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1 THE HONORABLE RICARDO S. MARTINEZ
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 UNITED STATES OF AMERICA et al., Case No. C70-9213 9 Petitioners, Subproceeding No. 19-01 10 vs. SWINOMISH MOTION FOR 11 STATE OF WASHINGTON et al., TEMPORARY RESTRAINING ORDER Respondent. 12 Noting Date: November 4, 2019
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14 The Swinomish Indian Tribal Community (Swinomish) brings this Motion for a
15 Temporary Restraining Order (TRO) to preserve the status quo by enjoining the Lummi Nation
16 (“Lummi”) from engaging in the crab fishery in Shellfish Region 2 East that is presently
17 scheduled to open on November 6, 2019. Lummi issued the regulation opening a Region 2 East
18 crab fishery even though it has never before fished for crab in Region 2 East and has not
19 established a right to fish there.
20 Region 2 East encompasses the secluded waters east of Whidbey Island, as shown on the
21 map on the following page. Swinomish, along with the Tulalip Tribes and the Upper Skagit
22 Indian Tribe (collectively, the “Region 2 East Tribes”), has managed and participated in the crab
23 fishery in Region 2 East for several decades. The Region 2 East Tribes issued regulations to
24 open the winter crab fishery in Region 2 East on November 6, 2019 at 10:00 a.m. Despite never
25 having participated in a Region 2 East crab fishery, Lummi followed suit with a regulation
SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 1 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309
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1 opening a major portion of Region 2 East, Shellfish Area 24C, estimating an effort of 10 boats.
2 Loomis Dec.1 ¶25, Ex. 2. Even if Lummi limits its effort to ten boats, its fishery will
3 substantially reduce the Region 2 East Tribes’ harvest, decrease fisher income, and impair
4 subsistence, cultural and spiritual values. Id. ¶31. In order to prevent this harm to Swinomish and
5 its fishers, as well as to the other Region 2 East Tribes, and to preserve the status quo in the
6 fishery pending litigation of this subproceeding, Swinomish brings this Motion for a Temporary
7 Restraining Order (“TRO”).
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25 1 Citation to Declaration of Lorraine Loomis, Swinomish Fisheries Manager, filed with this Motion. SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 2 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309
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1 I. Procedural History
2 Lummi’s U&As were determined by Judge Boldt in 1974 in Final Decision #1, U.S. v.
3 Washington, 384 F. Supp. 313, 360 (W.D. Wash. 1974). Since then, Lummi has never
4 conducted a crab fishery in Region 2 East. Nelson Dec.2 ¶14-16, Ex. 3; Loomis Dec. ¶30.
5 Last year Lummi issued a regulation to open a crab fishery in a different portion of
6 Region 2 East, and the Region 2 East Tribes filed a motion for a TRO to stop that fishery.
7 Motion for TRO, Subp. 18-1, Dkt. 3, 7. The Court denied the TRO based upon Lummi
8 representations that it was not actually going to fish in Region 2 East. Order, Subp. 18-1, Dkt.
9 27. The Region 2 East Tribes then voluntarily dismissed Subp. 18-1 in order to comply with the
10 pre-filing requirements of Paragraph 25(b). Notice, Subp. 18-1, Dkt. 38. A meet and confer was
11 held, and several negotiating sessions among the parties ensued. The Region 2 East Tribes
12 closed the negotiations and filed this subproceeding when Lummi made clear its intentions to
13 open a fishery in Region 2 East. Nelson Dec. ¶20.
14 Thereafter, despite the filing of this subproceeding contesting Lummi U&As in an area in
15 which it had never fished, Lummi issued a regulation opening a crab fishery in Region 2 East,
16 which prompted the filing of this motion. Nelson Dec. ¶21, Ex. 7.
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18 II. Argument
19 A. Standards for Issuing a TRO.
20 The TRO is an emergency procedural device intended to preserve the status quo between
21 the parties and prevent irreparable loss before the court can consider a preliminary injunction.
