Case 2:11-sp-00002-RSM Document 262 Filed 04/02/19 Page 1 of 5

1 The Honorable Ricardo S. Martinez

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7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 UNITED STATES OF AMERICA, et al., No. C70-9213 10 Plaintiffs, Subproceeding 11-2

11 vs. SURREPLY

12 STATE OF WASHINGTON, et al., Defendants. 13

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15 SURREPLY

16 The Port Gamble S’Klallam and Jamestown S’Klallam Tribes respond solely to the

17 Lower Elwha Klallam Tribe’s Request to Strike (Dkt. # 260) the Declaration of Josh Wisniewski

18 with Exhibits A, C, D, and E (Dkt. # 256) and the Declaration of Barbara Lane (Dkt # 249, Ex.

19 F), and all supporting arguments in citation thereto. This response is filed pursuant to LCR

1 20 7(g). When Lower Elwha (“Elwha”) proposed a travel route that was specifically contradicted

21 1 The S’Klallam recognize that while LCR 7(g) is not perfectly on point with respect to the present circumstances, it is the closest rule that would address the “Request to Strike” filed with the Lower Elwha Reply Brief. Alternatively, 22 the S’Klallam request leave to submit this surreply. Notice was filed of intent to file the surreply on April 1, 2019. Dkt. # 261.

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1 by the Court’s expert, they opened the door to the S’Klallam’s full defense to that asserted route.

2 See e.g., Williams v. Woodford, 384 F.3d 567, 620 (9th Cir. 2002) (recognizing right to present

3 rebuttal evidence when the other party opens the door). The request should be denied.

4 Declaration of Josh Wisniewski

5 Elwha requests this court strike and ignore the examination of Dr. Lane’s reports by a person with relevant expertise. Declaration of Josh Wisniewski. Dkt. # 256, Dkt. # 260. 6 Tellingly, their assertions do not deny the accuracy or truthfulness of the analysis of the Boldt 7 record. And, in fact, their objection speaks to the need to brush facts aside or completely ignore 8 the record in order to carve out a completely erroneous boundary line, a route Dr. Lane swore 9 under oath that she never addressed in her report. Dkt. # 249, p. 43:14-16. Dr. Wisniewski’s 10 declaration uses only exhibits admitted in U.S. v. Washington. Fed. R. Evid. 702 contemplates 11 the use of an expert (such as an anthropologist) to parse the record, if it will “help the trier of fact 12 understand the evidence . . . .”). In this case, common practice to date has been for the lawyers 13 to parse the record in the briefs. See e.g., Dkt.# 167, 168, 176. However, here, it is more 14 probative to the ultimate issue if an anthropologist examines the historical record in a similar 15 way using his expertise on the value of the reference to an area in one report by the same author 16 and the absence of a similar reference in another report. This direct comparison of the Tribes’ 17 histories is not only helpful, but necessary, to decide the question posed by Elwha. The

18 declaration does not violate Muckleshoot I not only because no one is imputing Judge Boldt’s

19 intent from latter day evidence, but also because the Declaration “sheds light” in terminology

20 used in the decree. Muckleshoot Indian Tribe v. Lummi Indian Nation, 141 F. 3d 1355, 1359-60

21 (9th Cir. 1998) (“Muckleshoot I”); Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d

22 1099, 1100 (9th Cir. 2000) (“Muckleshoot II”) (finding it was proper to consider the opinion of a

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1 geography expert to shed light on where the “present environs of Seattle” were located at the

2 time of the Boldt decision). Instead, the Elwha seek to deny S’Klallam all opportunity to rebut

3 Elwha’s claim, which would be a clear error.

4 Further, by moving to eliminate the evidence and all analysis of it the Elwha seek to deny

5 the S’Klallam the only evidence in the Boldt record that considers which Tribe had fishing rights at Point Wilson (the southern terminus of Lower Elwha’s line). The fact that Point Wilson is a 6 reference point for S’Klallam use—not Lummi, allows for an argument regarding the accuracy 7 and equity of the proposed boundary. Dkt. # 256, p. 2 (Point Wilson line does not accurately 8 characterize the western boundary); p. 112 (“Their proper country lies on the straits between the 9 Okeho River and Point Wilson….”). Dr. Lane’s report also sheds light on the contemporary 10 geography of the area, including the fact that in 1855 the treaty negotiator, George Gibbs, 11 considered the Strait of Juan de Fuca to extend from Cape Classet to Port Townsend. Dkt. # 256, 12 pp. 64, 65. The fact that Point Wilson is on the Strait of Juan de Fuca is highly relevant here. 13 Dkt. # 256, p. 149 (“This point [Point Wilson] is where the waters of Puget Sound run into the 14 Strait of Juan de Fuca.”) It is obvious that these historical references “shed light” on the 15 geography in the decree, and the boundary line proposed by Elwha. Muckleshoot v. Lummi 16 Indian Tribe, 141 F.3d 1355, 1359-60 (9th Cir. 1998). The Declaration of Josh Wisniewski 17 examines only documents that are part of the record and previously filed in U.S. v. Washington,

18 and thus should not be stricken—nor should the examination of that record by a person with

19 relevant expertise be stricken if the same analysis is fair game for an attorney.

20 Declaration of Barbara Lane

21 The Declaration of Barbara Lane (Dkt. # 249) is already part of the record and the request

22 is untimely. It was submitted in Sub. 89-2, and it was submitted again with the Motion to

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1 Amend. Dkt. # 249, previously filed April 7, 1989, Dkt. # 11263. It is submitted to rebut the

2 assertion that a specific travel route was already adjudicated by this court, not to determine Judge

3 Boldt’s intent. The Elwha opened the door for a consideration of whether this proposed route is

4 likely or unlikely, and why. Lower Elwha waived their objection when they failed to timely

5 move to strike under LCR 7(g)(1) in response to the filing of the declaration almost a month ago. Dkt. # 249, p. 40. Failure to timely file a surreply results in a waiver of the admissibility of the 6 evidence. Ennin v. CNH Indus. Am., LLC, 878 F.3d 590, 598 (7th Cir. 2017) (where the rule 7 expressly permits a surreply to object to evidence filed with a Reply brief, the failure to file a 8 response is the essence of waiver). 9 CONCLUSION 10 For the foregoing reasons, the request to strike should be denied. 11

12 Respectfully Submitted, this 2nd Day of April, 2019. 13

14 s/ Lauren P. Rasmussen 15 Lauren P. Rasmussen, WSBA # 33256 Law Offices of Lauren P. Rasmussen, PLLC 16 1904 Third Avenue, Suite 1030 Seattle, WA 98101 (206) 623-0900 17 [email protected]

18 Attorney for the Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribes 19

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1 CERTIFICATE OF SERVICE

2 I hereby certify that I served the foregoing Surreply to the Lower Elwha Klallam Reply 3 and Request to Strike using the CM/ECF system, which will send notification of the filing to all 4 parties in this matter who are registered with the Court’s CM/ECF filing system. 5 DATED this 2nd Day of April, 2019.

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7 s/ Lauren P. Rasmussen Lauren P. Rasmussen, WSBA # 33256 8 Law Offices of Lauren P. Rasmussen, PLLC 1904 Third Avenue, Suite 1030 9 Seattle, WA 98101 (206) 623-0900 10 [email protected]

11 Attorney for the Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribe 12

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