Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 1 of 21
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. (Pending) 10 vs. REGION 2 EAST TRIBES’ MOTION FOR 11 STATE OF WASHINGTON et al., TEMPORARY RESTRAINING ORDER Respondent. 12 Noting Date: May 31, 2018
13
14 The Swinomish Indian Tribal Community and the Tulalip Tribes (the “Region 2 East
15 Tribes”)1 bring this Motion for a Temporary Restraining Order (TRO) to preserve the status quo
16 by enjoining the Lummi Nation (“Lummi”) crab fishery in Area 24A of Region 2 East presently
17 scheduled to open on June 4, 2018. Lummi issued the regulation opening this crab fishery over
18 the protest of the Region 2 East Tribes even though it has never fished for crab in Region 2 East
19 and has not established a right to fish there.
20 Region 2 East encompasses secluded waters east of Whidbey Island, as shown on the
21 map at p. 17. Area 24A encompasses Skagit Bay. The Region 2 East Tribes have managed the
22 fishery and fished together in Region 2 East for many years. The Region 2 East Tribes set the
23 initial crab harvest opener in Region 2 East to open June 4 and run for 48 hours, with a second
24
25 1 The Upper Skagit Indian Tribe also fishes in Region 2 East and is filing a similar Motion for TRO. While not a party to this motion, information about tribal fishing in Region 2 East in this motion includes Upper Skagit data. REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 1 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 2 of 21
1 48 hour fishery starting in June 10, and Lummi followed suit with its regulation. Lummi’s crab
2 fishing fleet, the largest in Puget Sound and larger than the combined fleets of the Region 2 East
3 Tribes, is poised to take the lion’s share of the crab harvest quota in Region 2 East. This will
4 substantially reduce the Region 2 East Tribes’ harvest, because Lummi’s added fishing effort
5 will likely result in the harvest of most, if not all, of the entire regional quota in the opening
6 fishery, thereby ending the crab fishery for the after just 48 hours of fishing. The Luumi fleet
7 will overwhelm and devastate the treaty fishery in Skagit Bay, reduce fishing effort elsewhere in
8 Region 2 East, and it will impair and the management regime of the tribes with established
9 U&As there.
10 In order to prevent this catastrophe in the Area 24A fishery especially crucial to the
11 Swinomish, protect the fisheries quota throughout Region 2 East and preserve the status quo in
12 the fishery pending further action in this subproceeding, the Region 2 East Tribes bring this
13 Motion for a Temporary Restraining Order (“TRO”).
14 I. Procedural History
15 Lummi’s U&As were determined by Judge Boldt in 1974 in Final Decision #1, U.S. v.
16 Washington, 384 F. Supp. 313, 360 (W.D. Wash. 1974). In the 44 years thereafter Lummi has
17 never conducted a crab fishery in Region 2 East. Gibson Dec. ¶21, Ex. 2; Loomis Dec. ¶34.
18 When Lummi attempted to open a shrimp fishery in 2008, Region 2 East Tribes
19 convened a meet and confer against Lummi, and which resulted in an Agreement to Engage in
20 Settlement Discussions (“Agreement”) among the four tribes to preserve the status quo in the
21 fisheries during these negotiations. Jannetta Dec. Ex. 6. The Agreement contained provisions
22 under which any tribe could terminate the agreement upon 25 days notice to the other tribes. Id.
23 Ten years later, on April 23, 2018, Lummi served notice terminating the agreement.
24 Jannetta Dec. Ex. 1. When the notice period expired on or about May 18, the Agreement was
25 terminated and the meet and confer process was officially closed.
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 2 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 3 of 21
1 In response, the Region 2 East Tribes requested that Lummi rescind the agreement’s
2 termination. Jannetta Dec. Ex. 7. On May 17 The Region 2 East Tribes opened a 60 hour crab
3 fishery in Region 2 East to begin May 31. Gibson Dec. ¶26, Ex. 4. This process is further
4 described in the status quo section, below. Lummi surprised the tribes by also issuing a
5 regulation opening the same Region 2 East crab fishery. Gibson Dec. ¶27; Ex. 5. The next day
6 Lummi wrote to the Region 2 East Tribes declining to rescind the regulation but stating: “We are
7 not opening the fishery to our fishers at this time.” Jannetta Dec. 5. The course of dealings with
8 Lummi during this period is set forth in the Declaration of Brian Cladoosby, Swinomish
9 Chairman. During the two weeks or so of negotiations and discussions, Lummi consistently
10 refused to withdraw its regulation. Cladoosby Dec. ¶4.
11 Given the threat of Lummi fishing and the high likelihood that if it did the harvest quota
12 would be exceeded, on May 29 the Region 2 East Tribes amended their regulations to move the
13 first season opener back to June 4 and reducing the season duration to 48 hours, followed by
14 another 48 hour season starting June 10. Gibson Dec. ¶30.