22 Sierra On-Line v. Phoenix Software, 739 F.2d 1415, 1422 (9th Cir. 1984). The requisites for
23 issuance of a TRO in this case are spelled out in Fed. R. Civ. P. 65, W.D. Wash. LCR 65, and
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25 2 Citation to Declaration of Matthew L. Nelson, Swinomish Shellfish Management Biologist, filed with this Motion. SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 3 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309
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1 Paragraph 25 of the Permanent Injunction, U.S. v. Washington, 18 F. Supp.3d 1213, 1215 (W.D.
2 Wash. 1993), ¶25(b)(7). Rule 65(b)(1) requires that a TRO motion clearly show “that immediate
3 and irreparable injury, loss, or damage will result to the movant,” and that efforts have been
4 made to give notice to the other party (or reasons why notice should not be given). The
5 procedural requisites for a TRO have all been met here. Declaration of Emily Haley, ¶ 2-9.
6 The applicable substantive factors to balance when considering a TRO motion are
7 “substantially identical” to those for a preliminary injunction. Stuhlberg Int’l. Sales Co. v. John
8 D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A party seeking a preliminary injunction
9 must show: 1) a likelihood of success on the merits; 2) irreparable harm if relief is not granted; 3)
10 the balance of equities tips in the party’s favor; and 4) an injunction is in the public interest.
11 Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). In balancing these factors,
12 the Ninth Circuit applies a sliding scale, so that “a stronger showing of one element may offset a
13 weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
14 Cir. 2011).
15 In this case, the TRO to prevent Lummi from fishing where it has never fished before is
16 needed to preserve the status quo and all four of the factors favor issuance of a TRO.
17 B. The Status Quo.
18 According to the official tribal harvest records on “TOCAS” kept by the Northwest
19 Indian Fish Commission, Lummi has never conducted a shellfish fishery in Region 2 East.
20 Nelson Dec. ¶¶ 9, 14, 15, Ex. 3. The status quo in this case is that Lummi has no fishery in
21 Region 2 East. Preserving the status quo, then, requires enjoining Lummi from fishing in Region
22 2 East unless and until it establishes a right to do so.
23 The status quo also entails preservation of the harvest regime for crab fishing in Region 2
24 East that has developed among the Region 2 East Tribes and between those tribes and the state.
25 A brief description of that regime is in order. The Shellfish Implementation Plan (SIP), U.S. v.
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1 Washington, 898 F. Supp. 1453, 1463-1476 (W.D. Wash. 1995), as subsequently amended,
2 governs shellfish co-management between the treaty tribes and the state through management
3 plans by shellfish region. Nelson Dec. ¶4. The state and the affected tribes in a region meet
4 annually to develop a management plan for the region which includes an overall regional harvest
5 quota, which is then split 50-50 between the tribes and the state. Id.
6 The Region 2 East Tribes (and Suquamish, which has a limited fishery in a portion of
7 Region 2 East) manage the treaty half of the overall Region 2 East crab allocation by crafting
8 seasons and gear limits that will keep their fishing within the quota and spread the harvest out.
9 The seasons typically include one or more short fisheries in the spring and early summer, with
10 intervals between sufficient to allow assessment of the fishing to date in order to craft further
11 fisheries that will keep the harvest within the treaty allocation, and a “winter” fishery opened in
12 the late fall to harvest the remaining quota preserved for that purpose. Nelson Dec. ¶7, Ex 2
13 Appx. C. The Region 2 East Tribes typically take the entire treaty quota during the season. Id.
14 ¶28.
