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Tulalip Opening Brief Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 1 of 110 13-35773 United States Court of Appeals for the Ninth Circuit TULALIP TRIBES Plaintiff-Appellant, v. SUQUAMISH INDIAN TRIBE Defendant-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON CIVIL NO. 70-9213-RSM Subproceeding No. 05-4 TULALIP TRIBES’ OPENING BRIEF MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE Mason D. Morisset, WSBA #00273 Rebecca JCH Jackson, WSBA #44113 Email: m.morisset@msaj.com Email: r.jackson@msaj.com 801 Second Avenue, Suite 1115 Seattle, Washington 98104-1509 Tel: 206-386-5200 Fax: 206-386-7388 Attorneys for Tulalip Tribes Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 2 of 110 CORPORATE DISCLOSURE STATEMENT Appellant Tulalip Tribes is a federally recognized Indian Tribe. Accordingly, a corporate disclosure statement is not required by Federal Rule of Appellate Procedure 26.1. i Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 3 of 110 TABLE OF CONTENTS I. STATEMENT OF JURISDICTION ............................................................... 1 II. STATEMENT OF THE ISSUES .................................................................... 1 III. ADDENDUM OF PERTINENT LAWS ......................................................... 2 IV. STATEMENT OF THE CASE ....................................................................... 2 V. SUMMARY OF ARGUMENT ..................................................................... 14 VI. STANDARD OF REVIEW ........................................................................... 20 VII. ARGUMENT ................................................................................................. 20 A. This Court Has Established the Law Governing the Interpretation of U&A Findings. ................................................................................ 20 B. The Record Clarifies Judge Boldt’s Intent. ......................................... 23 1. Judge Boldt’s U&A Finding Specifically Related to Waters Described by Herring Areas 1 and 2 and Limited the Suquamish U&A to Western Waters. ....................................... 23 2. The Suquamish U&A Lacks Geographic Descriptors Indicating Inclusion of the Contested Waters. .......................... 25 3. Dr. Lane’s Reports Support Exclusion of the Contested Waters from the Suquamish U&A. ........................................... 28 4. The Contested Waters Are Adjacent to the Home of the Tulalip Tribes and Cannot Constitute Suquamish U&A. ......... 31 C. The Suquamish Tribe Continues to Impermissibly Attempt to Expand Its Fishery. .............................................................................. 33 D. Suquamish Historic Fishing Regulations Further Indicate That Its U&A Does Not Include the Contested Waters. .................................. 35 VIII. CONCLUSION .............................................................................................. 36 IX. CERTIFICATE OF COMPLIANCE ............................................................ 38 ii Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 4 of 110 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................ 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................ 20 Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000) ........................................................... 6, 14, 15, 22 Muckleshoot Indian Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) .................................................................... passim Scheuring v. Traylor Bros., Inc., 476 F.3d 781 (9th Cir. 2007) .............................................................................. 20 U. S. v. Washington, CV70-9213RSM, 2012 WL 4846239 (W.D. Wash. Oct. 11, 2012) .................. 29 U.S. v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) ...................................................................... passim U.S. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) ........................................................... 15, 16, 21, 22 U.S. v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) ................................................................. 14, 19, 33 U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) aff'd and remanded, 520 F.2d 676 (9th Cir. 1975) ...................................................................................... passim U.S. v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978) ...................................................... passim U.S. v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985), aff’d, 841 F.2d. 317 (9th Cir. 1988) ............................................................................................. passim U.S. v. Washington, CV 05-3, 2007 WL 30869, (W.D. Wash. Jan. 4, 2007) ............................ passim U.S. v. Washington, 252 F. App'x 183 (9th Cir. 2007) .......................................................................... 3 iii Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 5 of 110 Upper Skagit Indian Tribe v. Washington, 590 F.3d 1010 (2010) ....................................................................... 28, 31, 34, 35 Statutes 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 1331 ........................................................................................................ 1 28 U.S.C. § 1345 ........................................................................................................ 1 28 U.S.C. § 1362 ........................................................................................................ 1 Other Authorities Treaty of Point Elliott, 12 Stat. 927 (1855) ........................................................ 5, 21 Rules Circuit Rule 28-2.7 ..................................................................................................... 2 Fed.R.Civ.P. 56(c) .................................................................................................... 20 Federal Rule of Appellate Procedure 26.1 ................................................................. i Federal Rule of Appellate Procedure 32(a)(5) ......................................................... 38 Federal Rule of Appellate Procedure 32(a)(6) ......................................................... 38 Federal Rule of Appellate Procedure 32(a)(7)(B) ................................................... 38 Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) ............................................. 38 iv Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 6 of 110 I. STATEMENT OF JURISDICTION The District Court for the Western District of Washington has subject matter jurisdiction of the underlying proceedings pursuant to 28 U.S.C. §§ 1345, 1331, and 1362. The District Court retained continuing jurisdiction in this case pursuant to Paragraph 25(a)(1), 25(a)(4), (a)(6), and/or (a)(7) of the Court’s injunction of March 22, 1974, U.S. v. Washington, 384 F. Supp. 312, 419 (W.D. Wash. 1974) aff'd and remanded, 520 F.2d 676 (9th Cir. 1975), as modified by the Court (U.S. v. Washington, C70-9213, Dkt. #13599 (W.D. Wash. Aug. 23, 1993)). This case involves a dispute over usual and accustomed fishing grounds and stations between federally recognized Indian tribes. The District Court entered final judgment on Cross Motions for Summary Judgment on July 29, 2013. Dkt. #242, 243; ER 1, 2. The Tulalip Tribe filed its Notice of Appeal as to the Court’s partial denial of Plaintiff-Appellant’s Motion for Summary Judgment to this Court on August 22, 2013. ER 30. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. II. STATEMENT OF THE ISSUES Whether the finding concerning the Suquamish Tribe’s usual and accustomed fishing places (U&A) made by Judge Boldt in 1975 includes the mouth of the Snohomish River, Possession Sound, Port Gardner Bay, and the bays on the west side of Whidbey Island (Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay) (contested waters). See U.S. v. Washington, 459 F. Supp. 1020, 1049 1 Case: 13-35773 02/28/2014 ID: 8998263 DktEntry: 16-1 Page: 7 of 110 (W.D. Wash. 1978); see also ER 45. The Tulalip Tribes raised this issue in their request for determination filed on August 8, 2005. Dkt. #1; see also ER 211. The determination of this issue involves the following sub-issue: Whether, based upon the record and proceedings at the time of the U&A determination, Judge Boldt intended to include the contested waters in the Suquamish U&A. The District Court ruled that he did intend to include them. Dkt. #242, 243; ER 1, 2.1 III. ADDENDUM OF PERTINENT LAWS Pursuant to Circuit Rule 28-2.7, pertinent statutes and regulations are included within the addendum to this brief. IV. STATEMENT OF THE CASE A. Procedural Background. On February 12, 1974, senior District Court Judge George H. Boldt issued his seminal opinion on the northwest treaty fishing rights case, which came to be known as the “Boldt Decision.” Washington, 384 F. Supp. 312. That decision has had far-reaching consequences, and this case concerns the continuation of one aspect of that case. Importantly, Judge Boldt determined fishing areas for the northwest treaty tribes that were parties to the case. In construing the treaties, it was necessary for Judge Boldt to determine the “usual and
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