15 A final, acrimonious meeting between the Region 2 East Tribes and Lummi was held on
16 May 30. The tribes pressed Lummi to withdraw its regulation and affirm that they did not intend
17 to open a fishery in Region 2 East. Cladoosby Dec. ¶7. Lummi refused and declined to state
18 their intentions about actually fishing in Region 2 East. Id. Lummi also threatened that if the
19 tribes did not give up fishing in all the waters from the San Juan Islands north to the Canadian
20 border – waters which the Region 2 East Tribes had fished or decades – Lummi would issue a
21 regulation opening up Skagit Bay and proceed to fish there. Id. The Region 2 East Tribes then
22 informed Lummi that if they didn’t rescind the regulation the Region 2 East Tribes would be
23 forced to go to court to stop them. Id. ¶9. In response Lummi walked out of the negotiations.
24 Id.¶10.
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 3 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 4 of 21
1 Lummi made good on its threat. Just hours later Lummi issued a new regulation opening
2 a fishery in Skagit Bay for 48 hours on June 4, followed by another 48 hour opener on June 10.
3 Cladoosby Dec. ¶10, Ex. 1.
4 To prevent this incursion into the Region 2 East fishery, where the Region 2 East tribes
5 have an established right and a long history of harvest in this fishery most crucial to them, and to
6 avoid the great harm the Lummi fishery will visit upon to the tribes, their fishers, and fishery
7 management, the Region 2 East Tribes have filed this subproceeding and this Motion for TRO.
8 II. Argument
9 A. Standards for Issuing a TRO.
10 The TRO is an emergency procedural device intended to preserve the status quo between
11 the parties and prevent irreparable loss before the court can consider a preliminary injunction.
12 Sierra On-Line v. Phoenix Software, 739 F.2d 1415, 1422 (9th Cir. 1984). The requisites for
13 issuance of a TRO in this case are spelled out in Fed. R. Civ. P. 65, W.D. Wash. LCR 65, and
14 Paragraph 25 Permanent Injunction, U.S. v. Washington, 18 F. Supp.3d 1213, 1215 (W.D. Wash.
15 1993), ¶25(b)(7). Rule 65(b)(1) requires that a TRO motion clearly shows “that immediate and
16 irreparable injury, loss, or damage will result to the movant, “and that efforts have been made to
17 give notice to the other party (or reasons why notice should not be given). The rules for
18 continuing jurisdiction in this case further specify procedures to be followed, including the filing
19 of a declaration that the moving has tried and failed to resolve the emergency issue , ¶ 25(b)(7).
20 The procedural requisites for a TRO have all been met here. Haley Dec. ¶ 2-9.
21 The applicable substantive factors to balance when considering a TRO motion are
22 “substantially identical” to those for a preliminary injunction. Stuhlberg Int’l. Sales Co. v. John
23 D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A party seeking a preliminary injunction
24 must show: 1) a likelihood of success on the merits; 2) irreparable harm if relief is not granted; 3)
25 the balance of equities tips in the party’s favor; and 4) an injunction is in the public interest.
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 4 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 5 of 21
1 Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). In balancing these factors,
2 the Ninth Circuit applies a sliding scale, so that “a stronger showing of one element may offset a
3 weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
4 Cir. 2011).
5 In this case, the TRO is needed to preserve the status quo, and all four of the factors favor
6 issuance of a TRO.
7 B. The Status Quo.
8 According to the official tribal harvest records on “TOCAS” kept by the Northwest
9 Indian Fish Commission, Lummi has never conducted a shellfish fishery in Region 2 East, nor
10 has it fished for salmon except on a de minimis basis years ago. Gibson Dec. ¶21-23, Ex. 2, Ex.
11 3. The status quo is thus no Lummi fishing in Region 2 East, and to preserve the status quo,
12 Lummi must be enjoined from fishing there unless it establishes a right to do so.
13 The status quo also entails preservation of the management regime for crab fishing in
14 Region 2 East that has developed among the Region 2 East Tribes and between those tribes and
15 the state. A brief description of that regime is in order. The Shellfish Implementation Plan
16 (SIP), which governs shellfish co-management between the treaty tribes and the state by shellfish
17 region. Gibson Dec. ¶8. The state and the tribes with U&As in a region meet annually to develop
18 a management plan for the region which includes an overall regional harvest quota, which is then
19 split 50-50 between the tribes and the state. Gibson Dec. ¶11.
20 In Region 2 East the Region 2 East Tribes manage the treaty half of the overall allocation
21 by crafting seasons and gear limits that will keep their fishing within the quota and spread the
22 harvest out. The seasons typically include several short fisheries in the spring and early summer,
23 with intervals between sufficient to allow assessment of the fishing to date to craft further
24 fisheries that will keep the harvest within the treaty allocation. Gibson Dec. ¶¶11-12. This is
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 5 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 6 of 21
1 important because the Region 2 East Tribes typically take the entire treaty quota during the
2 season. Gibson Dec. ¶39.