15 This year the state and the tribes reached agreement on a management plan that called for
16 a Region 2 East tribal and state crab harvests of 1,000,000 pounds each. Id. ¶17, Ex. 2. Though
17 Lummi has never fished in Region 2 East for crab, it signed the management plan under protest
18 of the Region 2 East Tribes, as is customary. Id. The fact that Lummi signed is not an admission
19 that Lummi has U&As there. Id. ¶6, Ex. 2 ¶2. The management measures adopted by the
20 Region 2 East Tribes to limit their harvest in order to remain within the quota did not take into
21 account any participation in the fishery by the Lummi fleet. Id. ¶17.
22 The tribal Region 2 East summer crab fishery took 688,000 of crab. Nelson Dec. ¶18,
23 Ex. 4. This left an initial winter crab quota of 312,000 pounds. Id. ¶19. However, state fishers
24 overharvested their 50% share, creating uncertainty as to whether any of the quota actually
25 remains available for the winter fishery and, if so, how much. Id. Ex 5.
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1 By issuing its winter crab fishery regulation, Lummi is poised to hold a crab fishery in
2 Region 2 East. Lummi will be fishing on the regional quota, and so will adversely affect all
3 Region 2 East tribal crab harvest.
4 C. Irreparable Harm
5 In order to obtain a TRO, the failure to maintain the status quo pending further
6 proceedings must result in irreparable harm to the Region 2 East Tribes. Irreparable harm must
7 involve more than economic loss “if adequate compensatory relief is available.” Goldie’s
8 Bookstore v. Superior Court, 739 F.2d 466, 471 (9th Cir. 1984). The Court must consider
9 economic loss in this case. Any crab landed by Lummi subtracts from the crab available for
10 harvest by the Region 2 East Tribes, and there is no compensatory relief available for the loss.
11 Even within the confines of U.S. v. Washington, Lummi could assert its tribal sovereign
12 immunity to prevent a damages award. U.S. v. Washington, 909 F. Supp. 787, 793 (W.D. Wash.
13 1995) (tribal sovereign immunity prevents special master from being empowered to award
14 damages against tribes for shellfish plan violations). Outside the confines of this case, the barrier
15 of tribal sovereign immunity is well established. Michigan v. Bay Mills Indian Community, 134
16 S. Ct. 2024 (2014). There is no “adequate compensatory relief” available against Lummi.
17 Lummi will visit substantial and irreparable harm to the Region 2 East Tribes’ treaty
18 fishers and fishery by participating in the winter crab fishery there. Since the entire Region 2
19 East quota is harvested by the Region 2 East tribes each year, tribal harvest is a zero sum game.
20 The fishery will close when the quota is reached, and if Lummi fishes the Region 2 East Tribes’
21 harvest numbers and share will drop accordingly. Loomis Dec. ¶31. The limitation of fishing to
22 Area 24C does not materially alter the impact of its fishery since all of Region 2 East has one
23 quota.
24 In addition, the Region 2 East Tribes will lose fishing opportunity because the quota will
25 be reached sooner with Lummi’s participation. Id. In a fully exploited crab fishery with a short
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1 window of fishing opportunity, any harvest by Lummi comes at the expense of the Region 2 East
2 Tribes and foreshortens the fishing opportunity for those who have depended upon it for
3 generations. The estimated reduction is substantial: about 21,000 pounds of crab worth almost
4 $110,000. Id. Furthermore, the Swinomish fishers who participate in this fishery are the ones
5 that need the revenue the most. Participants in the Region 2 East winter crab fishery tend to be
6 small boat operators who depend heavily upon the late season income “to get themselves and
7 their families through the holidays” and the ensuing several months before the crab fishery
8 reopens. Id. ¶29.
9 Moreover, Lummi participation in the winter fishery will invariably cause an overharvest
10 of the tribal Region 2 East crab quota. Nelson Dec. ¶¶27, 28. The Region 2 East Tribes will
11 suffer twice from this. First, they will experience the reduced winter crab harvests this year due
12 to Lummi fishing. Then, in 2020, they will suffer again when the tribal crab quota is reduced to
13 “pay back” the 2019 overharvest caused by Lummi, as required by the 2019 management plan.
