of Chuckanut Bay and Samish and Padilla Bays are east and south of Bellingham Bay. There is no way to get to the Subproceeding Areas that hadn’t been ruled out by both Judge Boldt and Dr. Lane. 11 The Motion to Strike concerns ER103-705 and ER707-727.


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materials and regulations allegedly relating to the Subproceeding Areas is not

evidence of Judge Boldt’s intent. (Dkt. 62, ER 22. Ln. 17-18). As the District

Court concluded: “Evidence in the form of a tribe’s claim to fishing rights,

including claims encapsulated in fishing regulations and contemporary fishing

practices is not probative of Judge Boldt’s intent in delineating treaty-time fishing

grounds and therefore is not evidence that the Court may properly consider in a

Paragraph 25(a)(1) proceeding.” Dkt. 62 / ER 21-22. The information proffered by

Suquamish in its excerpts of record is not probative and should not be considered

by this Court.

5. The Suquamish Discussion of the Relevance of Hale Passage to this Inquiry Is Not Supported By The Facts and, At Best, Asks this Court to Make An Inference Instead of Relying on Actual Facts. Suquamish attempts to put words in Judge Boldt’s mouth in order to find an

inference, not actual evidence, that somehow Judge Boldt included Hale Passage in

the Suquamish U&A. They even push this tortured logic one step further and

claim that Judge Boldt created a “primary / secondary right” determination that

recognized Suquamish U&A rights. In spite of the fact that a primary rights ruling

in U.S. v. Washington was over a decade away in a case brought by Skokomish

against Suquamish in Hood Canal, this attempt to piggyback off of a three party

private agreement must fail. Judge Boldt did not include Hales Passage or the


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private agreement that Suquamish now finds so persuasive in an order or judicially

approved ruling, even though Judge Boldt clearly knew about the private

agreement. Further, Judge Boldt never specifically included Hale Passage in his

description of specific U&A anchors for Suquamish. Finally, once again, Dr. Lane

did not include Hale Passage in her description of specific Suquamish U&A

fishing grounds.12 Hale Passage is west of Bellingham Bay and Suquamish never

explains how trying to tie Hale Passage to Judge Boldt gets it past its own expert’s

opinion that Suquamish didn’t go to Bellingham Bay and the Suquamish admission

that that would have been the only way to get to the Subproceeding Areas.

6. The District Court Was Correct. Issue Preclusion Does Not Apply Here, But If It Did, It Was Suquamish that Lost the Subproceeding 05-3 Case and the Rulings Would, Of Necessity, Destroy the Suquamish Claim Here. The District Court properly determined that the holding in the

Subproceeding 05-03 Case could not be used in support issue preclusion by either

party. While the analysis will be the same, the difference in the geographic

location and the application of the facts or lack thereof to this case require a

separate, independent examination. 12 Suquamish even goes so far as to speculate that the Lummi Nation in 1975 would never have entered into the private agreement unless Lummi recognized that Suquamish had rights there. Such speculation is the whole cloth with which Suquamish wishes to entice this Court, apparently hoping the Court will ignore the actual evidence required and instead rely on inferences and speculation to create a new test in these matters. Such a process invites a future of unending potential litigation.


23

Notwithstanding the foregoing, Suquamish, in appealing the District Court’s

issue preclusion ruling, neglects one critical and salient fact. Suquamish lost the

Subproceeding 05-3 Case and all the determinations relevant here. To the extent

this Court were inclined to find issue preclusion, then the ruling that Suquamish

did not fish or have U&A east of Whidbey Island would surely apply here.

Observing a map of Puget Sound, it is evident that the Subproceeding Areas at

issue here are clearly east of Whidbey Island. Moreover, the determination that

Judge Boldt only found a U&A for Suquamish in areas 1 and 2 and not in the

disputed areas militates against Suquamish’s claims here. However, as the District

Court determined, this new claim with respect to the Subproceeding Areas requires

a full examination.

VIII. CONCLUSION

This Court should affirm the District Court’s grant of summary judgment in

favor of Upper Skagit. The District Court applied the correct legal standards as

previously articulated by this Court in limiting its inquiry to the actual facts in the

record before Judge Boldt at the time Suquamish’s U&A was determined in 1975.

Upon a review of that record, the District Court came to the absolutely correct and

inescapable conclusion that Judge Boldt could not have intended to grant U&A

rights to Suquamish in the Subproceeding Areas, since there was no evidence in


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the record before Judge Boldt to support such a finding. The District Court’s

decision should be affirmed.

RESPECTFULLY SUBMITTED this 7th day of December, 2015.

OFFICE OF THE TRIBAL ATTORNEY UPPER SKAGIT INDIAN TRIBE /s/ Harold Chesnin Harold Chesnin, WSB No. 398 David Hawkins, WSB No. 35370 TETON LAW GROUP /s/ Andrew H. Salter Andrew H. Salter, WSB No. 11954 Attorneys for Upper Skagit Indian Tribe


1

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Appellee Upper Skagit Indian Tribe

states that the following cases related to this case are pending in this Court: None

DATED this 7th day of December, 2015.

/s/ Harold Chesnin Harold Chesnin Attorney for Upper Skagit Indian Tribe


1

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on December 7, 2015, I electronically filed the

foregoing document with the Clerk of the Court using the CM/ ECF system which

will send notification of such filing to all parties registered in the CM/ECF system

for this case.

DATED this 7th day of December, 2015.

/s/ Harold Chesnin Harold Chesnin Attorney for Plaintiff- Appellee Upper Skagit Indian Tribe



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IN THE UNITED STATES COURT OF APPEALS Upper Skagit Indian ... · David Hawkins, WSBA No. 35370 Office of the Tribal Attorney Upper Skagit Indian Tribe 25944 Community Plaza Way Sedro