3 This year the state and the tribes did not reach agreement on a management plan, but they
4 did agree on an overall quota of 2.2 million pounds, resulting in a tribal share of 1.1 million
5 pounds. Gibson Dec. ¶25. Under SIP the tribes and the state may proceed to fish without an
6 agreed plan by issuing a regulation under SIP §4.6. Gibson Dec. ¶13. The Region 2 East Tribes
7 issued their 4.6 regulations for the first fishery. In order to keep the treaty fishery within the
8 quota through gear limitations and shot seasons, as they have done in the past, the regulations are
9 based upon projections of tribal fishing effort, which is relatively stable from year to year.
10 The original and since superseded first season opener included in the Tribes’ 4.6
11 regulations was scheduled as a 60 hour fishery beginning on May 31. Gibson Dec. ¶26, Ex. 4.
12 Lummi’s 4.6 regulation was issued at the same time as the Region 2 East Tribes’ regulations, and
13 for the same date and season. Gibson Dec. ¶27, Ex. 5. On May 29, and due to the impact of the
14 threatened Lummi fishing in Region 2 East, the Tribes amended the regulation to delay the
15 season start to June 4 and reduce the fishing hours to 48, with a second 48 hour fishery to begin
16 June 10 depending on how much of the quota was left. Gibson Dec. ¶30, Ex. 6. On May 30,
17 right on the heels of its meeting with the Region 2 East Tribes, Lummi issued a regulation
18 opening Area 24A (Skagit Bay) for the same 48 hour seasons beginning June 4 and June 10.
19 Cladoosby Dec. Ex. 1. Thus Lummi is poised to launch a fishery in Region 2 East. Though the
20 regulation area is confined to Skagit Bay, Lummi will be fishing on the regional quota, and so
21 will affect all tribal fishing throughout Region 2 East.
22 C. Irreparable Harm
23 In order to obtain a TRO, the failure to maintain the status quo pending further
24 proceedings must likely cause the Requesting Tribes irreparable harm. Irreparable harm must
25 involve more than economic loss “if compensatory relief is available.” Goldie’s Bookstore v.
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 6 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 7 of 21
1 Superior Court, 739 F.2d 466, 471 (9th Cir. 1984). We will return to adequacy of the remedy
2 below, but it is abundantly clear that this case involves harms that go well beyond financial loss.
3 The treaty fishery is a part of the survival and continuity of the tribes’ culture, inextricably
4 interwoven into the fabric of tribal being. Any deprivation of fishing time and harvest
5 diminishes the treaty right and infringes upon the culture. It also impinges upon the livelihood
6 from the fishery reserved and promised to the tribes in the treaties that was “not much less
7 necessary to the existence of the Indians than the atmosphere they breathed.” U.S. v. Winans,
8 198 U.S. 371, 381 (1905).
9 Support for irreparable harm is found in two declarations filed with this Motion: 1)
10 Declaration of James D. Gibson, the Swinomish Shellfish Coordinator, with 30 years of
11 experience in shellfish management and regulation, Gibson Dec. ¶¶1-6; and 2) Lorraine Loomis,
12 Swinomish Fish Manager for 43 years, Chair of the Northwest Indian Fish Commission, and a
13 key figure in state, regional and international co-management of fisheries resources. Loomis
14 Dec. ¶¶ 4-6.
15 Lummi is poised to visit substantial and irreparable harm to the Region 2 East Tribes’
16 treaty fishers and fishery. Lummi has the largest fishing fleet operating in Puget Sound. Its crab
17 fleet of about 170 boats more than doubles the fishing effort upon which the Region 2 East
18 Tribes based their crab fishing opener that begins June 4. Gibson Dec. ¶32. Since there is no
19 other region open to crab fishing at this time, it is highly likely that most, if not all, of the Lummi
20 crab fishers will descend upon Region 2 East, and in particular Skagit Bay, leading to fishing
21 pressure far beyond management expectations. Id.
22 This will create a harvest and management nightmare for the Region 2 East Tribes, since
23 monitoring and regulating this increased fishing effort to stay within the quota is nearly
24 impossible under these conditions. Gibson Dec. ¶33. A comparison of the tribes’ harvests in
25 Region 1 is illuminating. Lummi and the Region 2 East Tribes all fish in Region 1, which is
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 7 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 8 of 21
1 immediately north of Region 2 East. Last year Lummi caught 69% of the crab harvest in Region
2 1. For every pound of crab the Region 2 East Tribes caught in Region 1, Lummi hauled in 2.5
3 pounds. Gibson Dec. ¶34, The Region 1 harvest is large – far larger than the Region 2 East
4 harvest. Last year Lummi caught 1.8 million pounds of crab there – and that harvest was 150%
5 of the entire Region 2 East tribal quota this year. Id. ¶35. There is every reason to believe that
6 Lummi will achieve the same harvest share if it fishes in Region 2 East. There is a significant
7 risk that Lummi fishers will take a substantial portion of the Region 2 East quota by themselves
8 during the June 4 opener, thus precluding or drastically curtailing the second opener on June 10
9 and the rest of the crab season. Even if there were some crab left, since the entire Region 2 East
10 quota is harvested by the Region 2 East tribes each year, tribal harvest is a zero sum game.