14 Id. ¶28, Ex.2 ¶8.
15 Thus if Lummi fishes at the “expected” level of ten boats, as stated in its regulation, there
16 is an imminent likelihood of irreparable harm.
17 The magnitude of harm that will be caused by Lummi fishing can be illustrated by the
18 Swinomish example. Swinomish U&As include all of Region 2 East, including Area 24C.
19 Loomis Dec. ¶10. Swinomish is a fishing community, and much of its subsistence comes from
20 fishing. Id. ¶11. Last year 114 boats participated in the Swinomish crab fishery, of which 99
21 were commercial fishing boats. That is one boat for every 10 Swinomish members. Id. ¶12,
22 Table 1. More Swinomish members participate in the crab fishery by far than any other tribal
23 fishery. Id. The value of last year’s Swinomish crab harvest was over $5.5 million, accounting
24 for about 2/3 of the value of the Swinomish commercial fishery. Id. ¶15, Table 2. In 2018, 50%
25 of the Swinomish crab harvest came from Region 2 East, amounting to over 580 pounds of crab
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1 per tribal member. Id., ¶27. Even if Lummi’s harvest in the winter crab fishery in Region 2 East
2 was limited to 10 boats, Lummi harvest would reduce the Region 2 East Tribes’ winter crab
3 harvest by 21,000 pounds. worth $110,000. Id. ¶31.
4 But the Lummi regulation lists 10 boats as an expectation, not a limitation, and there is
5 nothing in the regulation that limits Lummi effort to 10 boats. Id. ¶32; Nelson Dec. ¶22. “[A]
6 greater, perhaps much greater, actual fishing effort can be expected.” Nelson Dec. ¶26. A larger
7 – perhaps much larger - impact is thus likely.
8 Lummi is by far the largest of the tribal fishing fleets. Lummi’s 250 boats that fished for
9 crab last year is 5 times the size of the Swinomish fleet that fished for crab in Region 2 East
10 during the winter fishery last year. Loomis Dec. ¶ 32. The Lummi fleet is almost double the
11 combined anticipated Region 2 East Tribes’ winter crab effort. Id. Lummi has a proven
12 capability of taking 68% of the crab in competition with the Region 2 East Tribes in Region 1.
13 Nelson Dec. ¶29, Ex. 9 p. 1. If Lummi’s whole fleet fished in Region 2 East crab opener last
14 year, one would expect a similar result. The Lummi fleet alone would have taken 74% of the
15 entire Tribal Region 2 East crab quota, and would have caused the quota to be exceeded by 11%.
16 Id.¶30, Ex. 9, p. 2. The Region 2 East Tribes would have to survive a 74% reduction of their crab
17 harvest in the region that has been their economic mainstay for decades. Id. Lummi would
18 clearly wreak havoc on the harvest of the other tribes if its fleet showed up for the fishery in
19 force. The “expected” ten boats, in itself intolerable, is just the floor of the harm that Lummi
20 could cause. Thus Lummi fishing in Region 2 East will cause substantial economic harm to
21 Swinomish and its fishers. It will impinge upon the livelihood of tribal fishers promised and
22 reserved by treaty that was “not much less necessary to the existence of the Indians than the
23 atmosphere they breathed.” U.S. v. Winans, 198 U.S. 371, 381 (1905).
24 But the harm that will ensue from Lummi fishing goes well beyond the economic realm.
25 The treaty fishery is a necessary component for the survival and continuity of the Tribe’s culture,
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1 inextricably woven into the fabric of tribal being and existence. Any diminution of tribal fishing
2 time and harvest diminishes the treaty right and infringes upon the Tribe’s culture.
