Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 Page 1 of 26 THE HONORABLE RICARDO S. MARTINEZ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE UNITED STATES OF AMERICA, et al., No. C70-9213 Plaintiff, Subproceeding 19-1 vs. SWINOMISH INDIAN TRIBAL STATE OF WASHINGTON, et al., COMMUNITY’S MOTION FOR SUMMARY JUDGMENT AND Defendant. PERMANENT INJUNCTIVE RELIEF Noting Date: July 31, 2020 Oral Argument Requested No. C70-9213, Subp. 19-1 Office of Tribal Attorney SITC MOTION FOR SUMMARY JUDGMENT SWINOMISH INDIAN TRIBAL COMMUNITY 11404 Moorage Way LaConner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 Page 2 of 26 1 2 I. MOTION 3 The Swinomish Indian Tribal Community (Swinomish) moves for summary judgment 4 declaring that the usual and accustomed fishing places (U&A) of the Lummi Nation (Lummi) do 5 not include the secluded waters to the east of Whidbey Island designated by the State as Shellfish 6 7 Region 2 East (Region 2E). This region encompasses five named bodies of water, Saratoga 8 Passage (Shellfish Management Area 24A), Port Susan (24B), Skagit Bay (24C), Holmes Harbor 9 (24D), and Possession Sound (26AE), and is depicted on p. 20 of this Motion. Swinomish also 10 moves for permanent injunctive relief enjoining Lummi from fishing or authorizing its members 11 to fish for any species in Region 2E. 12 The controlling and dispositive issue in this case is whether Judge Boldt intended to include 13 Region 2E in Lummi’s U&A in light of the record before him at the time the decision was made. 14 15 Because there is no dispute regarding that record, summary judgment is appropriate. 16 II. INTRODUCTION 17 Nearly half a century ago, Judge Boldt specifically determined the geographic scope of 18 Lummi’s U&A. In part, his determination describes Lummi’s U&A as “the marine areas of 19 Northern Puget Sound from the Fraser River south to the present environs of Seattle, and 20 particularly Bellingham Bay.” United States v. Washington, 384 F.Supp. 312, 360 (W.D. Wash. 21 22 1974) (Final Decision No. 1). 23 24 25 26 No. C70-9213, Subp. 19-1 Office of Tribal Attorney SITC MOTION FOR SUMMARY JUDGMENT SWINOMISH INDIAN TRIBAL COMMUNITY 27 1 11404 Moorage Way LaConner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 Page 3 of 26 1 As this Court is well aware, subsequent history has revealed this language to be ambiguous 2 to an unfortunate degree.1 This subproceeding requires the Court to consider the geographic scope 3 of Lummi’s U&A yet again, this time with respect to Lummi’s claimed right to fish in the secluded 4 waters of Region 2E. Under the familiar two-step test developed in the Muckleshoot trilogy, see 5 infra at p. 5 the question before the Court is whether, despite the ambiguity in Lummi’s U&A 6 7 determination, Judge Boldt nevertheless intended to include Region 2E in Lummi’s U&A. 8 The record in this case indicates that he did not. Judge Boldt carefully reviewed the 9 extensive evidence and other materials presented prior to Final Decision No. 1 and determined 10 that the areas where Lummi customarily fished at treaty time were located in and around 11 Bellingham Bay, the Nooksack River, and other areas to the north and west of Whidbey Island. 12 Accordingly, he did not include the secluded waters of Region 2E in Lummi’s U&A determination. 13 As we demonstrate below, there is simply no evidence in the record before Judge Boldt to support 14 15 a conclusion that Lummi’s U&A includes Region 2E. 16 III. JURISDICTION 17 This Court has jurisdiction over the parties and the subject matter under Paragraph 25(a)(1) 18 of the Permanent Injunction because this case requires the Court to determine whether Lummi’s 19 repeated attempts to open treaty fisheries in Region 2E, which are described in greater detail below, 20 21 22 1 This Court or the Ninth Circuit has considered the geographic scope of Lummi’s U&A numerous times in cases involving Lummi’s claimed right to fish in the waters south of Mukilteo, the Strait of Juan de Fuca, Hood Canal, 23 Admiralty Inlet, and the waters west of Whidbey Island, despite the fact that none of these bodies of water are specifically named in Lummi’s U&A determination. Notwithstanding the apparent breadth of the phrase “the marine 24 areas of Northern Puget Sound” in FF 46, the courts have concluded that Lummi’s U&A does not include these waters, with the exception of Admiralty Inlet and other waters west of Whidbey through which Lummi traveled and fished. See generally, District Court and Ninth Circuit rulings in Subproceedings 86-5, 89-2, and 11-2, a number of which 25 are discussed below. 