11 Lummi will take most if not all of the crab, and the Region 2 East Tribes’ harvest numbers and
12 share will drop accordingly. Id. ¶39.
13 In addition, the Region 2 East Tribes will lose very substantial fishing opportunity. Even
14 if Lummi fishing does not take result in taking the entire quota in the June 4 opener, the harvest
15 in the first opener will require drastic shortening or elimination of any further crab openings,
16 including the entire winter crab fishery. Lummi is thus poised to deal the Region 2 East Tribes
17 and their fishers a devastating blow. In a fully exploited crab fishery with a short window of
18 fishing opportunity, any harvest by Lummi comes at the expense of the Region 2 East Tribes and
19 foreshortens the fishing opportunity for those who have depended upon it for generations. We
20 are facing a catastrophe: drastically reduced harvest, collapse of the fishing season, the specter of
21 an overharvest of quota, and the obliteration of the a hard won stability of Region 2 East
22 planning and management.
23 The prospect of Lummi fishing is very real and imminent, and nothing stands in the way
24 unless a TRO is issued. The Lummi regulation states the expected fishing effort in Area 24A as
25 “0 boat 0 fishers”, as they did in the previous regulation. This statement of expected effort does
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 8 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 9 of 21
1 not in any way restrict Lummi fishers from entering Skagit Bay on June 4. “If the entire Lummi
2 fleet chose to fish…, they would be authorized to do so.” Gibson Dec. ¶28. The regulation,
3 issued just hours after the threat do issue this very regulation and fish in Skagit Bay,
4 demonstrates an imminent likelihood of irreparable harm. Cladoosby Dec. ¶11.
5 The harm caused by Lummi fishing can be illustrated by the Swinomish example.
6 Swinomish U&As include all of Region 2 East. Loomis Dec. ¶12. Swinomish in a fishing
7 community, and much of its subsistence comes from fishing. Loomis Dec. ¶14. Swinomish has
8 over 200 crab fishers. Id. ¶15, Table 1. In Region 2 East alone last year, there were 210
9 Swinomish crab fishers – one in five of every Swinomish adults and children. Id., ¶32. Almost
10 every Swinomish household has at least one crab fisher. Id., ¶20. More Swinomish members
11 participate in the crab fishery by far than any other tribal fishery. Id., ¶15, Table 1. Last year’s
12 Swinomish crab harvest was almost 1.3 million pounds, well more than its harvest of all other
13 species, including salmon. Loomis Dec. ¶19, Table 2. In 2017, 55% of the Swinomish crab
14 harvest came from Region 2 East, amounting to over 700 pounds of crab per tribal member. Id.,
15 ¶33. The Swinomish commercial crab harvest in 2017 was worth over $6 million, accounting for
16 more than 75% of the value of the Swinomish commercial fishery. Id., ¶9, Table 2.
17 Moreover, since the Lummi regulation targets Skagit Bay, Swinomish will be uniquely
18 affected by the incursion. Lummi fishing will take place in the Swinomish back yard. Skagit
19 Bay forms the two sides of the Swinomish Reservation boundary (west and south). Loomis Dec.
20 ¶12. Skagit Bay is the nearest and dearest of the Swinomish home waters. Id. ¶30. “Protecting
21 Swinomish’s treaty rights in Skagit Bay in particular and Region 2 East generally is one of the
22 most important jobs that I have as fisheries manager.” ¶31. As we shall see in the next section,
23 Swinomish controls the access of other tribes to Skagit Bay, and Skagit Bay is a part of
24 Swinomish primary right waters.
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 9 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 10 of 21
1 Lummi fishing in Skagit Bay is particularly troublesome in another way. The crab
2 fishery is already crowded in the constricted waters of Region 2 East, and more than doubling
3 the fishing effort through Lummi participation will make things worse. Loomis Dec. ¶40. In
4 Skagit Bay, the crowding will diminish the fishing effort.
5 Even if the harm were limited to commercial value, the value of the fishery goes beyond
6 the income derived. “The ability to participate in the Tribe’s commercial fisheries allows the
7 majority of our people to stay gainfully employed in deeply rewarding work that is central to our
8 history, identity, culture and spirituality.” Loomis Dec. ¶21. Further, sharing of fish is deeply
9 engrained in the culture, so the whole community benefits directly from the harvest as an
10 important part of their sustenance. Id.
11 The fishery serves other values beyond the economic. Ms. Loomis lists four basic values
12 associated with the treaty fishing right identified in the Boldt decision and other cases: “(1)
13 conservation value of the resource; 2) ceremonial, religious and spiritual values; 3) subsistence;
14 and 4) commercial value.” Id., ¶22. Loomis details these values in ¶¶ 23-27, and all of those are
15 noneconomic and fundamental cultural values. She summarizes these values in ¶¶27-28:
16 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 17 fishing rights a 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 18 around fishing and the fish harvest. As a fisheries manager, I am always mindful of the need to preserve our Treaty fishing rights and our historic fisheries in order to preserve 19 our survival and identity as a tribe. 20
21 The Lummi assault on Region 2 East, and Skagit Bay in particular, is an affront that will
22 cause deep irreparable harm to Swinomish and its members “not only commercially, but
23 culturally and spiritually.” Loomis Dec. ¶42.