3 Lorraine Loomis, longtime Chair of the Northwest Indian Fisheries Commission, fishery
4 manager for Swinomish for 35 years, and for decades a key figure in state, regional and
5 international fisheries management, describes these values in her Declaration. Loomis identifies
6 “four basic values associated with the treaty right” as reflected in the Boldt decision and its
7 progeny: “(1) conservation value of the resource; (2) ceremonial, religious, and spiritual values;
8 (3) subsistence; and (4) commercial value.” Loomis Dec. ¶18. As to the last of these,
9 commercial value, she notes:
10 The economic and non-economic impacts of the Tribe’s commercial fisheries is very important, but it is not the only value of the Tribe’s treaty fisheries, nor, in the end, is it 11 the most important one,
12 Id. Loomis explores the noncommercial values in some detail. Id. ¶¶ 17-24. Loomis then
13 summarizes:
14 The act of fishing, the circulation of harvest within the community, and the importance of fish and shellfish to Swinomish cultural and spiritual life give our Treaty fishing rights a 15 value that far transcends the economic value of the commercial fisheries. The Treaty fishing right was meant to preserve our culture and way of life revolving around fishing 16 and the fish harvest. As a fisheries manager, I am always mindful of the need to preserve 17 our Treaty fishing rights and our historic fisheries in order to preserve our survival and identity as a tribe. 18 Id. ¶24. 19 Based on all the factors discussed in her declaration, Loomis concludes that a Lummi 20 incursion into Region 2 East will visit irreparable harm upon Swinomish and its members, and 21 the other Region 2 East Tribes, “not only commercially, but culturally and spiritually.” Id. ¶33. 22 D. Likelihood of Success on the Merits. 23 As to likelihood of success on the merits, given the seriousness of the irreparable harm, 24 Swinomish need only establish that there are “serious questions going to the merits” of the claim 25
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1 that Lummi has no right to fish in Region 2 East. U.S. v. Washington, 2015 WL 12670517
2 (W.D. Wash. 2015), quoting Cottrell, 632 F.3d at 1135. This case calls for the now familiar
3 exercise under Paragraph 25(a)(1) of determining whether the waters of east of Whidbey Island
4 are within Lummi U&As as determined by Judge Boldt in 1974. Prior proceedings have
5 determined that the description of the Lummi U&As is unclear and ambiguous as to geography,
6 so this Court is called upon to “construe the provision so as to give effect to the intention of the
7 issuing court,” by examining “the entire record before the issuing court and the findings of fact.”
8 Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1359 (9th Cir. 1998). “In these
9 circumstances, the district judge, who is the trier of fact, may resolve conflicting inferences and
10 evaluate the evidence to determine Judge Boldt’s intent.” Upper Skagit Indian Tribe v.
11 Washington, 590 F.3d 1020, 1025 n. 9 (9th Cir. 2010).
12 At this preliminary stage there are ample grounds to conclude that Lummi has no U&As
13 in the waters east of Whidbey Island. There is nothing in the Lummi U&A finding itself, the
14 Lane reports Judge Boldt relied upon, or any other materials cited by Judge Boldt as supporting
15 his Lummi U&A finding that would support inclusion of Region 2 East within Lummi U&As.
16 Judge Boldt did not intend to include these waters.
17 1. Lummi’s Principal Fisheries were North and West of Region 2 East.
18 The Lummi U&A findings pertinent to this subproceeding include:
19 The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point. . . . These 20 Indians also took spring, silver and humpback salmon and steelhead by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpoons 21 and basketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon. 22 FD #1 at 360. (FF 45)
23 [T]he usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River 24 south to the present environs of Seattle, and particularly Bellingham Bay.. 25 Id. (FF 46)
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1 As evidence for this U&A finding, Judge Boldt primarily relied, as he so often did, on the
2 work of Dr. Barbara Lane, the doyenne of U.S. v. Washington anthropological experts. Boldt
3 cites two Lane reports. In the first, Political and Economic Aspects of Indian-White Culture
4 Contact in Western Washington in the Mid-19th Century, 5/10/1973, admitted as evidence in the
5 original Boldt trial as Ex. USA-20, Lane states, p. 39, JD3 3:
6 The principal fisheries of the Lummi include the reef-net locations for sockeye at Point Roberts, Village Point, on the east coast of San Juan Island as well as other 7 locations in the San Juan Islands. Other fisheries included Bellingham Bay and the surrounding saltwater areas. The Lummi had important freshwater fisheries on the river 8 systems draining into Bellingham Bay.
