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57 Tulalip Tribes Brief Case 2:70-cv-09213-RSM Document 22208 Filed 05/29/20 Page 1 of 26 1 THE HONORABLE RICARDO S. MARTINEZ 2 3 4 5 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. 19-1 10 vs. TULALIP MOTION FOR SUMMARY 11 JUDGMENT AND INJUNCTION STATE OF WASHINGTON et al., 12 Noting Date: July 31, 2020 Respondent. 13 14 I. Motion 15 The Tulalip Tribes file this Motion for a Summary Judgment to prohibit the Lummi Nation 16 (“Lummi”) from engaging in any fishing for finfish or shellfish in Shellfish Region 2 East. Tulalip 17 also moves for a permanent injunction enjoining Lummi and its fishers from engaging in 18 any fishing in the named Region. 19 20 II. Background and Statement of the Case. 21 This subproceeding was triggered by recent Lummi attempts to engage in crab fisheries in Region 22 2E. In 2018, Lummi filed for a crab fishery in Region 2E. Most recently, Lummi scheduled an 23 opening on November 6, 2019. Lummi issued the regulation opening the Region 2 East crab 24 fishery even though it has never before fished for crab in Region 2 East and has not established a 25 right to fish there. See Lummi 2019-65 Region 2E Crab Regulation, attachment 2 hereto. That TULALIP MOTION FOR SUMMARY JUDGMENT Morisset Schlosser Jozwiak & Somerville Page 1 811 First Avenue, Suite 218 Civil Case No. C70-9213/Subproceeding 19-1 Seattle, WA 98104 206.386.5200 Case 2:70-cv-09213-RSM Document 22208 Filed 05/29/20 Page 2 of 26 1 particular opening was barred by a preliminary injunction filed by the court on December 3, 2019. 2 Dkt. No. 22124. 3 Region 2 East encompasses waters of prime importance to Tulalip. Those waters, including 4 the secluded waters east of Whidbey Island, as well as Possession Sound, Port Susan, and Saratoga 5 Pass, are shown on the attached map. Attachment 1. These are all “home” waters near or adjacent 6 to the Tulalip reservation and of prime importance to Tulalip fishers. Tulalip, along with the 7 Swinomish Tribal Community and the Upper Skagit Indian Tribe (collectively, the “Region 2 East 8 Tribes”) has managed and participated in the crab fishery in Region 2 East for many years. The 9 Region 2 East Tribes issued regulations to open the winter crab fishery in Region 2 East on 10 November 4, 2019. 11 Despite never having participated in a Region 2 East crab fishery, Lummi responded with 12 a regulation opening the same fishery, estimating an effort of 10 boats. Attachment 2 supra. Even 13 if Lummi limits its effort to ten boats, its fishery will likely cause the treaty harvest to surpass the 14 agreed quota and it would be expected that all participating fishers would suffer unexpected 15 economic loss. See November 5, 2019 Declaration of McHugh, attachment 3 herein. Because of 16 the proximity of the subject waters to the Tulalip reservation, this impact will be significant. See 17 November 5, 2019 Declaration of Gobin, attachment 4 herein. In order to prevent this harm to 18 Tulalip and its fishers, as well as to the other Region 2 East Tribes, Tulalip brings this Motion for 19 Summary Judgment. 20 In filing its regulation No. 2019-65 of November 4, 2019, attachment 2, last year, Lummi 21 made substantial misrepresentations. It claimed in its regulation to be filing “per co-management 22 agreement for the 2019-2020 region 2E” crab harvest. However, Lummi is not a co-manager of 23 the 2E crab harvest. Lummi does not have U&A in the area and there is no management agreement 24 that opens this area to Lummi fishing for crab in-kind with the four existing tribes who planned 25 the 2019 treaty Region 2 East crab fishery. See November 5, 2019 Declaration of McHugh, Para. TULALIP MOTION FOR SUMMARY JUDGMENT Morisset Schlosser Jozwiak & Somerville Page 2 811 First Avenue, Suite 218 Civil Case No. C70-9213/Subproceeding 19-1 Seattle, WA 98104 206.386.5200 Case 2:70-cv-09213-RSM Document 22208 Filed 05/29/20 Page 3 of 26 1 7. The Lummi regulation constitutes a “drastic modification” of the status quo. McHugh 2 Declaration Para. 5. Lummi has a fleet of approximately 200 fishing vessels which represents a 3 significant and potentially uncontrolled fishery effort that was not included in planning the Region 4 2 East fishery. Id., Para. 6. Lummi has not fished for crab in Region 2 East nor have they 5 participated in meaningful management actions. Id., Para 7. There are no known landings for 6 Lummi fishers since the affirmance of tribal shellfish rights. Id. Para 7. Although the event that 7 triggered this action was the Lummi shellfish regulation, Tulalip seeks to bar all Lummi fishing in 8 2E. 9 This fishery is centrally important to Tulalip tribal members. November 5, 2019 10 Declaration of Gobin, Para 3. A large part of Tulalip fisher’s income is derived from the fishery. 