24 Even if economic harm alone were considered, it is clear in this case that adequate
25 compensatory relief is not available. The barrier is tribal sovereign immunity. It is doubtful that
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 10 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 11 of 21
1 this Court would have continuing jurisdiction in this case over a damages action against Lummi.
2 Further, even within the confines of this case Lummi could still assert its immunity. U.S. v.
3 Washington, 909 F. Supp. 787, 793 (W.D. Wash. 1995) (tribal sovereign immunity prevents
4 special master from being empowered to award damages against tribes for shellfish plan
5 violations). Outside the confines of this case, the barrier of sovereign immunity is well
6 established. Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014). There is no
7 monetary remedy against Lummi, and for obvious reasons damages actions against tribal fishers
8 are manifestly inadequate, indeed illusory.
9 D. Likelihood of Success on the Merits.
10 As to likelihood of success on the merits, given the seriousness and severity of the
11 irreparable harm, Swinomish need only establish that there are “serious questions going to the
12 merits” of the claim that Lummi has no right to fish in Region 2 East. U.S. v. Washington, 2015
13 WL 12670517 (W.D. Wash. 2015), quoting Cottrell, 632 F.3d at 1135. This case calls for the
14 now familiar exercise under Paragraph 25(a)(1) of determining whether the waters of east of
15 Whidbey Island are within Lummi U&As as determined by Judge Boldt in 1974. Prior
16 proceedings have determined that the description of the Lummi U&As is unclear and ambiguous
17 as to geography, so this Court is called upon to “construe the provision so as to give effect to the
18 intention of the issuing court,” by examining “the entire record before the issuing court and the
19 findings of fact.” Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1359 (9th Cir.
20 1998). “In these circumstances, the district judge, who is the trier of fact, may resolve
21 conflicting inferences and evaluate the evidence to determine Judge Boldt’s intent.” Upper
22 Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1025 n. 9 (9th Cir. 2010).
23 If this case proceeds to the merits the ultimate resolution of this issue concerning Lummi
24 U&As in Region 2 East will require a deep dive into the record before Judge Boldt. But
25 preliminarily there are ample grounds to conclude that Lummi has no U&As in the waters east of
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 11 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 12 of 21
1 Whidbey Island. There is nothing in the U&A finding itself, the Lane reports Judge Boldt relied
2 upon, or any other materials cited by Judge Boldt as supporting his U&A finding that would
3 suggests inclusion of Region 2 East within Lummi U&As. Judge Boldt did not intend to include
4 these waters.
5 1. Lummi’s Principal Fisheries were North and West of Region 2 East.
6 The Lummi U&A findings pertinent to this subproceeding include:
7 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 8 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 9 and basketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon. 10 FD #1 at 360. (FF 45) 11 [T]he usual and accustomed fishing places of the Lummi Indians at treaty 12 times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.. 13 Id. (FF 46)
14 As evidence for this U&A finding, Judge Boldt primarily relied, as he so often did, on the
15 work of Dr. Barbara Lane, the doyenne of U.S. v. Washington anthropological experts. Boldt
16 cites two Lane reports. In the first, Political and Economic Aspects of Indian-White Culture
th 17 Contact in Western Washington in the Mid-19 Century, 5/10/1973, admitted as evidence in the
18 original Boldt trial as Ex. USA-20, Lane states, p. 39, Jannetta Dec. JD 4:
19 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 20 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 21 systems draining into Bellingham Bay.
22 Later, in Lane’s Anthropological Report of the Identity, Treaty Status and Fisheries of the
23 Lummi tribe of Indians, Ex. USA-30, Jannetta Dec. JD 5-38, Lane elaborates upon her earlier
24 summary. Lane notes that “it is possible to indicate the general area of [Lummi’s] fishing
25 operations and within the general area to designate certain sites as important or principal fishing
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 12 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 13 of 21
1 locations.” Id. at 23. Lane dealt first with the reef netting sites, all of which are north and west
2 of the Contested Waters. She then describes trolling for salmon “in the contiguous waters of
3 Haro and Rosario Straits and in the islands, speared in the bays and streams of the mainland, and
4 took them by means of weirs and traps in the rivers.” Id. at 23-24. Lane then notes: “The
5 traditional fishing areas discussed thus far extended from what is now the Canadian border south
6 to Anacortes.” Id. p.24. In her conclusion, Lane states: “The traditional fisheries of the post-
7 treaty Lummi included reefnet sites in the San Juan Islands, off Point Roberts, Birch Point,
8 Cherry Point and off Lummi Island and Fidalgo Island.” Id. at 26.
9 Thus Dr. Lane identified Lummi’s principal fisheries as near its traditional homeland,
10 north or west of East of Whidbey. Although there are plenty of specific geographic locations
11 mentioned, nothing in Lane’s reports, or Judge Boldt’s U&A finding, or any of the other
12 documents listed by Judge Boldt as sources for the Lummi U&As finding refer to any
13 geographic anchor or feature of any of the waters east of Whidbey Island. Jannetta Dec.¶3.