9 Later, in Lane’s Anthropological Report of the Identity, Treaty Status and Fisheries of the
10 Lummi tribe of Indians, Ex. USA-30, JD 4-37, Lane elaborates upon her earlier summary. Lane
11 notes that “it is feasible to indicate the general area of [Lummi’s] fishing operations and within
12 the general area to designate certain sites as important or principal fishing locations.” Id. at 23,
13 JD 30. Lane dealt first with the reef netting sites, all of which are north and west of Region 2
14 East.. Lane then describes Lummi trolling for salmon “in the contiguous waters of Haro and
15 Rosario Straits and in the islands, speared in the bays and streams of the mainland, and took
16 them by means of weirs and traps in the rivers.” Id. at 24, JD 31. Lane then notes: “The
17 traditional fishing areas discussed thus far extended from what is now the Canadian border south
18 to Anacortes.” Id. In her conclusion, Lane states: “The traditional fisheries of the post-treaty
19 Lummi included reefnet sites in the San Juan Islands, off Point Roberts, Birch Point, Cherry
20 Point and off Lummi Island and Fidalgo Island.” Id. at 26, JD 34.
21 Thus Dr. Lane identified Lummi’s principal fisheries as near its traditional homeland,
22 north or west of the waters east of Whidbey. Although there are plenty of specific geographic
23 locations mentioned, nothing in Lane’s reports, or Judge Boldt’s U&A finding, or any of the
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25 3 Denotes Declaration of James M. Jannetta filed with this Motion.
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1 other documents listed by Judge Boldt as sources for the Lummi U&As finding refer to any
2 geographic anchor or feature of any of the waters east of Whidbey Island. JD ¶3.
3 2. There Is No Evidence That Lummi Traveled, Let Alone Fished, in Region 2 East.
4 Dr. Lane also described U&As related to travel on the open marine highways. “The
5 Straits and Sound were traditional highways used in common by all Indians of the region.” Ex.
6 USA-30 p. 25, JD 33. Lane described this “traditional highway” within Lummi fishing U&As
7 by including “the Straits and bays from the Fraser River south to the present environs of Seattle.”
8 Id. at 26, JD 34. There is nothing in this record or in anything else in U.S. v. Washington to
9 indicate that the secluded waters east of Whidbey Island were part of any traditional marine
10 highway open to all tribes.
11 The marine highway discussed by Dr. Lane’s report and included by Judge Boldt in
12 Lummi U&As is on the west side of Whidbey Island, outside of Region 2 East. This marine
13 highway was the central issue in Subp. 11-2 and the basis of the recent 9th Circuit decision that
14 filled the Lummi U&A gap between the San Juan Islands and Admiralty Inlet. U.S. v. Lummi
15 Nation, 876 F.3d 1004 (9th Cir. 2017). Lummi prevailed in that case by claiming and
16 emphasizing that the waters west of Whidbey Island were the direct marine route and one of the
17 deepwater marine highways described by Dr. Lane. Brief of Respondent-Appellant Lummi
18 Nation, 9th Cir. No. 15-35661, Dkt. #21, 12/23/15, pp. 41-55, JD 38-53.
19 As part of this argument Lummi contrasted the Region 2 East waters east of Whidbey
20 Island with the waters west of Whidbey Island. Id. at 52-55, JD 50-53. Lummi invoked both
21 Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010), and Tulalip Tribes v.