26 No. C70-9213, Subp. 19-1 Office of Tribal Attorney SITC MOTION FOR SUMMARY JUDGMENT SWINOMISH INDIAN TRIBAL COMMUNITY 27 2 11404 Moorage Way LaConner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 Page 4 of 26 1 are in conformity with Final Decision No. 1 and the Permanent Injunction. See, e.g., Muckleshoot 2 Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1360 (9th Cir. 1998) (Muckleshoot I). 3 IV. STATEMENT OF THE CASE 4 As this Court recently found, in the nearly half century since Final Decision No. 1, Lummi 5 has never fished in Region 2E and “has largely not pursued any such rights for 45 years.” Order 6 7 Granting Temporary Restraining Order, Subp. 19-1 Dkt No. 37 (Main Case Dkt. No. 22114) at 6 8 (Nov. 13, 2019) (TRO); see also id. at 3, 6-7, 11 (EH003, EH007-009).2 However, beginning in 9 2003 and especially during the last two fishing seasons, Lummi has made concrete threats or taken 10 overt action to establish new treaty fisheries in Region 2E. TRO at 1-2, 4-5 (EH001-002, EH004- 11 005); Declaration of Matthew L. Nelson, Subp. 19-1 Dkt. No. 11 (Main Case Dkt. No. 22079) at 12 ¶ 14 (Nov. 4, 2019) (EH014). Lummi has made these threats and taken these actions although it 13 has not followed the procedures established by this Court to clarify its U&A with respect to these 14 15 waters or to expand its treaty fishing into these waters. See, e.g., United States v. Washington, 459 16 F. Supp. 1020, 1068-69 (W.D. Wash. 1978). Following two rounds of emergency motions practice 17 caused by Lummi’s attempts to expand its treaty fisheries into Region 2E during the 2018 and 18 2019 fishing seasons, Swinomish, the Tulalip Tribes, and the Upper Skagit Indian Tribe 19 (collectively, the Region 2E Tribes) were granted leave to file this subproceeding. 20 V. ARGUMENT 21 22 A. Summary Judgment Standards and Analytical Framework 23 The Court “shall grant summary judgment if the movant shows that there is no genuine 24 25 2 “EH __” refers to Bates stamped pages in the Exhibits to the Declaration of Emily Haley filed with this Motion. 26 No. C70-9213, Subp. 19-1 Office of Tribal Attorney SITC MOTION FOR SUMMARY JUDGMENT SWINOMISH INDIAN TRIBAL COMMUNITY 27 3 11404 Moorage Way LaConner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309 Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 Page 5 of 26 1 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 2 Civ. P. 56(a). Because the dispositive issue in this case is whether Judge Boldt intended to include 3 Region 2E in Lummi’s U&A in light of the record before him and there is no dispute regarding 4 the record, summary judgment is appropriate. 5 In the Muckleshoot trilogy of cases, the Ninth Circuit developed a two-step analytical 6 7 framework for interpreting Judge Boldt’s U&A findings in 25(a)(1) proceedings. First, the Court 8 must consider whether the language of the U&A finding is ambiguous by considering the language 9 of the finding itself and any evidence that indicates the contemporary understanding of its meaning. 10 Second, if it is, the Court must resolve the ambiguity by determining Judge Boldt’s intended 11 meaning. See, e.g., Muckleshoot I, 141 F.3d at 1358-60; Muckleshoot Indian Tribe v. Lummi 12 Indian Nation, 234 F.3d 1099, 1100-1101 (9th Cir. 2000) (Muckleshoot II); United States v. 13 Muckleshoot Indian Tribe, 235 F.3d 429, 433 (9th Cir. 2000) (Muckleshoot III). The best evidence 14 15 of Judge Boldt’s intent is the specific evidence he cited. Id. at 434. 16 In a 25(a)(1) proceeding, it is the moving party’s burden to demonstrate that Judge Boldt’s 17 U&A finding is ambiguous or that Judge Boldt intended something other than its apparent 18 meaning. If it is, the moving party must show that there was no evidence before Judge Boldt to 19 support a conclusion that he intended to include the disputed waters. See Upper Skagit Indian Tribe 20 v. Washington, 590 F.3d 1020, 1023 (9th Cir. 2010). While the Court on summary judgment 21 22 motions should normally draw all inferences supported by the evidence in favor of the non-moving 23 party, in a 25(a)(1) proceeding the Court “may resolve conflicting inferences and evaluate the 24 evidence to determine Judge Boldt’s intent.” Id.