14 2. There Is No Evidence That Lummi Traveled, Let Alone Fished, in Region 2 East
15 Dr. Lane also described U&As related to travel on the open marine highways. “The
16 Straits and Sound were traditional highways used in common by all Indians of the region.” Ex.
17 USA-30. p. 25. She included this “traditional highway” within Lummi fishing U&As by
18 including “the Straits and bays from the Fraser River south to the present environs of Seattle.” Id.
19 at 26. There is nothing in this record or in anything else in U.S. v. Washington to indicate that
20 the secluded waters east of Whidbey Island were part of any traditional marine highway open to
21 all tribes.
22 The marine highway discussed by Dr. Lane’s report and included by Judge Boldt in
23 Lummi U&As is on the west side of Whidbey Island, outside of Region 2 East. This marine
24 highway was the central issue in Subp. 11-2 and the basis of the recent 9th Circuit decision that
25 filled the Lummi U&A gap between the San Juan Islands and Admiralty Inlet. U.S. v. Lummi
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 13 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 14 of 21
1 Nation, 876 F.3d 1004 (9th Cir. 2017). Lummi prevailed in that case by claiming and
2 emphasizing that the waters west of Whidbey Island were the direct marine route and one of the
3 deepwater marine highways described by Dr. Lane. Brief of Respondent-Appellant Lummi
4 Nation, 9th Cir. No. 15-35661, Dkt. #21, 12/23/15, pp. 41-45, JD ___ .
5 As part of this argument Lummi contrasted the Region 2 East waters east of Whidbey
6 Island with the waters west of Whidbey Island. Id. at 52-55. Lummi invoked both Upper Skagit
7 Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010), and Tulalip Tribes v. Suquamish
8 Indian Tribe, 794 F.3d 1129 (9th Cir. 2015), to argue that the travel route was on the west side of
9 Whidbey Island, and not on the east side. After discussing these cases, Lummi wrote:
10 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 11 Island. … A similar conclusion follows here.
12 Lummi Brf. at 55, Jannetta Dec. JD 54. Thus Lummi argued that its travel U&A was on the west
13 side of Whidbey Island and not on the east side, and in doing so it secured a reversal of this
14 Court’s decision in Subp. 11-2 based upon that argument.
15 Lummi was correct in its argument and its reading of the cases it cites, which contrast the
16 marine highway west of Whidbey Island with the waters of east of Whidbey. The most extended
17 discussion of this point occurs in Upper Skagit, which affirmed this Court’s ruling in Subp. 05-3
18 that Suquamish had no U&As in waters east of Whidbey Island because there was no evidence
19 before Judge Boldt of Suquamish travel, let alone fishing, there. In addressing the “U&A by
20 travel” argument, the Court observed, 590 F.3d at 1024:
21 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 22 listed where the Suquamish traditionally took fish, but neither Skagit Bay nor Saratoga Passage was among them. 23
24 The same is true regarding Lummi U&As in this case. 25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 14 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 15 of 21
1 The Court also noted that Judge Boldt’s description of Suquamish U&As tracks that
2 contained in the Lane report on Suquamish, “demonstrating the judge’s intention to conform
3 …to those areas documented by Lane.” Id. The same is true of the Lane report and Lummi
4 U&As in this case.
5 In contrasting the waters west of Whidbey Island with those east of Whidbey, the Court
6 noted, id. at 1025, n. 9:
7 Geographically, Saratoga Passage and Skagit Bay are nearly enclosed or inland waters to the east of Whidbey Island. … The northern exits through Deception Pass and Swinomish 8 Slough are narrow and constricted; both areas were controlled by the Swinomish at treaty time. 9 This observation supporting the distinction between the travel route west of Whidbey Island and 10 east of Whidbey Island also bears upon this case. 11 Finally, the Court added this to its reasons why the broadly described U&A travel area 12 did not include Region 2 East, id. at 1025: 13 In addition, Judge Boldt used specific geographic anchor points in describing other 14 tribes’ U&As. … From this it is reasonable to conclude that when he intended to include an area, it was specifically named in the U&A. … That Judge Boldt neglected to include 15 [waters east of Whidbey Island] in Suquamish’s U&A supports our conclusion that he did 16 not intend to include them.
17 The lack of Region 2 East geographic anchor points in the Lummi U&As, or in Lane’s report and
18 the other sources upon which on which the U&As were based, leads to the same conclusion.
19 Further, in Tulalip Tribes, supra, 794 F.3d at 1135, the Ninth Circuit, affirming this Court’s
20 decision in Subp. 05-4, noted that Suquamish’s travel route “would have passed through the
21 waters west of Whidbey Island.”