22 Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015), to argue that the travel route was on the
23 west side of Whidbey Island, and not on the east side. After discussing these cases, Lummi
24 wrote:
25
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1 The [Ninth Circuit] cited the probable route of travel [from the Fraser River to Vashon Island] in holding that Suquamish’s [U&As] include waters to the west of Whidbey 2 Island. … A similar conclusion follows here.
3 Lummi Brf. at 55, JD 52 (italics added). Thus Lummi argued that its travel U&A was on the
4 west side of Whidbey Island and not on the east side, and in doing so it secured a reversal of this
5 Court’s decision in Subp. 11-2 based upon that argument.
6 Lummi was correct in its briefing in Subp. 11-2. The most extended discussion of this
7 point occurs in Upper Skagit, which affirmed this Court’s ruling in Subp. 05-3 that Suquamish
8 had no U&As in waters east of Whidbey Island because there was no evidence before Judge
9 Boldt of Suquamish travel, let alone fishing, there. In addressing the “U&A by travel” argument,
10 the Court observed, 590 F.3d at 1024:
11 While [Dr. Lane] did say that the Suquamish travelled widely by canoe . . . Lane provided no evidence that the tribe fished in Saratoga Passage or Skagit Bay. Her report 12 listed where the Suquamish traditionally took fish, but neither Skagit Bay nor Saratoga Passage was among them. 13 The same is true regarding Lummi U&As in this case. 14 In contrasting the waters west of Whidbey Island with those east of Whidbey, the 15 Court noted, id. at 1025, n. 9: 16 Geographically, Saratoga Passage and Skagit Bay are nearly enclosed or inland waters to 17 the east of Whidbey Island. … The northern exits through Deception Pass and Swinomish Slough are narrow and constricted; both areas were controlled by the Swinomish at treaty 18 time.
19 This observation supporting the distinction between the travel route west of Whidbey Island and
20 east of Whidbey Island also bears upon this case even more than in the Suquamish case, because
4 21 Lummi would approach Region 2 East from the north. Finally, the Court added this to its
22 reasons why the broadly described U&A travel area did not included East of Whidbey id. at
23 1025:
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25 4 Swinomish control of access to Region 2 East is also noted in U.S. v. Washington, 626 F. Supp. 1527, 1528 (W.D. Wash. 1985). SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 13 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309
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1 In addition, Judge Boldt used specific geographic anchor points in describing other tribes’ U&As. … From this it is reasonable to conclude that when he intended to include 2 an area, it was specifically named in the U&A. … That Judge Boldt neglected to include [waters east of Whidbey Island] in Suquamish’s U&A supports our conclusion that he did 3 not intend to include them.
4 The lack of Region 2 East geographic anchor points in the Lummi U&As, or in Lane’s report and
5 the other sources upon which on which the U&As were based leads to the same conclusion.
6 Further, in Tulalip Tribes, supra, 794 F.3d at 1135, the Ninth Circuit, affirming this Court’s
7 decision in Subp. 05-4, noted that Suquamish’s travel route “would have passed through the
8 waters west of Whidbey Island.” See also Upper Skagit Tribe v. Suquamish Indian Tribe, 871
9 F.3d 844, 1849-50 (9th Cir. 2017) (Suquamish travel route was west, not east, of Whidbey Island)
10 E. The Balancing of Equities Favors the Requesting Tribes.
11 Lummi will suffer no harm if this Court preserves the status quo. Its fisheries can proceed
12 as they have for the last 45 years, without any loss from its large and abundant current base
13 fishery. Lummi’s existing harvest in Region 1 far exceeds the entire treaty quota in Region 2
14 East. Nelson Dec. ¶29, Ex. 9. Lummi loses only the opportunity to poach upon the Region 2
15 East Tribes’ fisheries and reduce their fishers’ livelihood before the courts have determined
16 whether Lummi has any right to do so. The balance also tips toward the Region 2 East Tribes
17 because they are likely to prevail. This Court has balanced the harms against Lummi and in
18 support of the status quo on far less showing of harm and a much shorter duration of status quo.