11 Id. It is of critical cultural significance. Id. Area 2E is the heartland of the Tulalip Tribes and 12 Lummi attempts to impose their massive fleet into the heartland is deeply offensive to Tulalip. 13 The presence of a Lummi fleet will substantially diminish the opportunity for a Tulalip 14 fishery. Id. The 2 East area provides 95% of Tulalip ceremonial and subsistence harvest of 15 shellfish. The precipitous action of Lummi violates and hinders Tulalip reliance on this area. 16 The requesting party Tulalip Tribes is a political successor in interest to certain tribes, 17 bands, and groups of Indians which were parties to the Treaty of Point Elliott, 12 Stat. 927, and 18 holds fishing rights under that treaty. 19 The Tulalip U&As are set forth in Findings of Fact 380 and 381, U.S. v. Washington, 626 20 F. Supp. 1527, 1530-1531 (W.D. Wash. 1985), subject to certain limitations and exclusions 21 contained in that decision. Tulalip U&As include substantially all of Region 2 East. 22 23 III. Argument 24 A. Motion for Summary Judgement—Standard of Review 25 TULALIP MOTION FOR SUMMARY JUDGMENT Morisset Schlosser Jozwiak & Somerville Page 3 811 First Avenue, Suite 218 Civil Case No. C70-9213/Subproceeding 19-1 Seattle, WA 98104 206.386.5200 Case 2:70-cv-09213-RSM Document 22208 Filed 05/29/20 Page 4 of 26 1 Pursuant to Fed. R. Civ. P. 56(c). Tulalip moves for Summary Judgement that Lummi 2 possesses no fishing U&A for any species in State shellfish harvest area 2E and for an injunction 3 prohibiting all fishing in the area by Lummi. 4 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Courts view 5 inferences to be drawn from the underlying facts in the light most favorable to the non-moving 6 party. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986). Once the 7 moving party meets its burden under Rule 56(c), the adverse party “may not rest upon the mere 8 allegations or denials of the adverse party’s pleading, but the adverse party’s response, by 9 affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is 10 a genuine issue for trial.” Fed. R. Civ. P. 56(e). The non-moving party must do more than 11 simply show “some metaphysical doubt as to the material facts.” Matsushita. The mere 12 existence of “a scintilla of evidence” supporting the non-moving party’s position is insufficient; 13 there must be evidence on which the finder of fact could reasonably find for the non-moving 14 party. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986). 15 In this case, the Preliminary Injunction issued by the court prevented Lummi from fishing 16 where it has never fished before. A permanent injunction is needed to preserve the status quo and 17 eliminate continued probes by Lummi to expand its fishing areas. 18 B. Lummi’s Incursion into Region 2 East 19 In May 2018, Lummi issued a regulation purporting to open a Region 2 East fishery, 20 refused during negotiations with the Region 2 East Tribes to commit to abstaining from fishing 21 pursuant to its regulation, and threatened to open catch area 24A (Skagit Bay) if its demands 22 were not met. United States v. Washington (Subp. No. 18-1), Dkt. 9 ¶¶ 12-16. The Region 2 23 East Tribes sought and were granted a request to open Subproceeding 19-1 and filed motions for 24 temporary restraining orders. United States v. Washington (Subp. No. 18-1), Dkt. 7. Only then 25 TULALIP MOTION FOR SUMMARY JUDGMENT Morisset Schlosser Jozwiak & Somerville Page 4 811 First Avenue, Suite 218 Civil Case No. C70-9213/Subproceeding 19-1 Seattle, WA 98104 206.386.5200 Case 2:70-cv-09213-RSM Document 22208 Filed 05/29/20 Page 5 of 26 1 did Lummi withdraw its threat. United States v. Washington (Subp. No. 18-1), Dkt. 19, at p. 1 2 (“the Lummi have no present plan to fish in those waters.”) 3 On September 24, 2019, Lummi unequivocally stated its intention to fish in Region 2 East: 4 “Lummi intends to have up to 10 fishers and fishing vessels participate in the next 2E tribal crab 5 opening” which was (and is) planned for early November 2019.
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  • Marquette University Libraries, 2/98
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