22 A third Ninth Circuit decision, not referenced by Lummi because it was decided later,
23 confirms and reinforces the cases discussed above. In Upper Skagit Tribe v. Suquamish Indian
th 24 Tribe, 871 F.3d 844 (9 Cir. 2017), the Ninth Circuit affirmed this Court’s decision in Subp. 14-
25 1 concerning Suquamish in Bellingham Bay and Samish Bay, waters directly north of East of
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 15 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 16 of 21
1 Whidbey. In its ruling the Ninth Circuit observed that “Neither Dr. Lane’s testimony nor her
2 reports contain any indication that the Suquamish fished or traveled through the contested
3 waters,” Id.at 849, and that “Suquamish traveled through the waters west of Whidbey Island and
4 then proceeded directly north through the San Juans.” and not through the waters of Region 2
5 East. Id. at 850.
6 3. Swinomish Controlled Access to Skagit Bay
7 From the foregoing it is amply clear that the Region 2 East Tribes have established a
8 likelihood of success on the merits. But there is another ground for blocking Lummi fishing in
9 Region 2 East. Swinomish controls ingress and egress access to the waters east of Whidbey
10 Island, and thus has a primary right and the concomitant right to control and limit Lummi’s
11 access and fishing in Area 24A.
12 We begin by revisiting Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1025 n.
13 9 (9th Cir. 2010) The Ninth Circuit held that “[t]he northern exits through Deception Pass and
14 Swinomish Slough are narrow and constricted; both areas were controlled by the Swinomish at
15 treaty time.” (Emphasis added).
16 This control, the control of access is a well-developed component of the concept of
17 primary rights in U.S. v. Washington. It was most extensively addressed in the proceedings
18 concerning Tulalip U&As, U.S. v. Washington, 626 F. Supp. 1527 (W.D. Wash. 1985), which
19 included these findings of fact supplemental to FD #1:
20 Constricted waters like Deception Pass [and] Swinomish Slough … were likely controlled by the resident groups in whose territory those waters were located. 21 Id. at 1528 (FF 364).
22 The expert testimony in this case indicates that in some cases a particular tribe exercised preemptive fishing control at … narrow and constricted waterways …. Such control 23 would limit any other tribe’s use of those areas to an invitational or permissive use.... (The rights stemming from such control are herein referred to as primary rights.) 24 Examples of such areas are Swinomish Slough [and] Deception Pass…. 25 Id. FF 379 (Emphasis added).
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 16 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 17 of 21
1 This finding is based upon Dr. Lane’s reports as well as her testimony Id.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19 As a glance at the map and the Upper Skagit case show, Swinomish controls ingress and
20 egress to the northern access points to Skagit Bay, and hence to Region 2 East. That control
21 gives rise to a Swinomish primary right in Skagit Bay and further south into northern Saratoga
22 Passage. This not only refutes the notion that Lummi traveled through those waters, but also
23 gives legal recognition to the Swinomish the power to control Lummi use, access to and fishing
24 in these waters today.
25 E. The Balancing of Equities Favors the Requesting Tribes.
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 17 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 18 of 21
1 It is not difficult to balance the equities here. Lummi will suffer no harm if this Court
2 preserves the status quo. Its fisheries can proceed as they have for the last 44 years, without any
3 loss from its large and abundant current base fishery. Lummi’s existing harvest in Region 1 far
4 exceeds the entire treaty quota in Region 2 East. Gibson Dec. ¶35, Ex. 7. Lummi loses only the
5 opportunity to wreak havoc on the Region 2 East Tribes’ fisheries, snag many strands of their
6 cultural fabric, and beggar their fishers’ livelihood in this crucial opening crab season, all before
7 the courts have determined whether Lummi has any right to do so.
8 Allowing Lummi to upset the status quo and fish in Region 2 East pending litigation of
9 its right would devastate the Region 2 East Tribes. The balance also tips toward the Region 2
10 East Tribes because they are likely to prevail. This Court has balanced the harms against Lummi
11 and in support of the status quo on far less showing of harm and a much shorter duration of
12 status quo. U.S. v. Washington, 2015 WL 12670517 *1 (W.D. Wash. 2015) (Subp. 11-2).
13 For 44 years, Lummi has prosecuted its large and lucrative crab fishery outside of Region
14 2 East, and a TRO will not diminish that fishery. Lummi’s existing harvest in Region 1 far
15 exceeds the entire treaty quota in Region 2 East. Gibson Dec.¶35, Ex. 7. Lummi loses only the
16 opportunity to achieve an undeserved windfall for its fishers by arrogating all or most of the
17 harvest of Region 2 East crab to itself and depriving those tribes that have managed and
18 harvested crab for decades of both harvest and opportunity.
19 F. The TRO Serves the Public Interest.
20 Because the pending Lummi intrusion into Region 2 East on the eve of the opening of the
21 crab season threatens the management system of an important crab fishery that sustains treaty
22 tribal fishers and non-Indian commercial and recreational fishers alike, the maintenance of the
23 delicately balanced management between the tribes and the state and among the tribes should be
24 left intact unless and until Lummi establishes a right to fish in those waters.