19 U.S. v. Washington, 2015 WL 12670517 *1 (W.D. Wash. 2015) (Subp. 11-2).
20 F. The TRO Serves the Public Interest.
21 This Court has identified a very important component of the public interest in this case. 22 Allowing tribes to enter a new fishery in which they have not previously fished by simply 23 beginning to fish in the area forces the tribes who already fish in the area to bring a case to 24 establish that the incursive tribe does not have U&As in the new area. This rewards aggressive 25
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1 and lawless actions in two ways: 1) it shifts the burden of persuasion and proof to the opposing
2 tribes; and 2) it can result in fishing while the case proceeds – sometimes, as in the case of
3 Suquamish fishing in waters east of Whidbey Island – for several years, as occurred in Subp. 05-
4 3. A TRO preserving the status quo during the litigation puts an end to the second, more harmful 5 reward. 6 Within two years after of FD#1 was decided, Judge Boldt upbraided the tribes for 7 pursuing this course of action, even threatening to impose sanctions. U.S. v. Washington, 459 F. 8 Supp. 1068, 1068-1069 (W.D. Wash. 1976). Mindful of Judge Boldt’s admonishment, this Court 9 recently recognized that public interest: 10 [T]he Court is persuaded that it is in the public interest to ensure the orderly management 11 of disputes within this long-running case and to discourage Tribes from opening fisheries without establishing a right to do so in accordance with paragraph 25 of the permanent 12 injunction in Final Decision #1.
13 U.S. v. Washington, 2015 WL 12670517 *2 (W.D. Wash. 2015). 14 At this late date in the case, where the new fishery has not been prosecuted by Lummi in 15 the more than four decades since its U&A finding, the public interest requires issuance of a TRO 16 to prevent Lummi’s gain from its lawless action. 17 IV. Conclusion. 18 For all the foregoing reasons, the Court should preserve the status quo by issuing a TRO 19
20 that enjoins Lummi and its fishers from fishing in Region 2 East until a preliminary injunction
21 can be addressed. A TRO is the only hope in preventing irreparable harm to Swinomish and the
22 other Region 2 East tribes while this case proceeds in an orderly fashion.
23 Contact Information for Opposing Counsel
24 As required by LCR 65(b)(1), below is the contact information for opposing counsel:
25 Mary M. Neil, Reservation Attorney
SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 15 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309
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1 Lummi Nation 1665 Kwina Road 2 Bellingham WA 982226 Tel. (360) 312-2164 3 Fax (360) 380-6982 [email protected] 4 EXECUTED this 4th day of November, 2019 at La Conner, Washington. 5 _s/ James M. Jannetta ______6 James M. Jannetta, WSBA # 36525 7 Office of Tribal Attorney Swinomish Indian Tribal Community 8 11404 Moorage Way LaConner, Washington 98257 9 Telephone: 360/466-1021 Fax: 360/466-5309 10 E-mail: [email protected] Attorney for Swinomish Indian Tribal Community 11
12 _s/ Emily Haley______Emily Haley, WSBA # 38284 13 Office of Tribal Attorney Swinomish Indian Tribal Community 14 11404 Moorage Way LaConner, Washington 98257 15 Telephone: 360/466-1134 16 Fax: 360/466-5309 E-mail: [email protected] 17 Attorney for Swinomish Indian Tribal Community
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on November 4, 2019, I electronically filed the attached Swinomish 3 Motion for Temporary Restraining Order with the Clerk of the Court using the CM/ECF system, 4 which will send notice of the filing to all parties registered in the CM/ECF system for this matter. 5 By: __/s/ James M. Jannetta_____ 6 James M. Jannetta, WSBA No. 36525 7 Counsel for Swinomish Indian Tribal Community
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SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 17 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding 19-1 La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309