Case 2:19-sp-00001-RSM Document 8 Filed 11/04/19 Page 1 of 17 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. 19-01 10 vs. SWINOMISH MOTION FOR 11 STATE OF WASHINGTON et al., TEMPORARY RESTRAINING ORDER Respondent. 12 Noting Date: November 4, 2019 13 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 Case 2:19-sp-00001-RSM Document 8 Filed 11/04/19 Page 2 of 17 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”). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Case 2:19-sp-00001-RSM Document 8 Filed 11/04/19 Page 3 of 17 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. 17 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 24 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 Case 2:19-sp-00001-RSM Document 8 Filed 11/04/19 Page 4 of 17 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. SWINOMISH MOTION SWINOMISH INDIAN TRIBAL COMMUNITY FOR TEMPORARY RESTRAINING ORDER - Page 4 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 Case 2:19-sp-00001-RSM Document 8 Filed 11/04/19 Page 5 of 17 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.