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 18 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 19 of 21
1 This Court has also identified a second and very important component of the public
2 interest in this case. Allowing tribes to enter a new fishery in which they have not previously
3 fished by simply beginning to fish in the area, thus forcing the tribes who already fish in the area
4 to bring a case to establish that the incursive tribe does not have U&As in the new area rewards 5 aggressive and lawless actions if fishing during the litigation is permitted while the case 6 proceeds. As the case of Suquamish fishing in waters east of Whidbey Island in Subp. 05-3 7 show, such fishing, ultimately determined to be unlawful, can continue for several years. Subp. 8 05-3. Soon after of FD#1, Judge Boldt upbraided the tribes for pursuing this course of action, 9 even threatening the imposition of sanctions. U.S. v. Washington, 459 F. Supp. 1068, 1068-1069 10 (W.D. Wash. 1976). 11 A TRO preserving the status quo during the litigation puts an end to the harmful reward 12 of precipitous action. At this late date in the case where, as in this instance, the new fishery has 13 not been prosecuted by Lummi in the more than four decades since its U&A finding, the public 14
15 interest in preventing fishing until the right is established is clear.
16 Mindful of Judge Boldt’s admonishment, this Court recently recognized that public
17 interest:
18 [T]he Court is persuaded that it is in the public interest to ensure the orderly management of disputes within this long-running case and to discourage Tribes from opening fisheries 19 without establishing a right to do so in accordance with paragraph 25 of the permanent injunction in Final Decision #1. 20 U.S. v. Washington, 2015 WL 12670517 *2 (W.D. Wash. 2015). 21 III. The Court Should Not Require a Bond or Require Only a Nominal Bond. 22 Fed. R. Civ. P. 65(c) provides that a court issuing a TRO may require the movant “to give 23 security in an amount the court considers proper.” The Ninth Circuit has recognized that this 24
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 19 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 20 of 21
1 rule “invests the district court with discretion as to the amount of security required, if any.”
2 Johnson v. Coutureir, 572 F.3d 1067, 1086 (9th Cir. 2009).
3 In the case cited in the previous section, this Court required only a nominal bond of $250
4 in a similar case, noting:
5 A nominal bond is particularly warranted in this case, where the need to post a substantial bond would effectively discourage Tribes from seeking access to the very adjudicative 6 mechanisms that this Court insists they use to secure their treaty right.
7 U.S. v. Washington, 2015 WL 12670517 *2 (W.D. Wash. 1915). 8 In a more recent TRO entered in Subp. 91-1 (halibut) last year, the Court did not order a bond at 9 all. Order Granting Motion for TRO, Dkt. No. 21438, 3/21/17. 10 The court should not require a bond or should require no bond or only a nominal bond in 11 this case as well. 12 IV. Conclusion. 13 For all the foregoing reasons, the Court should preserve the status quo by issuing a TRO 14 that enjoins Lummi and its fishers from fishing in Region 2 East until a preliminary injunction 15
16 can be addressed. A TRO is the only hope in preventing Lummi from completely destroying and
17 arrogating to itself the Region 2 East crab harvest.
18
19
20 EXECUTED this 31st day of May, 2018 at La Conner, Washington. 21 __/s/ James M. Jannetta______22 James M. Jannetta, WSBA # 36525 Office of Tribal Attorney 23 Swinomish Indian Tribal Community 11404 Moorage Way 24 LaConner, Washington 98257 Telephone: 360/466-1021 25 Fax: 360/466-5309 REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 20 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:18-sp-00001-RSM Document 3 Filed 05/31/18 Page 21 of 21
1 E-mail: [email protected] Attorney for Swinomish Indian Tribal Community 2 ___/s/ Emily Haley______3 Emily Haley, WSBA # 38284 Office of Tribal Attorney 4 Swinomish Indian Tribal Community 11404 Moorage Way 5 LaConner, Washington 98257 6 Telephone: 360/466-1134 Fax: 360/466-5309 7 E-mail: [email protected] Attorney for Swinomish Indian Tribal Community 8 __/s/ via email______9 Mason D. Morisset, WSBA #00273 Email: [email protected] 10 115 Norton Building, 801 Second Avenue Seattle, WA 98104-1509 11 Tel: 206-386-5200 Fax: 206-386-7388 12 Attorney for the Tulalip Tribes
13 CERTIFICATE OF SERVICE 14 I hereby certify that on May 31, 2018, I electronically filed the Region 2 East Tribes 15 Motion for a Temporary Restraining Order with the Clerk of the Court using the CM/ECF 16 system, which will send notice of the filing to all parties registered in the CM/ECF system for 17 this matter. 18 By: __/s/ James M. Jannetta_____ 19 James M. Jannetta, WSBA No. 36525 Counsel for Swinomish Indian Tribal Community 20
21
22
23
24
25
REGION 2 EAST TRIBES MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 21 Office of Tribal Attorney 11404 Moorage Way Civil Case No. 9213, Subproceeding (pending) La Conner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309